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I found this on Usenet's alt.2600 newsgroup. Some very interesting stuff here, including a list of who voted for it, and Alabama Sen. Heflin's new status as a co-sponsor of the bill. Vermont Sen. Leahy says a lot of intelligent things and a few silly things. The prayer by the Senate chaplain is rather illuminating, as well.
If anyone isn't sure by now...I am very much against this bill and any others that seek to criminalize public speech. Sen. Leahy's alternative is more study, which is better than a bad law but still leaves that possibility.
Newsgroups: alt.2600
Subject: Re: **COMPUTER DECENCY BILL! HOLY SHIT!!**
From: emmanuel@2600.com (Emmanuel Goldstein)
Date: 17 Jun 1995 04:06:01 GMT
---------- Forwarded message ----------
For more questions, send mail to vtw@vtw.org.
Here is the Senate debate on the Exon bill obtained from the
Congressional Record from June 14, 1995.
-Shabbir
Mr. EXON addressed the Chair.
The PRESIDING OFFICER. The Senator from Nebraska.
Mr. EXON. Mr. President, I wish to thank my fine colleague from
Indiana for all the help he has been and for a lot of work we have put
in on this. I would be glad to yield to him for whatever time he wants
to begin debate or, if he wishes me to proceed, I will do so at this
time.
Mr. President, I yield myself 10 minutes.
Mr. President, I would like to start out this debate by reading a
prayer that was offered by the Chaplain of the Senate on Monday, June
12, that I hope will guide us once again. It was so much on point to
what this Senator and the Senator from Indiana and others are
attempting to do that I think it is worthy of repetition:
Almighty God, Lord of all life, we praise You for the
advancements in computerized communications that we enjoy in
our time. Sadly, however, there are those who are littering
this information superhighway with obscene, indecent, and
destructive pornography. Virtual but virtueless reality is
projected in the most twisted, sick misuse of sexuality.
Violent people with sexual pathology are able to stalk and
harass the innocent. Cyber solicitation of teenagers reveals
the dark side of online victimization.
Lord, we are profoundly concerned about the impact of this
on our children. We have learned from careful study how
children can become addicted to pornography at an early age.
Their understanding and appreciation of Your gift of
sexuality can be denigrated and eventually debilitated.
Pornography disallowed in print and the mail is now readily
available to young children who learn how to use the
computer.
Oh God, help us care for our children. Give us wisdom to
create regulations that will protect the innocent. In times
past, You have used the Senate to deal with problems of air
and water pollution, and the misuse of our natural resources.
Lord, give us courage to balance our reverence for freedom of
speech with responsibility for what is said and depicted.
Now, guide the Senators when they consider ways of
controlling the pollution of computer communications and how
to preserve one of our greatest resources: The minds of our
children and the future and moral strength of our Nation.
Amen.
Mr. President, that is the end of the quote of the Chaplain of the
Senate that I referenced earlier.
If in any American neighborhood an individual were distributing
pornographic photos, cartoons, videos, and stories to children, or if
someone were posting lewd photographs on lampposts and telephone poles
for all to see, or if children were welcome to enter and browse adult
book stores and triple X rated video arcades, there would be a public
outrage. I suspect and I hope that most people, under those
circumstances, would immediately call the police to arrest and charge
any person responsible for such offenses.
I regret to report that these very offenses are occurring everyday in
America's electronic neighborhood. It is not right to permit this type
of activity in your neighborhoods and it is not right to ignore such
activities via a child's computer.
Section 402 of the Communications Decency Act, that I have just
offered on behalf of myself and my colleague from Indiana, Senator
Coats, a version of that, which has been slightly amended, was approved
by the Senate Commerce Committee and added to S. 652, the
Telecommunications Competition and Deregulation Act that stands for a
simple proposition; that is, the laws which already apply to obscene,
indecent, and harassing telephone use and the use of the mails should
also apply to computer communications. That is the heart and soul of
our amendment.
Not only are children being exposed to the most perverted pornography
and inappropriate communications, but adults are also being
electronically stalked and harassed.
I have had the opportunity to share with several Members of the
Senate, on [[Page S8330]] both sides of the aisle, what I refer to as
the ``blue book.'' When I have shown this to Members on both sides of
the aisle, there has been shock registered, obviously, on the faces of
my colleagues, shock because few understand what is going on today with
regard to the pollution of the Internet. I cannot and would not show
these pictures to the Senate. I would not want our cameras to pick them
up. But I think they probably are best described by some other material
that has come to my attention by people who are strongly supporting our
proposition. It says:
Warning. Do not open until further instructions. Offensive
material enclosed. Keep out of reach of children.
I hope that all of my colleagues, if they are interested, will come
by my desk and take a look at this disgusting material, pictures of
which were copied off the free Internet only last week, to give you an
idea of the depravity on our children, possibly our society, that is
being practiced on the Internet today. This is what the Coats-Exon
amendment is trying to correct.
Mr. President, it is no exaggeration to say that the most disgusting,
repulsive pornography is only a few clicks away from any child with a
computer. I am not talking just about Playboy and Penthouse magazines.
By comparison, those magazines pale in offensiveness with the other
things that are readily available. I am talking about the most
hardcore, perverse types of pornography, photos, and stories featuring
torture, child abuse, and bestiality.
These images and stories and conversations are all available in
public spaces free of charge. If nothing is done now, the pornographers
may become the primary beneficiary of the information revolution.
I am the first to admit that solutions to this problem are not easy
ones. It requires careful balance which protects legitimate use of this
exciting new technology, respects the Constitution and, most
importantly, provides the maximum protection possible for America's
families and America's children.
After months of discussion, negotiations, and research, I am pleased
to offer the Exon-Coats refinement of the Communications Decency Act
provisions included in the committee-reported bill. This modification
represents a carefully balanced response to growing concerns about
inappropriate use of telecommunications technologies.
In committee, the decency provisions were refined to clarify and to
focus on wrongdoers and to avoid imposing vicarious liability on
innocent information service and Internet access providers who simply
act as the mailmen, if you will, for computer messages. The
modification now before the Senate further clarifies that the proposed
legislation does not breach constitutionally protected speech between
consenting adults nor interfere with legitimate privacy rights. The
revision also provides strong protection for children.
Mr. President, these revisions also make it certain that provisions
of the Communications Decency Act in no way adversely affect the well-
litigated dial-a-porn statutes generally referred to as 47 U.S.C. 223
(b) and (c).
The Communications Decency Act is not a panacea. What the legislation
will do is give law enforcement new tools to prosecute those who would
use the computer to make the equivalent of obscene telephone calls, to
prosecute electronic stalkers who terrorize their victims, to clamp
down on the electronic distributors of obscene materials, and to
enhance the chances of prosecution of those who would provide
pornography to children via the computer.
Parents, teachers and law enforcement should not be lulled into a
false sense of security. Their vigilance will still be required even
after this much-needed legislation is enacted into law. New voice,
video, data and imaging options will soon enter every home or be
available to America's children and neighborhood schools and libraries.
This information revolution will give Americans unprecedented
opportunities to enrich their lives, gain knowledge, and enhance their
productivity.
This legislation attempts to make the information superhighway a
little bit safer for families and children to travel. The time to act
is now. Delay only serves those who would endanger the Nation's
children and those who use the new technology to distribute obscene
materials or use the secrecy of the computer medium to harass others.
I urge my colleagues to stand up for families and children and vote
for the Communications Decency Act. Let us put politics aside and work
together to protect the children.
I yield the floor.
Mr. LEAHY addressed the Chair.
The PRESIDING OFFICER. The Senator from Vermont is recognized.
Mr. LEAHY. Mr. President, I yield myself whatever time I may consume.
Nobody in here would disagree with the fact that we want to keep
hardcore pornography away from our children. I am the proud parent of
three children, and the proud father-in-law of three others. I cherish
the time when those children were growing up.
I had the advantage of growing up in a family where we learned to
read at an early age. My parents had published a weekly newspaper when
I was a child and owned a printing business throughout the time I was
growing up until my adult life when they retired.
They read to us as children and encouraged our reading. By the time I
was 4 years old, I was reading books actively. By the time I finished
third grade, I had read all of Dickens and most of Robert Louis
Stevenson. I say that not to brag but because it happened with the
encouragement of my parents. They guided me; they encouraged me to read
and to read a good deal. They knew that, periodically, I might read
something that they probably wished I would not, but they got me to
read and read and read. It helped me through college, it helped me
through law school, it helped me through my days as a district
attorney, and it certainly helped me become a U.S. Senator.
I also use Internet. I do town meetings on the Internet. I correspond
with people around the world with the Internet. I call up information I
need and plan trips to other countries. I call up information and maps,
and so on. I find it is a most marvelous tool. Somebody raised the
question about something in Australia the other day, and I could click
into the Internet and pull up something from a country thousands of
miles away, instantaneously.
Now, I have not seen the things on the Internet--I do not doubt that
they are there--that the Senator from Nebraska speaks of. I am six-
foot-four, and I looked over the shoulders of a huddle of Senators
going through the blue book of the Senator from Nebraska. I saw one
page of it, but I do not care to see that kind of filth. I also know
that I use the Internet probably more than most, and I have not been
able to find some of these things. But I do not question that they are
there. I do worry about the universal revulsion for that kind of
pornography--I assume it is universal in this body--and that we not
unnecessarily destroy in reaction what has been one of the most
remarkable technological advances, certainly in my lifetime--the
Internet.
It has grown as well as it has, as remarkably as it has, primarily
because it has not had a whole lot of people restricting it, regulating
it, and touching it and saying, do not do that or do this or the other
thing. Can you imagine if it had been set up as a Government entity and
we all voted on these regulations for it? We would probably be able to
correspond electrically with our next-door neighbor, if we ran a wire
back and forth, and that would be it. Had we had the Government
involved every step of the way and had us engaged in micromanaging it
every step of the way, we would not have the Internet that we have
today.
I think there is a better way to reach the goal that the Senator from
Nebraska and I share. The goal is--and I yield to nobody in this body--
to keep really filthy material out of the hands of children.
Maybe we can do it the same way my parents did. They guided me when
we read. We have software that can allow parents to know what their
children see on the Internet. Maybe some day we will accept the fact
that there is some responsibility on the part of parents, not on the
part of the U.S. Congress to tell children exactly what they should do
and read and see and talk about as they are growing up. Maybe mothers
and fathers ought to do what mine did and what my wife and I did with
our children. [[Page S8331]]
In that regard, Mr. President, I also suggest that if we are going to
get involved, maybe we should allow the elected Members of this body to
do it. I was concerned when I heard the new Chaplain. I have not had a
chance to meet him. Some day I will. After listening to his prayer, it
seems like he was part of the debate. It reminds me of his predecessor
who gave a long, long prayer here shortly after the arrest of O.J.
Simpson saying that he worried about poor O.J. Simpson's state of
being, and that we should pray for him and hopefully he would feel OK.
Some of us suggested that maybe there ought to have also been prayers
for the two people that were murdered. I do not mean in any way to
suggest who committed the crime. But I recall suggesting that maybe if
we are going to have the chaplains interject themselves into public
debate, they may want to be evenhanded enough, at least, to pray for
those who have died and not just for somebody who may be a wealthy ex-
football star.
By the same token, I suggest to the Chaplain--who may be a very fine
man, for all I know--that perhaps he should allow us to debate these
issues and determine how they come out and maybe pray for our guidance,
but allow us to debate them. He may find that he has enough other
duties, such as composing a prayer each morning for us, to keep him
busy.
The concern I had in my amendment--my amendment speaks to the need to
have a real study of just how we do this. I suggest one way, of course,
is to have the kind of software that is now available, where parents
can find out exactly who their children have been corresponding with or
what they have been looking at on the Internet. Parents can make it
very clear that if you want to use the computer, there are certain
areas you do not go into.
It is the same way we do it today. A parent can say, hey, you are
going to bring books home and there are certain things that are going
to be off limits--at least at your age. It is not that much different
just because they might be able to call up the books, or whatever, at
home. That is no different than calling up the books from the corner
bookstore. I suspect that a number of these things are available there.
My bill would require the Attorney General, in consultation with the
National Telecommunications Information Administration of the
Department of Commerce, to transmit to the Judiciary Committees in the
Senate and in the House of Representatives a report of evaluating
current laws and resources for prosecuting online obscenity and child
pornography.
If pornographers are out there, prosecute them. I have voted, as most
of us have, to go after them. As a former prosecutor and as a parent, I
find them the most disgusting people.
What they do to our children is terrible, allowing authorities to go
directly after them. Let us find out how we do that without destroying
the Internet.
For example, the first part of the amendment from the Senator from
Nebraska and the Senator from Indiana would make it a felony not only
to send obscene messages to another person, but apply the same penalty
to sending an e-mail message with indecent or filthy words that you
hope will annoy another person.
For example, if someone sends you an annoying e-mail message and you
respond with a filthy four-letter word, you may land in jail for 2
years with $100,000 fine. If you picked up the phone and did the exact
same thing, you are perfectly OK. But if you type it out and send it to
the person electronically, no matter how annoyed you might be, tough.
I do not think under this amendment a computer user would be able to
send a private or public e-mail message with the so-called seven dirty
words. Who knows when a recipient would feel annoyed by seeing a four-
letter word on-line?
The second part of the amendment makes it a felony to send or receive
over computer networks any obscene material. There is no requirement
that the person soliciting and receiving the material knew it was
obscene.
In other words, you click on your Internet--and you can go through
thousands and thousands of words--and find out that something you
called up expecting it to be innocent is not, you could be prosecuted
for receiving it under this statute.
I think that goes too far. I think that could be far better worded. I
think that if we had the Justice Department study the area and make
recommendations that we then act upon within a very short period of
time, which is also in my amendment, I think it would be far better.
What I worry about is not to protect pornographers. Child
pornographers, in my mind, ought to be in prison. The longer the
better. I am trying to protect the Internet, and make sure that when we
finally have something that really works in this country, that we do
not step in and screw it up, as sometimes happens with Government
regulation.
When it came out that I was looking for an alternative approach, one
that would allow the Justice Department to find a way to go after
pornographers but to protect the free use of the Internet, I received
these petitions almost immediately.
Every page of this stack of documents that I am holding has dozens
and dozens of names from across the Internet. These are people saying
yes, that is the way to do it. Find out how to go after the
pornographers, but keep our Internet working. There were 35,000
petitions, in a matter of days.
In that regard, Mr. President, I ask unanimous consent that an
article in the New York Times magazine this Sunday by James Gleick,
titled, ``This Is Sex?'' be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
[From the New York Times Magazine, June 11, 1995]
This Is Sex?
(By James Gleick)
At first glance, there's a lot of sex on the Internet. Or,
not at first glance--nobody can find anything on the Internet
at first glance. But if you have time on your hands, if
you're comfortable with computing, and if you have an
unflagging curiosity about sex--in other words, if you're a
teen-ager--you may think you've suddenly landed in
pornography heaven. Nude pictures! Foul language! Weird
bathroom humor! No wonder the Christian Coalition thinks the
Internet is turning into a red-light district. There's even a
``Red Light District'' World Wide Web page.
