Computer underground Digest Wed Jun 5, 1996 Volume 8 : Issue 42 ISSN 1004-042X Editor: Jim Thomas (cudigest@sun.soci.niu.edu) News Editor: Gordon Meyer (gmeyer@sun.soci.niu.edu) Archivist: Brendan Kehoe Shadow Master: Stanton McCandlish Field Agent Extraordinaire: David Smith Shadow-Archivists: Dan Carosone / Paul Southworth Ralph Sims / Jyrki Kuoppala Ian Dickinson Cu Digest Homepage: http://www.soci.niu.edu/~cudigest CONTENTS, #8.42 (Wed, Jun 5, 1996) File 1--(fwd) "Vertical Spamming" by the CoS action alert File 2--Sun Microsystems sues for JAVA domain names File 3--defamation threat by UWA File 4--FW: American Reporter v. Reno File 5--Cu Digest Header Info (unchanged since 7 Apr, 1996) CuD ADMINISTRATIVE, EDITORIAL, AND SUBSCRIPTION INFORMATION ApPEARS IN THE CONCLUDING FILE AT THE END OF EACH ISSUE. --------------------------------------------------------------------- Date: Sun, 2 Jun 1996 13:46:58 -0500 (CDT) From: David Smith Subject: File 1--(fwd) "Vertical Spamming" by the CoS action alert ---------- Forwarded message ---------- From--noring@netcom.com (Jon Noring) Date--Tue, 28 May 1996 06:30:39 GMT This post is to outline what I see as a major crisis now occuring on Usenet. The crisis is a massive, ongoing, vertical spamming (*) of a Usenet newsgroup never before seen at this scale, and its purpose is to completely drown out regular discussion on a newsgroup of public interest, alt.religion.scientology. The evidence points to the "Church" of Scientology as being behind this massive, incessant, carpet bombing. (* Vertical Spamming, for those who don't know, is when somebody posts a huge number of posts to a single newsgroup in a very short period of time. It's purpose is usually to shut the newsgroup down by making it useless to carry on any meaningful discussion.) In the next few sections I'll outline what's currently happening and provide the evidence -- you make up your own mind who is behind the assault on the newsgroup, and its importance to you. No matter who is really behind it, it is a crisis that needs to be dealt with by everybody in the Usenet community because it concerns the important matter of freedom of expression. If we fail to understand the spam's long-term ramifications and fail to take the appropriate action, we seriously risk losing our freedom to express our thoughts and beliefs on Usenet. After all, if the massive spam succeeds to shut down one newsgroup in order to stifle critical discussion, then it will set a dangerous precedent and embolden other organizations and groups that likewise cannot tolerate open discussion to follow in the same path. We must prevent this. We must draw the line clearly in the sand -- now! And after reading this, if you agree with my assessment of who is behind the spamming, and see the threat it poses to freedom of expression, one thing you can do right now is to sign (via e-mail) a statement of protest directed towards the "Church" of Scientology. It is a very easy yet effective way to express your opinion. Details for submitting your signature are given at the end of this post. NOTE: I will NOT publicly release, nor send to the "Church" of Scientology, the names or e-mail addresses of those who sign, just tally the total count, verifed by an independent third party, probably someone in the news media. Please do consider signing the statement and ask others to do the same. I'd like to get 10,000 sigs, but 1000 would send a clear message to the "Church" of Scientology organization that their actions towards Usenet and the Internet are totally unacceptable to the Usenet community, and pose a serious threat to freedom of expression on the Internet. (Note that many of the participants of a.r.s. are former Scientologists who still want to practice the *religion* of Scientology, but free from the iron control of the current "Church" of Scientology organization -- thus one could strongly argue that their freedom of religion is also being hampered by the spam attack, so the issues go beyond freedom of expression.) And do forward this post to anybody who may be interested, including the news media. One of the best solutions to this crisis is media attention. THE SITUATION (as of 27 May 1996) ================================= In the last week, there have been several thousand (and rapidly approaching 10,000!) short posts swamping the newsgroup alt.religion.scientology (a.r.s.) by a person or persons unknown. They are coming from several accounts, most of them forged or bogus, and when the account is closed by its site administrator based on complaints, the flood begins anew elsewhere. In at least one instance a mail-to-news gateway has been used, necessitating the administrator to close all posting to a.r.s. That one gateway has received, last we heard, 886 attempted posts by the spammer within a 28 hour period (which fortunately never reached their intended destination -- but thousands of others have.) And at this moment, while you read this post, the spam continues unabated from new accounts. Almost a thousand of the same type of post have been made to a.r.s. within the last 24 hours. There is no indication it will stop, and has actually stepped up the last two days as the spam is now coming from multiple sources. THE EVIDENCE WHO MAY BE BEHIND THE ROBO-SPAMMING ================================================ It is unknown the person or persons who are behind this. However, the evidence strongly points to the "Church" of Scientology (CoS) as the culprit. Here is the evidence: 1) All the posts are supportive of Scientology, and each one is a short snippet taken from their copyrighted book "What is Scientology", which has also been placed on their Web site. 2) They all use a similar "boiler-plate" format, including a similar preamble: "Many falsehoods and inaccurate statements regarding several aspects of the religion of Scientology have been observed on ars..." 3) The use of semi-anonymous "throw-away" accounts somewhat follows the same pattern used recently to cancel posts containing portions of CoS' "secret" scriptures, and which used the boiler-plate statement "Cancelled due to copyright infringement" as the justification for the clearly illegal cancels. 4) Most of the materials being spammed have a prominent CoS copyright notice. Since CoS has shown by their actions within the last year to be very sensitive to unauthorized recopying of their materials, their silence on what is now happening is clear tacit approval of the massive spamming now taking place. In essence, by their inaction to do or say anything to stop the spam, they are thus tacitly *authorizing* the spam attack, whether they instigated it or not (though I believe they did). 5) In the last 1.5 years, internal documents from CoS have been revealed detailing such a plan to overwhelm the newsgroup alt.religion.scientology with their own posts. CoS has not disavowed or refuted these documents. They are in the file 'spamplan.txt', which can be downloaded via anonymous ftp from ftp.netcom.com /pub/no/noring/spamplan.txt, or in URL form: ftp://ftp.netcom.com/pub/no/noring/spamplan.txt 6) A recent post, supposedly based on intelligence information from inside CoS, but so far unverified, stated that the spam is part of a Scientology program to so overwhelm the newsgroup 'alt.religion.scientology' with 'theta' (their term for 'safe' ideas) that it would be safe to allow loyal rank-and-file Scientologists to begin accessing the Internet, particulary their new Web site (up to now they've not been allowed to access the Internet because of the 'entheta', their term for 'unsafe' ideas.) Even if this turns out not to be one of the reasons for the spam attack, it is entirely plausible based on assessment by those who are knowledgeable with how the CoS organization thinks and operates. THE RAMIFICATIONS TO USENET IF THIS CONTINUES UNSTOPPED ======================================================= Already, discussion on a.r.s. has been affected, and if it continues without adjustment by the Usenet community, will seriously hamper the free exchange of ideas and viewpoints on that newsgroup. The ramifications of this to all of Usenet as a whole is clear: if the spammers get away with this, then what will prevent other organizations from anonymously using the same tactic to squelch unfavorable discussion on other unmoderated newsgroups? Thus, the Usenet community needs to be aware that the spam attack has grave ramifications to freedom of expression to Usenet above and beyond just the Scientology newsgroup. It should be considered as serious a threat to free expression as the Exon CDA. And in some ways it is even worse since it will also affect the integrity and viability of Usenet itself. It is very important that we get concerned and fight it any way we can. Get involved, even if you're a lurker or a new person on Usenet! WHAT CAN BE DONE? ================= There are several things that can be done to handle the crisis. Some of them are now being employed by concerned net citizens who are in a position to do so. However, for the reasons I'll give, they are not adequate enough, which makes this, in my opinion, a crisis. If you have other ideas for how to deal with this, do post them. Let's keep discussion level-headed and avoid silly ad hominem attacks and the like. This is a serious situation. The following are listed in no particular order of importance. Consider it a partial list only. 1) IGNORE THE SPAM -- With most newsreaders, this is simply not a solution. When there are 1000 spam posts in 24 hours, like we saw today, the reader simply has trouble locating the discussion threads, no matter how sophisticated the