ACLU v. Reno, 1996 U.S. Dist. LEXIS 7919 (E.Pa., 1996) [No. 96-963]
Copyright Notice

INRODUCTION

FINDINGS OF FACT

• The Nature of Cyberspace
• How Individuals Access the Internet
• Methods to Communicate Over the Internet
• Restricting Access to Unwanted On-Line Material
• Content on the Internet
• Sexually Explicit Material On the Internet
• Obstacles to Age Verification on the Internet
• The Practicalities of the Proffered Defenses
  • Credit Card Verification
  • Adult Verification by Password
  • The Government's "Tagging" Proposal
• The Problems of Offshore Content and Caching
• Plaintiffs' Choices Under the CDA

CONCLUSIONS OF LAW

Sloviter, Chief Judge
Buckwalter, Judge
Dalzell, Judge

Before:   Sloviter, Chief Judge, United States Court of Appeals
          for the Third Circuit; Buckwalter and Dalzell, Judges,
          United States District Court for the Eastern District
          of Pennsylvania
                           June 11, 1996
      ADJUDICATION ON MOTIONS FOR PRELIMINARY INJUNCTION
                                				
		
		
		
		
	
	
	
	
	
	
	
	

	

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                       Procedural Background          Before us are motions for a preliminary injunctionfiled by plaintiffs who challenge on constitutional groundsprovisions of the Communications Decency Act of 1996 (CDA or "theAct"), which constitutes Title V of the Telecommunications Act of1996, signed into law by the President on February 8, 1996.[1]Telecommunications Act of 1996, Pub. L. No. 104-104,  502, 110Stat. 56, 133-35.  Plaintiffs include various organizations andindividuals who, inter alia, are associated with the computerand/or communications industries, or who publish or postmaterials on the Internet, or belong to various citizen groups.See ACLU Complaint ( 7-26), ALA First Amended Complaint ( 3,12-33).          The defendants in these actions are Janet Reno, theAttorney General of the United States, and the United StatesDepartment of Justice.  For convenience, we will refer to thesedefendants as the Government.  Plaintiffs contend that the twochallenged provisions of the CDA that are directed tocommunications over the Internet which might be deemed "indecent"or "patently offensive" for minors, defined as persons under theage of eighteen, infringe upon rights protected by the FirstAmendment and the Due Process Clause of the Fifth Amendment.          Plaintiffs in Civil Action Number 96-963, in which thelead plaintiff is the American Civil Liberties Union (theACLU),[2] filed their action in the United States District Courtfor the Eastern District of Pennsylvania on the day the Act wassigned, and moved for a temporary restraining order to enjoinenforcement of these two provisions of the CDA.  On February 15,1996, following an evidentiary hearing, Judge Ronald L.Buckwalter, to whom the case had been assigned, granted a limitedtemporary restraining order, finding in a Memorandum that 47U.S.C.  223(a)(1)(B) ("the indecency provision" of the CDA) wasunconstitutionally vague.  On the same day, Chief Judge DoloresK. Sloviter, Chief Judge of the United States Court of Appealsfor the Third Circuit, having been requested by the parties andthe district court to convene a three-judge court, pursuant to561(a) of the CDA, appointed such a court consisting of, inaddition to Judge Buckwalter, Judge Stewart Dalzell of the samedistrict, and herself, as the circuit judge required by 28 U.S.C. 2284.          After a conference with the court, the parties enteredinto a stipulation, which the court approved on February 26,1996, wherein the Attorney General agreed that:          she will not initiate any investigations or          prosecutions for violations of 47 U.S.C.          223(d) for conduct occurring after enactment          of this provision until the three-judge court          hears Plaintiffs' Motion for Preliminary          Injunction . . . and has decided the motion.The Attorney General's commitment was qualified to the extentthat:          her full authority to investigate or          prosecute any violation of  223(a)(1)(B), as          amended, and  223(d) as to conduct which          occurs or occurred during any period of time          after enactment of these provisions          (including for the period of time to which          this stipulation applies) should the Court          deny plaintiffs' motion or, if the motion is          granted, should these provisions ultimately          be upheld.Stipulation,  4, in C.A. No. 96-963.          Shortly thereafter, the American Library Association,Inc. (the ALA) and others[3] filed a similar action at C.A. No.96-1458.  On February 27, 1996, Chief Judge Sloviter, againpursuant to  561(a) of the CDA and upon request, convened thesame three-judge court pursuant to 28 U.S.C.  2284.  The actionswere consolidated pursuant to Fed. R. Civ. P. 42(a), "for allmatters relating to the disposition of motions for preliminaryinjunction in these cases, including the hearing on suchmotions."          The parties were afforded expedited discovery inconnection with the motions for preliminary injunction, and theycooperated with Judge Dalzell, who had been assigned the casemanagement aspects of the litigation.  While the discovery wasproceeding, and with the agreement of the parties, the courtbegan receiving evidence at the consolidated hearings which wereconducted on March 21 and 22, and April 1, 12 and 15, 1996.  Inorder to expedite the proceedings, the parties worked closelywith Judge Dalzell and arranged to stipulate to many of theunderlying facts and to place much of their cases in chief beforethe court by sworn declarations, so that the hearings werelargely devoted to cross-examination of certain of the witnesseswhose declarations had been filed.  The parties submittedproposed findings of fact and post-hearing memoranda on April 29,and the court heard extensive oral argument on May 10, 1996.[4]                   Statutory Provisions at Issue          Plaintiffs focus their challenge on two provisions ofsection 502 of the CDA which amend 47 U.S.C.  223(a) and223(d).          Section 223(a)(1)(B) provides in part that any personin interstate or foreign communications who, "by means of atelecommunications device,"[5] "knowingly . . . makes, creates, orsolicits" and "initiates the transmission" of "any comment,request, suggestion, proposal, image or other communication whichis obscene or indecent, knowing that the recipient of thecommunication is under 18 years of age," "shall be criminallyfined or imprisoned." (emphasis added).          Section 223(d)(1) ("the patently offensive provision"),makes it a crime to use an "interactive computer service"[6] to"send" or "display in a manner available" to a person under age18, "any comment, request, suggestion, proposal, image, or othercommunication that, in context, depicts or describes, in termspatently offensive as measured by contemporary communitystandards, sexual or excretory activities or organs, regardlessof whether the user of such service placed the call or initiatedthe communication."          Plaintiffs also challenge on the same grounds theprovisions in  223(a)(2) and  223(d)(2), which make it a crimefor anyone to "knowingly permit[] any telecommunications facilityunder [his or her] control to be used for any activityprohibited" in  223(a)(1)(B) and 223(d)(1).  The challengedprovisions impose a punishment of a fine, up to two yearsimprisonment, or both for each offense.          Plaintiffs make clear that they do not quarrel with thestatute to the extent that it covers obscenity or childpornography, which were already proscribed before the CDA'sadoption.  See 18 U.S.C.  1464-65 (criminalizing obscenematerial); id.  2251-52 (criminalizing child pornography); seealso New York v. Ferber, 458 U.S. 747 (1982); Miller v.California, 413 U.S. 15 (1973).          Plaintiffs in the ACLU action also challenge theprovision of the CDA that criminalizes speech over the Internetthat transmits information about abortions or abortifacient drugsand devices, through its amendment of 18 U.S.C.  1462(c).  Thatsection now prohibits the sending and receiving of informationover the Internet by any means regarding "where, how, or of whom,or by what means any [drug, medicine, article, or thing designed,adapted, or intended for producing abortion] may be obtained ormade".  The Government has stated that it does not contestplaintiffs' challenge to the enforceability of the provision ofthe CDA as it relates to 18 U.S.C.  1462(c).[7]          As part of its argument that the CDA passesconstitutional muster, the Government cites the CDA's "safeharbor" defenses in new  223(e) of 47 U.S.C., which provides:          (e)  Defenses          In addition to any other defenses available          by law:               (1)  No person shall be held to have violated          subsection (a) or (d) of this section solely for          providing access or connection to or from a          facility, system, or network not under that          person's control, including transmission,          downloading, intermediate storage, access          software, or other related capabilities that are          incidental to providing such access or connection          that does not include the creation of the content          of the communication.               (2)  The defenses provided by paragraph (1)          of this subsection shall not be applicable to a          person who is a conspirator with an entity          actively involved in the creation or knowing          distribution of communications that violate this          section, or who knowingly advertises the          availability of such communications.               (3)  The defenses provided in paragraph (1)          of this subsection shall not be applicable to a          person who provides access or connection to a          facility, system, or network engaged in the          violation of this section that is owned or          controlled by such person.               (4)  No employer shall be held liable under          this section for the actions of an employee or          agent unless the employee's or agent's conduct is          within the scope of his or her employment or          agency and the employer (A) having knowledge of          such conduct, authorizes or ratifies such conduct,          or (B) recklessly disregards such conduct.               (5)  It is a defense to a prosecution under          subsection (a)(1)(B) or (d) of this section, or          under subsection (a)(2) of this section with          respect to the use of a facility for an activity          under subsection (a)(1)(B) that a person --               (A)  has taken, in good faith, reasonable,          effective, and appropriate actions under the          circumstances to restrict or prevent access by          minors to a communication specified in such          subsections, which may involve any appropriate          measures to restrict minors from such          communications, including any method which is          feasible under available technology; or               (B)  has restricted access to such          communication by requiring use of a verified          credit card, debit account, adult access code, or          adult personal identification number.               (6)  The [Federal Communications] Commission          may describe measures which are reasonable,          effective, and appropriate to restrict access to          prohibited communications under subsection (d) of          this section.  Nothing in this section authorizes          the Commission to enforce, or is intended to          provide the Commission with the authority to          approve, sanction, or permit, the use of such          measures.  The Commission shall have no          enforcement authority over the failure to utilize          such measures. . . .                                II. FINDINGS OF FACT          All parties agree that in order to apprehend the legalquestions at issue in these cases, it is necessary to have aclear understanding of the exponentially growing, worldwidemedium that is the Internet, which presents unique issuesrelating to the application of First Amendment jurisprudence anddue process requirements to this new and evolving method ofcommunication.  For this reason all parties insisted on havingextensive evidentiary hearings before the three-judge court.The court's Findings of fact are made pursuant to Fed. R. Civ. P.52(a).  The history and basic technology of this medium are notin dispute, and the first forty-eight paragraphs of the followingFindings of fact are derived from the like-numbered paragraphs ofa stipulation[8] the parties filed with the court.