So we explore. Some sites make you promise to be a grown-
up. (O.K.: you promise.) You try ``Girls,'' a link leading to
a computer at the University of Bordeaux, France. The message
flashes back: Document Contains No Data. ``Girls'' at Funet,
Finland, seems to offer lots of pictures (Dolly Parton! Ivana
Trump!)--Connect Timed Out. ``Girls,'' courtesy of Liberac
University of Technology, Czech Republic, does finally, with
painful slowness, deliver itself of a 112,696-byte image of
Madchen Amick. You could watch it spread across your screen,
pixel by tantalizing pixel, but instead you go have lunch
during the download, and when you return, there she is--in
black-and-white and wearing clothes.
These pictures, by the way, are obviously scanned from
magazines. And magazines are the ideal medium for them.
Clearly the battle cry of the on-line voyeur is ``Host
Contacted--Waiting for Reply.''
With old Internet technology, retrieving and viewing any
graphic image on a PC at home could be laborious. New
Internet technology, like browsers for the Web, makes all
this easier, though it still takes minutes for the typical
picture to squeeze its way through your modem. Meanwhile,
though, ease of use has killed off the typical purveyor of
dirty pictures, capable of serving hundreds of users a day
but uninterested in handling hundreds of thousands. The
Conservatoire National des Arts et Metiers has turned off its
``Femmes femmes femmes je vous aime'' Web page. The good news
for erotica fans is that users are redirected to a new site
where ``You can find naked women, including topless and total
nudity''; the bad news is that this new site is the Louvre.
The Internet does offer access to hundreds of sex
``newsgroups,'' forums for discussion encompassing an amazing
spectrum of interests. They're easy to find--in the newsgroup
hierarchy ``alt.sex'' (``alt'' for alternative) comes right
after ``alt.sewing.'' And yes, alt.sex is busier than
alt.sewing. But quite a few of them turn out to be sham and
self-parody. Look at alt.sex.fish--practically nothing.
Alt.sex.bestiality--aha! just what Jesse Helms fears most--
gives way to alt.sex.bestiality.hamster.duct-tape, and
fascinating as this sounds, when you call it up you find it's
empty, presumably the vestige of a short-lived joke.
Alt.sex.bondage.particle-physics is followed by
alt.sex.sheep.baaa.baaa.baaa.moo--help!
Still, if you look hard enough, there is grotesque stuff
available. If pornography doesn't bother you, your stomach
may be curdled by the vulgar commentary and clinical how-to's
in the militia and gun newsgroups. Your local newsstand is a
far more user-friendly source of obscenity than the on-line
world, [[Page S8332]] but it's also true that, if you work at
it, you can find plenty on line that will disgust you, and
possibly even disgust your children.
This is the justification for an effort in Congress to give
the Federal Government tools to control the content available
on the Internet. The Communications Decency Act, making its
way through Congress, aims to transform the obscene-phone-
call laws into a vehicle for prosecuting any Internet user,
bulletin-board operator, or on-line service that knowingly
makes obscene material available.
As originally written, the bill would not only have made it
a crime to write lewd E-mail to your lover; it would also
have made it a crime for your Internet provider to transmit
it. After a round of lobbying from the large on-line
services, the bill's authors have added ``defenses'' that
could exempt mere unwitting carriers of data, and they say it
is children, not consenting adults, they aim to protect.
Nevertheless, the legislation is a historically far-reaching
attempt at censorship on a national scale.
The Senate authors of this language do not use E-mail
themselves, or browse the Web, or chat in newsgroups, and
their legislation reflects a mental picture of how the on-
line world works that does not match the reality. The
existing models for Federal regulation of otherwise protected
speech--for example, censorship of broadcast television and
prohibition of harassing telephone calls--come from a world
that is already vanishing over the horizon. There aren't
three big television networks now, serving a unified mass
market; there are thousands of television broadcasters
serving, ever-narrower special interests. And on the
Internet, the number of broadcasters is rapidly approaching
the number of users: uncountable.
With Internet use spreading globally, most live sources of
erotic images already seem to be overseas. The sad reality
for Federal authorities is that they cannot cut those off
without forcing the middlemen--on-line services in the United
States--to do the work of censorship, and that work is a
practical impossibility. Any teen-ager with an account on
Prodigy can use its new Web
browser to search for the word ``pornography'' and click his
way to ``Femmes femmes femmes'' (oh, well, better luck
next time). Policing discussion groups presents the would-
be censor with an even more hopeless set of choices. A
typical Internet provider carries more than 10,000 groups.
As many as 100 million new words flow through them every
day. The actual technology of these discussion groups is
hard to fathom at first. They are utterly decentralized.
Every new message begins on one person's computer and
propagates outward in waves, like a chain letter that
could eventually reach every mailbox in the world.
Legislators would like to cut off a group like
alt.sex.bondage.particle-physics at the source, or at its
home--but it has no source and no home, or rather, it has
as many homes as there are computers carrying newsgroups.
This is the town-square speech the First Amendment was for:
often rancorous, sometimes harsh and occasionally obscene.
Voices do carry farther now. The world has never been this
global and this intimate at once. Even seasoned Internet
users sometimes forget that, lurking just behind the dozen
visible participants in an out-of-the-way newsgroup, tens of
millions of potential readers can examine every word they
post.
If a handful of people wish to share their private
experiences with like-minded people in alt.sex.fetish.hair,
they can do so, efficiently--the most fervent wishes of
Congress notwithstanding--and for better or worse, they'll
have to learn that children can listen in. Meanwhile, if gun-
wielding extremists wish to discuss the vulnerable points in
the anatomy of F.B.I. agents, they too can do so. At least
the rest of us can listen in on them, too. Perhaps there is a
grain of consolation there--instead of censorship, exposure
to the light. Anyway, the only real alternative now would be
to unwire the Information Superhighway altogether.
Mr. LEAHY. I would note a couple things from the article. It points
out that it is a sad reality for Federal authorities that they cannot
cut off pornographers without forcing the middleman--the on-line
services of the United States--to do the work of censorship. That work
is a practical impossibility.
A typical Internet provider carries more than 10,000 groups. As many
as 100 million new words go through them every day. Are we going to
have a whole new group in the Justice Department checking these 100
million new words to find out if they are wrong?
Some of the words might appear, just looking at their listings, to be
something wild. There may, in fact, be nothing there.
The article notes a listing for ``Femmes, Femmes, Femmes'', a French
word for women. If you call up the listing, it is a catalog to the
Louvre in Paris. Somebody has a sense of humor. But it gives everyone
an idea. Is this person suddenly going to be under investigation
because of his or her sense of humor?
I am about to yield the floor, Mr. President, and reserve the balance
of my time. Before I do that, I ask unanimous consent to have printed
in the Record a list of groups ranging from the Association of American
Publishers to the American Library Association, the Newspaper
Association of America, to the Times Mirror, all of whom support my
idea of a study in finding a better way of doing this.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Supporters of Leahy Study
Association of American Publishers (AAP).
Association of American University Presses (AAUP).
The Faculty of the City University of New York.
Interactive Working Group.
Online Operators Policy Committee of the Interactive.
Services Association.
American Advertising Federation.
American Association of Advertising Agencies.
American Library Association.
American Society of Newspaper Editors.
Association of National Advertisers, Inc.
Association of Research Libraries.
Business Software Alliance.
Center for Democracy and Technology.
Computer and Communications Industry Association.
Direct Marketing Association.
Electronic Frontier Foundation.
Feminists For Free Expression.
Magazine Publishers of America.
Media Access Project.
National Public Telecomputing Network.
Newspaper Association of America.
People for the American Way Action Fund.
Recreational Software Advisory Counsel
Software Publishers Association.
Times Mirror.
Mr. LEAHY. I yield the floor, and I reserve the balance of my time.
Mr. EXON. Mr. President, I yield 10 minutes to the Senator from
Indiana.
Mr. COATS. Mr. President, I want to start by thanking my colleague
from Nebraska for his interest in this subject and for his willingness
to work with me and our staff in putting together what I think is an
important piece of legislation, and a very effective piece of
legislation.
Obviously, it is a difficult task, balancing first amendment rights
with protections that go toward placing restrictions, in reasonable
ways, so that particularly children are not recipients of obscene or
indecent material.
Mr. President, sometimes our technology races beyond our ability to
stop and reflect. We are left with a very dangerous gap, a period of
time when society is unprepared to deal with the results of such rapid
change. That is the situation we face with the Internet. The Internet
is a tool of great potential.
Senator Leahy has said it opens a new world of opportunity. It has
become, without, I believe, anybody specifically planning it or
anticipating it, it has become one of the largest distributors of
pornography in the world.
One study found more than 450,000 pornographic images and text files
are available to anyone with a modem. This vast library of obscenity
and indecency was accessed 6.4 million times in just the last year.
Now, we need to make sure what we are talking about here. We are not
talking about what most people now have images in their mind as to what
is available off the Internet. I looked at the Senator's blue book, and
I would urge every Senator to look at that before they make a final
decision on what we are doing here. It is important to understand the
kind of material that is available. Everything imaginable. We are
talking about images and text that deal with the sexual abuse of
children. We are talking about images and words and sexual abuse of
infants.
By one estimate about a quarter of the images available involve the
torture of women. We are dealing in many, many cases with perversion
and brutality beyond normal imagination and beyond the boundaries of a
civil society.
These facts are clear, because it is available now in the Internet,
and we have pictures of it if anybody wants to see it, or copies of the
text that is available on the Internet.
There is one more fact that ought to move the Senate from great and
deep concern to immediate action here today. That is the fact that the
Internet is the one area of communication technology that has no
protection at all for children.
Now, we face a somewhat unique, disturbing and urgent circumstance,
because it is children who are the computer experts in our Nation's
families. [[Page S8333]]
My generation--I have not figured out how to use the VCR yet. I have
a blinking 12 I do not know how to get rid of. It is the children today
who are trained from almost kindergarten on, on how to access the
computer.
They have technology available at their fingertips that most adults
do not have. Sometimes in the interest of helping with their homework
or for the development of our children, we place the computer either in
a special room or even in their bedrooms.
Of the 6.8 million homes with on-line accounts currently available,
35 percent have children under the age of 18. The only barriers between
those children and the material--the obscene and indecent material on
the Internet--are perfunctory onscreen warnings which inform minors
they are on their honor not to look at this. The Internet is like
taking a porn shop and putting it in the bedroom of your children and
then saying ``Do not look.''
I think anybody who is a parent understands that is a pretty
difficult situation to enforce. That really is a miscarriage of the
responsibility that I think adults hold to our society, to our children
in our society.
We have all read the worst abuses of this new technology. Children,
not realizing the danger, give out their names, their addresses, their
phone numbers to people they meet over the Internet. They become easy
targets for sexual abuse. Recently, one man, in an attempt to find out
just how difficult a problem this was, posed--typed in on the
computer--posed himself as a 13-year-old. In the course of one evening
on-line he was approached by more than 20 pedophiles.
I suggest that, as difficult and as horrendous as these stories are,
the effect of this kind of material, this kind of practice is far
broader. It does not turn all who see it into rapists and killers, but
it does kill something about our spirit, particularly the spirit of our
children. I think we have always felt a special responsibility and
obligation to defend childhood through parents, through society; to
make it, to the best extent we can, a safe harbor of innocence. It is a
privileged time to develop values in an environment that is not hostile
to our children.
But the Internet has invaded that protected place and destroys that
innocence. It takes the worst excesses of sexual depravity and places
it directly into the child's bedroom, on the computer that their
parents purchased in the thought it would help them do their homework
or develop their intellect. When sexual violence and gross indecency
are available to anyone at the touch of a button, both an individual or
a culture become desensitized. It is not always that people emulate
this material, but often you can become immune to it. The images and
messages act like a novocaine on our national conscience. They numb our
capacity for outrage.
What used to outrage us now becomes almost commonplace. They have
invaded our homes. They have invaded the minds of our children. I think
they have numbed us to the shock that used to be present when this kind
of material was exposed.
This is an issue beyond partisanship. It is sponsored by a Democrat
and Republican. I hope our concern will unite people across the
ideological spectrum. A vote for the Exon-Coats amendment is a way to
side with women endangered by rape and violence, to side with children
threatened by abuse, to side with families concerned about the
innocence of their children and the decency of our culture.
The question, in my mind, is not if we should act but what we should
we do. I believe the Exon-Coats amendment is a serious, thoughtful
answer to that question. It is carefully crafted to be constitutional,
to address the constitutional questions. But it is also designed to
leave pornographers on the Internet, who would provide their material
to children, with no place to hide.
The approach we are taking has been legally upheld in the dial-a-porn
statutes. It extends that approach, which has already proven its worth,
to this new technology.
What we are doing here is not new. What we are doing here is not
something that has not been debated before this body. We are taking the
standards adopted by the Senate, by the Congress, signed into law, that
apply to the use of these kinds of communications over the phone wires
and applied it, now, over the computer wires. It is just simply a
different means of bringing a communication into a home--through the
computer rather than through the phone. We are taking the same
standards.
This Senate, on November 16, 1989, voted 96 to 4 to adopt these
standards; 96 Members of the Senate have already voted to adopt these
standards and apply it to the telephone communication of obscenity and
indecency. All Senator Exon and I are trying to do is apply those same
standards now to this new means of reaching into our homes.
The bottom line is simple. We are removing indecency from areas of
cyberspace that are easily accessible to children. If individuals want
to provide that material, they have to do so with barriers to minors.
If adults want access to the material, they have to make an
affirmative, positive effort to get it.
Let me repeat that. That is the critical part of this bill. We are
simply saying here if you are in the business of providing this
material, you have a responsibility, and it is punishable by penalty of
law if you violate that responsibility--I ask the Senator for 5
additional minutes.
Mr. EXON. I wish to yield whatever additional time the Senator from
Indiana requires.
Mr. COATS. I thank the Senator from Nebraska for the additional time.
Mr. President, all we are saying is, if you are in the business of
providing this material, you have to provide barriers so it does not
get in the hands of children. If you are an adult who wants to receive
this material, you have to call up and get it. You have to subscribe to
it. You have to prove you are an adult before you receive it.
What would our amendment do? It would clean up the Internet. We ban
obscenity. And we require that indecency be walled off so children
cannot have access.
We also require commercial on-line services to adopt this standard.
If they wish to provide indecent material, they have to make what we
call an effective, good-faith effort to segregate it from access to
children and, as the Senator from Nebraska has said, we protect women
and children from sexual predators who use this technology to harass
and to stalk.
Critics of the amendment are going to say it will cripple or close
the Internet. Nothing could be further from the truth. Our legislation
includes reasonable protections for businesses and service providers
who act in good faith to shield children from indecency. We provide
defenses for those who do nothing more than merely provide access to
the Internet. This means that small businessmen and others who simply
have a computer in their office are not going to be subjected to the
penalties when that computer is misused. It is important to note that
both the chamber of commerce, representing business, and a number of
national family groups concerned about pornography, have both endorsed
this legislation. They have understood we have defined an approach that
is strong but reasonable and realistic.
Critics may also charge the standards we have set are too high and
this will force businesses to deny children access to the Internet
entirely, but that is not true. That is a scare tactic, not an
argument. Our legislation simply provides the same protections for
children that currently exist in every other sector of our society.
Pornographic magazines today cannot be sold to minors. Telephones
today cannot be used to provide indecent messages to minors. But
magazine stores and telephone companies are alive and well. They still
succeed because the reasonable efforts that we ask in the interests of
children are not crippling demands.
