Electronic Frontier Foundation - March 25, 1995 - Distribute widely
March 23, 1995, the Senate Commerce Committee passed telecom legislation that included an amended version of the Communications Decency Act of 1995, commonly known as "the Exon Amendment." This draft was introduced by Sen. Slade Gorton (R-VT). The Electronic Frontier Foundation (EFF) opposes the inclusion of the "decency" provisions in this legislation for the following reasons:
* The bill places operators of smaller systems at risk.
While the new version of the bill seems to attempt to protect large information service providers by including a list of available defenses, smaller bulletin board systems (BBSs) and other information services that cannot afford to assert these defenses in court are left without any protection at all. Operators of smaller, local systems will be unable to test the line where constitutional speech ends and criminal speech begins. These small businesses of the online world are put at a competitive disadvantage.
Also, protections such as lack of editorial control (Section 402[d][2]) may not apply to the majority of bulletin board systems and many other online services that provide content as well as conduit, nor to systems that present certain types of moderated forums.
The ambiguity of the coverage and defenses leaves gaps that raise serious constitutional issues. In 1989, the Supreme Court in Sable Communications v FCC established that indecent material cannot be banned entirely, and that prohibiting indecency to protect minors is an unconstitutional violation of the free speech rights of adults. The prohibition of "filthy" speech has no legal authority whatsoever.
The Gorton/Exon amendment may fail to distinguish between consensual and non-consensual activities, and between private and public communications. A steamy love note sent privately between spouses could be a criminal violation of this statute, and there may be a potential for system operators to be held liable for failing to label users' private email as "filthy".
Finally, the Communications Decency bill attempts to apply to online media many restrictions that do not apply to printed or verbal expression. Transmitting an online version of a "lascivious" book could subject the sender to unreasonable fines and imprisonment, while mailing the book in hardcopy or reading aloud from the book would be protected under the First Amendment.
* The bill is vague and leaves system operators open to prosecution under diverse community standards.
The bill does not define "obscene" communications, leaving individual states to assert their own definition of community standards and to prosecute system operators maintaining systems anywhere in the country.
U.S. v. Thomas, a case currently under appeal in Memphis federal court - in which two system operators running a BBS in California were convicted of obscenity charges after a federal officer dialed in from Tennessee and downloaded material from the BBS - clearly illustrates the danger of leaving terms like "obscenity" undefined in an online world.
Also, passages such as "to provide users with the means to restrict access to communications" (Section 402[d][3][A]) are so vague that the entire Internet is already either in violation or in compliance, depending upon interpretation. Such failures to express clearly the extent and nature of the defenses would allow prosecutors to claim and "prove" virtually any lack of such means to restrict access given a sympathetic court, leaving system operators attempting to comply with the law little guidance on how to avoid being brought up on criminal charges.
* The bill would negate the rights of adults to choose what to read and with whom to associate, as well as the rights of parents to decide what is and is not appropriate for their own children.
EFF supports the ability of online communities to establish their own standards and to self-regulate content as a more reasonable and realistic model of dealing with potential problems of online subject matter. Parents can direct their children to areas of age-appropriate material online, where participants, including parents, engage in "neighborhood watch" activities to limit possibly offensive content. "Filtering" technologies already in development and use by online services can further help to ensure that parents can restrict their own children's access to electronically-distributed materials.
In general, passing restrictive laws is not the way to solve problems with rapidly evolving technologies like telecommunications - particularly when the laws are based on obsolete regulations of wholly different media. It is ironic that the Gorton/Exon amendment, which would chill the development of online services and communities, has been attached to a bill deregulating communications infrastructure. This deregulation has been presented as a boost to the pace of development of the very technology to support these services and communities.
