Dated: April 29, 1996

INTRODUCTION

PROPOSED FINDINGS OF FACT

KEY FACTS

DETAILED FACTS

I. THE STATUTE

A. Plaintiffs primarily challenge 47 U.S.C. 223(d) and 223(a).

B. Plaintiffs do not challenge the regulation of obscenity or child pornography.

II. THE PARTIES

A. ACLU Plaintiffs

 1. American Civil Liberties Union ("ACLU") 2. Stop Prisoner Rape ("SPR") 3. Critical Path AIDS Project 4. Wildcat Press, Inc. 5. Human Rights Watch 6. Electronic Privacy Information Center ("EPIC") 7. Electronic Frontier Foundation ("EFF") 8. Journalism Education Association ("JEA") 9. Computer Professionals for Social Responsibility ("CPSR") 10. National Writers Union ("NWU") 11. ClariNet Communications Corp. 12. Institute for Global Communications. 13. AIDS Education Global Information Service ("AEGIS") 14. BiblioBytes 15. Queer Resources Directory ("QRD") 16. Declan McCullagh d/b/a Justice On Campus 17. Brock Meeks d/b/a Cyberwire Dispatch 18. John Troyer d/b/a The Safer Sex Web Page 19. Jonathan Wallace d/b/a The Ethical Spectacle 20. Planned Parenthood Federation of America, Inc. ("PPFA") 

B. ALA Plaintiffs

 1. American Library Association and the Freedom to Read Foundation 2. America Online, Inc. 3. CompuServe Incorporated 4. Microsoft Network L.L.C. and Microsoft Corporation 5. Prodigy Services Company 6. Commercial Internet Exchange Association 7. NETCOM On-Line Communication Services, Inc. 8. OpNet Inc. 9. Apple Computer, Inc. 10. Interactive Services Association 11. Interactive Digital Software Association 12. Wired Ventures, Ltd. 13. Hotwired Ventures, L.L.C. 14. American Booksellers Association and American Booksellers Foundation for Free Expression 15. Association of American Publishers, Inc. 16. Magazine Publishers of America, Inc. 17. Association of Publishers, Editors and Writers 18. Society of Professional Journalists 19. Newspaper Association of America 20. American Society of Newspaper Editors 21. National Press Photographers Association 22. Health Sciences Libraries Consortium 23. Families Against Internet Censorship 24. Citizens Internet Empowerment Coalition 

C. Defendants

D. Expert Witnesses

III. THE INTERNET

A. The Nature of the Internet

1. Overview of the Internet

2. The Internet is extremely new and fast growing, and is undergoing dramatic changes.

3. The Internet has no central control.

4. There has not been significant government nurturing of the Internet, which is essentially a creature of the free market.

5. There are various standards setting processes for the Internet, but any "standard" promulgated or imposed is a standard for the Internet only to the extent that the standard is adopted and implemented by users around the world.

6. The Internet is a global communications medium.

a. Overseas host computers represent a significant and growing percentage of the Internet, and overseas content providers are similarly increasing.

b. As with providers of content, users of and listeners to content are increasingly located overseas.

7. The Internet is an interactive medium.

8. The Internet allows the building of virtual communities in cyberspace.

9. The Internet, and interactive computer services in general, are not like television or any other existing media.

a. The Internet is an active and interactive medium that allows listeners to speak and respond rather than simply listen.

b. Users affirmatively select where to go, and generally will have a good idea of what they will see when they get there.

c. There is no limited spectrum and no significant entry barriers, and the cost of speaking is extremely low and can be zero.

d. The Internet is unique and unlike any other media.

B. Methods of Access to the Internet

1. Through their libraries, universities, or employers, individuals (both content providers and listeners) can access the Internet through direct connections, often at no cost to the individual and without any requirement that they provide a credit card to obtain access.

2. Through their Internet service providers and commercial online services, individuals (both content providers and listeners) can access the Internet through telephone "dial-in" connections, usually at very low cost.

C. Methods of Communication over the Internet

1. The client/server architecture is the software model used for most types of communications over the Internet.

2. E-mail (one-to-one messaging)

3. Mail Exploders (one-to-many messaging)

a. Mail exploder programs are easy to establish and provide individuals and large or small organizations with a simple ability to create a discussion group on a given topic.

b. Mailing list subscribers can automatically add or delete themselves from the mailing list at any time, and need not use their real names.

