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Hal Berghel's Digital Village....

The Communications Decency Act, Informal Logic and the Wapnerization of Cyberspace

Just a few weeks ago as this column was written, the Communications Decency Act (CDA) was brought before the Supreme Court. This stirred supporters and critics alike to produce a delightful potpourri of argumentation, good and bad. I'll weave some of this argumentation into some general observations about the CDA in this column. My interest in this topic is admittedly technological, and I confess to a slight propensity for the cynical and tongue-in-cheek. I do not do this to detract from the discussion of an important technological and social issue, but to encourage fellow-technologists to help raise the quality and level of this important, ongoing discussion.

To begin, the following two positions seem to define the spectrum of positions to be found in the CDA debate:

1. indecency on the Internet is a case of what Mike Godwin of the Electronic Frontier Foundation calls a "Cyburban Myth" - there is no real problem.
2. indecency in the Internet flourishes and puts our children at risk of being exposed to and harmed by pornography (among other things).

While there are more extreme variations of these positions, like

1. * any attempt to legislate morality - in this case decency - either on or off the networks, is misguided. Similar prohibitions with print media have been a failure.
2. * The Internet gives children convenient access to all of the world's electronic "dirty" bookstores,

the hyperbole and sweeping generalizations seems to have diminished their influence on the American public. So far as I can tell, most of the debate on the CDA falls within the first two core, opposing views. We'll return to the debate shortly.

THE COMMUNICATIONS DECENCY ACT

The Communications Decency Act of 1996 (Title V of the 1996 Telecommunications Act, aka "the Exon Amendment") is legislation which, among other things,

• "prohibits the use of telecommunications devices" for the transmission of "...any comment, request, suggestion, proposal, image, or other communication which is obscene or indecent, knowing that the recipient of the communication is under 18 years of age..."
• "prohibits the display of information "in a manner available to persons under 18 years of age, ...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..." and
• "prohibits the transmission of information regarding "where, how, or of whom, or by what means any [drug, medicine, article, or thing designed, adapted, or intended for producing abortion] may be obtained or made," via a modification of section 1462 of Title 18 of the U.S. Code. (note: This prohibition is difficult to ferret out because the CDA contains only a slight change of wording for section 1462, not the entire text of section 1462. See, www.eff.org/BlueRibbon/).

In addition to these prohibitions, the CDA also establishes a defense for content providers who take "...reasonable, effective and appropriate actions, in good faith, to deny minors access to indecent and obscene material..." either by using current technology or by restricting access by "credit card verification, debit accounts, adult access codes or adult personal identification number...."

Thus, the CDA targets content providers, and not service providers, for criminal prosecution. Violations of the CDA carry penalties of up to 2 years in prison and fines up to $100,000. The passage of CDA galvanized many first amendment advocates, including, but not limited to, the ACLU, the National Writers Union, Human Rights Watch, the Electronic Frontier Foundation, the Electronic Privacy Information Center, Computer Professionals for Social Responsibility, the American Association of University Professors, the American Library Association, and Planned Parenthood, into petitioning a Federal court for a temporary restraining order and preliminary injunction against the Justice Department to prevent CDA's enforcement (A.C.L.U. v. Reno, 1996).

THE CONSTITUTIONALITY OF THE CDA

Obscenity has been determined to be outside the realm of first amendment protection. In the landmark 1973 case of Miller v. California, the Supreme Court declared that something was obscene if

1. average people, applying contemporary community standards, would find that it appealed to prurient interests,
2. it depicted or described, in a patently offensive way, sexual conduct, and
3. taken as a whole, the work lacked serious literary, artistic, political or scientific value.

Attorneys and constitutional scholars have been interpreting phrases like "contemporary community standards," "prurient interests," etc. ever since, but the Supreme Court's ruling still stands.,

On the other hand, indecency has not been determined to be outside the purview of the first amendment. In fact, the opposition to the CDA includes positions such as these:

<> Indecency is a first amendment right. Indecent works may have socially redeeming characteristics, and may even pass the Miller v. California test,

<> The vagueness of the terms of CDA - especially with regard to the term, indecent - are Constitutionally problematic, and enforcement may therefore violate the principle of due process, and

<> some of the provisions of CDA, e.g. restricting access by credit card verification, etc., may not satisfy the "least restrictive means test" and thus be non-compliant with the first amendment.