Mr. President, one of the most urgent questions in any modern society
is how we humanize our technology, how we make it serve us instead of
corrupt us. America is on the frontier of human knowledge but it is
incomplete without applying human values.
One of our most important values is the protection of our children,
not only the protection of their bodies from violence but the
protection of their minds and souls from abuse.
We cannot and we should not resist change. But our brave new world
must [[Page S8334]] not be hostile to the innocence of our children.
The Exon-Coats amendment is a reasonable amendment. I hope that Members
will support it.
I am pleased to join the Senator from Nebraska in offering it to the
Senate for its consideration.
I yield the floor.
Mr. FEINGOLD addressed the Chair.
The PRESIDING OFFICER. Who yields time?
Mr. LEAHY. Mr. President, unless the distinguished Senator from
Nebraska is seeking recognition, I yield 20 minutes to the
distinguished Senator from Wisconsin.
The PRESIDING OFFICER. The Senator from Wisconsin is recognized.
Mr. FEINGOLD. I thank the Chair.
Mr. President, I rise in support of the amendment offered by the
Senator from Vermont, and I am pleased to be a cosponsor of the
amendment because I think that is the right approach. I oppose the
second-degree amendment offered by the Senator from Nebraska.
But I first want to applaud the Senator from Nebraska, Senator Exon,
for his concern about the need to protect children from obscene and
indecent material.
No one has done more than he to raise the awareness of parents,
educators, and legislators about the need to address the problem of
materials on computer networks that may not be appropriate for
children. One needs only to ``surf the net'' bulletin boards, read
newspapers, periodicals, and listen to broadcast media to know that the
question of obscenity and indecency on computer networks is one of the
hottest topics around. The Senator for Nebraska is responsible for the
debate on this important issue and I applaud his very genuine concern,
his good intentions, and hard work to protect children.
I have children of my own, and there are materials available through
the Internet that would not be appropriate for them. Some of those
materials skirt the boundaries of indecency or obscenity and other
materials, while not indecent, are of an adult nature that my children
may not have the maturity to understand at their age.
So I, too, want to find methods to allow parents to protect their
children from material on computer networks which they view as
inappropriate without trampling on first amendment rights of the users
of interactive telecommunications systems.
I regret to say that I do not believe the Senator from Nebraska has
revised the language as reflected in this second-degree amendment,
which achieves that end.
The Senator from Nebraska has gone a long way to revise the language
of the Communications Decency Act to allay the concerns of
antipornography groups, civil liberties organizations, and law
enforcement officials who raised objections to the bill. His efforts to
accommodate his colleagues only underscore his commitment to the
welfare of our children.
The language, as modified, now makes it a criminal offense,
punishable by up to 2 years in prison and/or a $100,000 fine, to
knowingly make, create, or solicit and initiate the transmission of, or
purposefully make available any indecent--I emphasize the word
``indecent''--communication, request, suggestion, proposal, image, or
other communication to a person under 18 years of age.
That would appear, on its face, to be within the scope of the
Government's authority to regulate indecent speech directed at minors.
The Supreme Court in the Pacifica Foundation case and other decisions
has made it clear that the State may well have an interest in
prohibiting indecency to minors.
However, I, along with my colleague from Vermont, continue to have
concerns about this provision. We share the goal of this provision, but
disagree on the means to achieve that end.
The crux of the problem, however, is that due to the unique nature of
interactive telecommunications systems, attempts to prohibit indecent
speech to minors on these networks raises questions of
constitutionality.
The Supreme Court, in the Sable decision, made it clear that any
attempts to regulate indecent communications directed at minors must
take into account the medium being used and the least restrictive means
to achieve the goal of prohibiting indecency to minors. Thus, under
Pacifica, offensive works could be banned from radio broadcasts during
certain hours because there was, in effect, no other less restrictive
means of preventing minors from being exposed to such materials.
In contrast, Sable struck down broad Federal legislation seeking to
ban certain communication via the telephone because there were
alternative, less restrictive means available. The Federal statute in
the Sable case was finally upheld when it was modified to require
providers of sexually explicit telephone services, the so-called Dial-
A-Porn services, to adopt mechanisms such as credit card authorization
or other means of verifying age to prevent minors from accessing such
services.
In other words, where alternative means are available to block access
by minors to these services, those methods must be implemented rather
than denying adults their constitutionally protected right to such
material.
The proposed amendment not only adopts an approach that is not the
least restrictive, it has the potential to retard significantly the
development of this new type of interactive telecommunications.
chilling effect on cyberspace speech
I am concerned that this legislation will have a chilling effect on
constitutionally protected speech on interactive communication
networks, potentially slowing the rapid technological advances that are
being made in this new technology.
Because of the unique nature of interactive telecommunications
networks, prohibiting indecency to minors without impacting
constitutionally protected communications between adults must be
carefully tailored.
One of the most popular services accessed via the Internet is USENET,
a series of interactive bulletin boards, news groups, and other
participatory forums which are dedicated to different topics. They are
literally thousands of these groups available on computer networks and
they are used widely for discussion of everything from current events
such as the legislation we are discussing today to completely obscure
subjects. They are used for recreation, entertainment, business,
research, and many other purposes.
Users participating in those newsgroups may simply read the messages
or they may post their own. There is no way to know who will be reading
your message.
Since it is possible that any minor whose home computer can access
the Internet would also have access to the public bulletin board, one
could make the case that the adult posting the so-called indecent
message did so knowing that a minor might see the message.
Thus, if this legislation became law, an adult participant on a
bulletin board who posted a profane message using some of the ``seven
dirty words'' on any subject could be subject to criminal penalties of
up to 2 years in prison or a $100,000 fine, if a minor might read the
message posted on that bulletin board.
This threat of criminal sanctions could have a dramatic chilling
effect on free speech on interactive telecommunications systems, and in
particular, these newsgroups and bulletin boards accessed through the
Internet. Quite simply, adults will have to watch what they say on
these forums.
Let me provide an example of how that might occur. According to an
article in the Phoenix Gazette earlier this year, a large computer
bulletin board was raided by the Arizona State Department of Public
Safety and the local police for providing obscene material on their
service. While months later the operators of that service had not yet
been charged, it was reported that ``The crackdown had a chilling
effect on providers of on-line services. Within days, operators of
similar boards removed obscene files or eliminated public access to
them.''
Now, Mr. President, there is no issue raised when the legitimate law
enforcement efforts to enforce anti-obscenity laws and ordinances have
a chilling effect on the distribution of obscene materials. Under a
constitutional interpretation in our country, obscenity does not have
the same constitutionally protected status as nonobscene speech.
However, Senator Exon's bill would likely have a chilling effect on
protected speech--or speech which may be perceived to be indecent, but
not obscene.
Communication between adults through the Internet would likely be
[[Page S8335]] reduced to the lowest common denominator--that which is
appropriate for children. Mr. President, that is not free speech.
indecency defined by community standards
Second, Mr. President, the threat of criminal sanctions despite a
user's lack of control over, or knowledge of, who views his/her
message, is of additional concern given that indecency is defined based
on community standards.
The definition of indecency for computer networks hasn't been fully
explored. For broadcast media, FCC has defined indecency as ``language
or material that, in context, depicts or describes in terms patently
offensive as measured by contemporary community standards for broadcast
medium, sexual or excretory activities or organs''--including the so-
called seven dirty words.
The nature of interactive telecommunications makes even the
``community standard'' and entirely different matter. As a bulletin
board user you may not even be aware of who will be reading your
communication, let alone where they are located for purposes of
figuring out what a community standard might be.
It is unclear what would constitute a community standard for
indecency? Whose community? That of the initiator or that of the
recipient? Will all free speech on the Internet be diminished to what
might be considered decent in the most conservative community in the
United States?
An article in the San Diego Union-Tribune in February of this year
documented a case in which a Tennessee court convicted a California
couple of violating obscenity laws with their sexually explicit
bulletin board based and operated in California. The jury applied the
community standards of Memphis because the materials from the bulletin
board were downloaded there.
Again, in the case of obscenity, the community standard is of less
concern because obscene speech is not protected. But in S. 652, we are
prohibiting protected speech, so-called indecent speech. The uncharted
community standards for indecency pose a risk that few users will be
willing to bear.
indecency provisions could make illegal socially valuable forums
Based on the definition which has been applied to broadcast media, we
could declare the content of many bulletin boards indecent--including
those containing medical and academic discussions, on-line support
groups where users discuss the trauma of sexual and physical abuse, or
bulletin boards which contain information on sexually transmitted
diseases and AIDS and how one might prevent them.
Arguably, while the content is of a mature nature, these types of
forums have tremendous social value. However, if minors gained access
to these services, those making the indecent comment could be subject
to 2 years in prison. Many of these bulletin boards for adults would
simply cease to exist.
Would the threat of criminal sanctions and the unclear nature of an
indecency standard have a chilling effect on free speech via computer
networks? I say it will. You bet it will.
Adults will be forced to self-censor their words, even if they did
not intend those words for children and even if they are protected by
the first amendment.
Mr. President, the use of computer networks holds tremendous
potential for the expansion of public dialog and discourse advancing
the value of the first amendment. It is an industry that is growing by
leaps and bounds.
The business, educational, and social welfare potential of the
information superhighway is almost without limit. It would be
devastating to limit the potential of this medium by taking steps that
could have the effect of silencing its users.
different standards for the same materials
An additional concern, Mr. President, is that this legislation will
establish different standards for material which appears in print and
on the computer screen. The legislation would make certain individuals
subject to criminal penalties if they made their materials and
publications available on computer networks to which minors had access.
However, that same material, the same message would be perfectly legal,
and fully protected under the Constitution, in a bookstore, or a
library. If a minor stumbled across, or purposefully sought, indecent
materials in a bookstore and simply looked at that material, the author
of that material would not be subject to criminal penalties nor would
the bookstore or library that stocked the material.
I urge my colleagues to keep in mind that many published works are
available over the World Wide Web through the Internet. There is even a
``Virtual Library'' on the World Wide Web. Therefore it is entirely
conceivable that we would have two separate standards for legality of
the same works published in the print media and on electronic
communications systems.
Civil liberties advocates point out that under this bill it is
possible that an individual who makes available electronically the
novels such as ``Lady Chatterley's Lover,'' ``Catcher in the Rye'' by
J.D. Salinger, or the many novels of Kurt Vonnegut such that they are
potentially accessible to minors, could be subject to criminal
penalties while could be found in any library and bookstore. Why the
different standard?
interactive media's unique technological characteristics must be
considered
The fundamental flaw in the language proposed by Senator Exon is that
it attempts to regulate computer networks as we regulate broadcasting
and telephones when it has little in common with either of them.
Although the materials transmitted through interactive
telecommunications systems often bear a greater resemblance to the
print media, the fact remains that these interactive telecommunications
systems have some entirely unique characteristics which need to be
considered.
It is a unique form of media posing differing challenges and
opportunities. Unlike broadcast or print media, an individual on the
Internet can be both a communications recipient and originator
simultaneously. Congress needs to understand these differences before
we can determine how best to protect children and the constitutional
rights of Americans.
Supreme Court Addresses Constitutionality of Content Regulation Based
on Characteristics of the Medium
The way in which the Supreme Court has dealt with obscenity and
indecency questions as they relate to the first amendment has a lot to
do with the structural characteristics of the medium in question.
The Supreme Court has taken into consideration the scarcity of the
medium as a public resource as well as the ability of the user to
control the material he or she might view over the medium. The print
media has been afforded a greater degree of first amendment protection
because of the decentralized and nonintrusive nature of the medium.
Newspapers are inexpensive to produce and to purchase, virtually
unlimited in number, and are noninvasive--that is, it is easy for a
consumer to avoid the media if they wish.
Broadcasting, which uses the scarce public spectrum and which is more
difficult to control from an end-user standpoint, has not enjoyed the
same protection as print media. It is easier to come across indecent or
offensive material while flipping through the channels on your
television. Broadcast spectrum is also limited so courts have upheld
content regulation to ensure that public resources furthered the public
interest.
Interactive communications are different, Mr. President. There is a
greater ability on computer networks to avoid materials end users do
not wish to receive than exists for either broadcast media or
telephony, but arguably less than exists in print media.
Users of the Internet and other on-line functions typically do not
stumble across information, but go out surfing for materials on a
particular subject. As such, they use search words, message headings,
and the so-called gopher as their guide. Most newsgroups or bulletin
boards that have sexually explicit materials are named such that there
can be little doubt what types of materials one might encounter if you
try to get into that area.
Restriction of Protected Speech Justified To Serve Compelling
Government Interest Only For Least Restrictive Means
In addition to characteristics of scarcity and user control, the
Supreme Court has allowed the abridgement of [[Page S8336]] protected
speech based on certain criteria. Over the years, the Court has
carefully examined two factors when determining the extent to which
content shall be subject to government controls without violating the
first amendment:
Whether there is a compelling government interest to abridge
protected speech;
Whether abridgement is accomplished in the least restrictive means.
Mr. President, while the Supreme Court has recognized that there may
be a compelling government interest in shielding minors from indecent
communications, I do not believe that the provision in the Exon bill
will serve that interest in the least restrictive means. The provision,
while appearing to apply only to minors, will in fact restrict the free
speech of adults.
The interactive electronic communications market is growing and the
technology is evolving rapidly. Contrary to what others might contend,
it is not clear that there are not adequate technical means available
to parents and service providers to screen out objectionable material
for children.
There is currently software available which allows parents and
employers to screen out objectionable services or newsgroups on the
Internet. On-line service providers also have the ability to provide
parents with a choice of what types of information their children
should access. Schools and universities that provide the service of
connection to the Internet can also decide which types of news groups
on USENET they will make available. Carnegie-Mellon University recently
made offensive-news groups less accessible to students by taking their
names off their master list.
I want to clarify one other technical matter. The Senator from
Nebraska presented a chart which indicated that one's home computer is
connected directly to the Internet.
That is not always accurate, Mr. President. In many cases, users need
to access first a remote computer or connect with an access provider.
In some cases, that service provider is an online service, like
Prodigy or America On-Line. Other services merely provide the
connection services, much like a common carrier to the home users.
Why is this a crucial distinction? Because it makes clear there are
ways to control what one receives on a computer. Because the access
provider acts as an intermediary between the user and the Internet,
they can also eliminate access to certain services. Many of those
Internet access providers are already recognizing the market potential
of providing parents and schools with the opportunity to control the
access of children to some services on the network. And I am not just
talking about the big ones like Prodigy and CompuServe. I am talking
about Siecom, Inc., which is an Internet service provider in Grand
Rapids, MI, which supplies 20 elementary and secondary schools with
restricted one-way access to USENET discussion groups through the
Internet. The company does not make available the news groups on USENET
which may be inappropriate for children. That company is realizing that
the simple service of not providing access to all the USENET services
has been a marketing advantage for them.
The PRESIDING OFFICER. The Senator has now used 20 minutes.
Mr. FEINGOLD. I ask that I be yielded 5 minutes.
Mr. LEAHY. I yield the Senator 5 minutes.
The PRESIDING OFFICER. The Senator is recognized for 5 additional
minutes.