EFF believes that parents, not Congress or the FCC, have the right and responsibility to determine what is appropriate for their children to see, and we do not think Congress should make outlaws out of adults for engaging in speech that may not be suitable for minors. As Supreme Court Justice Felix Frankfurter ruled in Butler v. Michigan in 1957:
The State insists that, by thus quarantining the general reading public against books not too rugged for grown men and women in order to shield juvenile innocence, it is exercising its power to promote the general welfare. Surely this is to burn the house to roast the pig...The incidence of this enactment is to reduce the adult population of Michigan to reading only what is fit for children.
For amendment text, updates and action alerts, see: ftp.eff.org, /pub/Alerts/ gopher.eff.org, 1/Alerts http://www.eff.org/pub/Alerts/
For more information, contact the Electronic Frontier Foundation ask@eff.org +1 202 861 7700 (voice), +1 202 861 1258 (fax)
A briefing on public policy issues affecting civil liberties online
CDT POLICY POST 3/30/95 Number 7The Center for Democracy and Technology is pleased to distribute this statement delivered by Senator Patrick Leahy (D-VT) on the floor of the Senate today.Leahy makes clear his opposition to the bill, explains that the Exon approach is the wrong way to regulate interactive media, and declares that the bill would threaten the free speech and privacy rights of all users of interactive services.
At the close of his statement, Senator Leahy calls on the Interactive Working Group (an ad hoc group of civil liberties and computer/telecommunications industry groups coordinated by CDT) to explore alternatives to the Exon bill.We are delighted to have such a strong civil liberties advocate on our side in the struggle over protecting and defining free speech in interactive media.
STATEMENT OF SENATOR LEAHY ON CENSORING CYBERSPACE
MARCH 30, 1995
Mr. President:I rise today to speak about legislation that would *impose* government regulation on the content of communications transmitted over computer networks.Ironically, this legislation was accepted without debate by the Commerce Committee as an amendment to a draft telecommunications bill whose purported purpose is to *remove* regulation from significant parts of the telecommunications industry.It is rumored that this matter could be headed for consideration by the Senate on Monday, although the bill has yet to be introduced and the Commerce Committee has yet to issue its report on the measure.
There is no question that we are now living through a revolution in telecommunications with cheaper, easier to use and faster ways to communicate electronically with people within our own homes and communities, and around the globe.
A byproduct of this technical revolution is that supervising our children takes on a new dimension of responsibility.Very young children are so adept with computers that they can sit at a keypad in front of a computer screen at home or at school and connect to the outside world through the Internet or some other on-line service.Many of us are, thus, justifiably concerned about the accessibility of obscene and indecent materials on-line and the ability of parents to monitor and control the materials to which their children are exposed.But government regulation of the content of all computer communications, even private communications, in violation of the First Amendment is not the answer-- it is merely a knee-jerk response.
Although well-intentioned, my good friend from Nebraska, Senator Exon, is championing an approach that I believe unnecessarily intrudes into personal privacy, restricts freedoms and upsets legitimate law enforcement needs.He successfully offered the Commerce Committee an amendment that would make it a felony to send certain kinds of communications over computer networks, even though some of these communications are otherwise constitutionally protected speech under the First Amendment.This amendment would chill free speech and the free flow of information over the Internet and computer networks, and undo important privacy protections for computer communications.At the same time, this amendment would undermine law enforcement's most important tool for policing cyberspace by prohibiting the use of court-authorized wiretaps for any "digital communications".
Under this Exon Amendment, those of us who are users of computer e-mail and other network systems would have to speak as if we were in Sunday School every time we went on-line.I, too, support raising our level of civility in communications in this country, but not with a government sanction and possible prison sentence when someone uses an expletive.The Exon amendment makes it a felony punishable by two years imprisonment to send a personal e-mail message to a friend with "obscene, lewd, lascivious, filthy, or indecent" words in it.This penalty adds new meaning to the adage, "Think twice before you speak."All users of Internet and other information services would have to clean up their language when they go on-line, whether or not they are communicating with children.
It would turn into criminals people, who in the privacy of their own homes, download racy fiction or "indecent" photographs.This would have a significant chilling effect on the free flow of communications over the Internet and other computer networks.Furthermore, banning the use of "lewd, filthy, lascivious or indecent words, which fall under constitutional protection, raises significant First Amendment problems.