[9]                     The Nature of Cyberspace  The Creation of the Internet and the Development of Cyberspace          1.   The Internet is not a physical or tangible entity,but rather a giant network which interconnects innumerablesmaller groups of linked computer networks.  It is thus a networkof networks.  This is best understood if one considers what alinked group of computers -- referred to here as a "network" --is, and what it does.  Small networks are now ubiquitous (and areoften called "local area networks").  For example, in many UnitedStates Courthouses, computers are linked to each other for thepurpose of exchanging files and messages (and to share equipmentsuch as printers).  These are networks.          2.  Some networks are "closed" networks, not linked toother computers or networks.  Many networks, however, areconnected to other networks, which are in turn connected to othernetworks in a manner which permits each computer in any networkto communicate with computers on any other network in the system.This global Web of linked networks and computers is referred toas the Internet.          3.  The nature of the Internet is such that it is verydifficult, if not impossible, to determine its size at a givenmoment.  It is indisputable, however, that the Internet hasexperienced extraordinary growth in recent years.  In 1981, fewerthan 300 computers were linked to the Internet, and by 1989, thenumber stood at fewer than 90,000 computers.  By 1993, over1,000,000 computers were linked.  Today, over 9,400,000 hostcomputers worldwide, of which approximately 60 percent locatedwithin the United States, are estimated to be linked to theInternet.  This count does not include the personal computerspeople use to access the Internet using modems.  In all,reasonable estimates are that as many as 40 million people aroundthe world can and do access the enormously flexible communicationInternet medium.  That figure is expected to grow to 200 millionInternet users by the year 1999.          4.  Some of the computers and computer networks thatmake up the Internet are owned by governmental and publicinstitutions, some are owned by non-profit organizations, andsome are privately owned.  The resulting whole is adecentralized, global medium of communications -- or "cyberspace"-- that links people, institutions, corporations, and governmentsaround the world.  The Internet is an international system.  Thiscommunications medium allows any of the literally tens ofmillions of people with access to the Internet to exchangeinformation.  These communications can occur almostinstantaneously, and can be directed either to specificindividuals, to a broader group of people interested in aparticular subject, or to the world as a whole.          5.  The Internet had its origins in 1969 as anexperimental project of the Advanced Research Project Agency("ARPA"), and was called ARPANET.  This network linked computersand computer networks owned by the military, defense contractors,and university laboratories conducting defense-related research.The network later allowed researchers across the country toaccess directly and to use extremely powerful supercomputerslocated at a few key universities and laboratories.  As itevolved far beyond its research origins in the United States toencompass universities, corporations, and people around theworld, the ARPANET came to be called the "DARPA Internet," andfinally just the "Internet."          6.  From its inception, the network was designed to bea decentralized, self-maintaining series of redundant linksbetween computers and computer networks, capable of rapidlytransmitting communications without direct human involvement orcontrol, and with the automatic ability to re-routecommunications if one or more individual links were damaged orotherwise unavailable.  Among other goals, this redundant systemof linked computers was designed to allow vital research andcommunications to continue even if portions of the network weredamaged, say, in a war.          7.  To achieve this resilient nationwide (andultimately global) communications medium, the ARPANET encouragedthe creation of multiple links to and from each computer (orcomputer network) on the network.  Thus, a computer located inWashington, D.C., might be linked (usually using dedicatedtelephone lines) to other computers in neighboring states or onthe Eastern seaboard.  Each of those computers could in turn belinked to other computers, which themselves would be linked toother computers.          8.  A communication sent over this redundant series oflinked computers could travel any of a number of routes to itsdestination.  Thus, a message sent from a computer in Washington,D.C., to a computer in Palo Alto, California, might first be sentto a computer in Philadelphia, and then be forwarded to acomputer in Pittsburgh, and then to Chicago, Denver, and SaltLake City, before finally reaching Palo Alto.  If the messagecould not travel along that path (because of military attack,simple technical malfunction, or other reason), the message wouldautomatically (without human intervention or even knowledge) bere-routed, perhaps, from Washington, D.C. to Richmond, and thento Atlanta, New Orleans, Dallas, Albuquerque, Los Angeles, andfinally to Palo Alto.  This type of transmission, and re-routing,would likely occur in a matter of seconds.          9.   Messages between computers on the Internet do notnecessarily travel entirely along the same path.  The Internetuses "packet switching" communication protocols that allowindividual messages to be subdivided into smaller "packets" thatare then sent independently to the destination, and are thenautomatically reassembled by the receiving computer.  While allpackets of a given message often travel along the same path tothe destination, if computers along the route become overloaded,then packets can be re-routed to less loaded computers.          10.  At the same time that ARPANET was maturing (itsubsequently ceased to exist), similar networks developed to linkuniversities, research facilities, businesses, and individualsaround the world.  These other formal or loose networks includedBITNET, CSNET, FIDONET, and USENET.  Eventually, each of thesenetworks (many of which overlapped) were themselves linkedtogether, allowing users of any computers linked to any one ofthe networks to transmit communications to users of computers onother networks.  It is this series of linked networks (themselveslinking computers and computer networks) that is today commonlyknown as the Internet.          11.  No single entity -- academic, corporate,governmental, or non-profit -- administers the Internet.  Itexists and functions as a result of the fact that hundreds ofthousands of separate operators of computers and computernetworks independently decided to use common data transferprotocols to exchange communications and information with othercomputers (which in turn exchange communications and informationwith still other computers).  There is no centralized storagelocation, control point, or communications channel for theInternet, and it would not be technically feasible for a singleentity to control all of the information conveyed on theInternet.                How Individuals Access the Internet          12.  Individuals have a wide variety of avenues toaccess cyberspace in general, and the Internet in particular.  Interms of physical access, there are two common methods toestablish an actual link to the Internet.  First, one can use acomputer or computer terminal that is directly (and usuallypermanently) connected to a computer network that is itselfdirectly or indirectly connected to the Internet.  Second, onecan use a "personal computer" with a "modem" to connect over atelephone line to a larger computer or computer network that isitself directly or indirectly connected to the Internet.  Asdetailed below, both direct and modem connections are madeavailable to people by a wide variety of academic, governmental,or commercial entities.          13.  Students, faculty, researchers, and othersaffiliated with the vast majority of colleges and universities inthe United States can access the Internet through theireducational institutions.  Such access is often via directconnection using computers located in campus libraries, offices,or computer centers, or may be through telephone access using amodem from a student's or professor's campus or off-campuslocation.  Some colleges and universities install "ports" oroutlets for direct network connections in each dormitory room orprovide access via computers located in common areas indormitories.  Such access enables students and professors to useinformation and content provided by the college or universityitself, and to use the vast amount of research resources andother information available on the Internet worldwide.          14.  Similarly, Internet resources and access aresufficiently important to many corporations and other employersthat those employers link their office computer networks to theInternet and provide employees with direct or modem access to theoffice network (and thus to the Internet).  Such access might beused by, for example, a corporation involved in scientific ormedical research or manufacturing to enable corporate employeesto exchange information and ideas with academic researchers intheir fields.          15.  Those who lack access to the Internet throughtheir schools or employers still have a variety of ways they canaccess the Internet.  Many communities across the country haveestablished "free-nets" or community networks to provide theircitizens with a local link to the Internet (and to provide local-oriented content and discussion groups).  The first suchcommunity network, the Cleveland Free-Net Community ComputerSystem, was established in 1986, and free-nets now exist inscores of communities as diverse as Richmond, Virginia,Tallahassee, Florida, Seattle, Washington, and San Diego,California.  Individuals typically can access free-nets at littleor no cost via modem connection or by using computers availablein community buildings.  Free-nets are often operated by a locallibrary, educational institution, or non-profit community group.          16.  Individuals can also access the Internet throughmany local libraries.  Libraries often offer patrons use ofcomputers that are linked to the Internet.  In addition, somelibraries offer telephone modem access to the libraries'computers, which are themselves connected to the Internet.Increasingly, patrons now use library services and resourceswithout ever physically entering the library itself.  Librariestypically provide such direct or modem access at no cost to theindividual user.          17.  Individuals can also access the Internet bypatronizing an increasing number of storefront "computer coffeeshops," where customers -- while they drink their coffee -- canuse computers provided by the shop to access the Internet.  SuchInternet access is typically provided by the shop for a smallhourly fee.          18.  Individuals can also access the Internet throughcommercial and non-commercial "Internet service providers" thattypically offer modem telephone access to a computer or computernetwork linked to the Internet.  Many such providers -- includingthe members of plaintiff Commercial Internet Exchange Association-- are commercial entities offering Internet access for amonthly or hourly fee.  Some Internet service providers, however,are non-profit organizations that offer free or very low costaccess to the Internet.  For example, the International InternetAssociation offers free modem access to the Internet uponrequest.  Also, a number of trade or other non-profitassociations offer Internet access as a service to members.          19.  Another common way for individuals to access theInternet is through one of the major national commercial "onlineservices" such as America Online, CompuServe, the MicrosoftNetwork, or Prodigy.  These online services offer nationwidecomputer networks (so that subscribers can dial-in to a localtelephone number), and the services provide extensive and wellorganized content within their own proprietary computer networks.In addition to allowing access to the extensive content availablewithin each online service, the services also allow subscribersto link to the much larger resources of the Internet.  Fullaccess to the online service (including access to the Internet)can be obtained for modest monthly or hourly fees.  The majorcommercial online services have almost twelve million individualsubscribers across the United States.          