Mr. FEINGOLD. Mr. Krol states in his book, when explaining the
technical needs of Internet users:
No matter what level you're at, Internet access always
comes via an access provider; an organization whose job it is
to sell Internet access.
He further indicates that Internet service providers are
participating in a competitive market. That means the opportunity
exists to solve at least part of the problem through the marketplace
today, not through governmental prohibitions.
None of the technical safeguards available, such as blocking software
and provider screening, are perfect, but the nice thing is they do not
violate the first amendment.
Mr. President, I ask unanimous consent to print an article in the
Record from the Wall Street Journal describing some of these
technologies.
There being no objection, the article was ordered to be printed in
the Record, as follows:
[From the Wall Street Journal, May 15, 1995]
New Software Filters Sexual, Racist Fare Circulated on Internet
SurfWatch Program Addresses Renewed Cyberspace Fears Following Oklahoma
Blast
(By Jared Sandberg)
Think of it as a parental hand shielding children's eyes
from the evils of cyberspace.
That's the gist of a software program developed by
SurfWatch Software Inc., a Los Altos, Calif., start-up. The
program, expected to be released today, will allow Internet
users to block sexually oriented data transmitted via the
global computer network.
``The goal is to allow people to have a choice over what
they see on the Internet by allowing them to filter or block
sexually explicit material,'' said Jay Friedland, SurfWatch's
vice president of marketing. Mr. Friedland said the software
will also allow users to filter out files such as bomb-making
manuals and neo-Nazi screeds, which have been circulated by
hate groups on the Internet.
A growing number of firms are racing to provide tools to
filter out pornographic and racist fare stored on the
Internet before the government takes action itself. The
proposed telecommunications-reform bill before the Senate
makes it illegal for individuals and corporations to put
sexually explicit material on the Internet. Last week, the
Senate held hearings in the wake of the Oklahoma bombing
regarding the use of computer networks to disseminate hate
literature that could incite violence.
The government moves concern free-speech advocates, who
prefer a technological fix. ``We don't have to rely on the
government to attempt to censor everything on the Internet,''
said Daniel Weitzner, deputy director of the Center for
Democracy and Technology, a civil-liberties group that
testified at last week's hearings. Users have no control of
broadcast media, other than to change channels or turn it
off. But in cyberspace, ``SurfWatch is a great example of the
flexibility and user control that is inherent in interactive
media,'' Mr. Weitzner said.
On-line services such as Prodigy Services Co. only grant
Internet access to children with parental permission. Jostens
Inc. recently released software for schools that allows
teachers to block electronic bulletin boards that contain
pornographic pictures.
SurfWatch's Mr. Friedland said the software contains the
Internet addresses of computers storing sexually explicit
material, blocking a user's attempt to access those
computers. But such porno-troves often are a moving target:
once users find out about them, those computers tend to get
overwhelmed by traffic, shut down and move elsewhere on the
network and take a new address.
To counter that problem, SurfWatch will charge users a
subscription fee for software updates that include new
offending Internet addresses. The company is using a database
to search the Internet for words such as ``pornography'' and
``pedophilia'' and make a list of Internet sites, which won't
be visible to users.
Mr. FEINGOLD. Mr. President, clearly there are ways parents can exact
control over what their children can access on their home computers. It
is clearly preferable to leave this responsibility in the hands of
parents, rather than have the Government step in and assert control
over telecommunications. Whenever there is a choice between Government
intervention and empowering people to make their own decisions, we
ought to try first to use the situation of the approach that involves
less Government control of our lives.
It is also not clear that existing criminal statutes are incapable of
enforcing laws to protect children on interactive telecommunications.
There have been many reports of prosecution of illegal activity related
to the transmission of obscenity using interactive telecommunications.
So, Mr. President, I do not even think it is clear we do not have the
authority today to prosecute online obscenity. The truth is we just do
not know at this point. We need more information. However, it is
entirely clear to me that Congress certainly should not abridge
constitutionally protected speech if there are less restrictive means
of serving the compelling Government interest.
To conclude, that is why I strongly support, as an alternative, the
efforts of the Senator from Vermont. This amendment requires an
expeditious evaluation by the Department of Justice of the technology
available now to allow parents to protect their children
[[Page S8337]] from objectionable materials while upholding the values
of the first amendment. The Attorney General must also evaluate whether
existing laws are adequate to enforce criminal laws governing
obscenity.
This study, which has to be completed within 5 months, will provide
Congress with the information we need before we consider legislation.
Given the first amendment issues at stake here, I believe the Judiciary
Committee of the Senate should also be given an opportunity to review
this matter. I do not, in theory, object to some legislation.
I simply want to work with my colleagues to determine how best to
protect children, while at the same time protecting the rights of
Americans to free speech.
I will close with these remarks from an article in the Federal
Communications Law Journal by Prof. Fred Cate. In the article, he
discussed how electronic communications have changed the way we
communicate and have even greater potential to revolutionize
communications. He stated:
If 60 years of the Communications Act of 1934 has taught us
nothing else, it must caution against excluding
communications media from the full protection of the first
amendment. To do so with today's electronic information
technologies would create an exception that would make the
rule of freedom of expression meaningless.
Mr. President, I believe the Exon amendment, unfortunately, does
create such an exception, and I urge my colleagues to oppose this
language and support, as an alternative, the amendment of the Senator
from Vermont.
I urge my colleagues to vote accordingly when we vote. I thank the
Chair and yield the floor.
Mr. EXON addressed the Chair.
The PRESIDING OFFICER. The Senator from Nebraska.
Mr. EXON. Mr. President, I yield myself 10 minutes.
I have been listening with keen interest to my friends and
colleagues, the Senator from Vermont and the Senator from Wisconsin. I
hope that they will listen very carefully to some of the things this
Senator has to say, because everything that they have brought up are
things that I considered very long and very hard when I started working
on this difficult situation a year ago. Nothing they said is new. I
just think they are, without malice aforethought, putting some spin on
the Exon-Coats amendment that simply is not there.
I ask unanimous consent that Senator Byrd and Senator Heflin both be
added as original cosponsors to the Exon-Coats amendment.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. EXON. I appreciate very much Senator Byrd and Senator Heflin, two
very distinguished lawyers, the latter, Senator Heflin, being the
former chief justice of the supreme court of Alabama. I think both of
them would not be a cosponsor of this Exon-Coats amendment unless they
felt it had adequate constitutional safeguards.
At this time, Mr. President, I ask unanimous consent that the
following letters in support of the Exon-Coats amendment be printed in
the Record.
The first is from the Christian Coalition headed: ``Senators Exon and
Coats Have Joined the Efforts. Support the Exon-Coats Antipornography
Amendment.'' And we have the support of that organization.
Next, a letter from the National Coalition for the Protection of
Children and Families that has essentially the same message in
different words.
Next, Mr. President, a reference that Senator Coats made earlier in
his excellent presentation. I pause for just a moment to thank him for
all of his help and cooperation and for the excellent, forthright,
factual statement he made in explaining what we are attempting to do
and how seriously we consider this to be. That is why we are acting.
Senator Coats mentioned the chamber of commerce supports this
legislation. I have a letter from the chamber of commerce that I
likewise will include in the unanimous-consent request.
Next is the Family Research Council, along the same general line.
Next is a news release from the National Law Center for Children and
Families, of Fairfax, VA, that follows the same general category.
Last but not least, a news release from Women of America Say ``Enough
Is Enough.''
I ask unanimous consent that those letters be printed in the Record.
There being no objection, the letters were ordered to be printed in
the Record, as follows:
Senators Exon and Coats Have Joined Their Efforts. Support the Exon-
Coats Anti-Pornography Amendment
Christian Coalition,
Washington, DC, June 13, 1995.
Dear Senator: You may have received an earlier letter from
the Christian Coalition urging your support for the Coats
amendment to S. 652, the Telecommunications Reform Act. We
are pleased to see that the competing versions of anti-
pornography legislation proposed by Senators James Exon and
Dan Coats have subsequently been reconciled into a joint
amendment. I write you now to urge your support for this
bipartisan computer pornography amendment.
Pornography on the computer superhighway has become so
prevalent and accessible to children that it necessitates
congressional action. The comprehensive telecommunications
legislation which the Senate is currently debating is an
appropriate vehicle to address this critical problem, and we
urge the Senate not to let this opportunity go by.
Although Senator Patrick Leahy and others may urge that the
matter be referred to the U.S. Department of Justice for its
review and analysis, we oppose such a course of action. The
increasing existence of computer pornography today requires
action, not more study.
On behalf of the 1.6 million members and supporters of the
Christian Coalition, we urge you to support the Exon-Coats
amendment when it comes to the Senate floor. Thank you for
your attention to our concerns.
Sincerely,
Brian C. Lopina,
Director,
Governmental Affairs Office.
____
National Coalition for the
Protection of Children & Families,
Cincinnati, OH, June 13, 1995.
Hon. James Exon,
U.S. Senate,
Washington, DC.
Dear Senator Exon: I am writing you on behalf of the
National Coalition for the Protection of Children & Families
to offer our strong support for your willingness to introduce
an amendment, along with Senator Coats, to the Telecom
legislation dealing with the problem of children's access to
pornography on computer networks. We believe that such
legislation is vital to the well being of our nation's most
important resource, its children.
Unless the problem of computer pornography is addressed
now, millions of children will have access to the worst and
most violent forms of pornography via computer networks and
the Internet. Currently, almost any child with access to the
Internet can quickly download and view bestiality, torture,
rape, mutilation, bondage, necrophilia and other unspeakable
acts. The pornography industry has opened up a free store on
the Internet and invited our children to get whatever they
want. Pornographers have no right to hijack Cyberspace, which
offers a host of promising technologies which should be
available to children and families without fear of
encountering violent, degrading pornography. Our society now
faces a fundamental choice of whether we really believe that
the Internet is a public network where children will be
welcome, or rather, one which belongs just to pornographers
and their consumers.
We have had the opportunity to review the language of the
``Exon-Coats'' amendment in detail. We believe your careful
approach to amending the telecommunications legislation is
constitutional, wisely tailored to help protect children from
this heinous material, and effective in navigating complex
court precedents in this area.
Thank you for your willingness to address these critical
issues. Your leadership on this issue is a great service to
the world's children.
Sincerely,
Deen Kaplan,
Vice President, Public Policy.
____
Chamber of Commerce of the
United States of America,
Washington, DC, June 13, 1995.
Members of the United States Senate:
On behalf of the U.S. Chamber of Commerce Federation of
215,000 business members, 3,000 state and local chambers of
commerce, 1,200 trade and professional associations, and 72
American Chambers of Commerce abroad, we strongly urge your
support for the amendment to be offered by Senators Exon (D-
NE) and Coats (R-IN) to S. 652, the ``Telecommunications
Competition and Deregulation Act of 1995,'' regarding
revisions to the Communications Decency Act.
The Exon-Coats amendment firmly protects children against
obscene, indecent, and other types of objectionable
communications. It also preserves the interests of business
users of information systems. The language is rightfully
targeted to reach and prosecute the ``bad actors'' who
exploit the capabilities of information technologies to reach
children and unconsenting adults, [[Page S8338]] which we
support fully. Yet adequate defenses and safe harbors are
provided to ensure that American businesses can utilize these
telecommunications-based products and services to enhance
their competitiveness, address major business problems such
as employee training and customer service, and reach new
domestic and global market shares and suppliers--without
fearing unintended or uncertain liabilities flowing from the
actions of others.
Unlike some previous proposals, this legislation provides
the certainty that businesses need to ensure that they can
employ online information technologies. The absence of this
certainty would create a broad and potent disincentive,
especially for small businesses, to the use of online systems
and the interconnection of private business systems with the
NII. The Chamber membership is calling on Congress to enact
telecommunications reform legislation to enhance our
children's lives and our business' productivity. This
amendment does both.
Please vote ``Yes'' for the Exon-Coats amendment to S. 652.
Sincerely,
R. Bruce Josten,
Senior Vice President.
____
Family Research Council,
Washington, DC, June 13, 1995.
Dear Senator: I wrote to you last week with my concern
about the pending anti-pornography amendments to the
Telecommunications Bill and urging your support of the
proposed Coats Amendment. Last night, Senator Exon agreed to
join Senator Coats in his legislative approach against the
obscenity and indecency polluting cyberspace. The Family
Research Council commends these Senators for their
willingness to take a stand on this unpopular issue. Today or
tomorrow, the Exon-Coats Amendment will be offered which will
criminalize commercial and non-commercial distribution of
hard-core pornography through computers, as well as keep all
forms of pornography out of the hands of the most vulnerable
``Net surfers''--our children.
I urge you to support the Exon-Coats Amendment to eliminate
``cyberspace'' as a safe haven for pornographers.
The Exon-Coats Amendment breaks new legal ground in the
fight against porn by criminalizing ``free'' obscenity traded
on the Internet, and by making it illegal to make indecent
material available to children.
Importantly, the Exon-Coats Amendment still addresses the
problem of porn on basic cable packages. It will prohibit
cable programmers from forcing upon families channels which
feature indecent programs when they sign up for cable. The
indecent channels will be provided only upon specific
request.
Computer pornography is the next great threat to our
children's hearts and minds. I commend Senator Coats and
Senator Exon for fighting an evil which transcends party
lines.
Sincerely,
Gary L. Bauer,
President.
____
Support Exon-Coats Computer Porn Amendment Says National Law Center for
Children and Families
The National Law Center for Children and Families (``NLC'')
is a non-profit legal advice organization which supports law
enforcement and governmental agencies in the prosecution and
improvement of federal and state laws dealing with obscenity
and the protection of children. NLC's Chief Counsel, Bruce
Taylor, feels that today's version of the ``Exon-Coats''
amendment is both effective and constitutional. It would
criminalize the distribution of obscenity on the burgeoning
computer service networks, such as the ``Internet'', ``Use
Net'', and ``World Wide Web''. The amendment also
criminalizes the knowing distribution of ``indecent''
material to minor children. Both provisions cover
noncommercial, as well as commercial, transmissions. This is
important, since present law does not cover indecency to
minors except for commercial dial-porn messages over the
phone lines. Also, the Exon-Coats amendment would clearly
cover all distributions of hard-core obscenity over the
computer networks, whereas existing law has been enforced
only against commercial sales of obscenity by common carrier
and computer.
The vast amount of hard-core pornography on today's
computer bulletin boards is placed there indiscriminately by
``porn pirates'' who post freely available pictures of
violence, rape, bestiality, torture, excretory functions,
group sex, and other forms of hard and soft core pornography
which are as available to teenager computer users as to men
who
are addicted to pornography. A tough federal law is needed
to deter such unprotected and viciously harmful activity
and the Exon-Coats bill does just that, making such
activity a felony punishable by up to two years in prison
and $100,000 in fines.