Meanwhile, the amendment is crafted to protect the companies who provide us with service.They are given special defenses to avoid criminal liability.Such defenses may unintentionally encourage conduct that is wrong and borders on the illegal.
For example, the amendment would exempt those who exercise no editorial control over content.This would have the perverse effect of stopping responsible electronic bulletin board system (BBS) operators from screening the boards for hate speech, obscenity and other offensive material.Since such screening is just the sort of editorial control that could land BBS operators in jail for two years if they happened to miss a bit of obscenity put up on a board, they will avoid it like the plague.Thus, this amendment stops responsible screening by BBS operators.
On the other hand, another defense rewards with complete immunity any service provider who goes snooping for smut through private messages.According to the language of the amendment, on-line providers who take steps "to restrict or prevent the transmission of, or access to" obscene, lewd, filthy, lascivious, or indecent communications are not only protected from criminal liability but also from any civil suit for invasion of privacy by a subscriber.We will thereby deputize and immunize others to eavesdrop on private communications.Overzealous service providers, in the guise of the smut police, could censor with impunity private e-mail messages or prevent a user from downloading material deemed "indecent" by the service provider.
I have worked hard over my years in the Senate to pass bipartisan legislation to increase the privacy protections for personal communcations over telephones and on computer networks.With the Exon amendment, I see how easily all that work can be undone -- without a hearing or even consideration by the Judiciary Committee, which has jurisdiction over criminal laws and constitutional matters such as rights of privacy and free speech.
Rather than invade the privacy of subscribers, one Vermonter told me he would simply stop offering any e-mail services or Internet access.The Physician's Computer Company in Essex Junction, Vermont, provides Internet access, e-mail services and medical record tracking services to pediatricians around the country.The President of this company let me know that if this amendment became law, he feared it would "cause us to lose a significant amount of business."We should be encouraging these new high-tech businesses, and not be imposing broad-brush criminal liability in ways that stifle business in this growth industry.
These efforts to regulate obscenity on interactive information services will only stifle the free flow of information and discourage the robust development of new information services.If users realize that to avoid criminal liability under this amendment, the information service provider is routinely accessing and checking their private communications for obscene, filthy or lewd language or photographs, they will avoid using the system.
I am also concerned that the Exon Amendment would totally undermine the legal authority for law enforcement to use court-authorized wiretaps, one of the most significant tools in law enforcement's arsenal for fighting crime.The Exon Amendment would impose blanket prohibition on wiretapping "digital communications."No exceptions allowed.
This means that parents of a kidnapping victim could not agree to have the FBI listen in on calls with the kidnapper, if these calls were carried in a digital mode.Or, that the FBI could not get a court order to wiretap the future John Gotti, if his communications were digital.Many of us worked very hard over the last several years and, in particular, during the last Congress, with law enforcement and privacy advocates to craft a carefully balanced digital telephony law the increased privacy protections while allowing legitimate law enforcement wiretaps.That work will be undercut by the amendment.Our efforts to protect kids from on-line obscenity need not gut one of the most important tools the policy have to catch crooks, including on-line criminals, their ability to effectuate court-ordered wiretaps.
The problem of policing the Internet is complex and involves many important issues.We need to protect copyrighted materials from illegal copying.We need to protect privacy.And we need to help parents protect their children.
I have asked a coalition of industry and civil liberties groups, called the Interactive Working Group, to address the legal and technical issues for policing electronic interactive services.Instead of rushing to regulate the content of information services with the Exon amendment, we should encourage the development of technology that gives parents and other consumers the ability to control the information that can be accessed over a modem.
Empowering parents to control what their kids access over the Internet and enabling creators to protect their intellectual property from copyright infringement with technology under their control is far preferable to criminalizing users or deputizing information service providers as smut police.
