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censorware and statistics in the news

------- Forwarded message follows ------- Date sent: Mon, 22 May 2000 16:58:11 -0400 Send reply to: Law & Policy of Computer Communications <CYBERIA-L@LISTSERV.AOL.COM> From: Chris Savage <chris.savage@CRBLAW.COM> Subject: censorware and statistics in the news To: CYBERIA-L@LISTSERV.AOL.COM

The Supreme Court just upheld a 3-judge district court's decision to invalidate Section 505 of the Telecom Act of 1996, which required either total, complete scrambling of adult programming on cable systems or, if that was too expensive or not possible, time-limited broadcasts from 10 p.m. to 6 a.m. Most cable ops had chosen time-shifting out of fears that their less-than-100% effective scrambling systems would subject them to liability.

The case is at:

http://supct.law.cornell.edu/supct/html/98-1682.ZO.html

Some of the list's perennial topics are addressed. Censorware (directly and indirectly):

"And, while mentioned only in passing, the mere possibility that user-based Internet screening software would 'soon be widely available' was relevant to our rejection of an overbroad restriction of indecent cyberspeech. Reno, supra, at 876-77." (Majority at 9).

"There is, moreover, a key difference between cable television and the broadcasting media, which is the point on which this case turns: Cable systems have the capacity to block unwanted channels on a household-by-household basis." (Id. at 10).

"Simply put, targeted blocking is less restrictive than banning, and the Government cannot ban speech if targeted blocking is a feasible and effective means of furthering its compelling interests." (Id. at 11).

And statistics:

"To say that millions of children are subject to a risk of viewing signal bleed [[[i.e., the ability to view and/or hear adult channels even though they are supposedly 'scrambled']]] is one thing; to avoid articulating the true nature and extent of the risk is quite another." (Id. at 14).

"Although the parties have taken the additional step of lodging with the Court an assortment of videotapes, some of which show quite explicit bleeding and some of which show television static or snow, there is no attempt at explanation or context; there is no discussion, for instance, of the extent to which any particular tape is representative of what appears on screens nationwide." (Id. at 15).

"'[T]he Government presented no evidence on the number of households actually exposed to signal bleed and thus has not quantified the actual extent of the problem of signal bleed.' [[[District Court Opinion, 30 F. Supp. 2d]]] at 709. The finding is not clearly erroneous; indeed it is all but required." (Id. at 16).

"Without some sort of field survey, it is impossible to know how widespread the problem in fact is, and the only indicator in the record is a handful of complaints. ... If the number of children transfixed by even flickering pornographic television images in fact reached into the millions we, like the District Court, would have expected to be directed to more than a handful of complaints." (Id. at 17).

"The question is whether an actual problem has been proven in this case. We agree that the Government has failed to establish a pervasive, nationwide problem justifying its nationwide daytime speech ban." (Id. at 18).

So, what does it all mean (for cyberspace)? If nothing else, the fact that the Supreme Court now recognizes a separate word ("cyberspeech") for what, e.g., we are doing now, is reasonably cool, although that hardly goes to the merits of its discussion.

Christopher W. Savage, Cole, Raywid & Braverman, L.L.P. 1919 Penn. Ave. N.W., Suite 200, Washington, D.C. 20006 voice: 202-828-9811 e-fax: 703-991-1470 fax: 202-452-0067

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