Many of the previous provisions of the Exon bill were
criticized by pro-family groups as too lenient and providing
too many defenses for pornographers, as well as for the on-
line computer service access providers, such as Prodigy,
CompuServe, NETCOM, and America On Line. The present version
of the Exon-Coats amendment would exempt the phone company
carriers and computer access providers only to the extent
that they provide mere access for users to connect to the
services and boards of other companies and individuals beyond
their control. To the extent any phone or computer access
company would offer obscenity on their own boards, they would
be as liable as anyone else. Likewise for making indecent
material available to minors under age 18, if they do it--
they are liable, but if they don't do it--they aren't liable
if someone else does it. This puts the primary criminal
liability on those who distribute obscenity to anyone and on
those who make indecency available to minors without taking
reasonable steps to limit it to adults. Although some people
and groups may feel that the phone and computer access
providers should bear responsibility for the traffic in
obscenity and indecency that is available to minors, there
are Constitutional limitations that apply by law to any act
of Congress in these regards. One, regulations to protect
minors from indecent speech must be the ``least restrictive
means'' to protect minors while allowing adults access to
non-obscene speech. Second, the law cannot impose strict
liability for obscenity. The Exon-Coats amendment is designed
to satisfy both constitutional requirements, while still
providing a serious criminal deterrent to those who would put
obscenity onto the computer nets or who would publicly post
indecent materials within easy reach of children.
The amendment, therefore, contains ``good faith'' defenses
that would allow any company, carrier, internet connector, or
private individual to create reasonable and effective ways to
screen children out of adult conversations and allow adults
to use indecent, nonobscene, speech among adults. This should
encourage the access providers to take steps to enforce
corporate responsibility and family friendly policies and
monitor their systems against abuse. When they do take such
steps, the good faith defense would protect them from
becoming liable for unfound or unknown abuses by others, and
that is all we think the law can ask of them at this point.
There is only so much that can be done in a way that is
``technically feasible'' at any point in time, and the Exon-
Coats bill would not require anyone to take steps that are
not technically feasible and does not, and should not, expect
anyone to take all steps that may be technically possible.
This bill would also allow the States to enforce their own
obscenity and ``harmful to minors'' laws against the
pornographers and porn pirates. If the chose to regulate the
carriers and connectors, they would be bound by the Supremacy
Clause of the Constitution and the First Amendment to using
consistent measures. This is not inconsistent with existing
requirements for the States to meet under any criminal law.
The joint role of federal and state prosecution of those who
distribute the obscenity, and indecency to minors, is thus
preserved.
The good faith defense also allows responsible users and
providers to utilize the existing regulations from the F.C.C.
for dial-porn systems until such time as the F.C.C. makes new
regulations specifically for the computer networks. This
means that a company or individual who takes a credit card,
pin number, or access code would be protected under present
F.C.C. rules if a minor stole his parent's Visa card or dad's
porn pin number. In other words, some responsibility still
resides with parents to watch what
their kids are watching on the computer. This is serious
business and there is a lot of very harmful pornography on
the ``Internet'', so parents better take an interest in
what their children have access to, but cannot expect
every one else to solve the entire problem for them.
Federal law can make it a crime to post hard-core
obscenity on the computer boards, but many people are
willing to break that law. The porn pirates are posting
the kind of porn that hasn't been sold by the pornography
syndicate in their ``adult'' bookstores in nearly 20
years. This law should deter them from doing that any
longer and it would allow federal prosecutors to charge
them for it now.
The defenses to indecency are available to every one, so
that every one has a chance to act responsibly as adults in
protecting children from indecency. This is what the Supreme
Court will require for the indecency provisions to be upheld
as ``least restrictive'' under the First Amendment.
Conversely, no one has a defense to obscenity when they
distribute or make obscenity available. The only exception to
this is for the carriers and connectors in their role as mere
access connectors, only then would they be exempt from the
obscenity traffic of others. However, if the on-line service
providers go beyond solely providing access, and attempt to
pander or conspire with pornographers, for instance, then
they would lose their obscenity exemption and be liable along
with every one else. This is a limited remedy to prevent the
bill from causing a ``prior restraint'' on First Amendment
rights. This bill would be nothing at all if it were struck
down or enjoined before it could be used against those who
are posting, selling, and disseminating all the pornography
on the computer networks.
There has been some criticism that this bill in adopting
good faith defenses, would make it ineffectual and that this
would weaken the bill in the same way that the existing dial-
porn law is not completely effective. We disagree. The
defenses in the dial-porn law were necessary to having that
law upheld by the courts. Without them, it was struck down by
the Supreme Court. Only after the F.C.C. provided its
technical screening defenses was the law upheld by the
federal appeals courts. This law adopts those
[[Page S8339]] constitutionally required measures for
indecency and for obscenity only for the mere access
providers. The dial-porn law has removed the pre-recorded
message services from the phone lines. The pornographers have
gone to live credit card calls. To the extent they are still
obscene, they can and should be prosecuted by the Department
of Justice, with the help of the F.B.I. That is what it will
take to remove the rest of the illegal dial-porn services.
The most ineffective part of the dial-porn law is not the
F.C.C. defenses, they are fine. What is broken is the phone
company defense in the statute, 47 U.S.C. Sec. 223(c)(2)(B),
that allows the bell companies to rely on ``the lack of any
representation by a provider'' of dial-porn that the provider
is offering illegal messages. This means that if the dial-
porn company does not tell the phone company that the
messages are obscene or going to children as indecency, then
the phone company doesn't have to block all the dial-porn
lines until an adult subscribes in writing. This is not
workable and should be fixed by Congress. The dial-porn law
should also be amended to give good faith reliance only on a
false representation by a dial-porn provider. If the phone
company doesn't know about a dial-porn service, then they
should not be responsible. However, the phone company should
block all the dial-porn lines and only unblock them on adult
request. This is the provision that is causing the phone
companies not to act, not the F.C.C. defenses. There is no
such provision in the Exon-Coats amendment that would allow
the carriers or connectors to wait for the pornographers to
confess guilt before they must act. If they know, they must
act in good faith. No more, no less. This computer porn law
is, therefore, better than the existing dial-porn law in that
respect.
This amendment would allow federal prosecutions against the
pornographers and porn pirates immediately, thus removing
much of the hard-core material from the networks that the
carriers would be providing access to anyway. This can't wait
several months or years. If Congress has to exempt the
connectors as long as they merely carry the signal and
otherwise act in good faith, then so be it. It they abuse it,
then Congress can take that break away when it is shown that
they don't deserve it. In the meantime, this law will give
federal law enforcement agencies a tool to get at those who
are responsible for distributing the obscenity that we all
complain of right now. It is a good and constitutional law
and arguments that it is not enough are not true, not
realistic, and could cause Congress to bypass this
opportunity to enact an effective remedy to protect the
public and our children from this insidious problem. Senators
Exon and Coats have done an admirable and honorable job in
forcing this issue to a resolution. They have agreed to a
tough and fair law, with reasonable exemptions and defenses
for legitimate and good faith interests. The effective role
of alternative measures, like that of Senators Grassley and
Dole, cannot be overlooked as part of the pressure that
brought this matter to a successful point. The efforts to
kill all effective action, such as the pornography protection
and delay the bill of Senator Leahy of Vermont would offer to
forego a criminal bill in favor of more ``study'', must be
rejected as unreasonable and Congress should act immediately
to criminalize obscenity on the computer networks and forbid
indecent material being sent or made available to minors.
____
``Enough Is Enough!'' Campaign,
Washington, DC, June 14, 1995.
Women of America Say ``Enough Is Enough!'' in Support of Exon-Coats
Computer Porn Amendment
The ``Enough is Enough!'' campaign is a non-partisan non-
profit organization which educates citizens about the harms
of pornography and its link to sexual violence. ``Enough is
Enough!'' is dedicated to eliminating child pornography and
removing illegal pornography from the marketplace.
According to Dee Jepsen, President of ``Enough is
Enough!'', ``We represent thousands of women and concerned
men across America standing together in support of sound
legislative measures that will enhance law enforcement and
prosecution of the distribution of illegal pornography to
children.''
``Furthermore'', states Donna Rice Hughes, Communications
Director for the campaign, ``the current version of the Exon-
Coats amendment will provide greater protection for children
from computer pornography's invasion into America's homes and
schools and still meet constitutional scrutiny.''
This measure is an essential step in protecting children
from heinous forms of pornography available online.
Mr. EXON. Mr. President, let me now, if I might, go into some matters
that I think are tremendously important.
First, I notice that my friend and colleague from Vermont indicated
he has some 25,000 signatures that he has piled up on the desk down
there from people who support his efforts, and his efforts are
supported, of course, by my friend and colleague from Wisconsin.
What they propose to do with the underlying amendment is to punt, to
recognize there is a problem that they both have, but what they are
suggesting we do is just delay a punt.
We come from the football State of Nebraska. That is what the
Nebraska football team does, Mr. President. Fourth down and 32 yards to
go on their own 3-yard line, they always punt, except when they are
down near the end of the game and they recognize the serious situation
that they might be in and they might not get the ball back. Then they
do not punt. They move aggressively forward, which is what we are
trying to do in the thoughtful manner embodied in the Exon-Coats
proposal.
Those people that my friend and colleague from Vermont is supporting
in carrying the ball would be interested in knowing, I am sure, what
generated many of those letters that have been offered in debate by the
Senator from Vermont.
I happen to have a copy of a letter in this regard, which generated
many of those letters, provided to me by my grandson. My grandson is 25
years old, and he is old enough to take care of himself. But he thought
that I would be interested in this. This is a letter that has been
widely distributed on the e-mail system. It says: ``The obscenity of
decency. With the introduction of Senator J.J. Exon's Communications
Decency Act, the barbarians are really at the gate.''
I have been called many things in my life, but never before have I
been called a barbarian. I would hope that the Senator from Vermont
would advise the people that he is using here as support for his
position that his mutual friend, Jim Exon, is not a barbarian under any
normally accepted definition of the term.
Let me go into some of the things that I have been hearing and
listening to and attempt, as best I can, to maybe straighten out some
of the concerns that I think are very real and sincere, as stated by my
colleague from Vermont and my colleague from the State of Wisconsin.
First, let me say that the Exon-Coats amendment does not destroy,
does not retard, does not chill accepted information, pictures, or
speech. To the contrary. We are trying to make the Internet system,
which is displayed here on this chart before me, safer, better, and to
make it more frequently used.
I do not know the authenticity of the statement that I am about to
make. But I have read that it has been estimated that up to 75 percent,
Mr. President, of present computer owners have refused to join the
Internet system with their home computer, precisely because they know
and they fear--and evidently they have seen or been advised as to what
I have here in the blue book. Once again, before anyone votes against
the Exon-Coats amendment, if they are interested, I am willing to share
this information with them. It has pictures in it that were taken
directly off the Internet system last week. So I simply say we are not
trying to destroy, we are not trying to retard and we are certainly not
trying to chill the great system that is the Internet. Anyone who
believes that is very badly misinformed.
I have also heard a great deal today about the parents'
responsibilities, which, I guess, means that the parents that have such
responsibilities must follow their children around all of the time.
This is not simply something that the children have available to them
at home. More likely, they are going to be introduced to it not at
home, but in the schools. We have just made a concession in the
telecommunications bill before us to give the schools and libraries a
break, if you will, because we want them involved in this. The schools
will be sources of the information that Senator Coats and I have been
describing. The library is a place where they can pick it up. We also
talk about some of the software and the off-limits proposition that
some of the software may or may not provide.
I simply say, Mr. President, that those who know what is going on
with the Internet today--those who have seen it firsthand, those who
are concerned about making the Internet the greatest thing that has
ever happened as far as communications exchange is concerned--are the
ones that are supporting the Exon-Coats amendment. We want to make it
even bigger, and [[Page S8340]] we want to make it even better, but not
for raunchy pornography that would turn most people off. And to the
25,000 people who want to call this Senator a barbarian, I simply say
that, evidently, they are so selfish--at least their actions are so
selfish, that they simply say: We do not want to give up anything. We
want to be able to see what we want to see, where we want to see it,
any time we want to see it.
I simply say that what we are trying to do is constructively make
some changes that are necessary. Let me review for just a moment, if I
can, and make sure that everyone understands what the Internet is all
about. The Internet, basically, is in the center of this chart or
graph. From listening to many of my colleagues today, those who do not
support the Exon-Coats amendment, I think that they view this as the
way the Internet is. First, you have a child at home or an adult at
home entering the Internet, and they have to buy that service from one
of the many people who make money charging the entry into the Internet,
where they have special provisions, special facilities which that
particular provider might apply.
In addition to that, they apply for entry into the massive Internet
itself. From the Internet, the child or the adult can go worldwide. We
can go into all kinds of sources of information--the Library of
Congress, any of the great universities, and all of the other massive
sources of information. I think too many people believe that because
the pornography bulletin board is sitting out here to the side, that
you have to work to get to the pornography bulletin board. Mr.
President, that is simply not the case. The pornographers have invaded
the Internet down here, so that it is freely available, without cost--
all of the outlandish, disgusting, pornographic pictures of the worst
type, that some of my colleagues think we can handle by punting. This
is not a time to punt; this is the time to act.
I want to bring reference to the fact that this is the system that
the Coats-Exon amendment is trying to create--one that is envisioned as
the way the Internet system works. Actually, the way the Internet
system is working today--especially with regard to totally rampant
pornography--is that when the child or adult at home goes into the
Internet system, all too often he is looking for something other than
basic information. He would have to pay if he wants to subscribe to the
pornography bulletin board. But, Mr. President, it goes both ways.
These people--the moneymakers on pornography up here--are feeding
information because it can be fed free of charge into the Internet
system. The pictures I have here in the blue book--there are a whole
series of them--were taken freely off of the Internet system free of
charge and readily available to anyone who has a computer and has the
basic knowledge.
What these pornographers do is place free-of-charge material on the
Internet that is designed to lure people over to their bulletin board
so they can maybe hook them into a monthly charge of some type, to have
available whenever they want from their pornography which is a library
full of everything you can imagine.
What they are doing is taking previews of what they have in here.
They are putting them, open and at large, on the Internet system for
all people to see, not unlike, Mr. President, the previews of coming
attractions that we see when we go to the movies. This is what we will
see next.
Obviously, many of the pictures, as evidenced by the blue book, are
things that are readily available. They, of course, have a way of
referencing back. If you like this picture, come into our porno shop
over here. For a small fee, we will show you the real thing. The real
thing is right here when it comes to pornography.
Mr. President, I simply say, once again, that while I am sure my
friend from Vermont and my friend from Wisconsin are sincere, I
appreciate very much the very kind things that both have said about the
efforts of this Senator and Senator Coats because we have brought
attention to this.
It is the intention of the Senator from Nebraska and the Senator from
Indiana, though, now that we have called attention to it, we are going
to do something about it. We do something about it in a fully
constitutional way. We are not going to trample on the constitutional
rights of anyone.
I reserve the remainder of my time.
Mr. LEAHY. Mr. President?
Mr. COATS. Mr. President, could the Senator yield for a question, so
we can get a sense where we might be with time.
Mr. LEAHY. I yield.
Mr. COATS. Mr. President, I am not aware of any specific requests for
time from anyone on our side. We might be able to yield some time back.
Mr. LEAHY. Mr. President, I would be happy to. I wanted to respond,
as I am sure the Senator from Indiana realized I would, to a couple of
points.
Mr. COATS. We could get the word to Members.
Mr. LEAHY. I hope we can vote by 5 o'clock.
Mr. COATS. I thank the Senator.
Mr. LEAHY. I have spoken before on the floor of my concerns with the
Exon-Coats amendment. Last Friday, my good friend from Nebraska,
Senator Exon, filed a revised version of the Decency Act as amendment
No. 1268. The revisions made by Senator Exon reflect a diligent and
considered effort by him and his staff to correct serious problems that
the Department of Justice, I and others have pointed out with this
section of the bill.