20.  In addition to using the national commercialonline services, individuals can also access the Internet usingsome (but not all) of the thousands of local dial-in computerservices, often called "bulletin board systems" or "BBSs."  Withan investment of as little as $2,000.00 and the cost of atelephone line, individuals, non-profit organizations, advocacygroups, and businesses can offer their own dial-in computer"bulletin board" service where friends, members, subscribers, orcustomers can exchange ideas and information.  BBSs range fromsingle computers with only one telephone line into the computer(allowing only one user at a time), to single computers with manytelephone lines into the computer (allowing multiple simultaneoususers), to multiple linked computers each servicing multipledial-in telephone lines (allowing multiple simultaneous users).Some (but not all) of these BBS systems offer direct or indirectlinks to the Internet.  Some BBS systems charge users a nominalfee for access, while many others are free to the individualusers.          21.  Although commercial access to the Internet isgrowing rapidly, many users of the Internet -- such as collegestudents and staff -- do not individually pay for access (exceptto the extent, for example, that the cost of computer services isa component of college tuition).  These and other Internet userscan access the Internet without paying for such access with acredit card or other form of payment.             Methods to Communicate Over the Internet         22.   Once one has access to the Internet, there are awide variety of different methods of communication andinformation exchange over the network.  These many methods ofcommunication and information retrieval are constantly evolvingand are therefore difficult to categorize concisely.  The mostcommon methods of communications on the Internet (as well aswithin the major online services) can be roughly grouped into sixcategories:               (1)  one-to-one messaging (such as "e-mail"),               (2)  one-to-many messaging (such as "listserv"),               (3)  distributed message databases (such as                    "USENET newsgroups"),               (4)  real time communication (such as "Internet                    Relay Chat"),               (5)  real time remote computer utilization (such                    as "telnet"), and               (6)  remote information retrieval (such as "ftp,"                    "gopher," and the "World Wide Web").Most of these methods of communication can be used to transmittext, data, computer programs, sound, visual images (i.e.,pictures), and moving video images.          23.  One-to-one messaging.  One method of communicationon the Internet is via electronic mail, or "e-mail," comparablein principle to sending a first class letter.  One can addressand transmit a message to one or more other people.  E-mail onthe Internet is not routed through a central control point, andcan take many and varying paths to the recipients.  Unlike postalmail, simple e-mail generally is not "sealed" or secure, and canbe accessed or viewed on intermediate computers between thesender and recipient (unless the message is encrypted).          24.  One-to-many messaging.  The Internet also containsautomatic mailing list services (such as "listservs"), [alsoreferred to by witnesses as "mail exploders"] that allowcommunications about particular subjects of interest to a groupof people.  For example, people can subscribe to a "listserv"mailing list on a particular topic of interest to them.  Thesubscriber can submit messages on the topic to the listserv thatare forwarded (via e-mail), either automatically or through ahuman moderator overseeing the listserv, to anyone who hassubscribed to the mailing list.  A recipient of such a messagecan reply to the message and have the reply also distributed toeveryone on the mailing list.  This service provides thecapability to keep abreast of developments or events in aparticular subject area.  Most listserv-type mailing listsautomatically forward all incoming messages to all mailing listsubscribers.  There are thousands of such mailing list serviceson the Internet, collectively with hundreds of thousands ofsubscribers.  Users of "open" listservs typically can add orremove their names from the mailing list automatically, with nodirect human involvement.  Listservs may also be "closed," i.e.,only allowing for one's acceptance into the listserv by a humanmoderator.          25.  Distributed message databases.  Similar infunction to listservs -- but quite different in howcommunications are transmitted -- are distributed messagedatabases such as "USENET newsgroups."  User-sponsored newsgroupsare among the most popular and widespread applications ofInternet services, and cover all imaginable topics of interest tousers.  Like listservs, newsgroups are open discussions andexchanges on particular topics.  Users, however, need notsubscribe to the discussion mailing list in advance, but caninstead access the database at any time.  Some USENET newsgroupsare "moderated" but most are open access.  For the moderatednewsgroups,[10] all messages to the newsgroup are forwarded to oneperson who can screen them for relevance to the topics underdiscussion.  USENET newsgroups are disseminated using ad hoc,peer to peer connections between approximately 200,000 computers(called USENET "servers") around the world.  For unmoderatednewsgroups, when an individual user with access to a USENETserver posts a message to a newsgroup, the message isautomatically forwarded to all adjacent USENET servers thatfurnish access to the newsgroup, and it is then propagated to theservers adjacent to those servers, etc.  The messages aretemporarily stored on each receiving server, where they areavailable for review and response by individual users.  Themessages are automatically and periodically purged from eachsystem after a time to make room for new messages.  Responses tomessages, like the original messages, are automaticallydistributed to all other computers receiving the newsgroup orforwarded to a moderator in the case of a moderated newsgroup.The dissemination of messages to USENET servers around the worldis an automated process that does not require direct humanintervention or review.          26.  There are newsgroups on more than fifteen thousanddifferent subjects.  In 1994, approximately 70,000 messages wereposted to newsgroups each day, and those messages weredistributed to the approximately 190,000 computers or computernetworks that participate in the USENET newsgroup system.  Oncethe messages reach the approximately 190,000 receiving computersor computer networks, they are available to individual users ofthose computers or computer networks.  Collectively, almost100,000 new messages (or "articles") are posted to newsgroupseach day.          27.  Real time communication.  In addition totransmitting messages that can be later read or accessed,individuals on the Internet can engage in an immediate dialog, in"real time", with other people on the Internet.  In its simplestforms, "talk" allows one-to-one communications and "InternetRelay Chat" (or IRC) allows two or more to type messages to eachother that almost immediately appear on the others' computerscreens.  IRC is analogous to a telephone party line, using acomputer and keyboard rather than a telephone.  With IRC,however, at any one time there are thousands of different partylines available, in which collectively tens of thousands of usersare engaging in conversations on a huge range of subjects.Moreover, one can create a new party line to discuss a differenttopic at any time.  Some IRC conversations are "moderated" orinclude "channel operators."          28.  In addition, commercial online services such asAmerica Online, CompuServe, the Microsoft Network, and Prodigyhave their own "chat" systems allowing their members to converse.          29.  Real time remote computer utilization.  Anothermethod to use information on the Internet is to access andcontrol remote computers in "real time" using "telnet."  Forexample, using telnet, a researcher at a university would be ableto use the computing power of a supercomputer located at adifferent university.  A student can use telnet to connect to aremote library to access the library's online card catalogprogram.          30.  Remote information retrieval.  The final majorcategory of communication may be the most well known use of theInternet -- the search for and retrieval of information locatedon remote computers.  There are three primary methods to locateand retrieve information on the Internet.          31.  A simple method uses "ftp" (or file transferprotocol) to list the names of computer files available on aremote computer, and to transfer one or more of those files to anindividual's local computer.          32.  Another approach uses a program and format named"gopher" to guide an individual's search through the resourcesavailable on a remote computer.                        The World Wide Web          33.  A third approach, and fast becoming the most well-known on the Internet, is the "World Wide Web."  The Web utilizesa "hypertext" formatting language called hypertext markuplanguage (HTML), and programs that "browse" the Web can displayHTML documents containing text, images, sound, animation andmoving video.  Any HTML document can include links to other typesof information or resources, so that while viewing an HTMLdocument that, for example, describes resources available on theInternet, one can "click" using a computer mouse on thedescription of the resource and be immediately connected to theresource itself.  Such "hyperlinks" allow information to beaccessed and organized in very flexible ways, and allow people tolocate and efficiently view related information even if theinformation is stored on numerous computers all around the world.          34.  Purpose.  The World Wide Web (W3C) was created toserve as the platform for a global, online store of knowledge,containing information from a diversity of sources and accessibleto Internet users around the world.  Though information on theWeb is contained in individual computers, the fact that each ofthese computers is connected to the Internet through W3Cprotocols allows all of the information to become part of asingle body of knowledge.  It is currently the most advancedinformation system developed on the Internet, and embraces withinits data model most information in previous networked informationsystems such as ftp, gopher, wais, and Usenet.          35.  History.  W3C was originally developed at CERN,the European Particle Physics Laboratory, and was initially usedto allow information sharing within internationally dispersedteams of researchers and engineers.  Originally aimed at the HighEnergy Physics community, it has spread to other areas andattracted much interest in user support, resource recovery, andmany other areas which depend on collaborative and informationsharing.  The Web has extended beyond the scientific and academiccommunity to include communications by individuals, non-profitorganizations, and businesses.          36.  Basic Operation.  The World Wide Web is a seriesof documents stored in different computers all over the Internet.Documents contain information stored in a variety of formats,including text, still images, sounds, and video.  An essentialelement of the Web is that any document has an address (ratherlike a telephone number).  Most Web documents contain "links."These are short sections of text or image which refer to anotherdocument.  Typically the linked text is blue or underlined whendisplayed, and when selected by the user, the referenced documentis automatically displayed, wherever in the world it actually isstored.  Links for example are used to lead from overviewdocuments to more detailed documents, from tables of contents toparticular pages, but also as cross-references, footnotes, andnew forms of information structure.          37.  Many organizations now have "home pages" on theWeb.  These are documents which provide a set of links designedto represent the organization, and through links from the homepage, guide the user directly or indirectly to information aboutor relevant to that organization.          38.  As an example of the use of links, if theseFindings were to be put on a World Wide Web site, its home pagemight contain links such as those:*THE NATURE OF CYBERSPACE*CREATION OF THE INTERNET AND THE DEVELOPMENT OF CYBERSPACE*HOW PEOPLE ACCESS THE INTERNET*METHODS TO COMMUNICATE OVER THE INTERNET          39.  