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more on net indecency, plus car rental & DMV records]
``` [Three items from the new Privacy Forum. EPIC's message is the best summary of the consequences of new Internet indecency legislation -- the most important consequences, keep in mind, have nothing to do with indecency. Then an informative note from a law firm looking for business on the issue. And finally a piece, which I sympathize with but do not entirely endorse, about privacy issues in renting cars.]
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Date: Fri, 9 Feb 96 21:29 PST From: privacy@vortex.com (PRIVACY Forum) Subject: PRIVACY Forum Digest V05 #04
PRIVACY Forum Digest Friday, 9 February 1996 Volume 05 : Issue 04
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Date: 6 Feb 1996 16:10:17 -0500
From: "David Sobel"
A press conference will be held in Washington, DC, on Wednesday, February 6, to announce a broad-based constitutional challenge to the recently-enacted "Communication Decency Act." The case will be litigated by the American Civil Liberties Union and co-counsel from the Electronic Privacy Information Center (EPIC) and the Electronic Frontier Foundation (EFF). More than a dozen organizations will participate as plaintiffs.
The press conference will be held at 10:30 a.m. at the ACLU's Washington Office:
122 Maryland Ave., N.E. Washington, DC (across from the U.S. Supreme Court)
EPIC will issue the following statement at that time:
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For Release: Contact: February 6, 1996, 10:00 a.m. David L. Sobel (202) 544-9240
Internet "Indecency" Legislation: An Unconstitutional Assault on Free Speech and Privacy Rights
Washington, DC - The Electronic Privacy Information Center (EPIC) will participate as both plaintiff and co-counsel in litigation to challenge the so-called "Communications Decency Act." The lawsuit will be filed in Philadelphia soon after the President signs the telecommunications bill containing the Internet "indecency" provisions. EPIC joins the American Civil Liberties Union and more than a dozen other organizations in challenging this ill-advised and unconstitutional attempt to impose governmental content regulation on emerging global electronic media.
The legislation's vague "indecency" standard will have an obvious impact upon the free speech rights of millions of Americans who use computer networks to receive and distribute information. Less apparent is the assault on privacy rights that the legislation will engender.
To avoid potential criminal liability under the "indecency" provision, information providers would, in effect, be required to verify the identities and ages of all recipients of material that might be deemed inappropriate for children. The new statutory regime would thus result in the creation of "registration records" for tens of thousands of Internet sites, containing detailed descriptions of information accessed by particular recipients. These records would be accessible to law enforcement agencies and prosecutors investigating alleged violations of the statute. Such a regime constitutes a gross violation of Americans' rights to access information privately and anonymously.
Less than a year ago, the Supreme Court upheld the right to anonymous speech in McIntyre v. Ohio Elections Commission.. EPIC believes that the Court's rationale in that case applies with even greater force to the Internet "indecency" provisions. The Court noted that
The decision in favor of anonymity may be motivated by fear of economic or official retaliation, by concern about social ostracism, or merely by a desire to preserve as much of one's privacy as possible. ...
Anonymity is a shield from the tyranny of the majority. It thus exemplifies the purpose behind the Bill of Rights, and of the First Amendment in particular: to protect unpopular individuals from retaliation -- and their ideas from suppression -- at the hand of an intolerant society.
Whether the anonymous individuals visiting sites on the World Wide Web are seeking information on teenage pregnancy, AIDS and other sexually transmitted diseases, classic works of literature or avant-garde poetry, they enjoy a Constitutional right to do so privately and anonymously. The Communications Decency Act seeks to destroy that right.
EPIC is confident that upon review of the legislation and its impact upon free speech and privacy rights in emerging electronic media, the courts will invalidate the measure as fundamentally at odds with the Constitution.
_________________________
The Electronic Privacy Information Center is a public interest research center in Washington, DC. It was established in 1994 to focus public attention on emerging privacy issues relating to the National Information Infrastructure, such as the Clipper Chip, the Digital Telephony proposal, Internet censorship, medical record privacy, and the sale of consumer data. EPIC is sponsored by the Fund for Constitutional Government, a non-profit organization established in 1974 to protect civil liberties and constitutional rights. EPIC publishes the EPIC Alert, pursues Freedom of Information Act litigation, and conducts policy research.
* 30 -
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Date: Fri, 2 Feb 1996 17:11:29 -0500 (EST)
From: Neal J. Friedman
MEMORANDUM
TO: All Internet Clients DATE: February 2, 1996 RE: Telecommunications Act Imposes Controls on Indecent and Obscene Content on the Internet and Online Services
The newly-enacted Communications Decency Act of 1996 states that it is the policy of the United States to "promote the continued development of the Internet and other interactive computer services." But, for the first time, it puts the federal government in the business of regulating the Internet and online services. The legislation does not go as far as some had feared, but further than others had hoped.
The statute prohibits the use of interactive computer services to make or make available an indecent communication to minors. It defines indecency as: "any comment, request, suggestion, proposal, image, or other communication that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs." This definition has been upheld in other cases involving the broadcast media. The bill's supporters expect that it will withstand the inevitable Constitutional challenge. Indeed, Congress provided that any challenge should first go to a special three-judge panel and then directly to the Supreme Court. The Conference Committee Report accompanying the bill argues that the new indecency prohibition will "pose no significant risk to the free-wheeling and vibrant nature of discourse or to serious literary, and artistic works that can be currently found on the Internet, and which is expected to continue and grow."
