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The CDA on trial

The judges seem to be getting the hang of the cyberculture and terminology.

    The judges seem to be getting the hang of the cyberculture and terminology.

    That at least was the prognosis of opponents of the Communications Decency Act, as the second day of testimony in the ACLU vs. Reno trial came to a halt on Friday.

    "I think as the case proceeds, the judges appear to be more comfortable with the technical terms and the nature of the Internet," said David Sobel, legal counsel for the Electronic Privacy Information Center, one of the organizations working with the American Civil Liberties Union (ACLU). "They asked witnesses questions like: What is a unique domain? What happens when you click on a link? How does a Web page work? The chief judge was even using a lap top for notes," he said.

    Scott O. Bradner, a senior technical consultant at Harvard University took the stand on Thursday and Friday to explain the technical jargon of the Net. Professor Donna Hoffman from Vanderbilt University and Robert Cronenberger, director of the Carnegie Library of Pittsburgh also testified on Friday.

    Hoffman focused her discussion on how big the Internet is, how fast it's growing, and how to control it, according to Daniel Weitzner, deputy director of the Center for Democracy and Technology. "She really stressed the fact that the only affective way to control material on the Internet if parents want to keep it from their kids is to do it at the user end," said Weitzner. Hoffman also told the court that pornography and sexually explicit material is only a small fraction of what is on the Internet.

    Cronenberger used his testimony to stress the analogies between the Internet and a library. He cited an example of how the law would impact Carnegie Library. "He [Cronenberger] testified that it would literally cost millions of dollars for them [Carnegie Library] to go through their online card catalog that is available on the Web and somehow pick out the ones that are indecent from the ones that aren't even if they he knew what indecent meant," said Weitzner.

    The judges not only agreed with Cronenberger's example but elaborated on it. "The judges actually suggested an analogy to a library that you could walk in to a public library today whether you're over 18 or under 18 and no one asks to see your ID at the door. I think that they understood that in fact, this statute would require that on the Web people would have to prove their age and it was established that there's no clear way to do that today," said Weitzner.

    Each witness was questioned by the lawyers and the judges. Each witness also submitted affidavits according to procedure laid out by the judges and were cross-examined by the government. "The government was trying to expose holes in what our witnesses said in writing," said Weitzner.

    The court will rest during the week and will continue for the final day of testimony on Monday April 1 with testimony from key witness Howard Rheingold, journalist and author on emerging technologies, and Bill Burrington, director of law and public policy for America Online. Burrington is expected to explain the negative impact the law could have on AOL and the options that parents have to restrict access to material they deem inappropriate.

    The government is scheduled to present its witnesses on April 12 and 15 (rescheduled from April 11 and 12). The trial will close on April 26.

    The judges will issue a ruling after the government presents its witnesses in April. Considering how quickly the trial opened after the enactment of the law, Sobel expects a decision by late spring, after which either side may seek an appeal to the U.S. Supreme Court.

    The ACLU case was filed only five minutes after President Clinton signed the Telecommunications Act on February 8. Section 507 of the law, known as the Communications Decency Act, specifically outlaws the transmission of material "patently offensive" to minors. Violators face up to two years in prison and $250,000 in fines.

    The ACLU says that under the CDA, images from the movie Schindler's List, depictions of works by Picasso, and yellow-page listings that provide information about abortion clinics might all be deemed illegal.

    The ACLU is also representing the Citizens Internet Empowerment Coalition, which includes the American Library Association, America Online, and the Center for Democracy and Technology, Microsoft, and CompuServe. The coalition had filed a second suit against the CDA on February 26, but that case has been formally consolidated with the ACLU suit.

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