IT: Challenge to the Communications Decency Act (Internet censorship)

Seth Finkelstein sethf at
Thu Nov 4 17:35:29 CST 2004

[Archived at:  and
Seth Finkelstein is an expert witness for this Internet censorship case,
which concerns legal provisions unaddressed by earlier cases. Reports:

Challenge to the Communications Decency Act

Contact: Susan Wright, Spokesperson

October 29, 2004, New York City - Testimony concluded on October 28,
2004, in Barbara Nitke and National Coalition for Sexual Freedom v
John Ashcroft, in the Federal District Court for the Southern District
of NY, case # 01 CIV 11476 (RMB). This lawsuit is challenging an
unconstitutional law called the Communications Decency Act (CDA) which
criminalizes free speech on the Internet. Plaintiffs are represented
by noted First Amendment attorney, John Wirenius.

The tone was civil and polite throughout the two days in court as
images of SM and explicit sexual photographs were examined by the
three judge panel. Supporters filled the courtroom to listen to expert
testimony ranging from Arthur Danto, the Emeritus Johnsonian Professor
of Philosophy at Columbia University, to the concerns of Dov Hechtman,
a webmaster for the SM membership group The Eulenspiegel Society.

Barbara Nitke, fine art photographer whose work is an exploration of
sexual relationships, testified that she feared prosecution in areas
of the country where there is little understanding of alternative
sexual expression. Noted columnists, photographer David Steinberg and
sex educator Tristan Taormino, both provided sexually frank images to
the court which they have not included on their websites because of
the vagueness of obscenity laws.

The reliability of geolocation software was challenged by testimony
from Ben Laurie of The Apache Software Foundation. Seth Finkelstein,
a computer technical expert, testified about the conflicts between
geolocation software and the protection of privacy.  Geolocation
software allows website hosts to block visitors from certain states or
areas of states. This is a critical component of the case because
obscenity is determined by "local community standards." Testimony was
sharply divided over the accuracy of geolocation software, varying
over a range of 60-95% effective.

The difficulty of determining local community standards was attested
by Jeffrey Douglas, Chair of the Board of the Free Speech Coalition,
who has compiled a study of obscenity prosecutions called "Know
Censorship." Susan Wright, Spokesperson for NCSF, testified as to the
significant variance in local community standards faced by
individuals, groups, events and businesses in the SM-leather-fetish,
swing and polyamory communities.

The government supplied only two witnesses. Thomas Miltonberger with
Quova testified that the geolocation software currently available
would cost a website owner several thousand dollars a month. Chris
McCulloh with Sinetimore Internet Security Service Provider suggested
that Barbara Nitke request the full name and address of every user who
wants to access her website, and then confirm their geolocation by
mailing them a confirmation letter, a process that would take several

Written final arguments are due December 17th. This case is expected
to reach the Supreme Court on appeal.

Attorney General John Ashcroft is currently prosecuting people and
businesses for violating obscenity laws. The first target under
obscenity law amended by the CDA was Extreme Associates which produces
SM-themed pornography. Ashcroft continues to meet with religious
political extremist groups and has promised to outlaw all "obscene"
material. Under the Clinton administration, obscenity laws were not
enforced, but the Bush administration has made obscenity prosecutions
a priority.

NCSF is challenging the CDA law because personal websites and chat
groups that include discussions and images of SM, swinging or
polyamory are at risk of prosecution. Since alternative sexual
expression is outside the mainstream, it is an easy target.
Membership groups that have educational and social websites are also
at risk, in the same way SM events were targeted by religious
political extremist groups in the Midwest in 2002-03.

If you would like to donate to the CDA lawsuit expenses, go to: 
Every dollar goes directly to ensuring free speech on the Internet!

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