I commend Senator Exon for proposing in his amendment the striking of
the provision in the bill that would impose a blanket prohibition on
wiretapping digital communications. This section would have totally
undermined 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.
If that particular section were passed as introduced, the FBI would
not have been able to use court-ordered wiretaps to listen in on
digital calls made by kidnappers, terrorists, mobsters, or other
criminals. This is an excellent change that I heartily endorse.
problems with senator exon's amendment
But, even with this fix, serious constitutional and practical
problems remain in Senator Exon's proposed legislation.
The first part of the amendment would make it a felony not only to
send obscene electronic messages to harass another person, but would
apply the same penalty to sending an e-mail message with an indecent or
filthy word that you hope will annoy another person.
For example, if someone sends you an annoying e-mail message and you
respond with a filthy, four-letter word, you may land in jail for 2
years or with a $100,000 fine.
Under this amendment, no computer user will be able to send a private
or public e-mail message with the seven dirty words in it. Who knows
when any recipient will decide to feel annoyed by seeing a four-letter
word online?
The second part of the amendment would make it a felony to send out
or receive over computer networks any obscene material. There is no
requirement that the person soliciting and receiving the material knew
it was obscene. This means that a computer user could be guilty of
committing this crime at the moment of clicking to receive material,
and before the user has looked at the material, let alone knows the
material to be, obscene.
This means that an adult sitting at his computer in the privacy of
his own home, who wants to get a copy--consistent with our copyright
laws--of a magazine article on stock car racing, could be subject to 2
years in jail and a $100,000 fine for downloading the magazine, which
unbeknownst to the user also contains obscene material.
This also means that if you are part of an online discussion group on
rape victims, your computer is programmed to automatically download
messages sent into the discussion group. If a participant sends into
the group a graphic story about a rape, which could be deemed obscene,
this story will automatically be downloaded onto your computer, and you
would be criminally liable under this amendment, even before you read
the story.
This may mark the end of online discussion groups on the Internet,
since many users do not want to risk 2 years in jail because of what
they might receive from online discussion groups. This amendment would
chill free speech and the free flow of information [[Page S8341]] over
the Internet and computer networks.
The amendment does give one out to users who meet some government,
FCC determined standards to take steps to protect themselves from
receiving material the government has determined to be obscene or
indecent.
This may mean that any user with a connection to the Internet or an
electronic communications service may be required to go out and buy
special FCC endorsed and expensive software programs to stop obscene
materials from reaching their computers. That way they could show that
they have at least tried to avoid the receipt of obscene materials.
Otherwise, they may risk criminal liability.
Take another example. What if a user wants to join a campaign to stop
obscenity on computer networks, and sends out the message to others on
the campaign to send him examples of the obscene materials they are
fighting to stop. Under this amendment, any receipt of these materials
would be a crime. If this amendment had been the law, when my good
friend from Nebraska collected the materials in his blue notebook, he
would have committed a felony.
How will anti-obscenity or pornography groups that now monitor online
obscenity be able to do so without criminal liability?
The third part of Senator Exon's amendment would make it a felony to
purposefully make available, either privately or publicly, any indecent
message to a minor.
We all share my good friend's concern over the kind of material that
may be available and harmful to minors on the Internet and other online
computer networks. But this provision is not the way to address the
problem.
Under this provision, no indecent speech could be used on electronic
bulletin boards dedicated to political debates, since kids under 18 may
access these boards.
This will certainly insure that civility is reintroduced into our
political discourse when we are online. But this also means that works
of fiction, ranging from ``Lady Chatterly's Lover'' to Newt Gingrich's
science fiction novel ``1945,'' which contains some steamy scenes,
could not be put out on the Internet because of the risk that a minor
might download it. Rap music with bad words could not be distributed
online.
This provision would censor the Internet in a way that threatens to
chill our first amendment rights on electronic communications systems.
Under the amendment offered by my good friend from Nebraska, 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. 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.
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 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, under the rubric of
protecting kids and in violation of the first amendment is not the
answer.
existing laws
One could get the incorrect idea that we in Congress have ignored the
problem of protecting kids from harms that could befall them from
materials they get online. This could not be further from the truth. We
have a number of laws on the books that the Justice Department has
successfully used to prosecute child pornography and obscenity
transmitted over computer networks.
Our criminal laws already prohibit the sale or distribution over
computer networks of obscene or filthy material--18 U.S.C.
Sec. Sec. 1465, 1466, 2252 and 2423(a). We already impose criminal
liability for transmitting any threatening message over computer
networks--18 U.S.C. Sec. 875(c). Our existing criminal laws also
criminalize the solicitation of minors over computers for any sexual
activity--18 U.S.C. Sec. 2452--and illegal luring of minors into sexual
activity through computer conversations--18 U.S.C. Sec. 2423(b). Just
this weekend, there were reports of two instances in which the FBI
successfully tracked down teenagers who were solicited online.
Congress took action 2 months ago to pass the Sexual Crimes Against
Children Prevention Act of 1995 to increase the penalties and make
these various laws even tougher.
Congress has not been ignoring this problem. This does not mean we
cannot or should not do better. But, the problem of policing the
Internet is complex and involves many important constitutional issues.
leahy amendment requiring a study
The amendment I am offering with Senators Kerrey, Feingold, and
Moseley-Braun would require a study by the Department of Justice, in
consultation with the U.S. Department of Commerce, on how we can
empower parents and users of interactive telecommunications systems.
We should examine the recommendations of these experts before we
start imposing liability in ways that could severely damage electronic
communications systems, sweep away important constitutional rights, and
possibly 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.
A number of groups support the approach of the Leahy study, including
civil liberties groups, librarians, online providers, newspaper
editors, and others. I ask that a list of the supporters of the Leahy
study be placed in the Record.
An electronic petition has been circulated on the Internet for the
past few weeks. Over 35,000 people have signed on in support of the
Leahy study, as an alternative to the proposed Communications Decency
Act.
A number of organizations have signed onto the electronic petition to
support the Leahy study as an alternative to Government content
regulation of electronic communications. These organizations, including
the American Council for the Arts, Center for Democracy and Technology,
Voters Telecommunications Watch, and others are helping to circulate
the petition. Anyone is allowed to sign it or circulate it--this is a
free country. Since May 19, when the petition was launched, over 35,000
people have signed on.
The Leahy study approach is supported by civil liberties groups,
librarians, online service providers and newspaper groups, including:
Association of American Publishers [AAP]; Association of American
University Presses [AAUP]; The faculty of the City University of New
York; Interactive Working Group; Online Operators Policy Committee of
the Interactive Services Association; American Advertising Federation;
American Association of Advertising Agencies; and American Library
Association.
Also American Society of Newspaper Editors; Association of National
Advertisers, Inc.; Association of Research Libraries; Business Software
Alliance; Center for Democracy and Technology; Computer and
Communications Industry Association; Direct Marketing Association;
Electronic Frontier Foundation; Feminists For Free Expression; Magazine
Publishers of America; Media Access Project; National Public
Telecomputing Network; Newspaper Association of America; People For the
American Way Action Fund; Recreational Software Advisory Counsel;
Software Publishers Association; and Times Mirror.
I have also asked a coalition of industry and civil liberties groups,
called [[Page S8342]] the Interactive Working Group, to address the
legal and technical issues for policing electronic interactive
services.
There is no question that we need to educate parents about the types
of materials available on the Internet which they may want to stop
their children from accessing. By focusing attention on this issue,
Senator Exon's efforts to legislate in this area have already made
strides in alerting parents to the material available online that may
be harmful to kids, such as the Internet, to control the material
transmitted to them over those systems. We must find ways to do this
that do not invite invasions of privacy, lead to censorship of private
online communications, and undercut important constitutional
protections.
Before legislating to impose Government regulation on the content of
communications in this enormously complex area, I feel we need more
information from law enforcement and telecommunications experts. My
bill calls for just such a fast-track study of this issue.
Mr. President, I tell my good friend from Nebraska, I hope he
realizes I would never call him a barbarian. We know each other too
well and we are too good of friends for that.
I have to admit, when he talks about football, he has the good grace
to live in a State where the team has had some modicum of success. He
has rightly achieved bragging rights on that.
But when he talks about punting on this, with all due respect, Mr.
President, I believe the Exon-Coats amendment punts, because it punts
to the FCC the task of finding ways to restrict minors' access to
indecent communications so users can implement them and have a defense
to criminal prosecution.
What we have to understand is that nobody in this place wants to give
pornography to children. I do not. The distinguished Senator from
Nebraska, the distinguished Senator from Indiana, the distinguished
Senator from Wisconsin, all who have spoken on this issue this
afternoon, none wants to give pornography to children.
Many Members also do not want to destroy the Internet as we try to
find how to do protect children from harmful material on the Internet.
We can accomplish the goal of keeping pornography from children without
putting on a huge Government layer of censorship and without destroying
the Internet.
Now, my friend from Nebraska says his amendment takes the same
approach as the dial-a-porn statute. Not really. On dial-a-porn, it
took 10 years of litigation for the FCC to find a way to implement the
dial-a-porn statute in a constitutional way. That is why I say his
amendment punts to the FCC the task of finding ways to restrict.
Why not instead follow the Leahy amendment, which will require a
study, a group of experts, an accelerated legislative path, so that we
will pass responsible legislation that will not be attacked
constitutionally for years thereafter.
I note that the House Commerce Committee adopted basically the Leahy
study in its markup of the House telecommunications legislation. This
was Republicans and Democrats, across the political spectrum, trying to
find the best way to handle this. They did what I have recommended
here.
In fact, some provisions in my friend's amendment could hurt
prosecution of those who are not law-abiding users of the Internet but
use it to distribute obscenity and child pornography.
As a former prosecutor, I want prosecutors to have the best tools to
go after criminals. I received a letter today from the Justice
Department that makes several points. They say a study of the issue is
needed. They also confirm that the Exon proposal would regulate
indecent speech between consenting adults. And, third, the defenses in
this proposal would undermine the ability of the Justice Department to
prosecute online service providers even though they knowingly profit
from the distribution of obscenity and child pornography.
The Department says, ``We still have concerns. We continue to believe
that comprehensive review should be undertaken to guide the response to
the problems the Communications Decency Act seeks to address.''
I ask unanimous consent to have that letter printed in the Record at
this point.
There being no objection, the material was ordered to be printed in
the Record, as follows:
U.S. Department of Justice,
Office of Legislative Affairs,
Washington, DC, May 3, 1995.
Hon. Patrick J. Leahy,
U.S. Senate,
Washington, DC.
Dear Senator Leahy: I write to respond to your letter of
March 1, 1995 concerning our prosecution of violations of
federal child pornography and obscenity laws and your April
21, 1995 request for the views of the United States
Department of Justice on the ``Communications Decency Act,''
which has been incorporated as title IV of the proposed
``Telecommunications Competition and Deregulation Act of
1995,'' S. 652. In accordance with your request, the analysis
of the Communications Decency Act focuses on sections 402 and
405 of the bill.
The Department's Criminal Division has, indeed,
successfully prosecuted violations of federal child
pornography and obscenity laws which were perpetrated with
computer technology. In addition we have applied current law
to this emerging problem while also discovering areas where
the new technology may present challenges to successful
prosecution. While we agree with the goal of various
legislative proposals designed to keep obscenity and child
pornography off of the information superhighway, we are
currently developing a legislative proposal that will best
meet these challenges and provide additional prosecutorial
tools. This legislative package is being developed while
taking into consideration the need to protect fundamental
rights guaranteed by the First Amendment.
With respect to the Communications Decency Act, while we
understand that section 402 is intended to provide users of
online services the same protection against obscene and
harassing communications afforded to telephone subscribers,
this provision would not accomplish that goal. Instead, it
would significantly thwart enforcement of existing laws
regarding obscenity and child pornography, create several
ways for distributors and packagers of obscenity and child
pornography to avoid criminal liability, and threaten
important First Amendment and privacy rights.
Similarly, while we understand that section 405 of this
bill is intended to expand privacy protections to ``digital''
communications, such communications are already protected
under existing law. Moreover, this provision would have the
unintended consequences of jeopardizing law enforcement's
authority to conduct lawful, court-ordered wiretaps and would
prevent system administrators from protecting their systems
when they are under attack by computer hackers.
Despite the flaws in these provisions, the Administration
applauds the primary goal of this legislation: prevent
obscenity from being widely transmitted over
telecommunications networks to which minors have access.
However, the legislation raises complex policy issues that
merit close examination prior to Congressional action. We
recommend that a comprehensive review be undertaken of
current laws and law enforcement resources for prosecuting
online obscenity and child pornography, and the technical
means available to enable parents and users to control the
commercial and noncommercial communications they receive over
interactive telecommunications systems.
The following are the Department's primary objections to
sections 402 and 405 of the pending telecommunications bill:
First, section 402 of the bill would impose criminal
sanctions on the transmission of constitutionally protected
speech. Specifically, subsections 402(a)(1) and (b)(2) of the
bill would criminalize the transmission of indecent
communications, which are protected by the First Amendment.
In Sable Communications of Cal. v. FCC, 492 U.S. 115 (1989),
the Supreme Court ruled that any restrictions on the content
of protected speech in media other than broadcast media must
advance a compelling state interest and be accomplished by
the ``least restrictive means.'' By relying on technology
relevant only to 900 number services, section 402 fails to
take into account less restrictive alternatives utilizing
existing and emerging technologies which enable parents and
other adult users to control access to content.
Nearly ten years of litigation, along with modifications of
the regulations, were necessary before the current statute as
applied to audiotext services, or ``dial-a-porn'' calling
numbers, was upheld as constitutional. See Dial Information
Services v. Thornburg, 938 F. 2d 1535 (2d Cir. 1991). The
proposed amendment in section 402 of the bill would
jeopardize the enforcement of the existing dial-a-porn
statute by inviting additional constitutional challenges,
with the concomitant diversion of law enforcement resources.
Second, the definition of ``knowingly'' in section 402 of
the bill would cripple obscenity prosecutions. Under
subsection 402(e), only those persons with ``actual
knowledge'' of the ``specific content of the communication''
could be held criminally liable. This definition would make
it difficult, if not impossible, to prove guilt, and the
standard is higher than the prevailing knowledge requirements
under existing obscenity and child sexual exploitation
statutes. Under Miller v. California, 413 U.S. 629 (1973),
the [[Page S8343]] government must only prove that a person
being prosecuted under an obscenity statute had knowledge of
the general nature of the material being distributed. Large-
scale distributors of child pornography and other obscene
materials--among the most egregious violators--do not read or
view each obscene item they distribute. The proposed
definition in subsection 402(e) would make it nearly
impossible for the government to establish the necessary
knowledge requirement and would thereby severely handicap
enforcement of existing statutes.
Third, section 402 would add new terms and defenses that
would thwart ongoing enforcement of the dial-a-porn statute.
Currently, the government is vigorously enforcing the
existing dial-a-porn statute. It took more than ten years for
the government to be able to do so, due to constitutional
challenges. The proposed amendment to this statute
fundamentally changes its provisions and subjects it to
renewed constitutional attack which would hinder current
enforcement efforts.