Let's see what this coalition comes up with before we start imposing liability in ways that could severely damage electronic communications systems, sweep away important constitutional rights, and undercut law enforcement at the same time.
We should avoid quick fixes today that would interrupt and limit the rapid evolution of electronic information systems -- for the public benefit far exceeds the problems it invariably creates by the force of its momentum.
HOUSE SPEAKER NEWT GINGRICH DECLARES
INTERNET CENSORSHIP UNCONSTITUTIONALWashington, D.C. - In an interview with Sir David Frost airing tonight [Friday, March 31, 1995] on the PBS program ...talking with David Frost, House Speaker Newt Gingrich (R-GA) discussed his views on censoring the Internet2E
Excerpts from the interview are below:
Frost: What do you think about Senator Exon's ideas for federal law to ban obscene material from the Internet? Is that practical?
Gingrich: It's probably illegal under our Constitution is my guess. We have a very strong freedom of speech provision. On the other hand, I've been advocating quite openly that major advertisers ought to announce that they will not advertise on radio stations that broadcast songs encouraging the raping and the torture and the physical violence against women. I mean, freedom of speech doesn't mean subsidized speech. And we have every right as a culture, not as a government but as a culture; we have every right for wise leadership to say we won't support that. We won't tolerate that.
Gingrich: Now, first of all ... computers. There is a problem, nowadays .. I was quite surprised when I was told this by an expert. There is a problem nowadays, pedophiles - using computer networking to try to pursue children. It's truly amazing. I think there you have a perfect right on a non-censorship basis to intervene decisively against somebody who would prey upon children. And that I would support very intensely. It's very different than trying to censor willing adults.
The hour-long interview with House Speaker Newt Gingrich airs Friday, March 31 at 10:00 p.m. E.T. on PBS (check local listings).
A production of David Paradine Television and WETA, Washington, D.C., ...talking with David Frost is made possible by a grant from ITT Corporation. Executive producers are Sir David Frost and John M. Florescu. Producer is Wallace Westfeldt. Coordinating producer is Rebecca Miller. Executive-in-charge for WETA is Sue Ducat.
Hiawatha Bray Detroit Free Press
It's 10 p.m. Do you know whether your child is logged onto Cybersmut?
Published: April 6, 1995
By JOANNE JACOBSYOUR KID is wandering through the streets of a large city, listening to street-corner harangues, talking to strangers. He may go to the library to study, go to the park to play chess or go to the red-light district to look at the dirty pictures in the Sex R Us store.
You think he's safe in his room, doing something on the computer. And he is in his room doing something on the computer. Is he safe? That depends on your kid, and you.
The Internet isn't a sleek, modern info-highway. Highways have rules of the road, and cops to enforce them. Speed limit: 55 mph. Next exit: 2 miles. No solo drivers in the diamond lane.
The Internet is a place: Dodge City before the marshal came to town. Six-shooters are firing, honky-tonk's playing in the saloon and Miss Kitty's girls are entertaining upstairs.
It's wild and woolly, disorderly and filled with opportunity. There's a Code of the Net, but no rules.
Sen. James Exon, D-Nebraska, wants to clean up the Internet, throw the dirty talkers in the pokey and make cyberspace safe for young 'uns.
Exon's ''Decency Act'' attempts to regulate ''obscene, lewd, lascivious, filthy, or indecent'' electronic communications. As part of the telecommunications deregulation bill, it's passed the Senate Commerce Committee and is now being considered by the Senate.
It won't work. That is, it won't protect children and sensitive souls from cybersmut, but it will chill free and open speech, harass bulletin board operators and deny adults the right to talk dirty for fun with other like-minded adults.
In the original form, the Decency Act would have criminalized all computer communications: It made online services and carriers guilty if anyone anywhere posted filthy pictures or words.
Exon tipped his hand immediately: He is clueless about the activity he's attempting to regulate.
''It's like putting the CEO of Pacific Bell in jail for two years because a couple of people were discussing child pornography over the phone,'' says Eric Tachibana, online services coordinator for the Electronic Freedom Foundation, which strongly opposes the amendment.
