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ACLU: censorship, crypto, medical privacy, etc
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CYBER-LIBERTIES UPDATE April 7, 1998
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PROTECT FREE SPEECH
TAKE ACTION NOW!
Follow this URL to send a letter to Congress
telling them to 'VOTE NO' to net censorship.
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IN THIS ISSUE OF CYBER-LIBERTIES UPDATE:- Congress May Soon Vote on Spawn of CDA Censorship Bills- House Democrats Criticize Clinton Position on Encryption- ACLU Round-Up of State Net Legislation Online- Court Strikes Down Law on Simulated Child Porn Images- Medical Records Proposal Puts Privacy at Risk- Judge Says School May Not Suspend Student Because of Webpage- 'Big Brother in the Wires' Challenges FBI Scare Tactics on Crypto- ARE YOU A CARD-CARRYING MEMBER OF THE ACLU?
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ Congress May Soon Vote on Spawn of CDA Censorship Bills
The Senate Commerce Committee recently approved two bills that may soon go to a floor vote that reconstruct the unconstitutional provisions of the 1996 Communications Decency Act and remove power from parents and local communities to decide how to help children use the Internet safely.
The ACLU dubbed the bills "spawn of CDA," saying in a letter to the committee that the proposals fly in the face of the Supreme Court's landmark ruling in ACLU v. Reno and will restrict protected speech on the Internet.
Ignoring these warnings, the Commerce Committee passed Senate Bill 1619, the Internet School Filtering Act, by a unanimous voice vote. The bill, sponsored by Sen. John McCain, R-AZ, requires all public libraries and schools that receive federal funds for Internet access to use blocking software.
The second bill, S. 1482, was sponsored by Senator Dan Coats, R-IN. Dubbed "Son of CDA," its thrust is identical to the ill-fated Communications Decency Act, which was unanimously overturned last year by the United States Supreme Court in Reno v ACLU. The lone dissenter in that voice vote was Sen. Ron Wyden, D-OR, who criticized the "one-size-fits-all Washington approach" to regulating the Internet.
Congress is obviously enjoying the free political ride these bills provide, with little thought for the taxpayers who will ultimately pay the price when the courts strike them down, said Ann Beeson, ACLU Staff Attorney.
In an ACLU letter to the Senate Committee about the Internet Filtering Act, the group said, "blocking software restricts access to valuable, protected online speech about topics including safe sex, AIDS and even web sites posted by religious groups such as the Society of Friends and the Glide United Methodist Church."
The ACLU is also working with 37 organizations that are members of the Internet Free Expression Alliance (IFEA) on efforts to dissuade Congress from passing the laws.
The ACLU and IFEA members continue to emphasize that parents and teachers, not the government, should provide minors with guidance about accessing the Internet.
The Coats bill, which attempts to narrow the CDA's restrictions to speech that is "harmful to minors," is also unconstitutional, the groups said, because such speech is "unquestionably protected by the Constitution when communicated among adults."
The bill would impose criminal penalties on any sites with a commercial component that provide access to "inappropriate material" without requiring age verification. The definition of commercial distributor could include any site from amazon.com to individual home pages that have banner advertisements.
The bill also "fails to make any distinction between material that may be harmful to a six-year-old but valuable for a 16-year-old, such as safer-sex information," the ACLU letter said.
Some Congressional staff members believe the bills may go to a floor vote shortly after Congress' spring recess.
Take action against these bills by sending a message to Congress that
you oppose these bills. You may send a fax in just a few moments by
visiting the "In Congress" section of the ACLU Freedom Network web
page, online at:
More information can also be found online at the Internet Free
Expression Alliance home page, online at
Twelve Democratic members of Congress last week sent a letter to President Clinton telling him that they "strongly support legislation that would substantially reform the Administration's export restrictions on American-made encryption products."
The letter further states that the members are not satisfied with the Administration's decision to attempt to resolve the current impasse on its position on encryption by holding meetings with industry rather than through legislation.
The letter also criticizes the administration's position on encryption requiring strict restrictions on export of encryption programs despite the widespread global availability and the impact of such restrictions on privacy and commerce.
