CDA Hearing -- Day 5 (April 15)

by Mark Mangan

During Olsen's testimony Judge Dalzell wanted to know the extent of his -L18 rating system. He posed the hypothetical of a chat group devoted to discussion of the CDA: "Suppose an 18 year old student in exasperation types 'fuck the CDA.' Should he tag this?" Olsen mumbled affirmatively; Judge Sloviter perked up, "I'm sorry what was your answer?"

"Yes," said Olsen into the microphone.

The doctor of computer science from Brigham Young and crafter of the new -L18 tagging scheme began his testimony with some light questioning from the DoJ. The government elicited that PICS is, in his opinion, far too complicated and limited only to Web pages.

He argued that PICS is unrealistic in its support of a 3rd party labelling system, since some entity would have to seek out and find all of the sites. And since the Internet is doubling every few months, he added, this is a significant and expensive challenge. -L18, on the other hand can more quickly blanket the Net with tags, as it relies on the cooperation of content providers.

He described how a consensus for the tag could develop: formally through a standards organization, informally through newsgroup discussions, or institutionalized through the market-dominance of a company like Netscape.

Judge Dalzell then asked Olsen about foreign Web sites, which he'd heard offer 40% of the porn on the Net. Olsen responded that the U.S. could possibly set the standard for others to follow, then gave his stock answer from Friday, "I haven't considered it." When the judge continued to press the question, Olsen said that if we can block 60%, companies with -L18, Surfwatch can concentrate on the remaining 40%.

The DoJ responded ACLU lawyer Chris Hansen's scenario from the previous day of testimony: suppose the law is found constitutional and at 6:00 the EFF is faced with tagging its entire site by 6:15. Using statistics of giving 15 seconds of judgement per page, Olsen said it would take only about 2 weeks to rate all 14,000 pages. Baron then asked if his rating system would have an adverse affect on the growth of the Net. "Absolutely not," he answered.

Then Bruce Ennis of the ALA came back for a little recross, again pointing out that the single tag is general and arbitrary . He elicited that under the -L18 system there must be an act of human judgement. Under the PICS system, on the other hand, it is possible to abstain. Olsen shot back, "yes, if you want to balkanize the Internet for minors and make it into a kids ghetto."

Ennis is tall and thin, has curly grey hair, rounded glasses and always a sharp suit and tie. He was well prepared, well composed, and came at Olsen with a controlled, but unbending line of questioning. It was interesting to watch him exchange words with the equally intelligent doctor, who was hunched on his elbows, trying to battle logic with the merits of a half-baked scheme.

Ennis raised the distinction between content providers and creators. He posed the hypothetical that he runs an online library which puts up 2,500 magazines per month. What should he do about the Vanity Fair issue with a semi-nude picture of Demi Moore?

Olsen's replied that he should, "just tag it."

Stressing that there are over 2,000 magazines and he is not the creator of the content, Ennis asked if he would have to run a keyword search for the seven dirty words and look at every citation in context?

At this point Dalzell jumped in for a question: "Suppose one issue of the Economist uses the word 'fuck.' Would you have to block the entire issue?"

Olsen's response: "someone would have to make that judgement."

Ennis then pointed out to Olsen that his system requires people to comply all the way down the information pipeline. Under the CDA only content providers are liable for "indecency," but -L18 goes farther. He then reminded Olsen of earlier testimony in which he had talked about "statistical assurace" and the fact that people cannot be absolutely sure of the effectiveness of any given system in any given instance. But under something like -L18, as Olsen had argued, you can count on 90% statistical assurance.

Ennis rounded up the facts and continued with his hypothetical: everyone up and down the chain is potentially responsible and as a provider he can only count on 90% statistical assurance of blocking indecency, which means that 10% of minors can get it. He then asked, "Should I be worried?"

He finished by hitting again on the non-consideration' of foreign sites and the problem of both willfull and inadvertant lack of tagging. "Under PICS, none of this speech will make it to minors." Olsen conceded the point and again admitted that if the creators do not make a good effort, then parents must rely on something like Surfwatch to supplement -L18.

Dalzell stepped up with his question about a student posting "fuck the CDA," then returned to an interesting issue that he had raised in earlier days of testimony: the Internet, particularly the Web, has evolved almost entirely without government intervention. He questioned whether a tagging scheme like this would harm the evolution of a self-sufficient medium.

Olsen responded that the CDA had established a goal, not standards.