newsreader. And if the reader doesn't locate the legitimate discussion, they will not contribute to any discussion, and poof, no more discussion. New subscribers to a.r.s., most of whom want to get all sides of the issue, won't even participate when they see the huge numbers of single-sided robo-posts with no discussion. And for those who must download all the posts before reading them (or even kill-filing them), the spam will most likely force the user to unsubscribe from and no longer participate in the newsgroup. Freedom of Expression has thus been curtailed because of the massive spam. 2) KILL FILES -- The usual reply to a problem like this is "kill files". However, it is clear that kill files will not work to prevent grave impact on the newsgroup because: a) Many users today don't even have kill file capability (unix-based newsreaders are rapidly being pushed into the minority), and for those who do, only a fraction of them have the computer savvy necessary to implement it. And for those who pay for their news one way or another, it becomes expensive for the kill file to do its thing (this is especially onerous for those who have to actually download all the posts, several megabytes per day, through their modem *before* they can even "kill file" them). b) Kill files work by finding posts having certain identifiable attributes in the header or message body, such as the From: address -- but as the spam on a.r.s. shows, we've got a moving target that will resist kill files. Any organization with enough money can keep getting throw-away accounts that cannot be traced to the organization. They can also alter the wording to foil kill-files searching for words in the message body. Thus, those using kill files will continually see unwanted SPAM getting through their filters, requiring constant modification of their kill files, which means their kill files will get so unwieldy that they take longer to work effectively. The end result is that it may cause many to simply give up on the newsgroup rather than trying to fight the onslaught using kill files. It's like using a spray bottle to fight a raging forest fire. And don't forget the new people in the future who will visit the newsgroup. Unless they are unusually motivated or knowledgeable, they will judge the newsgroup's purpose based on the content of the spam and not the real discussion. Thus kill files won't even be considered by them since from their reckoning the newsgroup's purpose has already been decided (and their kill files will be empty to start out!) Only those already established on the newsgroup will consider using kill files. Thus, those who flippantly believe that kill files are adequate to solve the problem are being short-sighted and even selfish, and not considering the effect on new subscribers to the newsgroup. Free expression is destroyed when new subscribers turn away because of the spam. 3) MODERATION -- There are many who believe that a solution to a lot of problems on Usenet is to require all newsgroups to be moderated. The arguments for this are many, but few realize that moderation can have a profound stifling of free expression for certain subjects. It also puts the burden on moderators, who are now vulnerable to attack, and any organization which does not like discussion on a certain moderated newsgroup can put pressure on the moderator. This, of course, would be a threat to the free expression we now enjoy on Usenet. And it would take a while for moderation to be implemented even if the Usenet community decides now that it should be done. 4) HUNT DOWN THE SPAMMERS -- This is being done, and should continue to be done to make life miserable for the spammers, but at the bottom line it so far has not reduced, and certainly not eliminated, the spamming. The reason for this is that the spammers seem to have a virtually unlimited supply of new accounts. They are probably now acquiring new accounts as fast as they are being pulled. There is no reason why this can't go on for months or even indefinitely. 5) CANCEL THE SPAM POSTS -- This certainly should and is now being done. However, because we have a moving target, and thousands of posts, issuing cancels is not a trivial exercise. In addition, many sites don't honor cancels. And, finally, the spammer can simply overcome the cancels by continuing to repost over and over again as fast as the canceler can do its thing. The delay time between the arriving of a spam post and the effect of cancel will guarantee enough posts will hang around to clog up the newsgroup and render it nearly useless for discussion. 