Each of these links takes the user of the sitefrom the beginning of the Findings to the appropriate sectionwithin this Adjudication.  Links may also take the user from theoriginal Web site to another Web site on another computerconnected to the Internet.  These links from one computer toanother, from one document to another across the Internet, arewhat unify the Web into a single body of knowledge, and whatmakes the Web unique.  The Web was designed with a maximum targettime to follow a link of one tenth of a second.          40.  Publishing.  The World Wide Web existsfundamentally as a platform through which people andorganizations can communicate through shared information.  Wheninformation is made available, it is said to be "published" onthe Web.  Publishing on the Web simply requires that the"publisher" has a computer connected to the Internet and that thecomputer is running W3C server software.  The computer can be assimple as a small personal computer costing less than $1500dollars or as complex as a multi-million dollar mainframecomputer.  Many Web publishers choose instead to lease diskstorage space from someone else who has the necessary computerfacilities, eliminating the need for actually owning anyequipment oneself.          41.  The Web, as a universe of network accessibleinformation, contains a variety of documents prepared with quitevarying degrees of care, from the hastily typed idea, to theprofessionally executed corporate profile.  The power of the Webstems from the ability of a link to point to any document,regardless of its status or physical location.          42.  Information to be published on the Web must alsobe formatted according to the rules of the Web standards.  Thesestandardized formats assure that all Web users who want to readthe material will be able to view it.  Web standards aresophisticated and flexible enough that they have grown to meetthe publishing needs of many large corporations, banks, brokeragehouses, newspapers and magazines which now publish "online"editions of their material, as well as government agencies, andeven courts, which use the Web to disseminate information to thepublic.  At the same time, Web publishing is simple enough thatthousands of individual users and small community organizationsare using the Web to publish their own personal "home pages," theequivalent of individualized newsletters about that person ororganization, which are available to everyone on the Web.          43.  Web publishers have a choice to make their Websites open to the general pool of all Internet users, or closethem, thus making the information accessible only to those withadvance authorization.  Many publishers choose to keep theirsites open to all in order to give their information the widestpotential audience.  In the event that the publishers choose tomaintain restrictions on access, this may be accomplished byassigning specific user names and passwords as a prerequisite toaccess to the site.  Or, in the case of Web sites maintained forinternal use of one organization, access will only be allowedfrom other computers within that organization's local network.[11]          44.  Searching the Web.  A variety of systems havedeveloped that allow users of the Web to search particularinformation among all of the public sites that are part of theWeb.  Services such as Yahoo, Magellan, Altavista, Webcrawler,and Lycos are all services known as "search engines" which allowusers to search for Web sites that contain certain categories ofinformation, or to search for key words.  For example, a Web userlooking for the text of Supreme Court opinions would type thewords "Supreme Court" into a search engine, and then be presentedwith a list of World Wide Web sites that contain Supreme Courtinformation.  This list would actually be a series of links tothose sites.  Having searched out a number of sites that mightcontain the desired information, the user would then followindividual links, browsing through the information on each site,until the desired material is found.  For many content providerson the Web, the ability to be found by these search engines isvery important.          45.  Common standards.  The Web links togetherdisparate information on an ever-growing number of Internet-linked computers by setting common information storage formats(HTML) and a common language for the exchange of Web documents(HTTP).  Although the information itself may be in many differentformats, and stored on computers which are not otherwisecompatible, the basic Web standards provide a basic set ofstandards which allow communication and exchange of information.Despite the fact that many types of computers are used on theWeb, and the fact that many of these machines are otherwiseincompatible, those who "publish" information on the Web are ableto communicate with those who seek to access information withlittle difficulty because of these basic technical standards.          46.  A distributed system with no centralized control.Running on tens of thousands of individual computers on theInternet, the Web is what is known as a distributed system.  TheWeb was designed so that organizations with computers containinginformation can become part of the Web simply by attaching theircomputers to the Internet and running appropriate World Wide Websoftware.  No single organization controls any membership in theWeb, nor is there any single centralized point from whichindividual Web sites or services can be blocked from the Web.From a user's perspective, it may appear to be a single,integrated system, but in reality it has no centralized controlpoint.          47.  Contrast to closed databases.  The Web's open,distributed, decentralized nature stands in sharp contrast tomost information systems that have come before it.  Privateinformation services such as Westlaw, Lexis/Nexis, and Dialog,have contained large storehouses of knowledge, and can beaccessed from the Internet with the appropriate passwords andaccess software.  However, these databases are not linkedtogether into a single whole, as is the World Wide Web.          48.  Success of the Web in research, education, andpolitical activities.  The World Wide Web has become so popularbecause of its open, distributed, and easy-to-use nature.  Ratherthan requiring those who seek information to purchase newsoftware or hardware, and to learn a new kind of system for eachnew database of information they seek to access, the Webenvironment makes it easy for users to jump from one set ofinformation to another.  By the same token, the open nature ofthe Web makes it easy for publishers to reach their intendedaudiences without having to know in advance what kind of computereach potential reader has, and what kind of software they will beusing.           Restricting Access to Unwanted On-Line Material[12]PICS          49.  With the rapid growth of the Internet, theincreasing popularity of the Web, and the existence of materialonline that some parents may consider inappropriate for theirchildren, various entities have begun to build systems intendedto enable parents to control the material which comes into theirhomes and may be accessible to their children.  The World WideWeb Consortium launched the PICS ("Platform for Internet ContentSelection") program in order to develop technical standards thatwould support parents' ability to filter and screen material thattheir children see on the Web.          50.  The Consortium intends that PICS will provide theability for third parties, as well as individual contentproviders, to rate content on the Internet in a variety of ways.When fully implemented, PICS-compatible World Wide Web browsers,Usenet News Group readers, and other Internet applications, willprovide parents the ability to choose from a variety of ratingservices, or a combination of services.          51.  PICS working group [PICS-WG] participants includemany of the major online services providers, commercial internetaccess providers, hardware and software companies, major internetcontent providers, and consumer organizations.  Among activeparticipants in the PICS effort are:               Adobe Systems, Inc.               Apple Computer               America Online               AT&T               Center for Democracy and Technology               CompuServe               Delphi Internet Services               Digital Equipment Corporation               IBM               First floor               First Virtual Holdings Incorporated               France Telecom               FTP Software               Industrial Technology Research Institute of Taiwan               Information Technology Association of America               Institut National de Recherche en Informatique et                    en Automatique (INRIA)               Interactive Services Association               MCI               Microsoft               MIT/LCS/World Wide Web Consortium               NCD               NEC               Netscape Communications Corporation               NewView               O'Reilly and Associates               Open Market               Prodigy Services Company               Progressive Networks               Providence Systems/Parental Guidance               Recreational Software Advisory Council               SafeSurf               SoftQuad, Inc.               Songline Studios               Spyglass               SurfWatch Software               Telequip Corp.               Time Warner Pathfinder               Viacom Nickelodeon[13]          52.  Membership in the PICS-WG includes a broad cross-section of companies from the computer, communications, andcontent industries, as well as trade associations and publicinterest groups.  PICS technical specifications have been agreedto, allowing the Internet community to begin to deploy productsand services based on the PICS-standards.          53.  Until a majority of sites on the Internet havebeen rated by a PICS rating service, PICS will initially functionas a "positive" ratings system in which only those sites thathave been rated will be displayed using PICS compatible software.In other words, PICS will initially function as a site inclusionlist rather than a site exclusion list.  The defaultconfiguration for a PICS compatible Internet application will beto block access to all sites which have not been rated by a PICSrating service, while allowing access to sites which have a PICSrating for appropriate content.[14]Software          54.  For over a year, various companies have marketedstand alone software that is intended to enable parents and otheradults to limit the Internet access of children.  Examples ofsuch software include:  Cyber Patrol, CYBERsitter, The InternetFilter, Net Nanny, Parental Guidance, SurfWatch, Netscape ProxyServer, and WebTrack.  The market for this type of software isgrowing, and there is increasing competition among softwareproviders to provide products.Cyber Patrol          55.  As more people, particularly children, began touse the Internet, Microsystems Software, Inc. decided to developand market Internet software intended to empower parents toexercise individual choice over what material their childrencould access.  Microsystems' stated intent is to develop aproduct which would give parents comfort that their children canreap the benefits of the Internet while shielding them fromobjectionable or otherwise inappropriate materials based on theparents' own particular tastes and values.  Microsystems'product, Cyber Patrol, was developed to address this need.          56.  Cyber Patrol was first introduced in August 1995,and is currently available in Windows and Macintosh versions.Cyber Patrol works with both direct Internet Access providers(ISPs, e.g., Netcom, PSI, UUnet), and Commercial Online ServiceProviders (e.g., America Online, Compuserv, Prodigy, Microsoft).Cyber Patrol is also compatible with all major World Wide Webbrowsers on the market (e.g., Netscape, Navigator, Mosaic,Prodigy's Legacy and Skimmer browsers, America Online, Netcom'sNetCruiser, etc.).  Cyber Patrol was the first parentalempowerment application to be compatible with the PICS standard.In February of 1996, Microsystems put the first PICS ratingsserver on the Internet.          57.  The CyberNOT list contains approximately 7000sites in twelve categories.  The software is designed to enableparents to selectively block access to any or all of the twelveCyberNOT categories simply by checking boxes in the Cyber PatrolHeadquarters (the Cyber Patrol program manager).  Thesecategories are:          Violence/Profanity:  Extreme cruelty, physical or          emotional acts against any animal or person which are          primarily intended to hurt or inflict pain.  