Dalzell then asked Olsen to suppose that the Supreme Court, upon reviewing the case came to the conclusion--"like on the road to Damascus"-- that the -L18 scheme is "the answer." It would be named a safe harbor and everyone would have to tag his/her site or face legal consequences. It would then become a legally enforced standard.

Dalzell was acutely aware that the Internet is all about people communicating without any government intervention. Now the U.S. Government's intentions to step in and impose standards, backed by fines and jail sentences, could fundamentally alter it. Olsen didn't have much to say to that.

Judge Sloviter then asked Olsen about the broad stroke of the -L18 tag, which doesn't give parents any clue as to what is being blocked, implying that there is more objectionable material than just sex. Olsen responded that he was simply responding to the call of the CDA to respond to sexually explicit material and in that respect, he was happy with PICS.

"So what's wrong with PICS? Why go research and develop a new system?" asked Sloviter.

Olsen said there where two reasons. His first was a complicated point about not being able to embed a tag within graphic files. His second reason and number one complaint had to do with the labelling bureau and the problems of building a database with an exponentially growing Net. By forcing the browser to check with a remote database to verify each site, the entire process of surfing would be slowed down. "Instead of over and back," he demonstrated by moving his hands, "I have two of those," he waved up and back, up and back. "It inhibits the flow."

"Yes, but as opposed to blocking the whole thing, that is a balance that you might accept," said Sloviter.

Sloviter then returned to the Demi Moore situation, as raised again by Ennis. "At the essence of your proposal, you have the blocking and screening of material that is not offensive to anyone."

She then asked, "can you think of any time in history where we have blocked information in advance?"

"Yes, every editor does this everyday."

Sloviter was suggesting that this tagging system created "prior restraint"-- something which has virtually never been enforced. Even if someone is going to print libel, the government can not step in and prosecute or suppress until it is printed. The -L18 system attempts to find a safe harbor for "indecent" material (such as inocuous, semi-clad pictures of a pregnant Demi Moore) from a law that would ban it from being printed altogether--for adults and minors alike.

Judge Dalzell then stepped back and asked about the -L18 system, which Olsen admitted had been cooked up in the last two weeks. PICS, he elicited, was more than a theory, was being adopted as they spoke, and would be up and running in 3-6 months.

There was a little more questioning by Chris Hansen and Jason Baron, in which the former established that all messages in newsgroups need to be decent or tagged otherwise and the latter that the economic costs associated with -L18 are nominal.

The courtroom was strangely empty on the final day and the last moments were somewhat anticlimactic. The ACLU wanted certain exhibits stricken from evidence. The three judges turned off the microphone and huddled up for a little chit-chat on the admission of evidence. It was 12 noon and Sloviter was clearly not in the mood to bicker over evidence until 5. The entire hearing had moved along relatively quickly and she anticipated a final stall. Sloviter conceded that there were a few items that may be irrelevant, but she was going to keep everything that was proffered--somewhere in the record.

Sloviter asked them to draw up the places where they differ and they would hammer out any differences afterwards. Dalzell suggested that they even write up a second brief concerning evidence, and that was that. Both sides agreed and we stood up as the judges stepped down and walked out the back.

Olsen was a competent speaker and the judges were impressed with his knowledge; but the robed honors seemed to understand and point out the fundamental problems with -L18.

The judges watched as the DoJ asked him if -L18 would have an adverse affect on the Net. Absolutely, Judge Dalzell seemed to understand. He realized that the Net has flourished largely because of the lack of government involvement. If the most powerful nation on the earth tries to impose moral code on the organic, global network, cutting through all content and polarizing it into decent and indecent, the evolution will be skewed.

The judges' questioning revealed that they were aware that the -L18 proposal is a simplistic approach to speech that does not account for varying content or the global nature of the Net, and may amount to prior restraint.

If the -L18 tag is adopted and a formal standards organization (i.e. US gov't) is responsible for defining the tag, I hope that it provides us with clear guidelines that we can stick to our computer--like the orange "How to Save a Choking Victim" sign in restaurants. To avoid jail and fines, add -L18 to all posts including 'fuck the CDA,' any of the other 7 dirty words, or any filthy pictures like this one ...

On May 10, the players reconvene for final arguments to the judges about the constitutionality of the CDA.

The CDA pages
[Day 1] [Day 2] [Day 3] [Day 4]

Mark Mangan
co-author, Sex, Laws and Cyberspace