6) LAW-ENFORCEMENT/LEGAL ACTION -- This spamming is clearly a disruption of electronic data communications, and in the U.S. may be a Federal offense (if an organization is behind it, it could also be RICOable or lead to a class action lawsuit). But the DoJ/FBI will not investigate this until enough ISP's themselves request it -- they've shown in prior complaints from individuals to not be very interested in investigating. And legal action cannot be taken until you get the conclusive evidence required to take the spammers to court. Even though we're sure who's behind the spam, it cannot easily be proven in court since you have to first find the real people behind the accounts (which is not easy, especially if they keep moving around -- it'd take the FBI to do this), and then when you find them, to connect them to any organization (this can also be very hard.) CONCLUSION ========== It is my opinion that the massive spamming on a.r.s. is a major threat to Usenet, and the Usenet community needs to be very concerned. The hopefully partial list of solutions I outlined above (do you have more ideas?) may not be adequate to stop the spam and protect a.r.s. from oblivion. However, if we as a cyber community join together as one voice, we may be able to force a resolution in favor of freedom of expression for all. I offer one way in the next section by which you can raise your voice, and it is as easy as sending a blank e-mail message. Of course, I urge you to take other actions as well if you are in a position to do so. Become involved on alt.religion.scientology for starters! There's still good discussion taking place, though you'll have to wade through the huge piles of spam. SIGN (via e-mail) A STATEMENT PROTESTING CoS SPAM! ================================================== If you are now concerned by what's happening, I offer one way by which you can do something to show your concern. I've drafted a short statement protesting CoS spam which you can sign via e-mail if you agree with it. After a month or so, an independent third-party (maybe someone in the news media) will verify my tally of the signatures and the number will be posted, as well as sent to the news media and possibly even law enforcement. Of course, CoS will see the tally of signatures since their intelligence organization continually monitors the Internet. Here's the protest statement: "We, the undersigned, looking at the evidence, have concluded that the Church of Scientology (or one of its many affiliated organizations) is officially behind the massive, highly disruptive and immoral spamming of the newsgroup 'alt.religion.scientology'. It is a serious and grave threat to freedom of expression on the Internet. We therefore call upon the Church of Scientology to immediately cease this action, to publicly disavow it, and to work with the Internet community to prevent this from reoccuring." If you agree with this statement, send e-mail, no later than June 30, 1996, to: ******************************* petition-1@netcom.com ******************************* Before sending a message to the above e-mail address, you MUST read ALL following "fine print". If you don't, your signature may be lost or I simply cannot or will not use it. Also, if you forward this post, please keep all the information (above and below) intact! If you fear retribution for your signature, please read item #8 below -- you have nothing to fear as your signature will be kept confidential. 1) This is NOT a vote. If you don't agree with the above statement, your only recourse is NOT to send e-mail to the above address. Or, to put it another way, sending an e-mail message to the above address, no matter what your views or what you say in the message, is an AUTOMATIC AGREEMENT with the statement. You have been forewarned. 2) Each reply sent to the above e-mail address will be authenticated by an automatic mailing back to you (it will also emphasize point 1 above). This is to prevent forged e-mail addresses being used to try to either inflate the tally or to discredit the signature gathering process. 3) Leave the e-mail message blank -- I won't read what you write anyway. If you have a point to make, it is better you post it to the relevant Usenet newsgroups (and which I highly encourage -- the more public discussion on this matter, the better.) 4) Note that in the signature e-mail address the character after the '-' is a 'one' and not an 'ell'. 5) Your e-mail address will be extracted from the From: lines in the header block of your message. So be careful which account you use. It is recommended you avoid using any government and military accounts -- using your work account may also be unwise depending on your terms of agreement with your employer providing the account. 