Landmark Online Decency Hearing Begins

Three federal court judges got a crash course in the Internet on Thursday as a historic courtroom was transformed into a computer lab for the opening day of a monthlong hearing that will go a long way toward shaping 1st Amendment rights in cyberspace.

The unusual hearing is part of a landmark battle over the 6-week-old Communications Decency Act, which makes it a crime to transmit indecent material over computer networks without somehow ensuring that children cannot see it.

The American Civil Liberties Union and a broad coalition that includes online service companies and computer firms such as Microsoft Corp. and Apple Computer Inc. challenge the constitutionality of the law, which calls for fines of up to $250,000 and jail sentences for violators.

The judges, all of them admitted Internet neophytes, appeared engrossed in the demonstration put on in the darkened courtroom by plaintiff’s witness Ann Duvall, developer of Surfwatch, a software program that allows parents to screen out material that might be inappropriate for children.

Barricaded behind two large computer monitors, the panel waited patiently when Duvall’s laptop--which was connected to monitors and two large projection screens--crashed. Twice. When Duvall was unable to reach the Playboy site on the World Wide Web, Judge Dolores Sloviter prodded, “Can’t you go to another magazine like that?”

And Judge Stewart Dalzell had her click back and forth between two sites several times to satisfy his curiosity about how the document-linking system known as hypertext works.

He also closely questioned Kiyoshi Kuomiya, director of an AIDS treatment center that distributes a newsletter online.

“This is a very important issue for this case,” Dalzell told Kuomiya. “If this panel decided the law was constitutional, would you have to make any changes in the way you operate?”

Kuomiya responded that he didn’t find any of the material in his newsletter indecent and thus wouldn’t make any changes, but he was worried about the potential legal implications of such a stance.

The hearing before the specially appointed panel is part of an expedited procedure spelled out by lawmakers who anticipated a constitutional challenge even as they passed the act.

Last month, Judge Ronald L. Buckwalter, the third judge on the panel, issued a temporary restraining order on the provision of the law banning the distribution of “indecent” information, which he found unconstitutionally vague. But he let stand the portion of the law regulating “patently offensive” material.

The government, which will present its witnesses next month, says the law is necessary to protect children from pornography. Both sides have vowed to appeal the panel’s ruling to the Supreme Court.

Opponents of the law maintain it will have a chilling effect on a fast-growing medium that has thus far served to open up discourse in a way that broadcast and print media have not--as in the case of young people with AIDS using the anonymity of cyberspace to seek information and support.

The many-to-many nature of the communication--unrestricted by limited capacity, unlike broadcast media--makes its regulation unnecessary, critics of the new law argue.

Wading through a sea of arcane acronyms from PPP to IRC, plaintiff’s witness Scott Bradner, a technical consultant at Harvard University’s Information Technology Services, also tried to demonstrate how the underlying technology of the Internet would make the statute difficult to enforce.

But the plaintiff’s point that Surfwatch and other parental control software could serve as adequate protection for children appeared to meet with some skepticism from the panel.

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“Is Surfwatch a moneymaking project?” Sloviter asked Duvall. She continued, “There is no assurance to the public or the government that your particular company will remain in existence, is there?”

Duvall also conceded under cross-examination by government attorney Anthony Coppolino that Surfwatch did not block every potentially harmful site to children, and that her employees routinely come up with ones they had missed or new ones being added.

But Jerry Berman, director of the Center for Democracy and Technology, said the day had been a success for the coalition he helped organize.

“Our objective is to get this court to focus on the Internet, and they did,” Berman said. “We believe any understanding of the Internet will benefit the 1st Amendment.”

Government attorneys declined to comment Thursday on any aspect of the hearing.

The Justice Department has said it will refrain from prosecuting anyone under the law until the court case is resolved.

Sitting on a bench in front of the portrait of Pennsylvania District Court’s first chief justice, Francis Hopkinson, who is shown holding the pen he used to sign the Declaration of Independence, Dan Orr, a 20-year-old sophomore at the University of Pennsylvania, said he was encouraged by the proceedings.

“I feel like there’s a big age gap over the Internet and this legislation was enacted by people who have no idea what they’re talking about,” he said.

But he added, nodding at the judges, all over 50, “They seem to be willing to listen, which is a really important thing.”