The letter further states:
Two developments in only the last two weeks illustrate the futility in banning encryption's export or use. Network Associates, the nation's largest independent maker of computer security software, has announced that its Dutch subsidiary will sell an international version of its strongest encryption program. In addition, an MIT scientist, Ronald Rivest, has just proposed a new technique for securing computer files and communications, called "chaffing and winnowing," which doesn't involve encryption at all.
The point is that the Administration can hardly control the proliferation or direction of technology in the digital age. Consequently, the discussions with industry will succeed only if the Administration commits itself in these discussions to a major overhaul of its current export policies and to policies that do not mandate or compel domestic controls on encryption. Rather, government should recognize that in the coming decades the protection of our nation's critical infrastructure and national security interests demand foremost that American industry retain its global leadership in the digital arena. A strong domestic high-tech industry -- in cooperation with national security agencies and law enforcement officials which have been granted sufficient resources by our government for meeting the challenges of the digital age -- is the foremost priority for ensuring American security and global leadership in the Information Age."
The letter was signed by the following Members of Congress:
Richard A. Gephardt, M.C. Zoe Lofgren, M.C. Vic Fazio, M.C. Martin Frost, M.C. Sam Gejdenson, M.C. John Conyers, Jr., M.C. Edward J. Markey, M.C. Anna G. Eshoo, M.C. Rick Boucher, M.C. Calvin M. Dooley, M.C. James P. Moran, M.C. Adam Smith, M.C. ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ ACLU Round-Up of State Net Legislation Online
Despite the victory for free speech rights in cyberspace resulting from last year's Supreme Court decision striking down the Communications Decency Act in Reno v. ACLU, state efforts to censor Internet speech are growing rapidly.
At least thirteen states have passed legislation since 1995. This year, New Mexico has already passed a draconian censorship law, and bills are pending in 10 other states.
The ACLU succeeded in striking down three of these state laws so far, but the larger task lies ahead: to secure free speech online in each and every state where this right is threatened.
Our state lawmakers need to understand the Internet -- not gag it. To help you find out whether your state has passed or is considering censorship bills, the ACLU has posted a round-up of these bills online.
Visit the online web page at:
A federal judge in Maine declared the Child Pornography Prevention Act (CPPA), which criminalizes possession or distribution of simulated child pornography images, unconstitutional last week.
The defendant, David Hilton, was charged with possession of child pornography but contended that the "definition of 'child pornography,' which includes visual depictions that appear to be minors engaged in sexually explicit conduct, is too subjective."
Hilton also asserted that he is a "crusader against kiddie porn" and has warned parents of the dangers of abuse of information on the Internet, reports the Portland Press Herald. The Portland Press Herald further reports that Hilton told federal authorities that he has collected information on child pornography to turn it in to officials despite being warned that it is illegal to collect such information.
The decision in U.S. v. Hilton, written by District Judge Gene Carter is the first to find the CPPA unconstitutional. "[T]he statute impacts a significant amount of adult pornography featuring adults who appear youthful," states the opinion, adding, "the Court concludes that expression involving such adults will be chilled by the subjective language of the statute. Thus, the statute is unconstitutionally overbroad."
Last year, the CPPA was upheld by the Ninth Circuit as constitutional despite a first amendment challenge to the criminalization of digitized or simulated photographs that do not use actual children in the creation of images.
If judge Carter's decision is upheld by the 1st U.S. Circuit Court of Appeals, it could result in a split in the Circuit courts on the constitutionality of the CPPA and issues could then be heard by the Supreme Court. ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ Medical Records Proposal Puts Privacy at Risk, ACLU Says
After recent House panel opening hearings on medical records confidentiality, the ACLU is denouncing the newest medical records proposal, saying they license the widespread disclosure of personal medical information held by doctors, hospitals, employers and others.
The new proposal -- drafted by Republican Senators Robert Bennett of Utah and Jim Jeffords of Vermont -- place virtually no restriction on the disclosure of personal medical records by health care providers, public health agencies and state health care databases.
The proposal will also allow law enforcement agencies easy access to browse computerized medical records, making every citizen's records part of a new massive law enforcement database, and preempt state laws that granted more protection to confidential medical records.