Fourth, section 402 would do significant harm by inserting
new and sweeping defenses that may be applied to nullify
existing federal criminal statutes. The government currently
enforces federal criminal laws preventing the distribution
over computer networks of obscene and other pornographic
material that is harmful to minors (under 18 U.S.C.
Sec. Sec. 1465, 2252 & 2423(a)), the illegal solicitation of
a minor by way of a computer network (under 18 U.S.C.
Sec. 2252), and illegal ``luring'' of a minor into sexual
activity through computer conversations (under 18 U.S.C.
Sec. 2423(b)). These statutes apply to all methods of
``distribution'' including over computer networks. The new
defenses proposed in subsection 402(d) would thwart ongoing
government obscenity and child sexual exploitation
prosecutions in several important ways:
The first defense under subsection 402(d)(1) would immunize
from prosecution ``any action'' by a defendant who operates a
computer bulletin board service as an outlet for the
distribution of pornography and obscenity so long as he does
not create or alter the material. In fact, this defense would
establish a system under which distributors of pornographic
material by way of computer would be subject to fewer
criminal sanctions than distributors of obscene videos, books
or magazines.
The second defense provided in subsection 402(d)(2) would
exculpate defendants who ``lacked editorial control over the
communications.'' Such a defense may significantly harm the
goal of ensuring that obscene or pornographic material is not
available on the Internet or other computer networks by
creating a disincentive for operators of public bulletin
board services to control the postings on their boards.
Moreover, persons who provide critical links in the
pornography and obscenity distribution chains by serving
as ``package fulfillment centers'' filling orders for
obscene materials, could assert the defense that they lack
the requisite ``editorial control.'' This proposed defense
would complicate prosecutions of entire obscenity
distribution chains.
The third defense provided in subsection 402(d)(3),
containing five subparts, would be available to pornographic
bulletin boards operators who take such innocuous steps as
(A) directing users to their ``on/off'' switches on their
computers as a ``means to restrict access'' to certain
communications; (B) warning, or advertising to, users that
they could receive obscene material; and (C) responding to
complaints about such minimum, this proposed defense would
lead to litigation over whether such actions constitute
``good faith'' steps to avoid prosecution for violating the
section 402, and could thwart existing child pornography and
obscenity prosecutions.
The fourth defense provided in subsection 402(d)(4) would
exculpate defendants whose pornography business does not have
the ``predominate purpose'' of engaging in unlawful activity.
This defense would severely undercut law enforcement's
efforts to prosecute makers and distributors of noncommercial
pornography and obscenity.
The fifth defense provided in subsection 402(d)(5) would
preclude any cause of action from being brought against any
person who has taken good faith steps to, inter alia,
``restrict or prevent the transmission of, or access to,'' a
communication deemed unlawful under section 402. This defense
would encourage intrusion by on-line service providers into
the private electronic mail communications of individual
users. The defense actually promotes intrusions into private
electronic mail by making it ``safer'' to monitor private
communications than to risk liability. At the same time, this
defense would defeat efforts by the government to enforce
federal privacy protections against illegal eavesdropping.
Finally, but no less significantly, section 405 amends the
federal wiretap statute in several respects, each of which
creates considerable problems. First, it amends the wiretap
statute to add the term ``digital'' to 18 U.S.C.
Sec. 2511,\1\ without considering the effect of this
amendment on other statutory provisions. For example, 18
U.S.C. Sec. 2516(1) provides that certain government
officials may authorize an application for a wiretap order
for wire or oral communications while 18 U.S.C. Sec. 2516(3)
provides that other government officials may authorize an
application for a wiretap order for electronic
communications. Since section 405 does not amend 18 U.S.C.
Sec. 2516 to include the term ``digital,'' it would appear
that no government official has the authority to authorize an
application for a wiretap order for digital communications.
This is particularly problematic, since this investigative
tool is reserved for the most serious cases, including those
involving terrorists, organized crime, and narcotics.
\1\It should be noted that ``digital'' communications are
already covered by the wiretap statute. Under current law, a
``digital'' communication is either a wire communication
under 18 U.S.C. Sec. 2510(1) (if it contains voice) or an
``electronic communication'' under 18 U.S.C. Sec. 2510(12)
(if it does not contain voice). Since such communications are
already covered, the reason for enacting section 405 is
unclear, and it is difficult to predict how the courts will
interpret the amendment.
---------------------------------------------------------------------------
Equally disconcerting, the amendment serves to protect
computer hackers at the expense of all users of the National
Information Infrastructure (NII), including businesses,
government agencies and individuals. Prior to 1994, the
wiretap statute allowed electronic communication service
providers to monitor voice communications to protect their
systems from abuse. 18 U.S.C. Sec. 2511(2)(a)(i) (1986
version). Thus, when hackers attacked computer systems and
system administrators monitored these communications, they
had no clear statutory authority to do so. In October 1994,
Congress finally remedied this defect by amending 18 U.S.C.
Sec. 2511(2)(a)(i) to permit the monitoring of electronic
(i.e., digital, non-voice) communications. If section 405 is
enacted and these hacker communications are deemed digital,
system administrators will once again be denied the statutory
authority to monitor hacker communications. It would be most
unfortunate if, at the same time Congress is encouraging the
widespread use of the NII, it passed a law giving system
administrator's a Hobson's choice: either allow hackers to
attack systems unobserved or violate federal law.
There are three other concerns as well. First, by adding
the term ``digital'' without amending the suppression
provisions of 18 U.S.C. Sec. 2515, voice communications--if
they are deemed ``digital''--will no longer be protected by
the statute's exclusionary rule. This would serve to reduce
the privacy protections for phone calls.
Second, section 405 would replace the words ``oral
communication'' with ``communication'' in 18 U.S.C.
Sec. 2511(1)(B). This would have undesirable consequences for
law enforcement because it would criminalize the interception
of communications as to which there was no reasonable
expectation of privacy.\2\
\2\The definition of ``oral communication'' in 18 U.S.C.
Sec. 2510(2) contains a requirement that the communication to
be protected must have been made under circumstances
justifying an expectation of privacy.
From the law enforcement perspective, there is simply no
sound reason for eliminating this highly desirable feature of
present law. Additionally, the amendment might also impact
upon the news gathering process. For example, if the
conversation of two individuals shouting in a hotel room were
recorded by a news reporter standing outside the room, the
reporter would, under section 405, be violating the wiretap
statute. Under current law, of course, the individuals could
not complain about the recording because, by shouting loud
enough to be heard outside the room, they lack any reasonable
expectation of privacy.
Last, the provision in section 402(d)(5) provides that ``no
cause of action may be brought in any court * * * against any
person on account of any action which the person has taken in
good faith to implement a defense authorized under this
section. * * *'' This would seem to suggest that any person
can freely engage in electronic surveillance otherwise
prohibited by Title III so long as they claim to be
implementing a section 402 defense. As such, section
402(d)(5) severely weakens the privacy protections currently
offered by the wiretap statute.
In sum, sections 402 and 405 of the bill would hamper the
government's ongoing work in stopping the dissemination of
obscenity and child pornography and threaten law
enforcement's continued ability to use court-authorized
wiretaps. We believe that a comprehensive review be
undertaken to guide response to the problems that the
Communications Decency Act seeks to address.
I assure you that the Department is aware of the growing
use of computers to transmit and traffic obscenity and child
pornography. The Criminal Division's Child Exploitation and
Obscenity Section is aggressively investigating and
prosecuting the distribution of child pornography and
obscenity through computer networks, and the use of computers
to locate minors of the purpose of sexual exploitation. As we
have discussed with your staff in a meeting focussed on these
issues, we remain committed to an aggressive effort to halt
the use of computers to sexually exploit children and
distribute obscenity.
Sincerely,
Kent Markus,
Acting Assistant Attorney General.
____
U.S. Department of Justice,
Office of Legislative Affairs,
Washington, DC.
Senator Patrick J. Leahy,
U.S. Senate,
Washington, DC.
Dear Senator Leahy: This is in response to your June 14,
1995 letter to me posing [[Page S8344]] questions about my
June 13 letter to Senator Exon concerning his proposed
Communications Decency Act.
My letter to Senator Exon commented on the version of his
proposal circulated in his ``dear colleague'' letter of June
7, 1995 (the ``Exon proposal''). Senator Exon had requested
that we comment on the extent to which that revised proposal
satisfied the concerns I detailed to you in my May 3 letter.
The letter does not address the Exon-Coats proposal, which we
had not seen nor were aware of until today. We have just
begun to review this new proposal.
As stated in my letter to Senator Exon, his proposal still
raises a number of complex legal and policy issues that call
for in-depth analysis prior to congressional action. Because
we still have concerns, we continue to believe that a
comprehensive review should be undertaken to guide response
to the problems the Communications Decency Act seeks to
address.
Among these concerns are constitutional questions raised
primarily by the lack of scienter required for the age
element of subsection (e) of the Exon proposal. In our view,
this subsection would consequently have the effect of
regulating indecent speech between consenting adults.\1\
Subsection (a) does not have the same constitutional
infirmity because of the specific intent requirement that the
communication be done ``with intent to annoy, abuse,
threaten, or harass * * *'', which we believe is inconsistent
with the concept of ``consenting adults.''
\1\Subsection (e) of the Exon-Coats measure exacerbates the
constitutional concerns because it is even more expansive
than the similar subsection (e) in the Exon proposal.
---------------------------------------------------------------------------
As described in my June 13 letter, we continue to have a
concern with the ``knowledge'' requirements that were re-
inserted in the Exon proposal as defenses for certain
parties.
The defenses included in the Exon proposal would undermine
the ability of the Department of Justice to prosecute an on-
line service provider even though it knowingly profits from
the distribution of obscenity or child pornography.\2\
Although the existence of the defenses in the Exon proposal
would make prosecutions under the proposal's offenses
difficult, if not impossible, they would not threaten
obscenity prosecutions under existing statutes.
\2\The defense in subsection (f)(1) of the Exon-Coats measure
is particularly problematic as it focusses on whether the
service provider has control over the bulletin board service.
If the provider does not have control, regardless of whether
it has guilty knowledge or intent, it is immune from
prosecution.
I hope this information is helpful to you.
Sincerely,
Kent Markus,
Acting Assistant Attorney General.
Mr. LEAHY. Mr. President, let me conclude with this: No Member
disagrees that we want to keep smut out of the hands of our children. I
would remind everybody that the Internet has become the tremendous
success it is because it did not have Big Brother, the Federal
Government, trying to micromanage what it does and trying to tell users
what it could do.
If the Government had been in charge of figuring out how to expand
the Internet or make it more available and so on, I guarantee it would
not be one-tenth the success it is today.
In our appropriate zeal to go after child pornographers, let the
Senate not kill the Internet or smother it for the 99.9 percent of the
people who use it legitimately, the scholars who use it legitimately,
the people who use it for legitimate on-line discussion groups, the
people who gather information from it, the constituents who use it to
contact my office and other offices, and those who find a way to access
information that they have never had before in their lives.
That is why, Mr. President, earlier I printed in the Record a list of
everybody from librarians to publishers to newspaper editors to civil
liberties groups who support my alternative approach in my amendment.
I am perfectly willing, if the managers are here and they want to
move forward, to yield back the remaining time.
Mr. EXON. Mr. President, I am prepared to yield back the remainder of
our time, I think about 20 minutes. All I need to do is insert some
additional material in the Record. If I could have 1 more minute, I
would be prepared to yield back the remainder of my time.
I thank my friend from Vermont for mentioning the Nebraska football
again. I had a letter from Tom Osborne, the head football coach at the
University of Nebraska, who wrote, ``Dear Jim: Thank you for what you
are doing. I hope you are successful in passing the legislation.''
I ask unanimous consent that the Osborne letter be printed in the
Record, and I ask unanimous consent to have printed in the Record ``No
Time to Study.''
There being no objection, the material was ordered to be printed in
the Record, as follows:
Nebraska Football,
Lincoln, NE, February 10, 1995.
Senator Exon,
Washington, DC.
Dear Jim: Thanks so much for what you are doing in your
effort to stop pornography. I realize this is always a
somewhat unpopular issue to tackle, however, my experience
has been that pornography is tremendously damaging to young
people and women in particular.
I hope you are successful in passing the legislation.
Best wishes,
Tom Osborne,
Head Football Coach.
____
No Time To Study
Further study does not solve the problem. The larger
telecommunications reform bill before the Senate will help
link up schools to new telecommunications services and
Internet services. As one of the Snowe-Rockefeller-Exon-
Kerrey amendment authors, I am very proud of that fact.
In addition, at least two Bell Companies plan to offer
Internet access as one of their common carrier services;
basic computer software manufacturers now offer ``easy
Internet access'' with their programs and thousands of homes
every day subscribe to new information service providers
which homes Internet access. Let's not lose sight of the fact
that this is a very good thing. This is a national policy
objective.
But let us not turn a blind eye to a very serious problem
of obscenity, indecency, electronic stalking and pornography
in the digital world. Every day the Congress delays in
dealing with this problem the pornographers, pedophiles and
predators secure a much stronger foothold in what will be a
universal service network. That network was initially created
by the U.S. government and still, in part, is supported by
American tax dollars.
Technology will help. But there is no technological magic
bullet. That is why industry is so concerned about vicarious
liability. Even the largest computer companies can not figure
out a ``fool proof'' way to prevent access. It is odd to
expect American tax dollars to pay for the development and
expansion of this marvelous system, only to turn it over to
pornographers. The Congress should not turn its eyes from
what is on the Internet and issue a mere request to parents
that they buy expensive products to keep this smut from their
homes and keep pedophiles away from their children.
The American people need not pay twice in order to keep
pornography and filth from tarnishing the sanctity of their
homes, the pornographers and the pornography addicts must
find their own, secure adults-only stomping grounds and let
our kids and families enjoy this universal, public service
for education, enlightenment and entertainment.
I introduced a version of this legislation nearly a year
ago. The time for study is over. The Congress must step up to
the plate. The law will facilitate free speech by creating an
environment through constitutional means where families and
children can enjoy the benefits of the Internet.
This is a fundamental question of burdens. The ``hands off
crowd'' say that the burden lies entirely on the parent. The
parent must spend hundreds of dollars on ``blocking''
software and must be with the children 24 hours a day to
assure that they do not access improper material. The Exon-
Coats approach says that parents have responsibilities, but
so do on-line service providers, and publishers and so does
law enforcement. If you operate an on-line adult pornographic
book store, movie house or swap meet, you have the burden to
assure that children do not enter, and that you are not
trading in illegal obscenity. Those engaging in pornography
and indecency should install electronic ``bouncers'' at their
electronic doorways. The Supreme Court in the Sable case
indicated that such a burden was not a constitutional
impediment.
For all the talk about ``technological fixes'' it is ironic
that one group, the Electronic Frontier Foundation, who
opposes this measure in favor of more of the so-called
``parental control'' posts on the Internet instructions on
``How-to Access Blocked Groups.'' The fact of the matter is
that kids, not their parents know ``how-to'' access
everything.
The Supreme Court noted that daytime radio is ``uniquely
accessible to children.'' I submit that computers are not
only ``uniquely accessible to children,'' but also ``uniquely
inaccessible to their parents.'' I expect that any child or
grandchild with basic computer skills can outperform any
member of this body when it comes to operating a computer.