Obscene          words, phrases, and profanity defined as text that uses          George Carlin's seven censored words more often than          once every fifty messages or pages.          Partial Nudity:  Full or partial exposure of the human          anatomy except when exposing genitalia.          Nudity:  Any exposure of the human genitalia.          Sexual Acts (graphic or text):  Pictures or text          exposing anyone or anything involved in explicit sexual          acts and lewd and lascivious behavior, including          masturbation, copulation, pedophilia, intimacy and          involving nude or partially nude people in          heterosexual, bisexual, lesbian or homosexual          encounters.  Also includes phone sex ads, dating          services, adult personals, CD-ROM and videos.          Gross Depictions (graphic or text):  Pictures or          descriptive text of anyone or anything which are          crudely vulgar, deficient in civility or behavior, or          showing scatological impropriety.  Includes such          depictions as maiming, bloody figures, indecent          depiction of bodily functions.          Racism/Ethnic Impropriety:  Prejudice or discrimination          against any race or ethnic culture.  Ethnic or racist          jokes and slurs.  Any text that elevates one race over          another.          Satanic/Cult:  Worship of the devil; affinity for evil,          wickedness.  Sects or groups that potentially coerce          individuals to grow, and keep, membership.          Drugs/Drug Culture:  Topics dealing with the use of          illegal drugs for entertainment.  This would exclude          current illegal drugs used for medicinal purposes          (e.g., drugs used to treat victims of AIDS).  Includes          substances used for other than their primary purpose to          alter the individual's state of mind such as glue          sniffing.          Militant/Extremist:  Extremely aggressive and combative          behaviors, radicalism, advocacy of extreme political          measures.  Topics include extreme political groups that          advocate violence as a means to achieve their goal.          Gambling:  Of or relating to lotteries, casinos,          betting, numbers games, on-line sports or financial          betting including non-monetary dares.          Questionable/Illegal:  Material or activities of a          dubious nature which may be illegal in any or all          jurisdictions, such as illegal business schemes, chain          letters, software piracy, and copyright infringement.          Alcohol, Beer & Wine:  Material pertaining to the sale          or consumption of alcoholic beverages.  Also includes          sites and information relating to tobacco products.          58.  Microsystems employs people to search the Internetfor sites containing material in these categories.  Since newsites are constantly coming online, Microsystems updates theCyberNOT list on a weekly basis.  Once installed on the home PC,the copy of Cyber Patrol receives automatic updates to theCyberNOT list over the Internet every seven days.          59.  In February of 1996, Microsystems signed alicensing arrangement with CompuServe, one of the leadingcommercial online services with over 4.3 million subscribers.CompuServe provides Cyber Patrol free of charge to itssubscribers.  Microsystems the same month signed a licensingarrangement with Prodigy, another leading commercial onlineservice with over 1.4 million subscribers.  Prodigy will provideCyber Patrol free of charge of its subscribers.          60.  Cyber Patrol is also available directly fromMicrosystems for $49.95, which includes a six month subscriptionto the CyberNOT blocked sites list (updated automatically onceevery seven days).  After six months, parents can receive sixmonths of additional updates for $19.95, or twelve months for$29.95.  Cyber Patrol Home Edition, a limited version of CyberPatrol, is available free of charge on the Internet.  To obtaineither version, parents download a seven day demonstrationversion of the full Cyber Patrol product from the MicrosystemsInternet World Wide Web Server.  At the end of the seven daytrial period, users are offered the opportunity to purchase thecomplete version of Cyber Patrol or provide Microsystems somebasic demographic information in exchange for unlimited use ofthe Home Edition.  The demographic information is used formarketing and research purposes.  Since January of 1996, over10,000 demonstration copies of Cyber Patrol have been downloadedfrom Microsystems' Web site.          61.  Cyber Patrol is also available from Retail outletsas NetBlocker Plus.  NetBlocker Plus sells for $19.95, whichincludes five weeks of updates to the CyberNOT list.          62.  Microsystems also sells Cyber Patrol into agrowing market in schools.  As more classrooms become connectedto the Internet, many teachers want to ensure that their studentscan receive the benefit of the Internet without encounteringmaterial they deem educationally inappropriate.          63.  Microsystems is working with the RecreationalSoftware Advisory Council (RSAC), a non-profit corporation whichdeveloped rating systems for video games, to implement the RSACrating system for the Internet.          64.  The next release of Cyber Patrol, expected insecond quarter of this year, will give parents the ability to useany PICS rating service, including the RSAC rating service, inaddition to the Microsystems CyberNOT list.          65.  In order to speed the implementation of PICS andencourage the development of PICS-compatible Internetapplications, Microsystems maintains a server on the Internetwhich contains its CyberNOT list.  The server provides softwaredevelopers with access to a PICS rating service, and allowssoftware developers to test their products' ability to interpretstandard PICS labels.  Microsystems is also offering its PICSclient test program for Windows free of charge.  The clientprogram can be used by developers of PICS rating services to testtheir services and products.SurfWatch          66.  Another software product, SurfWatch, is alsodesigned to allow parents and other concerned users to filterunwanted material on the Internet.  SurfWatch is available forboth Apple Macintosh, Microsoft Windows, and Microsoft Windows 95Operating Systems, and works with direct Internet AccessProviders (e.g., Netcom, PSI, UUnet, AT&T, and more than 1000other Internet Service Providers).          67.  The suggested retail price of SurfWatch Softwareis $49.95, with a street price of between $20.00 and $25.00.  Theproduct is also available as part of CompuServe/Spry Inc.'sInternet in a Box for Kids, which includes access to Spry's Kidsonly Internet service and a copy of SurfWatch.  Internet in a Boxfor Kids retails for approximately $30.00.  The subscriptionservice, which updates the SurfWatch blocked site listautomatically with new sites each month, is available for $5.95per month or $60.00 per year.  The subscription is included aspart of the Internet in a Box for Kids program, and is alsoprovided as a low-cost option from Internet Service Providers.          68.  SurfWatch is available at over 12,000 retaillocations, including National stores such as Comp USA, EggheadSoftware, Computer City, and several national mail order outlets.SurfWatch can also be ordered directly from its own site on theWorld Wide Web, and through the Internet Shopping Network.          69.  Plaintiffs America Online (AOL), MicrosoftNetwork, and Prodigy all offer parental control options free ofcharge to their members.  AOL has established an online areadesigned specifically for children.  The "Kids Only" parentalcontrol feature allows parents to establish an AOL account fortheir children that accesses only the Kids Only channel onAmerica Online.[15]          70.  AOL plans to incorporate PICS-compatiblecapability into its standard Web browser software, and to makeavailable to subscribers other PICS-compatible Web browsers, suchas the Netscape software.          71. Plaintiffs CompuServe and Prodigy give theirsubscribers the option of blocking all access to the Internet, orto particular media within their proprietary online content, suchas bulletin boards and chat rooms.          72. Although parental control software currently canscreen for certain suggestive words or for known sexuallyexplicit sites, it cannot now screen for sexually explicit imagesunaccompanied by suggestive text unless those who configure thesoftware are aware of the particular site.          73. Despite its limitations, currently available user-based software suggests that a reasonably effective method bywhich parents can prevent their children from accessing sexuallyexplicit and other material which parents may believe isinappropriate for their children will soon be widely available.                      Content on the Internet          74.  The types of content now on the Internet defy easyclassification.  The entire card catalogue of the CarnegieLibrary is on-line, together with journals, journal abstracts,popular magazines, and titles of compact discs.  The director ofthe Carnegie Library, Robert Croneberger, testified that on-lineservices are the emerging trend in libraries generally.Plaintiff Hotwired Ventures LLC organizes its Web site intoinformation regarding travel, news and commentary, arts andentertainment, politics, and types of drinks.  Plaintiff AmericaOnline, Inc., not only creates chat rooms for a broad variety oftopics, but also allows members to create their own chat rooms tosuit their own tastes.  The ACLU uses an America Online chat roomas an unmoderated forum for people to debate civil libertiesissues.  Plaintiffs' expert, Scott Bradner,[16] estimated that15,000 newsgroups exist today, and he described his own interestin a newsgroup devoted solely to Formula 1 racing cars.  AmericaOnline makes 15,000 bulletin boards available to its subscribers,who post between 200,000 and 250,000 messages each day.  Anotherplaintiffs' expert, Harold Rheingold, participates in "virtualcommunities" that simulate social interaction.  It is noexaggeration to conclude that the content on the Internet is asdiverse as human thought.          75.  The Internet is not exclusively, or evenprimarily, a means of commercial communication.  Many commercialentities maintain Web sites to inform potential consumers abouttheir goods and services, or to solicit purchases, but many otherWeb sites exist solely for the dissemination of non-commercialinformation.  The other forms of Internet communication -- e-mail, bulletin boards, newsgroups, and chat rooms -- frequentlyhave non-commercial goals.  For the economic and technicalreasons set forth in the following paragraphs, the Internet is anespecially attractive means for not-for-profit entities or publicinterest groups to reach their desired audiences.  There areexamples in the parties' stipulation of some of the non-commercial uses that the Internet serves.  Plaintiff Human RightsWatch, Inc., offers information on its Internet site regardingreported human rights abuses around the world.  PlaintiffNational Writers Union provides a forum for writers on issues ofconcern to them.  Plaintiff Stop Prisoner Rape, Inc., posts text,graphics, and statistics regarding the incidence and preventionof rape in prisons.  Plaintiff Critical Path AIDS Project, Inc.,offers information on safer sex, the transmission of HIV, and thetreatment of AIDS.          76.  Such diversity of content on the Internet ispossible because the Internet provides an easy and inexpensiveway for a speaker to reach a large audience, potentially ofmillions.  The start-up and operating costs entailed bycommunication on the Internet are significantly lower than thoseassociated with use of other forms of mass communication, such astelevision, radio, newspapers, and magazines.  This enablesoperation of their own Web sites not only by large companies,such as Microsoft and Time Warner, but also by small, not-for-profit groups, such as Stop Prisoner Rape and Critical Path AIDSProject.  The Government's expert, Dr. Dan R. Olsen,[17] agreedthat creation of a Web site would cost between $1,000 and$15,000, with monthly operating costs depending on one's goalsand the Web site's traffic.  Commercial online services such asAmerica Online allow subscribers to create Web pages free ofcharge.  Any Internet user can communicate by posting a messageto one of the thousands of newsgroups and bulletin boards or byengaging in an on-line "chat", and thereby reach an audienceworldwide that shares an interest in a particular topic.          77.  