6) Please only sign once (but do ask your friends to also sign it!) 7) The e-mail address to send your signature "petition-1@netcom.com' is NOT the same as my personal e-mail address. If you do send your agreement to my personal e-mail address it'll probably get lost. If you don't get an automatic reply within a few days of submitting your signature, it may mean your signature got lost. And if you try to sign by simply replying to this post in your newsreader without changing the To: line to the e-mail address "petition-1@netcom.com", your reply will not be sent to the right place! In summary, be very careful which e-mail address you use -- it MUST be 'petition-1@netcom.com' and not any other !!!!! 8) To protect those who do e-mail sign the statement, I will not post the list of e-mail signatures, nor will they be released to CoS nor any other party except the person who will independently verify the tally, who will be sworn to secrecy on the matter (if it is a person in the news media, they will be covered under Press protection). I will keep the signatures triply DES-encrypted on any media I store them on and the encrypted list will also be kept by another person I trust (but who will not have the decryption keys). I will only further reveal the names on the list if I receive a valid court order to do so. The list will not be used for any junk-mail, though I may e-mail those on the list in the future should any *major* event occur related to Scientology activity that has grave and profound ramifications for the Internet, such as this spam attack. --> AND DO ADD A LINK FROM YOUR WEB SITE TO THE SCIENTOLOGY CRITICS PAGES! ========================================================================== There are many great sites on the Web that summarize the many attacks so far on the Internet community by CoS, most of them motivated, in my opinion, by a desire to suppress all discussion critical of them. These sites also talk about Scientology in general which makes for a very sobering "wake up" experience for those not familiar with this controversial organization. The primary Web site describing the attack on the Internet is by Ron Newman: http://www.cybercom.net/~rnewman/scientology/home.html (You can also go to Scientology's official Web site from the above link, so you can read the other side of the issues -- CoS refuses to reciprocate, though.) Also check out these other three Web sites which, in turn, have links to many Web sites which discuss Scientology from many perspectives: http://home.pacific.net.sg/~marina/misc/arshtml.htm (great index) http://www.ncf.carleton.ca/~av282/ http://www.demon.net/castle/x/clam/index.html It is IMPORTANT if you do add a link to one or more of the above sites, or any other Scientology-related site, to inform me when you have done so. That way, at some future time, if the links change in any way, I can quicky contact you with updated information. Our goal is to get at least 10,000 links, and preferably 100,000, world-wide -- please help us -- link to one of the above sites today! FINAL WORDS =========== Hurry, please e-mail your signature to the protest statement right now! And be sure to send it to petition-1@netcom.com, and NOT to my e-mail address as seen in my .sig below! Thank you. Jon Noring -- OmniMedia Electronic Books | URL: http://www.awa.com/library/omnimedia 9671 S. 1600 West St. | Anonymous FTP: South Jordan, UT 84095 | ftp.awa.com /pub/softlock/pc/products/OmniMedia 801-253-4037 | E-mail: omnimedia@netcom.com ------------------------------ Date: Wed, 29 May 1996 20:07:15 -0700 (PDT) From: Declan McCullagh Subject: File 2--Sun Microsystems sues for JAVA domain names [Really wacky stuff. --Declan] ---------- Forwarded message ---------- Date--Tue, 28 May 1996 22:39:11 -0400 From--Robert A. Costner This is a copy of some information I found elsewhere. In a misguided attempt to protect the 'Java' name, Sun microsystems has apparently hired an attorney to send letters to certain businesses. Some people might call this intimidation. Some people might say Sun doesn't have a legal leg to stand on. Some people might even say that Sun is not really to blame, this is just a case of misguided high priced attorneys gone amuck. It seems a Mr. Javan of Memphis Tennesee has a small business that him and his family have run for the past twenty years. Mr. Javan's Company also has a web page under the domain of JAVANCO.COM. Seems they sell capacitors and certain hard to find electronic items. Apparently Sun's attorney is fearful that people will think that some of these components are in fact "object oriented cross-platform programming technologies". (I know that I have friends who can't tell the difference between such software and a capacitor) I called Mr. Gibbons-Shapiro (please do not let his name allow you to confuse him with a certain species of monkey) to get his side of the story. Gibbons-Shapiro indicated to me that he seemed to recall such a letter to Javanco of TN, but needed to get the file and get back to me. Apparently Gibbons-Shapiro is having some trouble locating the file, my phone number, or simply manipulating the buttons on his