After intense lobbying by the big online companies, the legislation -- now the Gorton-Exon Amendment -- was changed to make it easier for online companies to defend themselves against cyberporn charges.
The big guys probably will be able to avoid criminal liability, but small bulletin board services and systems operators who can't afford teams of lawyers and lobbyists would still be vulnerable, says Tachibana. ''Service providers are unwilling to take any r isks, so they'll censor all but the most wishy-washy.''
For instance, bulletin boards that offer moderated forums could be liable if the moderator fails to censor obscene speech.
Who's to say what's obscene?
Good question. In the United States, obscenity is judged by community standards. But what community? By Net community mores, nothing is obscene. If you want decency, don't sign on to Miss Kitty's bulletin board. But cyberspace is everywhere: Should obscenity be judged by the standards of the most conservative community?
A Milpitas couple who ran an ''adult'' bulletin board were convicted on obscenity charges for violating Tennessee standards, because a man in Memphis downloaded material from their board.
There's another problem. Unlike Dodge City, the Internet isn't located in the United States of America. A digitized dirty picture can be zipped through a Finnish information exchange and posted in cyberspace. Congress can't regulate global communications.
The bill also seems to create different standards for electronic smut than for print smut, according to the Electronic Freedom Foundation: ''Transmitting an online version of a "lascivious' book could subject the sender to unreasonable fines and imprisonment, while mailing the book in hardcopy or reading aloud from the book would be protected under the First Amendment.''
Computer communications do not pose such a threat to decency that Congress is compelled to galumph in and play sheriff. Adults who don't care for porn can avoid the electronic red-light districts. Parents can take responsibility for their children's use of the Internet: As in any other public place, unsupervised children aren't entirely safe, but they can be taught not to take candy or dirty pictures from strangers.
Some online services patrol their own space to keep out pornography or block access to it. In addition, technology is being developed to help parents filter out offensive messages.
Congress can mess up the free flow of communications on the Internet. Only parents can protect children.
Joanne Jacobs is a member of the Mercury News editorial board. Her column appears on Mondays and Thursdays. You may reach her at 750 Ridder Park Dr., San Jose, CA 95190, by fax at 408-271-3792, or post your views in her Mercury Center America Online message folder. Keyword: MC Talk, then pick Talk to the Mercury News and scroll down to her name. Or, send e-mail to letters@aol.com.
I enclose an expanded version of the piece I published recently in the LA Times. I welcome comments.
CENSORING THE NET
by
Stewart A. BakerOriginally posted on the Internet through the "Interesting-Persons" distribution list of David Farber, Univ. of Pennsylvania, 22 April 1995.
The received wisdom of the day is that global information networks will be a force for freedom, breaking down barriers to the flow of information even in closed societies. More and more, though, the conventional wisdom is looking like wishful thinking. True enough, China wasn't able to cut off international faxes during the Tiananmen massacre. And more recently, Canada couldn't find a way to enforce a gag order against the Internet during a sensational murder trial.
But that's the short run. In the long run, the global net may have a far different effect. For as foreign governments come to understand the power of the net, they will search quite unapologetically for ways to control it. And those methods are not only easy to find, they could end up limiting the amount of information available to Americans.
How can foreign governments regulate the flow of data over the net? Well, one way is to just do it. In fact, the European Union recently approved and sent to the European Parliament a plan to strictly limit communication, collation and use of information about individuals. This is to be done in the name of a good cause--preventing corporate intrusions into individual privacy. But to enforce the measure, the European Union has expressly reserved the authority to blockade all exports of personal data to countries that don't have "adequate" privacy protection.
This vague standard is backed by a potent threat. If the US and its companies don't dance to the European tune, American multinationals could be trapped by their own investment in productivity-enhancing networks. If, say, General Motors provides customer data to the wrong sort of company or without proper notice to its customers or to European governments, GM executives in Detroit would find themselves cut off from the company's own data about, say, its German customers' purchasing habits.
