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CDA technology takes stand

In their effort to prove that the law is infeasible, challengers are focusing on technology that allows individual content control.

While most of the headlines about the Communications Decency Act case have focused on lofty debates over the First Amendment, opponents to

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the federal law are focusing much of their strategy on a more practical question: Can it be enforced, realistically?

In many ways, according to several groups challenging the law, the answer to that question lies less in law books and more in technology.

"Because of the global nature of the Internet, the CDA cannot and will not prevent minors from getting access to indecent material," states a brief filed by the American Library Association, which is leading a group known as the Citizen's Internet Empowerment Coalition. "But parents can prevent access by their children. The vast majority of American families connected to the Internet subscribe to major online service providers which enable parents to block or screen selectively their children's access. Other filtering software is also available."

The ALA coalition, backed by industry heavyweights on the scale of Microsoft and America Online, is spearheading that attack on the law in conjunction with its main partner in the challenge, the American Civil Liberties Union. The deceptively mundane software issue has become so important, sources say, that rifts have opened within the CDA opposition camp over where the arguments should focus.

But even if such differences persist, the ACLU and the ALA coalition say they will not surface in the short 30 minutes they have before the justices today. In representing a wide swath of constitutional watchdogs, online industry leaders, libraries, publishers, and Net users, the challengers will simply argue that Congress passed a law that blatantly and unjustifiably banned free speech on the Internet.

Represented today by veteran civil-rights attorney Bruce Ennis, Netizens are asking the nation's highest court to shoot down the law, which made it a felony to knowingly send or show minors "indecent" material over the Internet. His coalition is challenging the government's appeal of a federal court decision in Philadelphia last June, which said the law was unconstitutional. The CDA threatened violators with up to two years in prison and a $250,000 fine if found guilty.

The government has a right to protect children, but it can't egregiously violate free speech under the First Amendment in the process, CDA opponents assert. The ACLU argues that the CDA's definition of "indecency" is overbroad and vague, making it illegal for adults to publish Web sites, talk in chat rooms, post messages in Usenet use groups, or send email to a list serve, about such topics as homosexual rights, rape, safe sex, sexual mutilation, gender confusion, and other controversial issues.

"Because there is no way for the vast majority of Internet speakers to distinguish between adults and minors in their audience, the CDA is the most restrictive censorship scheme imposed on any medium," the ACLU's court brief states. "As the lower court found, the vast majority of Internet users can only comply with the CDA by self-censoring their speech to a level deemed acceptable for minors."

The ACLU and ALA filed separate cases in Philadelphia against the Justice Department to block enforcement of the law, but the lawsuits were consolidated by the court--often to the dismay of both as they have emphasized different legal arguments. As a result, the organizations have continued to file their own briefs throughout the appeal to the Supreme Court.

Ennis, who argued on behalf of the ALA in the lower court, was armed with more than 120 pages of arguments against the CDA when he began his oral arguments today. His task is to convince the court that government has failed to prove that CDA is an effective and constitutional way to protect minors from smut on the Net, arguing in favor of individually controlled filtering mechanisms over government regulation.

"This is a new medium that deserves the full protection of the First Amendment to the equivalent of print," said Jerry Berman, executive director of the Center for Democracy and Technology, a member of the ALA coalition. "The Internet is decentralized, global, and has no gatekeepers and therefore it is the most democratized medium. The government can't police the world."

But the issue of technology could harm the ALA coalition's case as much as help it. Concern has been raised about the relative lack of understanding among the justices about the Internet and how it works.

Justice David H. Souter himself voiced such caution in an opinion last June when the court rejected part of a federal statute involving objectionable programming on cable networks. That ruling is expected to play an important role in the CDA deliberations.

"In my own ignorance, I have to accept the real possibility that if we had to decide today just what the First Amendment should mean in cyberspace we would get it fundamentally wrong," wrote Souter, who is the only justice who does not have a computer in his office.

The court is not expected to rule on the CDA case until summer. Regardless of that decision, opponents worry that a new generation of laws aimed at restricting Internet content will be created.

"We expect a son or daughter of the CDA once the court has decided," Berman said. "The Internet is not a mass medium, and it's still quite easy to pick on. It is very clear that Congress is not going to let this alone."