touch tone phone system. I offer you a copy of the letter for your edification. Letterhead: Fenwick & West LLP A limited liability partnership including professional corporations Two Palo Alto Square Palo Alto, California 94306 Telephone (415)494-0600 Facsimile (415)494-1417 (There are two other addresses listed, one in S.F. and one in Washington, D.C.) May 17, 1996 VIA CERTIFIED MAIL -- RETURN RECEIPT REQUESTED JAVANCO 501 12th Avenue South Nashville, Tennessee 37201 Dear Sirs: This firm represents Sun Microsystems, Inc. ("Sun"), headquartered in California, which provides a wide range of computer hardware and software products, including its new object oriented, cross-platform programming technologies marketed under an extensive family of JAVA-based trademarks and trade names. To date, sun has registered or has filed applications for numerous JAVA-based marks, including: JAVA, HOTJAVA, HOTJAVA COMPATIBLE, JAVA COMPATIBLE, JAVASCRIPT, JAVASTATION, JAVASOFT, JAVACHIP, ULTRAJAVA, PICOJAVA, JAVA- ENGINE, MICROJAVA, JAVAONE, and JAVAWORLD. It has come to Sun's attention that your company is doing business under the name JAVANCO, and has registered the domain name "javanco.com" for use in connection with your World Wide Web site. Each of these uses of the JAVA trademarks is likely to cause confusion with Sun's family of JAVA-based marks. Therefore, we ask that your company promptly cease use of the "javanco.com" domain name and promptly change its name from JAVANCO to a name that does not include any JAVA trademark, adopting instead names that do not use the word "JAVA" or any word or phrase that is confusingly similar to Sun's JAVA family of marks. Please confirm in writing no later than May 31, 1996, that your company will immediately take the requested actions. Sincerely, [signature] James Gibbons-Shapiro cc: Scott Behm, Esq. ------------------------------ Date: 3 Jun 1996 18:25:54 +1000 From: "Brian Martin" Subject: File 3--defamation threat by UWA 3 June 1996 I wish to inform you of an attempt by officials of the University of Western Australia to inhibit access to information that is of public interest. The information in question concerns the denial of tenure to Dr David Rindos. Hugh Jarvis, a supporter of Dr Rindos, set up a web site which includes a large number of documents about the case. Letters of mine giving the address of the web site were published in Campus Review (8-14 May, p. 8) and the Australian (8 May, p. 41). The former letter is appended for your information. On 15 May, I received a letter from the legal firm Freehill Hollingdale and Page acting for UWA. Their letter states that the material on the web site "contains statements which are defamatory of members of our client's [UWA] academic and administrative staff, including the Vice-Chancellor and at least one Professor. By publishing the address of the web site, you have both drawn the attention of others to it and have provided the means by which the defamatory material posted on the site may be viewed. That constitutes a re-publication of the defamation." They stated further that unless I refrained from publishing anything containing the web site address, UWA "will be forced to consider recommending to its staff members that action be taken against you". I understand that similar letters have been sent to the Australian, Campus Review and the ABC. If it is defamatory to refer people to a site that contains allegedly defamatory material, then we are all in trouble. Referring people to a large web site is similar to referring them to a section in the library. We couldn't even recommend that students read the newspaper, since it contains defamatory material. I know of no legal precedent for such an extension of defamation law. If you are concerned about this attempt by UWA officials to inhibit open discussion, you can * send a copy of this message to others who might be interested; * send a copy to relevant groups or publications; * set up a link from your web page to the Rindos web site, and inform Professor Fay Gale, Vice-Chancellor of UWA (vc@acs.uwa.edu.au), of your action. Each of these actions has already been taken by several people. Brian Martin Department of Science and Technology Studies University of Wollongong, NSW 2522, Australia phone: +61-42-287860 (home), +61-42-213763 (work) fax: +61-42-213452 email: b.martin@uow.edu.au http://www.uow.edu.au/arts/sts/bmartin ***************************************** [Reproduced from Campus Review, 8-14 May 1996, p. 8, under the title "Threat to autonomy". It was changed in slight ways from the version submitted.] The West Australian parliament has set up an inquiry into the events surrounding the denial of tenure to Dr David Rindos by the University of WA. It has been reported that the Australian Vice-Chancellors' Committee sees this inquiry to