The ease of communication through the Internet isfacilitated by the use of hypertext markup language (HTML), whichallows for the creation of "hyperlinks" or "links".  HTML enablesa user to jump from one source to other related sources byclicking on the link.  A link might take the user from Web siteto Web site, or to other files within a particular Web site.Similarly, by typing a request into a search engine, a user canretrieve many different sources of content related to the searchthat the creators of the engine have collected.          78.  Because of the technology underlying the Internet,the statutory term "content provider,"[18] which is equivalent tothe traditional "speaker," may actually be a hybrid of speakers.Through the use of HTML, for example, Critical Path and StopPrisoner Rape link their Web sites to several related databases,and a user can immediately jump from the home pages of theseorganizations to the related databases simply by clicking on alink.  America Online creates chat rooms for particulardiscussions but also allows subscribers to create their own chatrooms.  Similarly, a newsgroup gathers postings on a particulartopic and distributes them to the newsgroup's subscribers.  Usersof the Carnegie Library can read on-line versions of Vanity Fairand Playboy, and America Online's subscribers can peruse the NewYork Times, Boating, and other periodicals.  Critical Path, StopPrisoner Rape, America Online and the Carnegie Library all makeavailable content of other speakers over whom they have little orno editorial control.          79.  Because of the different forms of Internetcommunication, a user of the Internet may speak or listeninterchangeably, blurring the distinction between "speakers" and"listeners" on the Internet.  Chat rooms, e-mail, and newsgroupsare interactive forms of communication, providing the user withthe opportunity both to speak and to listen.          80.  It follows that unlike traditional media, thebarriers to entry as a speaker on the Internet do not differsignificantly from the barriers to entry as a listener.  Once onehas entered cyberspace, one may engage in the dialogue thatoccurs there.  In the argot of the medium, the receiver can anddoes become the content provider, and vice-versa.          81.  The Internet is therefore a unique and wholly newmedium of worldwide human communication.            Sexually Explicit Material On the Internet          82.  The parties agree that sexually explicit materialexists on the Internet.  Such material includes text, pictures,and chat, and includes bulletin boards, newsgroups, and the otherforms of Internet communication, and extends from the modestlytitillating to the hardest-core.          83.  There is no evidence that sexually-orientedmaterial is the primary type of content on this new medium.Purveyors of such material take advantage of the same ease ofaccess available to all users of the Internet, includingestablishment of a Web site.          84.  Sexually explicit material is created, named, andposted in the same manner as material that is not sexuallyexplicit.  It is possible that a search engine can accidentallyretrieve material of a sexual nature through an imprecise search,as demonstrated at the hearing.  Imprecise searches may alsoretrieve irrelevant material that is not of a sexual nature.  Theaccidental retrieval of sexually explicit material is onemanifestation of the larger phenomenon of irrelevant searchresults.          85.  Once a provider posts content on the Internet, itis available to all other Internet users worldwide.  Similarly,once a user posts a message to a newsgroup or bulletin board,that message becomes available to all subscribers to thatnewsgroup or bulletin board.  For example, when theUCR/California Museum of Photography posts to its Web site nudesby Edward Weston and Robert Mapplethorpe to announce that its newexhibit will travel to Baltimore and New York City, those imagesare available not only in Los Angeles, Baltimore, and New YorkCity, but also in Cincinnati, Mobile, or Beijing -- whereverInternet users live.  Similarly, the safer sex instructions thatCritical Path posts to its Web site, written in street languageso that the teenage receiver can understand them, are availablenot just in Philadelphia, but also in Provo and Prague.  A chatroom organized by the ACLU to discuss the United States SupremeCourt's  decision in FCC v. Pacifica Foundation would transmitGeorge Carlin's seven dirty words to anyone who enters.  Messagesposted to a newsgroup dedicated to the Oklahoma City bombingtravel to all subscribers to that newsgroup.          86.  Once a provider posts its content on the Internet,it cannot prevent that content from entering any community.Unlike the newspaper, broadcast station, or cable system,Internet technology necessarily gives a speaker a potentialworldwide audience.  Because the Internet is a network ofnetworks (as described above in Findings 1 through 4), anynetwork connected to the Internet has the capacity to send andreceive information to any other network.  Hotwired Ventures, forexample, cannot prevent its materials on mixology from enteringcommunities that have no interest in that topic.          87.  Demonstrations at the preliminary injunctionhearings showed that it takes several steps to enter cyberspace.At the most fundamental level, a user must have access to acomputer with the ability to reach the Internet (typically by wayof a modem).  A user must then direct the computer to connectwith the access provider, enter a password, and enter theappropriate commands to find particular data.  On the World WideWeb, a user must normally use a search engine or enter anappropriate address.  Similarly, accessing newsgroups, bulletinboards, and chat rooms requires several steps.          88.  Communications over the Internet do not "invade"an individual's home or appear on one's computer screen unbidden.Users seldom encounter content "by accident."   A document'stitle or a description of the document will usually appear beforethe document itself takes the step needed to view it, and in manycases the user will receive detailed information about a site'scontent before he or she need take the step to access thedocument.  Almost all sexually explicit images are preceded bywarnings as to the content.  Even the Government's witness, AgentHoward Schmidt, Director of the Air Force Office of SpecialInvestigation, testified that the "odds are slim" that a userwould come across a sexually explicit site by accident.          89.  Evidence adduced at the hearing showed significantdifferences between Internet communications and communicationsreceived by radio or television.  Although content on theInternet is just a few clicks of a mouse away from the user,  thereceipt of information on the Internet requires a series ofaffirmative steps more deliberate and directed than merelyturning a dial.  A child requires some sophistication and someability to read to retrieve material and thereby to use theInternet unattended.           Obstacles to Age Verification on the Internet          90.  There is no effective way to determine theidentity or the age of a user who is accessing material throughe-mail, mail exploders, newsgroups or chat rooms.  An e-mailaddress provides no authoritative information about theaddressee, who may use an e-mail "alias" or an anonymousremailer.  There is also no universal or reliable listing of e-mail addresses and corresponding names or telephone numbers, andany such listing would be or rapidly become incomplete.  Forthese reasons, there is no reliable way in many instances for asender to know if the e-mail recipient is an adult or a minor.The difficulty of e-mail age verification is compounded for mailexploders such as listservs, which automatically send informationto all e-mail addresses on a sender's list.  Government expertDr. Olsen agreed that no current technology could give a speakerassurance that only adults were listed in a particular mailexploder's mailing list.          91.  Because of similar technological difficulties,individuals posting a message to a newsgroup or engaging in chatroom discussions cannot ensure that all readers are adults, andDr. Olsen agreed.  Although some newsgroups are moderated, themoderator's control is limited to what is posted and themoderator cannot control who receives the messages.          92.  The Government offered no evidence that there is areliable way to ensure that recipients and participants in suchfora can be screened for age.  The Government presented noevidence demonstrating the feasibility of its suggestion thatchat rooms, newsgroups and other fora that contain materialdeemed indecent could be effectively segregated to "adult" or"moderated" areas of cyberspace.          93.  Even if it were technologically feasible to blockminors' access to newsgroups and similar fora, there is no methodby which the creators of newsgroups which contain discussions ofart, politics or any other subject that could potentially elicit"indecent" contributions could limit the blocking of access byminors to such "indecent" material and still allow them access tothe remaining content, even if the overwhelming majority of thatcontent was not indecent.          94.  Likewise, participants in MUDs (Multi-UserDungeons) and  MUSEs (Multi-User Simulation Environments) do notknow whether the other participants are adults or minors.Although MUDs and MUSEs require a password for permanentparticipants, they need not give their real name nor verify theirage, and there is no current technology to enable theadministrator of these fantasy worlds to know if the participantis an adult or a minor.          95.  Unlike other forms of communication on theInternet, there is technology by which an operator of a WorldWide Web server may interrogate a user of a Web site.  An HTMLdocument can include a fill-in-the-blank "form" to requestinformation from a visitor to a Web site, and this informationcan be transmitted back to the Web server and be processed by acomputer program, usually a Common Gateway Interface (cgi)script.  The Web server could then grant or deny access to theinformation sought.  The cgi script is the means by which a Website can process a fill-in form and thereby screen visitors byrequesting a credit card number or adult password.          96.  Content providers who publish on the World WideWeb via one of the large commercial online services, such asAmerica Online or CompuServe, could not use an online ageverification system that requires cgi script because the serversoftware of these online services available to subscribers cannotprocess cgi scripts.  There is no method currently available forWeb page publishers who lack access to cgi scripts to screenrecipients online for age.           The Practicalities of the Proffered Defenses          Note:  The Government contends the CDA makes availablethree potential defenses to all content providers on theInternet:  credit card verification, adult verification bypassword or adult identification number, and "tagging".                     Credit Card Verification          97.  Verification[19] of a credit card number over theInternet is not now technically possible.  Witnesses testifiedthat neither Visa nor Mastercard considers the Internet to besufficiently secure under the current technology to processtransactions in that manner.  Although users can and do purchaseproducts over the Internet by transmitting their credit cardnumber, the seller must then process the transaction with Visa orMastercard off-line using phone lines in the traditional way.There was testimony by several witnesses that Visa and Mastercardare in the process of developing means of credit cardverification over the Internet.          98.  Verification by credit card, if and whenoperational, will remain economically and practically unavailablefor many of the non-commercial plaintiffs in these actions.  TheGovernment's expert "suspect[ed]" that verification agencieswould decline to process a card unless it accompanied acommercial transaction.  There was no evidence to the contrary.          99.  There was evidence that the fee charged byverification agencies to process a card, whether for a purchaseor not, will preclude use of the credit-card verification defenseby many non-profit, non-commercial Web sites, and there was noevidence to the contrary.  Plaintiffs' witness Patricia NellWarren, an author whose free Web site allows users to purchasegay and lesbian literature, testified that she must pay $1 perverification to a verification agency.  Her Web site can absorbthis cost because it arises in connection with the sale of booksavailable there.          