It's hard to believe the Europeans won't use this massive leverage from time to time to influence the kinds of information that American multinationals put on their networks. Even unused, Europe's leverage itself shows that the data highway runs both ways--and that foreign governments can use our commercial dependence on information networks to restrict what travels on that highway.
Less friendly governments will find other ways to limit the flow of information--and in less appealing causes. Singapore, for one, has discovered that the threat of a defamation lawsuit can turn even the lions of the American media into lambs.
Look what happened when a Singapore professor suggested in the International Herald Tribune that "a compliant judiciary" allows some Asian governments to use lawsuits as a way to punish dissent. As if to prove the point, Singapore authorities promptly prepared to sue him. So what if he hadn't actually mentioned Singapore? The police knew what he meant; they produced a list of a dozen opposition figures the authorities had sued of late2E "Of course you've libelled Singapore; what other country has such a record?" one imagines them asking triumphantly in a moment worthy of Saturday Night Live (when it was good).
But the media giants who do business in Singapore didn't give this self-parody the horselaugh it deserved. The Herald Tribune--though it is owned by two great First Amendment champions, the New York Times and the Washington Post--nearly tripped over itself trying to appease Singapore's government. It apologized "unreservedly," disavowing even the suggestion that Singapore courts might rule for the government in such cases other than on the merits: "This was not our intent and we do not associate ourselves with any such view which we accept would be unfounded."
Anyone who believes that this grovelling lawyer's prose expresses the real views of the publisher deserves, well, to read Singapore newspapers2E But it is equally unlikely that the publisher will knowingly print another story that displeases Singapore. And what the Herald Tribune doesn't print in Singapore, it doesn't print anywhere. So don't laugh too soon at those poor benighted readers of Singapore papers. Because whether you open up the Herald Tribune in Paris or Tokyo or Washington, you still won't read any more on its op-ed page than Singapore lets its papers say.
Let's take another example--Rupert Murdoch and China. In 1993, Murdoch was an ardent exponent of the conventional wisdom. Technology like his direct-broadcast satellites would, he bragged, soon be "galloping over the old regulatory machinery," allowing "information-hungry residents of many closed societies to by-pass state-controlled television.'
In the resulting contest between new information technology and closed societies, score one for closed societies. "They say it's a cowardly way," Murdoch admitted, "but we said in order to get in there and get accepted, we'll cut the BBC out."
In fact, score two for closed societies. Murdoch didn't just cut the BBC out of China. He cut it out of his satellite's entire East Asia footprint, leaving Taiwan and Hong Kong viewers limited to programming that's acceptable to Beijing.
Why are so many persuaded more by Murdoch's talk about technology's natural liberating force than by his deeds? Probably it's because our views are powerfully shaped by experiences with the Internet--the most comprehensive network in place today.
The Internet is boisterously anarchic and proud of it, profoundly resistant to regulation of all sorts. But this it took lots of government money to build the rudimentary global network we have today, and it will take much more investment to give that network the speed and capacity and content that consumers will demand.
The private companies that make those investments will have no more immunity from commercial and legal pressure than Rupert Murdoch or the Washington Post and the New York Times. On-line service providers such as Prodigy and Compuserve have already been sued in this country for allegedly libelous statements distributed on their networks.
One may hope that American courts and policymakers will see the folly of requiring on-line services to censor their subscribers. But as these services expand abroad, what will stop foreign governments from regulating their content, both directly and indirectly? And, since the net is a seamless whole, what will prevent such censorship from limiting our own access to information?
I don't know.
It's uncomfortable not to have the answers. But what's worse is my sense that no one--in the US government or in business and civil liberties groups--has even begun to ask the questions.
Mr. Baker, former General Counsel of the National Security Agency, has an international and technology practice at Steptoe & Johnson in Washington, DC. [sbaker02@reach.com]
See also a letter from Senator Edward Kennedy, Massachusetts.
Last updated 95/05/04
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