be a threat to autonomy. But sometimes "university autonomy" can be at the expense of other interests. In the numerous cases of whistleblowing and suppression of dissent that I have studied, internal procedures seldom have delivered justice. Universities are little different from other organisations in this regard. When an academic exposes some problem such as favouritism, plagiarism or sexual abuse, it is common for senior academics and administrators to close ranks and squelch open discussion. A more enlightened response would be for the university to put its house in order. If the University of WA had set up a truly independent inquiry, with experts from the outside, the present parliamentary inquiry probably would have been unnecessary. The Senate Select Committee on Unresolved Whistleblower Cases reported in October last year. In relation to higher education, it commented as follows: "The committee heard allegations of destruction of documents, alteration of documents, fabricated complaints concerning work performance and harassment of the individuals concerned. Such allegations raise concerns about the ethical standards within institutions and attitudes to outside review. The committee concedes that there is a need for outside review to be balanced against the autonomy of academic institutions. However, autonomy cannot be allowed to override responsibility to academic staff as well as students." Since a web page has been set up about the Rindos case (http://www.acsu.buffalo.edu/~hjarvis/rindos.html), readers can judge the issue for themselves without relying on the AVCC. Brian Martin Department of Science and Technology Studies University of Wollongong ------------------------------ Date: Tue, 4 Jun 96 21:25:32 PDT From: Jonathan Blumen Subject: File 4--FW: American Reporter v. Reno ---------------Original Message--------------- American Reporter v. Reno -- The Final Arguments The Importance of SLAC Value NEW YORK (June 3)--The dark skies opened up and poured down on the city as the lawyers for the American Reporter v. Reno met for the final arguments in the massive federal courtroom on Pearl Street. Although the proceedings fell flat in the shadow of a high-energy finale in Philadelphia a few weeks prior, this parallel summation had its moments--some enlightening, others interesting, and others comic. There were perhaps twenty or thirty people in the courtroom watching as Randall Boe, the lawyer for the plantiff, battled it out with government attorney William Hoffman. Boe began by stressing that since there are no real ways to comply with the safe harbor defenses, the CDA constiutes a flat ban on speech that is constitutionally protected for adults. He argued that the definition of indecency sweeps far too broadly, including works of merit such as Joyce's Ulysses and Miller's Tropic of Cancer. Judges Cabranes and Cote both asked Boe if he would concede the statue's constitutionality with regards to commercial providers, suggesting that they might decide to uphold just a part of the statute. Boe responded that he didn't know if this was possible, saying that the intentions of the government seemed to be clear--"to eliminate all indecent material from the Net". Boe then pointed out that the government tried to calm fears by saying it would prosecute only those who "intend to shock or offend". This does not offer much consolation, he argued, as artists ply their trade with the explicit intention of shocking or offending--"it is a part of the creative process. That is why," he said "indecency has always been upheld by the First Amendment." Judge Cote said that with regards to the tagging system proposed by Olsen, "the government is asking us to make a leap of faith into the future, by accepting this defense today." Boe responded that most people don't look to the possibilty of being acquitted, but the possibility of prosecution. And with no clear defense that actually works, he argued, there will be a huge chilling effect as people purge their servers. Boe continually hammered home the point that tagging pages today does nothing. He also discussed the problem of judging indecency according to local communnity standards and declared that under this law a national standard will indeed develop--based on the lowest common denominator, the most restrictive community. Hoffman started with an argument that was heard in Philadelphia--the plantiff is overreacting. "The number of items for which the government would prosecute which would cause a constitutional challenge is small." He argued that the context of these items is important. He also addressed Boe's assertion that the government did not have a compelling interest, saying that these indecent materials are easily accessible. "Children can get it. They can be surprised by it." Cabranes was intent on having terms