4. Newsgroups (many-to-many messaging)

a. Messages posted to newsgroups are automatically distributed to news servers worldwide.

b. By standard practice, responses to messages contain verbatim quotes from original messages.

5. IRC Chat, MUDs, MUSEs, and other real time communications.

a. Conversations on Internet Relay Chat occur in real time and are uncontrolled.

b. Communications via MUDs and MUSEs occur in real time, but also allow the development of on-going interactions that span an extended period of time.

6. FTP (remote information retrieval)

a. FTP is an early method of exchanging files.

b. FTP servers are simple programs with little flexibility.

7. Gopher

a. Gopher is a more advanced way to exchange files and link between sites than FTP.

b. Gopher servers are simple programs with little flexibility.

8. World Wide Web

a. The Web is a dynamic, worldwide, seamless web of content, reachable by hyperlinks, which permits easy browsing through information.

b. The World Wide Web is a distributed system with no centralized control.

c. Because of caching of World Wide Web content, a content provider is not aware of every request for his content, because an intermediate caching server might provide the requested content from a cache.

9. Content can be reposted to other parts of the Internet without the knowledge of the original content creator.

D. Online services

1. Online services are similar to (but different from) the Internet.

2. The online services have equivalents to FTP, newsgroups, and IRC chat.

3. Online services are easy to use, menu oriented, and kid/family friendly.

4. Online services offer their customers the ability to create "home pages" on the World Wide Web, but those home pages are not able to utilize cgi scripts.

5. Bulletin board systems, which are often locally run, are another type of online computer system.

E. Content on the Internet

1. There is a broad and growing range of content on the Internet.

2. Some of the content on the Internet is sexually oriented.

a. The sexual content ranges from mild to less mild content.

b. The amount of sexually explicit content on the Internet is difficult to determine, but is not high.

c. A significant percentage of the sexually explicit speech available on the Internet is posted abroad.

d. Individuals' access to sexual content on the Internet is almost always intentional.

3. Minors use cyberspace, and the vast majority of speech on the Internet is valuable for many (if not all) minors.

a. Much of the material -- even sexually oriented material -- has value to minors.

b. Not all minors are the same, and much of the material has value for older minors.

c. Much of the material online is available to minors and adults in other media.

F. Existing methods to screen potentially inappropriate content can be highly effective.

1. Parents can supervise or control their child's computer use.

2. Free parental controls provide thorough protection on the family-oriented commercial online services.

3. Surfwatch, CyberPatrol, Net Nanny, and other end user software programs allow screening of Internet access.

4. Platform for Internet Content Selection ("PICS") has been embraced by the Internet and online communities as the industry-wide content screening tool.

5. The online industry has undertaken extensive efforts to educate parents about parental control options.

IV. APPLICATION OF THE STATUTE TO THE INTERNET IN GENERAL, AND TO THE PLAINTIFFS IN PARTICULAR

A. Because some of plaintiffs' speech includes content that could be considered "indecent" or "patently offensive," plaintiffs' speech is directly covered by the CDA.

B. Virtually all speech on the Internet that is available to adults is also available to minors, and thus plaintiffs must reduce their speech to a level suitable for minors unless they can avail themselves of one of the statutory defenses.

C. The statutory defenses are either technically or economically infeasible.

1. Speaker-based screening is not feasible.

a. Technical Infeasibility.

(1) E-mail.

(a) There is no effective way to determine the identity of the holder of an e-mail address.

(b) E-mail addresses are easy to disguise.

(c) For unknown e-mail recipients, it is impossible for a speaker to screen for age, and the speaker has no way to receive credit card or adult identification numbers.

(2) Mail exploders.

(a) For most mail exploder lists, there is no effective way to learn who subscribes to the list.

(b) Mailing lists can be linked to other mailing lists, and there is no way to learn who is on the other lists.

(c) It is impossible for speakers to screen for age, and speakers have no way to receive credit card or adult identification numbers.

(3) Newsgroups.

(a) It is not possible for newsgroup speakers to know or control who listens to their speech.

(b) It is impossible for speakers to screen for age, and speakers have no way to receive credit card or adult identification numbers.

(4) IRC Chat and other real time communications such as MUDs and MUSEs.

(a) It is impossible for IRC speakers to know the identity of other participants, who can choose a pseudonym to disguise their identities.