The first-round results are in. The three-judge, U.S. District Court for Eastern Pennsylvania affirmed that:

• [the] Internet is "most participatory marketplace of mass speech that . . . the world has yet seen ... [and that] the empowering and non-invasive nature of the Internet make it a very different medium than radio or television,
• "...the use of the Internet is growing exponentially and, in part because of that increased use, the technology that governs the Internet is continuously and rapidly evolving,
• "...given the current state of technology, there is no way for the vast majority of Internet users to distinguish between adults and minors in their audience and, even in those parts of the Internet where it might be technologically possible, it is economically infeasible for many speakers, including the plaintiffs in this case. For these speakers, the only way to ensure that minors do not have access to speech that might later be deemed "indecent" by a criminal jury is to eliminate such speech from the Internet entirely,
• "...less restrictive alternatives already exist that empower parents to make private decisions within the family about what materials their children should see. The CDA, conversely, is uniquely ill-suited to shield children from sexually explicit material on the Internet precisely because it is a global communications medium. The record reveals that at least 40% of the speech now on the Internet originates overseas and the general consensus is that this percentage is growing. That speech can be accessed as easily as speech that originates domestically but, as the lower court found, and the government concedes, that speech is beyond the reach of our domestic criminal law." (source: www.epic.org/free_speech/CDA/lawsuit/affirm_motion_10_31.html).

  This led the Federal three-judge panel to conclude that the CDA is unconstitutional and that enjoining a Federal statute in this case is warranted. This was the same view held by three other judges who had earlier passed on the CDA. Even members of the Justice Department felt that the Constitutionality of the CDA was in doubt.

  THE CDA AND INFORMAL LOGIC

  One of the interesting developments surrounding the CDA was the flurry of media interest in it when the Supreme Court agreed to hear the Reno v. ACLU appeal. There was a veritable feeding-frenzy of opining on the issue reported and contributed by the media. As is often the case with animating issues, the increasing volume of opinion did not produce a commensurate increase in the quality of argumentation. I offer, below, a non-scientific, serendipitous sampler of some of these positions - which I found laden with informal fallacies. It brought me back to my elementary logic class. Why it was, as Yogi Berra commented, deja vu all over again.

  I'll illustrate my point with a few analyses of the CDA debate - which are neither claimed to be exhaustive nor optimal. To begin, here are two positions for; the CDA, both of which come from it's sponsor, Senator James Exon of Nebraska.

  FOR

  • "It is my intention to point out to the U.S. Senate some of what I think is highly improper [about the Internet], what I think is eroding the society and will continue to erode the society of America, unless we have the courage to stand up and do something about it, despite the minority of naysayers in the United States of America who do not want to change anything." (see, www.epic.org/cda/exon_remarks.html)

  Analysis: The first informal fallacy here is question-begging. The issue of whether society is "being eroded" is precisely what is at issue in the deliberation over CDA. Put another way, CDA isn't necessary, and will serve no useful function, if we can't document the erosion to which Sen. Exon refers.

  Second, the "minority of naysayers...who do not want to change anything" is reminiscent of Spiro Agnew's labeling opponents as "an effete corps of impudent snobs," and, like the latter, is an application of an ad hominem argument. Attacking the opposition by name-calling, rather than by the content of their position, has been so well-established in our global culture that even the name is ancient.

  • "I have put out the hand of cooperation to all parties -- even those most opposed to any action whatever in this area -- and I find that there are a great number of well-intentioned people who shudder at the thought of passing any kind of legislation in this area....They are not bad people. I just do not think they fully understand, as I think I do and as I think 9 out of 10 Americans do, when they find out what is going on, on the information superhighway today." (Exon, op cit)

  Analysis: The phrases "well-intentioned people..." and "They are not bad people." demonstrates condescension;. In this case Exon uses a patronizing attitude toward his opponents which avoids the real issue of whether "any kind of legislation in this area" should be considered in the first place. In passing, the "9 out of 10" is likely to be a questionable statistic, but even if it were correct, it would still be an ad populum argument. The fact that 9 out of 10 of us agree on something does not necessarily make it legal, moral or true.

  One may easily see from these examples that the logician's use of informal logic to assess the health and well-being of rhetoric cuts to the chase. More than a tool for debate, informal logic actually sheds light on the quality of argumentation surrounding the CDA. Here are two positions against the CDA.

  AGAINST

  • "Any online user that hasn't heard of the Communications Decency Act (CDA) -- that stellar example of congressional wisdom that would censor the Internet out of existence -- has had his or her head stuck in the virtual ground." (Ann Beeson, ACLU, at www.aclu.org/issues/cyber/censor/stbills.html)

  Analysis: This paragraph contains at least two flaws. The most obvious is the ad hominem tone taken to "congressional wisdom" and "online users who aren't concerned about the CDA," leaving open whether either group might have good reasons for their behavior. Less obvious is the hasty conclusion; that the CDA will "censor the Internet out of existence."

  • "We do not forfeit our first amendment rights when we go on-line" .... The first amendment to our Constitution expressly states that 'Congress shall make no law abridging the freedom of speech.' The CDA flouts that prohibition for the sake of political posturing and in the name of protecting our children. (Leahy op cit.)

    (Senator Patrick Leahy, at /www.epic.org/free_speech/cda/leahy_s213_statement.html)

  Analysis: "We do not forfeit..." illustrates the straw man; fallacy. So far as I can determine, no CDA proponent has suggested that we do so. The question of whether there are first amendment rights involved is precisely what is at issue. In addition, this passage creates a false dilemma by subtly suggesting that there are only two alternatives - to either maintain complete first amendment freedom online, or to lose all first amendment rights online.