defined. He asked if "patently offensive" meant "indecent"; he wanted to know if "indecent" was the same as "harmful to minors"; he asked if "sexully explicit" was equivalent to "patently offensive." Hoffman danced around with answers that could be translated as "sort of." Boe then got up for his final encore and raised the point that even the expensive, most effective means of determining age--credit card and Adult ID systems--are useless in the huge and largely ignored realms of the Internet such as Usenet and IRC. He then touched upon the fact that pejoratively labelling one's speech may not even be constitutional, reiterated that tagging systems do not even work today, and concluded that there is no way for an average user to avoid prosecution. "The bottom line," he said, "is that it starts as a total ban for indecent communications between adults. Then there are no real defenses provided." Not long after Hoffman started into his final arguments Cabranes stopped him to ask him, "With the possible exception of email, there is no way to be 100% sure that indecent material does not get to people under 18?" Hoffman added something about limited membership email lists, obliquely conceding the point. Cabranes asked directly if the statute minus the defenses was unconstitutional. Hoffman danced around then admitted that "given the current state of technology it would be hard to argue that it's not a total ban." Cabranes followed, "The question is whether the affirmative defenses can save the statute". Hoffman answered with something about the Supreme Court's decisions concerning telephones and how this was "not unprecedented". Hoffman's argument was periodically distracted by a small, distincive click, echoing throughout the massive hall. On the back bench by the doors sat a large, bearded guard, slowly, deliberately trimming his nails. He clipped away and Chris Hansen, lawyer for the ACLU, finally turned his head and increduously whispered, "is he clipping his fingers or his toes?" Hoffman was not distracted, but talked about the government being compelled to action... *click* ... The guard was looking down into his hands, oblivious to the important and high-minded arguments in front of him. And then Hoffman was finished. In his deep, raspy voice Cabranes then called Fred Cherry, who had attended every day of the hearings in hopes of consolidating his case. The chief judge looked at a paper and pronounced Cherry's name again. Someone leaned over the seats and tapped Cherry. He awoke, arose, gathered his plastic bags and umbrella and, wearing his overcoat, approached the bench. He walked straight to the microphone and rested his belongings at his feet. Cherry started his hurried talk about how he "despised the ACLU" and what he was there to discuss "goes all the way back 30 years." He cited "rule 54 B--'B'as in 'Benjamin'". Cabranes finally interrupted to determine that Cherry did in fact want to consolidate his case. Both parties agreed and that was that. "Can I give a little evidence here?" Cherry asked. He came prepared, with lots of arguments and stacks of evidence. "Not a little evidence," Cabranes responded. "Just a few comments." Cherry offered a document into the record then referred to an email message that was presented on the first day of testimony that involved his comments. It was pulled from the "alt.christnet" newsgroup and said something about "fags" and "jesus". Cherry wanted to set the record straight and said he was going way back, back to an early message posted by another that was titled, "What Size Is Christ". He then lauched into a story about Christ, appearing 900 feet tall, as compared to another one which was supposedly 500 feet tall. The nail clipping had disappeared and all that could be heard was a strange, involved fiction, transparently suggesting Christ's penis size and lewd acts of fellatio with the Lord and Orel Roberts. Some were shaking with laughter; one lawyer at the plantiff's table turned his chair and removed his glasses, wiping tears from his eyes. Fred Cherry, the "connoi-ssewer of porn", summed up his evidence and thanked the judges for the time to speak. It was not clear whether Cherry intended to shock or offend. All at once, it seemed all too apparent that it didn't matter--such speech would be found indecent under the CDA, even though it does have serious literary, artistic, or comedic value. Mark Mangan markm@bway.net co-author, Sex, Laws, and Cyberspace (Henry Holt, 1996) http://www.spectacle.org/freespch ------------------------------ Date: Thu, 21 Mar 1996 22:51:01 CST From: CuD Moderators Subject: File 5--Cu Digest Header Info (unchanged since 7 Apr, 1996) Cu-Digest is a weekly electronic journal/newsletter. Subscriptions are available at no cost electronically. 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