100. Using credit card possession as a surrogate forage, and requiring use of a credit card to enter a site, wouldimpose a significant economic cost on non-commercial entities.Critical Path, for example, received 3,300 hits daily fromFebruary 4 through March 4, 1996.  If Critical Path must pay afee every time a user initially enters its site, then, to providefree access to its non-commercial site, it would incur a monthlycost far beyond its modest resources.  The ACLU's BarrySteinhardt testified that maintenance of a credit cardverification system for all visitors to the ACLU's Web site wouldrequire it to shut down its Web site because the projected costwould exceed its budget.          101. Credit card verification would significantly delaythe retrieval of information on the Internet.  Dr. Olsen, theexpert testifying for the Government, agreed that even "a minuteis [an] absolutely unreasonable [delay] . . . [P]eople will notput up with a minute."  Plaintiffs' expert Donna Hoffmansimilarly testified that excessive delay disrupts the "flow" onthe Internet and stifles both "hedonistic" and "goal-directed"browsing.          102.  Imposition of a credit card requirement wouldcompletely bar adults who do not have a credit card and lack theresources to obtain one from accessing any blocked material.  Atthis time, credit card verification is effectively unavailable toa substantial number of Internet content providers as a potentialdefense to the CDA.                  Adult Verification by Password          103.  The Government offered very limited evidenceregarding the operation of existing age verification systems, andthe evidence offered was not based on personal knowledge.AdultCheck and Verify, existing systems which appear to be usedfor accessing commercial pornographic sites, charge users fortheir services.  Dr. Olsen admitted that his knowledge of theseservices was derived primarily from reading the advertisements ontheir Web pages.  He had not interviewed any employees of theseentities, had not personally used these systems, had no idea howmany people are registered with them, and could not testify tothe reliability of their attempt at age verification.          104.  At least some, if not almost all, non-commercialorganizations, such as the ACLU, Stop Prisoner Rape or CriticalPath AIDS Project, regard charging listeners to access theirspeech as contrary to their goals of making their materialsavailable to a wide audience free of charge.          105.  It would not be feasible for many non-commercialorganizations to design their own adult access code screeningsystems because the administrative burden of creating andmaintaining a screening system and the ongoing costs involved isbeyond their reach.  There was testimony that the costs would beprohibitive even for a commercial entity such as HotWired, theonline version of Wired magazine.          106.  There is evidence suggesting that adult users,particularly casual Web browsers, would be discouraged fromretrieving information that required use of a credit card orpassword.  Andrew Anker testified that HotWired has received manycomplaints from its members about HotWired's registration system,which requires only that a member supply a name, e-mail addressand self-created password.  There is concern by commercialcontent providers that age verification requirements woulddecrease advertising and revenue because advertisers depend on ademonstration that the sites are widely available and frequentlyvisited.          107.  Even if credit card verification or adultpassword verification were implemented, the Government presentedno testimony as to how such systems could ensure that the user ofthe password or credit card is in fact over 18.  The burdensimposed by credit card verification and adult passwordverification systems make them effectively unavailable to asubstantial number of Internet content providers.                The Government's "Tagging" Proposal          108. The feasibility and effectiveness of "tagging" torestrict children from accessing "indecent" speech, as proposedby the Government has not been established.  "Tagging" wouldrequire content providers to label all of their "indecent" or"patently offensive" material by imbedding a string ofcharacters, such as "XXX," in either the URL or HTML.  If a usercould install software on his or her computer to recognize the"XXX" tag, the user could screen out any content with that tag.Dr. Olsen proposed a "-L18" tag, an idea he developed for thishearing in response to Mr. Bradner's earlier testimony thatcertain tagging would not be feasible.          109. The parties appear to agree that it istechnologically feasible -- "trivial", in the words ofplaintiffs' expert -- to imbed tags in URLs and HTML, and thetechnology of tagging underlies both plaintiffs' PICS proposaland the Government's "-L18" proposal.          110. The Government's tagging proposal would requireall content providers that post arguably "indecent" material toreview all of their online content, a task that would beextremely burdensome for organizations that provide large amountsof material online which cannot afford to pay a large staff toreview all of that material.  The Carnegie Library would berequired to hire numerous additional employees to review its on-line files at an extremely high cost to its limited budget.  Thecost and effort would be substantial for the Library andfrequently prohibitive for others.  Witness Kiroshi Kuromiyatestified that it would be impossible for his organization,Critical Path, to review all of its material because it has onlyone full and one part-time employee.          111.  The task of screening and tagging cannot be donesimply by using software which screens for certain words, as Dr.Olsen acknowledged, and we find that determinations as to what isindecent require human judgment.          112.  In lieu of reviewing each file individually, acontent provider could tag its entire site but this would preventminors from accessing much material that is not "indecent" underthe CDA.          113.  To be effective, a scheme such as the -L18proposal would require a worldwide consensus among speakers touse the same tag to label "indecent" material.  There iscurrently no such consensus, and no Internet speaker currentlylabels its speech with the -L18 code or with any other widely-recognized label.          114. Tagging also assumes the existence of softwarethat recognizes the tags and takes appropriate action when itnotes tagged speech.  Neither commercial Web browsers nor user-based screening software is currently configured to block a -L18code.  Until such software exists, all speech on the Internetwill continue to travel to whomever requests it, withouthindrance.  Labelling speech has no effect in itself on thetransmission (or not) of that speech.  Neither plaintiffs nor theGovernment suggest that tagging alone would shield minors fromspeech or insulate a speaker from criminal liability under theCDA. It follows that all speech on any topic that is available toadults will also be available to children using the Internet(unless it is blocked by screening software running on thecomputer the child is using).          115. There is no way that a speaker can use currenttechnology to know if a listener is using screening software.          116. Tags can not currently activate or deactivatethemselves depending on the age or location of the receiver.Critical Path, which posts on-line safer sex instructions, wouldbe unable to imbed tags that block its speech only in communitieswhere it may be regarded as indecent.  Critical Path, forexample, must choose either to tag its site (blocking its speechin all communities) or not to tag, blocking its speech in none.           The Problems of Offshore Content and Caching          117. A large percentage, perhaps 40% or more, ofcontent on the Internet originates outside the United States.  Atthe hearing, a witness demonstrated how an Internet user couldaccess a Web site of London (which presumably is on a server inEngland), and then link to other sites of interest in England.  Auser can sometimes discern from a URL that content is coming fromoverseas, since InterNIC allows a content provider to imbed acountry code in a domain name.[20]  Foreign content is otherwiseindistinguishable from domestic content (as long as it is inEnglish), since foreign speech is created, named, and posted inthe same manner as domestic speech.  There is no requirement thatforeign speech contain a country code in its URL.  It isundisputed that some foreign speech that travels over theInternet is sexually explicit.          118. The use of "caching" makes it difficult todetermine whether the material originated from foreign ordomestic sources.  Because of the high cost of using the trans-Atlantic and trans-Pacific cables, and because the high demand onthose cables leads to bottleneck delays, content is often"cached", or temporarily stored, on servers in the United States.Material from a foreign source in Europe can travel over thetrans-Atlantic cable to the receiver in the United States, andpass through a domestic caching server which then stores a copyfor subsequent retrieval.  This domestic caching server, ratherthan the original foreign server, will send the material from thecache to the subsequent receivers, without placing a demand onthe trans-oceanic cables.  This shortcut effectively eliminatesmost of the distance for both the request and the informationand, hence, most of the delay.  The caching server discards thestored information according to its configuration (e.g., after acertain time or as the demand for the information diminishes).Caching therefore advances core Internet values:  the cheap andspeedy retrieval of information.          119. Caching is not merely an international phenomenon.Domestic content providers store popular domestic material ontheir caching servers to avoid the delay of successive searchesfor the same material and to decrease the demand on theirInternet connection.  America Online can cache the home page ofthe New York Times on its servers when a subscriber firstrequests it, so that subsequent subscribers who make the samerequest will receive the same home page, but from AmericaOnline's caching service rather than from the New York Times'sserver.[21]          120. Put simply, to follow the example in the priorparagraph, America Online has no control over the content thatthe New York Times posts to its Web site, and the New York Timeshas no control over America Online's distribution of that contentfrom a caching server.                             Anonymity          121. Anonymity is important to Internet users who seekto access sensitive information, such as users of the CriticalPath AIDS Project's Web site, the users, particularly gay youth,of Queer Resources Directory, and users of Stop Prisoner Rape(SPR).  Many members of SPR's mailing list have asked to remainanonymous due to the stigma of prisoner rape.                 Plaintiffs' Choices Under the CDA          122. Many speakers who display arguably indecentcontent on the Internet must choose between silence and the riskof prosecution.  The CDA's defenses -- credit card verification,adult access codes, and adult personal identification numbers --are effectively unavailable for non-commercial, not-for-profitentities.          123.  The plaintiffs in this action are businesses,libraries, non-commercial and not-for-profit organizations, andeducational societies and consortia.  Although some of thematerial that plaintiffs post online -- such as informationregarding protection from AIDS, birth control or prison rape --is sexually explicit and may be considered "indecent" or"patently offensive" in some communities, none of the plaintiffsis a commercial purveyor of what is commonly termed"pornography."                               III.  CONCLUSIONS OF LAW          Plaintiffs have established a reasonable probability ofeventual success in the litigation by demonstrating that223(a)(1)(B) and 223(a)(2) of the CDA are unconstitutional ontheir face to the extent that they reach indecency.  Sections223(d)(1) and 223(d)(2) of the CDA are unconstitutional on theirface.  Accordingly, plaintiffs have shown irreparable injury, noparty has any interest in the enforcement of an unconstitutionallaw, and therefore the public interest will be served by grantingthe preliminary injunction.  Elrod v. Burns, 427 U.S. 347, 373-74(1976); Hohe v. Casey, 868 F.2d 69, 72 (3d Cir.), cert. denied,493 U.S. 848 (1989); Acierno v. New Castle County, 40 F.3d 645,653 (3d Cir. 1994).  The motions for preliminary injunction willtherefore be granted.         