(b) Even if a reliable adult identification scheme existed, all IRC channels are available to minors and thus would constantly face the threat of being reduced to what is appropriate for young children.

(c) It is impossible for speakers to screen for age, and speakers have no way to receive credit card or adult identification numbers.

(d) Speakers in MUDs and MUSEs have the same inability to screen for age as do speakers in IRC.

(5) FTP: the software cannot be used to screen by age.

(6) Gopher: the software cannot be used to screen by age.

(7) World Wide Web

(a) It is possible to do some screening using cgi scripts.

(b) Many web speakers do not have access to cgi scripting, and thus it is impossible for them to screen for age.

(c) Even if a speaker could develop and maintain a system to screen for age, caching on the Internet could undermine the screening effort.

(d) Even if a speaker could develop and maintain a system to screen for age, certain content on Web sites could not be screened.

(8) For similar reasons, it is technically infeasible for online services and internet service providers to comply with the CDA.

(9) The problems that make it technically infeasible for particular plaintiffs to comply with the Act are typical of the problems that any content providers would face.

b. Economic infeasibility

(1) It is economically infeasible to review all content to determine treatment under the CDA.

(2) It is economically infeasible to screen users to determine age and prevent access by minors to arguably "indecent" or "patently offensive" speech.

(3) The specific details of the economic burdens placed on individual plaintiffs demonstrates the serious financial harms that the CDA would cause.

c. Strong user resistance to registration would significantly reduce the number of people who listened to speech in a world where credit cards or adult identification numbers were required.

d. Requiring a credit card would bar many adults from access to information appropriate for them.

e. The CDA would dramatically change the character and experience of the Internet, and would reduce its usefulness.

2. The -L18 Theory advanced by the government in this litigation.

a. -L18 is a hypothetical creation of Dan Olsen, has no industry support or momentum, and has not been proposed or reviewed within any industry standard setting processes.

b. -L18 is mere labeling, and is no different than including 'xxx' in a URL or "alt.sex." in a newsgroup name.

c. -L18 is not envisioned under the statute, and Senator Exon and other members of Congress did not understand that postings to the alt.sex newsgroups would be "protected" under the statute.

d. At the same time that Congress enacted the CDA, it declined to enact -- in the area of broadcast violence -- a mandatory labeling scheme similar to the -L18 scheme proposed by Dan Olsen.

e. The government refuses to state that using -L18 would in fact be a defense under the Communications Decency Act.

f. The defendants' expert admits that -L18 does not work with e-mail, newsgroups, IRC, and mail exploders.

g. The -L18 scheme is not at all "effective" today.

h. The -L18 scheme will not be "effective" in the future.

i. Future effectiveness of the -L18 scheme would depend entirely on actions of individuals or entities down the communications line, yet Congress made a specific policy choice not to impose liability or responsibility on such downstream individuals or entities.

j. The "-L18" scheme would do nothing to prevent access to foreign sites, and the volume of foreign sexually oriented content would make such content as accessible to minors as it is today.

k. Even if "effective," the -L18 scheme would be very expensive because each labeling of speech would require a human judgment.

D. Vagueness

1. Variations in the interpretation of the CDA by defendants' two expert witnesses illustrate the vagueness of the CDA.

2. The terms "indecent" and "patently offensive" are vague.

3. The term "community standards" is vague and would reduce speech to the level acceptable to the most conservative location.

4. Additional terms used in the CDA are vague.

5. The legislative record is unclear as to the meaning of the CDA.

6. The government refuses to say what speech is covered.

E. One of the benefits that would be destroyed by the CDA is the ability of people to access important information -- such as AIDS prevention information -- anonymously.

F. The CDA is ineffective, and allows minors across the country to have ready access to sexually explicit content on the Internet.

1. The CDA does nothing to prevent sexually explicit content that is posted overseas from being available to minors in the United States.

2. The CDA does nothing to prevent sexually explicit content that is posted via anonymous remailers from being available to minors in the United States.

3. Current technology (such as Surfwatch and PICS) is much more effective at addressing the problem, and does not require any mandatory labeling of content.