  The phrase "..for the sake of political posturing and in the name of protecting our children" involves attacking the motives of the opponent rather than the opponent's position. While the proponents of the CDA might claim that they are protecting children, I suspect that few would admit to political posturing.

  So the CDA debate provides plenty of grist for our informal logic mill and confirms that, to paraphrase the words of philosopher Peter Geach, the price to be paid for freedom from fallacy is eternal vigilance. While most of us commit informal fallacies from time to time, our fallacious reasoning for the most part does not find its way into law. Therein lies the rub.

  THE WapnerIZATION OF THE CDA

  By the time that you read this, the Supreme Court is likely to have acted on the Government's appeal of the lower, Federal Court's decision. It will be interesting to witness the outcome.

  One option would be for the court to uphold the constitutionality of CDA as it stands. Based upon the press coverage that I've seen, this doesn't seem likely. Another option would be to strike down the entire CDA as unconstitutional. The same press coverage suggests that this is unlikely as well. I predict that the CDA will be Wapnerized.

  Judge Wapner, you may recall, dispensed his own version of daytime television justice a decade or so ago. If both plaintiff and defendant involved in a small claims suit agreed to be bound by Judge Wapner's decision, and to forfeit any right to further litigation, the producers of this ersatz TV drama would pay whatever settlement was ordered by the judge for the opportunity to broadcast a few saucy minutes of on-screen bickering. The opportunity to broadcast a plaintiff or defendant in an embarassing situation was icing on the cake.

  In this way a disheveled and despondent plaintiff might inform the bench that he and the defendant agreed to a purchase price of $400 for a mint condition '72 Pinto. Plaintiff claims that he only received $300. Defendant counters that he paid the plaintiff the full amount in cash. No records of the transaction exist.

  The result is "Wapnerization." When plaintiff claims that defendant owes him $100, and the defendant claims that he owes nothing, Judge Wapner reposes long enough for four soap ads and returns to the bench having determined that the truth must be that defendant owes the plaintiff $50, - splitting the difference. This will be the final decree, with the possible caveat that if either "litigant" irritates the court, their share will be commensurately lowered - Wapnerization with a "control-freak" twist.

  The Supreme Court, I predict, will Wapnerize the CDA. This is the first opportunity the Court will have to insert itself into cyberspace - and the temptation to try for a "landmark" decision will be overwhelming. While the CDA is not the ideal platform from which to spawn landmark decisions, it's the only game in town at the moment - a "bird-in-the-hand" sort of thing. The decision to use the CDA as a platform may come back to haunt us. I, for one, would be a lot more comfortable with the review of legislation which contained more technological substance than the CDA.

  It seems likely that plaintiff's quest for total ban of indecency on the Internet will fail ignominiously. Defendant's argument that the fear of cyber porn is all cyber-hype will fare no better. Once Wapnerized, the CDA will be turned back for revision to be cleansed of the unconstitutional fragments within.

  CDA will be Wapnerized as abortion, obscenity and anti-smoking legislation was before it, trying to strike a middle-ground to the perenial dissatisfaction of most. For the next few generations, careers and fortunes will be made by attorneys who try to figure out how to interpret this new CDA-II. But, legal issues of such landmark proportions are too important not to be Wapnerized.

  It is now mid-April. As you read this, the outcome of Supreme Court's decision on the CDA should be covered by the media. See if I am right about my Wapnerization thesis. If Wapnerization takes place, the predictive quality of this column should be secure; else, I am prepared to deny under oath that I wrote this article.

  for further reading.....

  The Electronic Privacy Information Center (EPIC, www.epic.org) has extensive testimony on the CDA, press releases, alternative legislation, and copies of the court's decisions available online at www.epic.org/free_speech/cda/lawsuit. A summary of the decision by the Third Circuit Court of Appeals (Philadelphia) appears at http://www.access.digex.net/~epic/cda/highlights.html For an online version of the CDA see www.eff.org/pub/Censorship/Internet_censorship_bills/s652_hr1555_96_draft_bill.excerpt

  Figures 1 and 2 depict the issues-oriented homepages of EPIC and the Electronic Frontier Foundation.

  An amici curiae brief on behalf of many of the groups which oppose the CDA is at http://www.shsl.com/internet/supcourt/brief.html>www.shsl.com/internet/supcourt/brief.html

  A highly-recommended overview of legal issues surrounding the Internet is to be found in Jonathan Rosenoer's Cyberlaw: The Law of the Internet, Springer Verlag, 1997.

  Finally, my yellowed-with-age informal logic book, Howard Kahane's Logic and Contemporary Rhetoric, Wadsworth Publishing, 1971, served me well in reviewing informal fallacies. Any extant copies are recommended.