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Judge spars with DOJ over CompuServe

CompuServe is caught in the middle of a confusing dispute involving a federal judge, the Justice Department, and the FBI. The only thing that's clear is everybody is mad.

It all started when a judge in Philadelphia got mad at the Justice Department for breaking a promise. The department had agreed not to conduct an investigation of CompuServe, the judge said, but it went ahead and did it. Then the department told the court that the investigation never took place. But the judge told the federal attorneys to back off anyway.

Confused? Imagine how CompuServe feels. It learned that it was the subject of the mystery investigation only after reading about it in the local papers. And the online service--which is reportedly accused of providing "possibly obscene" material to subscribers--still doesn't know exactly what happened.

The somewhat baffling episode began last week when an apparently incensed Judge Stewart Dalzell, a member of the special three-judge panel hearing the current challenge to the Communications Decency Act, reprimanded Justice Department attorneys after The Columbus Dispatch reported that the FBI was investigating whether CompuServe had violated the law governing Internet content.

Such an investigation would have apparently breached an agreement by federal authorities to abstain from pursuing alleged CDA violations until the legal challenge, led by the American Civil Liberties Union and several other parties, was over.

"In a First Amendment setting, this chilling effect of a prosecution is something we need to consider," Dalzell said of the FBI's actions, citing potential harm to services afraid to do business.

The Justice Department, however, said it never opened a formal investigation of the CompuServe case--only a "review," according to an FBI agent in Columbus, Ohio, where the company is based.

"A review is a preliminary look at the facts, where a full investigation is where you go through documents and devote a lot of people's power," the agent explained patiently to a CNET reporter. "No investigation was done on our part. A review was done."

But others say the federal authorities are just playing games with words, contending that the spirit of the agreement not to investigate was broken.

"CompuServe was the subject of the review which the judge did not appreciate. The judge blew away that little supposed fiction that there's a difference between a review and an investigation," said Dave Banisar, a policy analyst for the Electronic Privacy Information Center, one of the many civil rights groups challenging the CDA. "They had this right-wing group pushing them to do it, and it's an election year."

That "right-wing group," the American Family Association, did indeed press for an investigation--and will continue to do so "because pornography is available to children on CompuServe," according to Patrick Trueman, the group's director of governmental affairs.

"This is an ignorant federal judge so typical of pornography-related cases who know nothing and don't want to learn anything," said Trueman, himself a former Justice Department official. "Investigation is a technical term. This is an outrage that it doesn't merit them to look at it."

At issue is "possibly obscene" material that Trueman cited in a CompuServe site called MacGlamour, an adult forum that offers color photos of nude women. While the pictures were sexually explicit, Dalzell determined that the women were "almost certainly not minors" and therefore did not constitute child pornography, which would be legally defined as obscene. The distinction is important because material deemed obscene is not protected by the Constitution, while matter considered indecent is.

So on Wednesday, the judge handed down a seven-page order prohibiting the government from investigating online publishers unless child pornography or obscenity is suspected--even though the Justice Department and the FBI say no such investigation had ever been undertaken.

As for CompuServe, it just wishes the whole thing would just go away. "This story was manufactured by the AFA," said Russ Robinson, manager of communications for the second-largest online service. "There is no investigation; there never was an investigation."

He said the company did finally hear from federal agents directly this week, for the first time since the controversy began--"to tell us there was no investigation."

Stay tuned.

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