		The Order:                 IN THE UNITED STATES DISTRICT COURT             FOR THE EASTERN DISTRICT OF PENNSYLVANIAAMERICAN CIVIL LIBERTIES UNION,  :   CIVIL ACTIONet al.                           :                                 :         v.                      :                                 :JANET RENO, Attorney General of  :the United States                :   NO. 96-963________________________________________________________________AMERICAN LIBRARY ASSOC.,        :    CIVIL ACTIONINC., et al.                    :                                :        v.                      :                                :UNITED STATES DEP'T OF          :JUSTICE, et al.                 :    NO. 96-1458                               ORDER          AND NOW, this 11th day of June, 1996, uponconsideration of plaintiffs' motions for preliminary injunction,and the memoranda of the parties and amici curiae in support andopposition thereto, and after hearing, and upon the findings offact and conclusions of law set forth in the accompanyingAdjudication, it is hereby ORDERED that:          1.   The motions are GRANTED;          2.   Defendant Attorney General Janet Reno, and allacting under her direction and control, are PRELIMINARILYENJOINED from enforcing, prosecuting, investigating or reviewingany matter premised upon:               (a)  Sections 223(a)(1)(B) and 223(a)(2) of theCommunications Decency Act of 1996 ("the CDA"), Pub. L. No. 104-104,  502, 110 Stat. 133, 133-36, to the extent suchenforcement, prosecution, investigation, or review are based uponallegations other than obscenity or child pornography; and               (b)  Sections 223(d)(1) and 223(d)(2) of the CDA;          3.   Pursuant to Fed. R. Civ. P. 65(c), plaintiffs neednot post a bond for this injunction, see Temple Univ. v. White,941 F.2d 201, 220 (3d Cir. 1991), cert. denied sub nom. Snider v.Temple Univ., 502 U.S. 1032 (1992); and          4.   The parties shall advise the Court, in writing, asto their views regarding the need for further proceedings on thelater of (a) thirty days from the date of this Order, or (b) tendays after final appellate review of this Order.                           BY THE COURT:                          ______________________________                          Dolores K. Sloviter, C.J.                          U.S. Court of Appeals                          For the Third Circuit                          ______________________________                          Ronald L. Buckwalter, J.                          ______________________________                          Stewart Dalzell, J.