CDA Analysis

What the CDA is About

In the essay you've come from, I state that the CDA is not about "protecting the children." While I do not want to detract from the other ideas of the essay by jumbling too many messages, I do realize that such a statement needs to be backed up, thus this analysis. It centers on two areas of the CDA, the "indecency" provision and the "patently offensive" provision.

The Indecency Provision

The "indecency" provision is the first objectionable part of the CDA, and it bans "communication" to a minor of "filthy, lewd, lascivious or indecent" material with intent to "annoy, etc." But this passage once read "harmful to minors;" now, "harmful to minors" is explicitly defined, and contains exceptions for works of artistic, political or social value. Indecency (and the rest of the colorful adjectives above) is not, and has no such exceptions.

Why is that important? Because the substitution was intentional, and sneaked in while in committee, after the rest of the compromise wording had been approved. This is a dead giveaway that "protecting the children" is a blatant smokescreen, for if it were the reason then "harmful to minors" would be sufficient. But "indecent" was desired. Why? Because it's vague and undefined, and would curb speech that, though valuable, is anathema to certain people. It is about controlling speech.

The Patently Offensive Provision

This one is the biggie; for it bans communication that is "patently offensive" according to "community standards" containing references to "sexual or excretory activities or organs," from being placed anywhere on the Internet where minors may see it. This means Usenet. This means HotWired threads. This means IRC. Anywhere. This means that, for example, the Library of Congress would not be allowed to put "Tropic of Cancer" as accessible on the web. There are no exceptions for "serious literary, political, or social value." None. And then there's that enormous loophole of "community standards," when the technology inherently renders location immaterial.

This one is about controlling the terms of public discourse. Period. This is the provision that would make people's expression on the Net's public spaces rated PG.

Why it Won't Work

It won't work because the Net is an international system, and just like there are tax havens today there will be data havens tomorrow. If you want to publish hard-core porn, or, for that matter, anything that might be found objectionable as per the CDA, you'll move your server to Belize. If you want to publish a sex story on Usenet, you'll encode it with unbreakable encryption, bounce it off of five or six computers around the world, and have it injected into Usenet from, say, the Netherlands.

Another solution must be found.

The Real Solution

Filtering. Period. People say that filtering won't work (and it is true that the current crop of systems is not foolproof), but the truth is that technology can make for very solid systems, even for families in which the children are the computer-savvy ones. One can use unbreakable computer codes to create unforgeable ratings, for example, and block access to anything that is not rated in a specific way. This is the similar technology to what's used by banks to send money, for example (and likely just as trustworthy) Will it work 100 percent of the time? Likely not; an enterprising-enough kid can always get around restrictions, typically by finding other places beyond home or school to get what he wants - but it will work vastly better than the approach taken by the CDA, and is vastly less intrusive on personal freedoms than the current law. Yet the law chooses to pay lip service to filtering systems and use the big CDA hammer.

Why? Because it is, once again, not about "protecting the children." That is a smokescreen, and the real deal is to control what people say and how they say it. Keep that in mind.

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