"This proposal serves only the interests of the burgeoning health care industry," said John Roberts, Executive Director of the ACLU of Massachusetts, which has closely monitored the various medical records proposals.
"Senators Bennett and Jeffords would allow the transfer of our medical records to many organizations that stand to profit from the information," Roberts said. "Doctor-patient confidentiality would be destroyed as even employers would have access to any of our medical records without our knowledge or consent."
ACLU Legislative Counsel Solange Bitol agreed. "This proposal purports to be a privacy bill," she said. "But itis, in fact, just the opposite. Once personal information is collected for one purpose, the temptation to use it for others is often irresistible."
The Bennett-Jeffords proposal is just the latest twist in increasingly complicated maneuvering by Congress, the Clinton Administration, scientists, major businesses and privacy advocates over medical records and who should have access to individual data. The hearing today before the House Ways and Means Committee is the latest addition to the fray.
The battle began with the passage of "Administrative Simplification," a little-known amendment to the 1996 Health Insurance and Portability Act. The Act requires the federal Department of Health and Human Services to make medical privacy recommendations to Congress. If Congress fails to pass privacy legislation within three years, HHS can establish binding rules. Under the 1996 law, states can, however, provide greater privacy protections for their residents.
Currently, the ACLU said, the United States has no coherent, consistent privacy policy. "What we have is an ad hoc collection of laws that protect movie rentals, books we check out at libraries, and cable television records, but do not protect the far more sensitive medical, insurance or employment records," Bitol said.
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ Judge Orders School to Re-admit Student Suspended Over Home Website
A federal judge temporarily ordered an Ohio school district to readmit a student that was suspended for 10 days over material on his home website that criticized a teacher and stated that he "had a bad haircut."
Sean O'Brien, the sixteen-year-old student, placed a photo of a high school band teacher on his home site with comments describing him as a ''an overweight middle aged man who doesn't like to get haircuts.'' Officials claimed that the material on O'Brien's site violated a policy against disrespecting school staff.
However, the temporary court order ruled against school suspension and states that the school may not restrict the content on the student's home page.
The order will stay in effect until this week, when a full hearing is scheduled on O'Brien's claim that his suspension violated his First Amendment rights. O'Brien is seeking $550,000 in damages from the school for violating his First Amendment rights, the Associated Press reports.
Schools cannot ignore student's First Amendment rights and simply may not punish their pupils for behavior that occurs outside school grounds, said Gary Daniels, Litigation Director for ACLU of Ohio.
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ ACLU Report Challenges Clinton Scare Tactics on Encryption
Charging that the Clinton Administration is using scare tactics to acquire vast new powers to spy on all Americans, the ACLU has begun circulating a white paper on the escalating battles over wiretapping in the digital age to key members of Congress.
The new ACLU report -- Big Brother in the Wires -- says that the current struggle over cryptography policy holds far-reaching and possibly irrevocable consequences for all Americans. It makes an impassioned case for limiting the government's ability to seize and review private communications -- whether they are telephone conversations, FAX messages, electronic mail, electronic fund transfers or medical records -- by permitting the use of strong encryption.
The report comes as Congress grapples with fundamental disagreements over encryption policy. On one side of the policy impasse are the law enforcement and national security agencies -- the Justice Department, the FBI, the National Security Council, the Drug Enforcement Agency and many state and local agencies. On the other side are the communications industry, the country's leading cryptographers and computer scientists and civil liberties and privacy advocates.
"We are now at an historic crossroads," the report says. "We can use emerging technologies to protect our personal privacy, or we can succumb to scare tactics and to exaggerated claims about the law enforcement value of electronic surveillance and give up our cherished rights, perhaps forever."
"If President Clinton and federal law enforcement authorities have their way, new technology will make possible a much more intrusive and omniscient level of surveillance than has ever been possible before," said ACLU Legislative Counsel Gregory T. Nojeim. "Congress must reject this blatant power grab and keep Big Brother out of our wires."
The ACLU report can be found at: http://www.aclu.org/issues/cyber/wiretap_brother.html
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About Cyber-Liberties Update:
A. Cassidy Sehgal (csehgal@aclu.org), Editor William J. Brennan First Amendment Fellow American Civil Liberties Union National Office 125 Broad Street, New York, New York 10004
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