NOTES

Plaintiffs in the consolidated ACLU and ALA cases respectfully submit, through counsel, the following proposed findings of fact. At the outset, plaintiffs identify a limited number of broad "key facts" that have been established in these consolidated cases. Plaintiffs submit that these key facts are sufficient to warrant the entry of a preliminary (and ultimately permanent) injunction against enforcement of the Communications Decency Act as it applies to "indecent" or "patently offensive" speech. In addition to the limited number of key facts, plaintiffs have also identified an extensive number of more comprehensive, detailed facts which may be of assistance to the Court in considering specific factual questions. Each of the detailed facts is supported by citations to the evidentiary record before the Court, and each of the key facts is supported by reference to the underlying detailed facts. Within the detailed facts, broader factual statements are set out in the headings.

The ACLU and ALA plaintiffs jointly propose the vast majority of the facts detailed below. Because of differences in the two complaints, however, certain facts are not relevant to both complaints, and those facts are advanced only by one of the groups of plaintiffs. Notwithstanding these minor differences, the plaintiffs have endeavored, for the convenience of the Court, to present one consolidated set of proposed facts.

1. Collectively, plaintiffs in the two consolidated cases represent a broad and very diverse range of content providers, service providers, and users of content on the Internet. Either directly or through associational plaintiffs, a full spectrum of content providers is represented, ranging from individuals and small non-profit organizations to associations of major commercial content providers. Similarly, the plaintiffs include access providers ranging from small or non-commercial "Internet service providers" ("ISPs") to the leading ISPs and commercial online services in the world. Finally, the plaintiffs include and/or bring this action on behalf of literally millions of small or individual consumers of content on the Internet. See Part II.

2. Collectively, plaintiffs engage in or provide access to a very broad range of speech on the Internet, from information about AIDS awareness to literature to political commentary to person-to-person discussions of a vast array of topics. All of this speech is appropriate for adults, and the vast majority, if not all, of the speech is appropriate for many, if not all, minors as well. See Parts II and III.E.

3. Plaintiffs engage in or provide access to some speech that could in some communities be considered "indecent" or "patently offensive." Such speech includes discourse and debate that contain the "seven dirty words" at issue in the decision in Federal Communications Commission v. Pacifica Foundation, 438 U.S. 726 (1978), information about sexual issues and problems, and images that depict sexually oriented subjects. See Part II.

4. The plaintiffs do not generally charge money for the speech they make available over the Internet (except that some of the plaintiffs provide access to the Internet or to an online service and charge for that access). With those exceptions, users around the world can access plaintiffs' speech on the Internet free of charge. See Part II.

5. Plaintiffs seek to make their speech available to the broadest possible audience, including listeners in the United States and elsewhere in the world. See Part II.

6. Virtually all speech that is displayed on the Internet in a manner that is broadly available to adults will necessarily also be displayed in a manner that is available to minors. See Part IV.B.

7. The Internet is a unique and important medium because of its interactivity, its democratic nature, its lack of barriers to access, the low (or no) cost of that access, and the fact that content must affirmatively be sought by the user. See Part III.A.

8. For certain types of speech on the Internet (including, for example, newsgroups, mail exploders, and IRC chat), it is not technically feasible for a speaker to control or restrict who listens to the speech. See Part IV.C.1.a.

9. For other types of speech on the Internet (including the World Wide Web), it is technically feasible for some (but not all) speakers to restrict at least somewhat who listens to the speech. For these types of speech, however, it is not economically feasible for plaintiffs (and their members and users), or for other noncommercial speakers, to create and maintain the systems that would be required to screen access to content on the Internet by age. See Part IV.C.1.6.

10. For plaintiffs and other speakers who provide listeners with access to their speech for free, using the verified "credit card defense" is not a feasible option. Similarly, there exists no "adult ID" system that could plausibly provide verification of age for the estimated more than 40 million users of the Internet worldwide. See Part IV.C.1.b.

11. Requiring a credit card or adult identification number would prevent individuals from anonymously accessing important speech on the Internet, and would prevent access to speech by adults who either do not have a credit card or who cannot afford to pay to access speech. See Part IV.C.1.c - d.

12. For plaintiffs and other noncommercial speakers, in light of the volume of material they themselves make available on the Internet, the volume of material they have made it possible for others to make available on the Internet, and the material to which they create links, screening the content of that material to determine if it is "indecent" or "patently offensive" is not economically or practically feasible. See Part IV.C.1.b.

13. Accordingly, the Communications Decency Act effectively bans for adults as well as minors a great deal of speech on the Internet that may in some communities be considered "ind