The language requires that the communication must be knowing and specifically exempts online service providers who merely provide access to the Internet. The Conference Report states that the intent is to focus on "bad actors and not those whose actions are equivalent to those of common carriers." This is good news for those service providers who only host content for others and exercise no control over the content. But, the legislation goes on to state specifically that it is not the intent of Congress to treat online services as common carriers or telecommunications carriers for other purposes. If the online services were to be considered as common carriers, they would be insulated from liability for any content on their systems. Thus, the question of liability of online services for defamation and copyright and trademark infringement remains unclear.
The legislation also provides a "Good Samaritan" defense for service providers who have taken "in good faith, reasonable, effective and appropriate actions under the circumstances to restrict or prevent access by minors" to prohibited communications or have restricted access to indecent content by means of a verified credit card, debit account, adult access code, or adult personal identification number.
The role of the Federal Communications Commission is restricted under the new law. The FCC is only permitted to describe measures that are reasonable, effective and appropriate to restrict access to prohibited communications, but it cannot give its approval to such measures nor can it penalize any service provider for failing to use the measures.
The new law also prohibits states from exercising control over content of online services. States can control content entirely within their borders so long as the control is not inconsistent with the federal law. Some state legislatures had, in reaction to publicity over alleged pornographic and indecent content online, considered bills that would have put tight restrictions on content.
The full text of the entire Telecommunications Act of 1996, incorporating the Communications Decency Act of 1996, and the Conference Report are available on our World Wide Web site: http://www.commlaw.com.
Sincerely yours,
PEPPER & CORAZZINI, L.L.P.
By:___________________________ Neal J. Friedman
Neal J. Friedman | Pepper & Corazzini, LLP |Voice: njf@commlaw.com | 1776 K Street, N.W. | 202-296-0600 Telecommunications| Suite 200 |Fax: & Information Law | Washington, D.C. 20006 | 202-296-5572
[ The Conference Report and full text of the enacted Telecom Bill are also available in the PRIVACY Forum archive. They each run between 300K and 400K in length.
One thing I can say for certain about the Telecom Bill--it will have effects and ramifications that cannot be accurately predicted. More competition? Massive media concentration? Lower rates? Higher rates? Greater communication? Censorship? The court battles have already begun (see next message). Regarding the "Communications Decency" aspects of the legislation, neither the absolute prohibitions written into the existing act, nor the concept of 100% uncontrolled and totally anonymous access on demand by anyone to all information, seem likely to be practical. My personal view is that the twin goals of protecting minors and allowing "anonymous" access to information by adults could be met through a properly designed public-key based authentication system.
But we have to start talking to each other, rather than past each other, before we can make any real progress.
-- MODERATOR ]
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Date: Fri, 09 Feb 1996 11:53:48 EST
From: Paul Robinson
According to a report over the radio, a little-noticed provision of one of the crime bills which have come out allows a rental car company to check your driving record.
According to the report, two or three incidents - an accident or certain types of tickets - is enough to cause you to be blacklisted.
Where are the problems in this?
1. There is no announcement of this practice; you're not likely to find out until you get to the counter and can't rent a car.
2. There is no appeals process available.
3. There is no means available to provide for corrections or to determine where or how the error occurred in the event you are caught short by this happening.
4. No consideration is made as to the severity of the offenses or whether you were even at fault in the accident; if the information is there, you walk.
Questions:
5. What proof do we have that those who are inquiring into the database are authorized to do so, that they are actually looking up the record for that customer, and what privacy protections do we have against unauthorized inquiries? Do we have the right to password-protect our own account?
6. What protections do we have against the risk of erroneous data in a report?
7. Is this the same data as is available at a DMV or DPS office, and if not, in what way is it different?
7. Are there rights under law to get errors corrected? For damages for inconvenience due to errors? Any right to collect damages for misconduct if knowingly false information is placed in a database? Or for failure to timely followup inquiries and remove errors? Government agencies are not known for speed in action unless, like with large organizations, damages and fines are available to those who are injured due to error, negligence or misconduct.
Advice:
1. Whenever making a reservation for a car at a rental agency, book it with multiple agencies, then once you have the car, cancel or reschedule the ones not needed. (I do this because I have been extremely inconvenienced when there are conditions imposed at the rental counter I couldn't meet when I'd booked a car and made plans weeks in advance; if I had known about them beforehand I could have done something about them.)
2. If you get caught short in any circumstances, try another agency if (as is usually the case) asking for a supervisor doesn't help.
3. When making a reservation, ask if they do checking of one's driving record. If they do, and you want or must use that particular agency, then ask them to check your record in advance so you can know if there are any problems.
4. Get a copy of your driving record so you can know if there are any errors or inaccurate reports. In Maryland, where I live, a 3-year report costs $5 if uncertified, and $8 if certified; a full-report of everything on file is $10 and $15, respectively. (My report showed nothing at all.)
5. The above could also apply to certain issues regarding credit reports, for the same or similar reasons.
Paul Robinson
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End of PRIVACY Forum Digest 05.04
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