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Court Hearing on Internet Decency Law Commences

By John Schwartz
The Washington Post

It was the first day of a legal proceeding that puts the Internet on trial, but the star witness was balky.

"Well, we've just had a little crash of the computer," witness Ann W. Duvall said, after trying to show a panel of three federal judges how easy it is to bring up the Phillies' latest scores on-line. After a second attempt to retrieve the scores failed, Judge Stewart Dalzell quipped, "They've had a tough year."

Crashes are standard operating procedure during high-tech demonstrations, or "demos," as they call them in the business. But this demo was anything but routine. It was part of an attempt by a broad coalition of 27 plaintiffs - including the American Civil Liberties Union, the American Library Association and trade groups for high-tech companies and journalism organizations - to strike down the new Communications Decency Act, a part of the new telecommunications law that bans making "indecent" or "patently offensive" material available to minors via computers.

The plaintiffs argue that restrictions to ensure that the Internet is suitable for children would be unenforceable on the global network and will choke the emerging medium.

If the government is allowed to enforce the new law, "the most important innovation to human society since the development of the printing press will be effectively destroyed," said Vanderbilt University business professor Donna Hoffman in written testimony submitted to the court. Hoffman cited estimates that the value of electronic commerce on the Internet will approach $45.8 billion by the year 2000.

Duvall was trying to take the judges on a tour of the global computer network to show them why the burgeoning new medium differs from traditional communications technologies like television and telephones - a crucial point, since the laws being applied to the new medium are based on regulations for the old ones. Although television programs enter the home unbidden, at the push of a button, people have to seek out information on-line - "it doesn't just come at you," Duvall said.

The other goal of the on-line demonstration was to show the judges that Duvall's company's program, Surfwatch, puts tools in parents' hands to keep objectionable materials away from children. Programs like SurfWatch, which Duvall's husband developed after becoming concerned that some material he found on-line was unsuitable for their daughter, constitute the heart of the plaintiffs' contention that Congress did not fulfill its constitutional responsibility to find the least restrictive means to curtail protected speech when it passed the Communications Decency Act.

Eventually, Duvall's technicians worked out the bugs, and the judges watched as their computer screens filled with images from London's National Gallery and medical information about Fragile X syndrome, an inherited disease. But when Duvall entered the on-line address for Penthouse Magazine's page, the connection failed to go through, and the screen read, "Blocked by SurfWatch."

The case, which is on a fast track for consideration by the federal court system, will "give the Supreme Court the opportunity to decide what the First Amendment rules will be in cyberspace," said Christopher Hansen, an attorney for the ACLU. The judges will hear four more days of testimony between now and April 15th.

The unusual proceeding was an example of the uneasy relationship between law and high technology. The courtroom, although rigged with jumbo projection screens and a high-speed Internet connection to display the various on-line wares, seemed an uncomfortable venue for Duvall, the software entrepreneur, and for the Internet expert whose testimony preceded hers.

Justice Department lawyers defending the government's position would not speak with reporters Thursday, but Bruce A. Taylor, president of the National Law Center for Children and Families, said opponents of the law are trying to make Internet regulation sound more burdensome than it is. Taylor, whose organization favors banning on-line indecency and who helped shape the legislation, said the law would allow youngsters to use the Internet while protecting them from pornography and would "allow adults to get their precious porn, if that's what they want."