As the Supreme Court has noted in a number of cases, the
Congress has a compelling state interest in protecting the
physical and psychological health of America's children. We
should not throw our hands up and allow every child's
computer to become a branch office of Pornography
Incorporated.
Mr. HATCH. As chairman of the Committee on the Judiciary, I would
like to ask the Senator from Nebraska for clarification on one point.
Title IV of this legislation, the Communications Decency Act, includes
provisions
[[Page S8345]] amending section 223 of the Communications Act to
address, among other issues, the circumstances under which providers of
network services may be held criminally liable for the transmission or
distribution of obscene, indecent, or harassing materials.
Copyright matters are, of course, within the jurisdiction of the
Judiciary Committee, and it is my understanding that those provisions
in title IV of the bill, as reported by the Commerce Committee, were
not intended to--and in fact do not--serve as a precedent for
addressing copyright infringement carried out over online services or
other telecommunications or digital networks. Am I correct in that
understanding?
Mr. EXON. The Senator is correct. The liability standards contained
in my proposal have no applicability to liability for copyright
infringement. Nor are they intended to set any precedent in the
copyright field.
Mr. HATCH. I thank my colleague for this clarification.
Mr. COATS. I wanted to clarify that it is the intent of this
legislation that persons who are providing access to or connection with
Internet or other electronic services not under their control are
exempted under this legislation.
Mr. EXON. Defense (f)(1) explicitly exempts a person who merely
provides access to or connection with a network like the Internet for
the act of providing such access. Understanding that providing access
or connection to online services is an action which can include other
incidental acts, this legislation is intended to exempt from
prosecution the provision of access including transmission,
downloading, storage, and certain navigational functions which are
incidental to providing access or connection to a network like the
Internet. An online service that is providing its customers with a
gateway to networks like the Internet or the worldwide web over which
it has no control is generally not aware of the contents of the
communications which are being made on these networks, and therefore it
should not be responsible for those communications. To the extent that
service providers are doing more than merely providing access to a
facility or network over which they have no control, the exemption
would no longer apply. For instance, if an access provider were to
create a menu to assist its customers in finding the pornographic areas
of the network, then that access provider would be doing more than
solely providing access to the network. Further, this exemption clearly
does not apply where the service provider is owned or controlled by or
is in conspiracy with a pornographer who is making communications in
violation of this legislation.
Mr. COATS. I understand that in a recent N.Y. State decision,
Stratton Oakmont versus Prodigy, the court held that an online provider
who screened for obscenities was exerting editorial content control.
This led the court to treat the online provider as a publisher, not
simply a distributor, and to therefore hold the provider responsible
for defamatory statements made by others on the system. I want to be
sure that the intend of the amendment is not to hold a company who
tries to prevent obscene or indecent material under this section from
being held liable as a publisher for defamatory statements for which
they would not otherwise have been liable.
Mr. EXON. Yes; that is the intent of the amendment.
Mr. COATS. And am I further correct that the subsection (f)(4)
defense is intended to protect companies from being put in such a
catch-22 position? If they try to comply with this section by
preventing or removing objectionable material, we don't intend that a
court could hold that this is assertion of editorial content control,
such that the company must be treated under the high standard of a
publisher for the purposes of offenses such as libel.
Mr. EXON. Yes; that is the intent of section (f)(4).
Mr. COATS. Similarly, if a system operator discontinued service to a
customer who was generating objectionable material, it is the intent in
offering this amendment, and specifically the intent of subsection
(f)(4), that no breach of contract action would lie against the system
operator?
Mr. EXON. Yes; that is our intent.
Mr. COATS. I wanted to clarify that it is the intent of this
legislation that persons who are providing access to or connection with
the Internet or other electronic service not under their control are
exempted under this legislation.
Mr. EXON. Yes, defense (f)(1) explicitly exempts a person who
provides access to or connection with a network like Internet that is
not under that person's control. Providing access or connection is
meant to include transmission, downloading, storage, navigational
tools, and related capabilities which are incidental to the
transmission of communications. An online service that is providing
such services is not aware of the contents of the communications and
should not be responsible for its contents. Of course this exemption
does not apply where the service provider is owned or controlled by or
is in conspiracy with a maker of communications that is determined to
be in violation of this statute.
Mr. HELMS. Mr. President, I would inquire of the Senator from Indiana
if my understanding is correct that, under subsection (f)(1) of your
amendment, a person is protected solely for providing access. Is that
correct?
Mr. COATS. The Senator is correct, this is a narrow defense. The
defense is for solely providing access or connection and not a defense
for any person or entity that provides anything more than solely
providing access. This does not create a defense for someone who has
some level of control over the material or the provision of material.
To the extent that enhanced access would be an offense, this defense
does not apply to someone who, among other things, manages the
prohibited or restricted material, charges a fee for such material,
provides instructions on how to access such material or provides an
index of the material. This is merely an illustrative list and not an
exhaustive list of the types of activities that would not qualify as
solely providing access or connection under subsection (f)(1).
Mr. EXON. I agree with the Senator from Indiana.
Mr. BIDEN. Mr. President, I oppose the Exon-Coats second-degree
amendment, I oppose it not because I disagree with its mission--which
is to keep children out of the redlight districts of the Internet. With
that, I wholeheartedly agree. As has become all too clear, the new
information superhighway has its gritty roadside attractions: as the
Senator from Nebraska has documented, some of the information traveling
over the Internet is tasteless, offensive, and downright spine-
tingling. I stand with him and the Senator from Indiana in condemning
and deploring this stuff--and I agree that we should do something here
and now to help keep it out of the hands of our kids.
But I respectfully disagree with them about how we should go about
doing that. I believe there is a better, faster, and more effective way
to make the information superhighway safe traveling for our children.
If the Exon-Coats provision passes, we will have mountains of
litigation over its constitutionality, dragging on for years and
years--and all the while, our kids will be doing what they do best:
finding new and better ways to satisfy their curiosity.
The Exon-Coats amendment would make it a crime to send an indecent
communications over the Internet to anyone under 18. Although that
certainly sounds good, the problem is this: in the world of the
Internet--where communications are sent out to hundreds and sometimes
hundreds of thousands of people all at once--a ban on material that
might reach a child is tantamount to a complete outright ban.
That's where the constitutional problem comes in. In the case of
Sable Communications versus FCC, the Supreme Court held that indecent
speech--unlike obscenity--is protected first amendment expression. The
Court also ruled that although indecent speech
cannot be outlawed, it nevertheless can be restricted to protect
children--provided, however, that the restrictions are drawn as
narrowly as possible so as not to unduly limit adult access. This is
known by lawyers as the least restrictive means requirement. Or put
another way by Justice Frankfurter, you can't ``burn the house to roast
the pig''--which is exactly what I believe the Exon-Coats provision
would do. [[Page S8346]]
So I believe there will be a heated and protracted constitutional
challenge to this provision. In fact, with history as our guide, such a
challenge is virtually guaranteed: when Congress banned Dial-a-Porn
services to minors, it took 10 years--and many different attempts by
the FCC to write narrowly tailored regulations, all of which were
challenged and fully litigated--for the statute to be upheld as
constitutional.
Ten years. Multiple rulemaking proceedings. Four different trips up
to the court of appeals. I, for one, just can't wait that long. But
more importantly, our children shouldn't have to wait that long. I want
to get to work right now--and come up with the best and fastest way to
get at this problem.
That is why I support the underlying Leahy amendment. The Leahy
amendment will get us going right now. It directs the Departments of
Justice and Commerce to quickly come up with technological solutions--
ways by which parents can screen out of their computer systems violent,
sexually explicit, harassing, offensive, or otherwise unwanted
material. The Leahy measure also directs the Departments to evaluate
whether current criminal laws are fully enforceable in interactive
media, and to assess law enforcement resources currently available to
enforce these laws.
The Leahy amendment doesn't stop there: it requires that the
Departments also submit a legislative proposal with their study--
outlining how best, technologically, to empower parents to protect
their kids; how to amend, if necessary, our laws to better crack down
on pornographers; how law enforcement resources should be allocated
more effectively.
What's more, the Leahy amendment puts that legislation on a fast-
track schedule. That means that it would only be a matter of months--
not 1 year, 5 years, or 10 years--for us to have taken smart and
effective action to get at this problem.
Government censorship, in this instance, is not just a bad idea in
the eyes of first amendment scholars and activists. It's also a bad
idea when it comes to the eyes and minds of our children. While we
might be able to shut down some of the filthy talk on the net, we
simply can't do the job right this way--we can't prevent access to
sexually explicit information from Finland, Sweden, Japan or other
countries, all of which are part of the Internet community.
I also want to say that I--and I'm sure I'm joined by many parents
across the country--am also very concerned about violent material on
the net. As the Judiciary Committee has learned in some detail, you can
learn all about bomb-building and other ways of war and destruction
online. The Exon-Coats provision doesn't address violence. The Leahy
amendment, with its headlights aimed at technology to screen out
violent as well as offensive and sexually explicit material, does.
I believe that a technology-based solution, as advanced in Senator
Leahy's amendment, is a better answer--constitutionally and
practically. The market, as we speak, is already developing software
and hardware to enable parents to block children's access to filth,
violence, and other objectionable material. I believe it makes more
sense, and will be more effective, to empower users to protect
themselves and their children than to attempt a topdown model of
governmental regulation.
levin on exon amendment to s. 652, the telecommunications bill
Mr. LEVIN. Mr. President, I support keeping obscene material off the
internet and other electronic media. This amendment goes significantly
beyond that. The language of the amendment before us is so broad and
vague that it would subject an American citizen to criminal liability
and possible imprisonment for two years, a $100,000 fine or both for
making what is termed a ``filthy comment'' on the internet which, in
the words of the amendment, is intended to annoy.
Annoying filthy comments that are put on the internet are
reprehensible. But, I am afraid the attempt to make such language
criminal will backfire and make it more difficult for us to effectively
prohibit abusive and threatening activities and pornographic material
aimed at children and adults. Our best chance to meet this objective is
through means which are Constitutional.
That is why I support the underlying Leahy amendment to protect the
internet and other electronic media from obscene material. The Leahy
Amendment would require the Attorney General of the United States
within 150 days to produce Constitutional legislation to address the
problem. The Leahy Amendment also provides for expedited procedures
which would permit the Congress to consider such legislation quickly. I
believe this is the more effective course to protect the internet and
other telecommunications media.
Mr. President, I ask unanimous consent to have a letter printed from
the Department of Justice at this point in the Congressional Record.
The letter states, in part, ``Defenses included in the Exon proposal
would undermine the ability of the Department of Justice to prosecute
an on-line service provider even though it knowingly profits from the
distribution of obscenity or child pornography.''
The Department of Justice letter also states that for many other
reasons a comprehensive review should be made before Congress acts.
There being no objection, the letter was ordered to be printed in the
Record, as follows:
U.S. Department of justice,
Office of Legislative Affairs,
Washington, DC.
Senator Patrick J. Leahy,
United States Senate, Washington, DC.
Dear Senator Leahy: This is in response to your June 14,
1995 letter to me posing questions about my June 13 letter to
Senator Exon concerning his proposed Communications Decency
Act.
My letter to Senator Exon commented on the version of his
proposal circulated in his ``dear colleague'' letter of June
7, 1995 (the ``Exon proposal''). Senator Exon had requested
that we comment on the extent to which that revised proposal
satisfied the concerns I detailed to you in my May 3 letter.
The letter does not address the Exon-Coats proposal, which we
had not seen nor were aware of until today. We have just
begun to review this new proposal.
As stated in my letter to Senator Exon, his proposal still
raises a number of complex legal and policy issues that call
for in-depth analysis prior to congressional action. Because
we still have concerns, we continue to believe that a
comprehensive review should be undertaken to guide response
to the problems the Communications Decency Act seeks to
address.
Among these concerns are constitutional questions raised
primarily by the lack of scienter required for the age
element of subsection (e) of the Exon proposal. In our view,
this subsection would consequently have the effect of
regulating indecent speech between consenting adults.\1\
Subsection (a) does not have the same constitutional
infirmity because of the specific intent requirement that the
communication be done ``with intent to annoy, abuse,
threaten, or harass . . .'', which we believe is inconsistent
with the concept of ``consenting adults.''
\1\Footnotes at end of letter.
---------------------------------------------------------------------------
As described in my June 13 letter, we continue to have a
concern with the ``knowledge'' requirements that were re-
inserted in the Exon proposal as defenses for certain
parties.
The defenses included in the Exon proposal would undermine
the ability of the Department of Justice to prosecute an on-
line service provider even though it knowingly profits from
the distribution of obscenity or child pornography.\2\
Although the existence of the defenses in the Exon proposal
would make prosecutions under the proposal's offenses
difficult, if not impossible, they would not threaten
obscenity prosecutions under existing statutes.
I hope this information is helpful to you.
Sincerely,
Kent Markus,
Acting Assistant Attorney General.
footnotes
\1\Subsection (e) of the Exon-Coats measure exacerbates the
constitutional concerns because it is even more expansive
than the similar subsection (e) in the Exon proposal.
\2\The defense is subsection (f)(1) of the Exon-Coats measure
is particularly problematic as it focuses on whether the
service provider has control over the bulletin board service.
If the provider does not have control, regardless of whether
it has guilty knowledge or intent, it is immune from
prosecution.
Mr. EXON. With that, if the Senator from Vermont is ready to yield
back, I am ready to yield back our time.
Mr. LEAHY. I yield back my time.
The PRESIDING OFFICER. The question is on agreeing to the amendment
numbered 1362.
Mr. LEAHY. Mr. President, I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There is a sufficient second.
The yeas and nays were ordered.
The PRESIDING OFFICER. The question is on agreeing to the amendment
of the Senator from Nebraska.
The clerk will call the roll.
The bill clerk called the roll.
[[Page S8347]] The PRESIDING OFFICER. Are there any other Senators in
the Chamber who desire to vote?
The result was announced, yeas 84, nays 16, as follows:
[Rollcall Vote No. 263 Leg.]
YEAS--84
Abraham
Akaka
Ashcroft
Baucus
Bennett
Bond
Boxer
Bradley
Breaux
Brown
Bryan
Bumpers
Burns
Byrd
Campbell
Coats
Cochran
Cohen
Conrad
Coverdell
Craig
D'Amato
Daschle
DeWine
Dodd
Dole
Domenici
Dorgan
Exon
Faircloth
Feinstein
Ford
Frist
Gorton
Graham
Gramm
Grams
Grassley
Gregg
Harkin
Hatch
Hatfield
Heflin
Helms
Hollings
Hutchison
Inhofe
Inouye
Johnston
Kassebaum
Kempthorne
Kerrey
Kerry
Kohl
Kyl
Lautenberg
Lott
Lugar
Mack
McCain
McConnell
Mikulski
Murkowski
Nickles
Nunn
Packwood
Pell
Pressler
Pryor
Reid
Rockefeller
Roth
Santorum
Sarbanes
Shelby
Simpson
Smith
Snowe
Specter
Stevens
Thomas
Thompson
Thurmond
Warner
NAYS--16
Biden
Bingaman
Chafee
Feingold
Glenn
Jeffords
Kennedy
Leahy
Levin
Lieberman
Moseley-Braun
Moynihan
Murray
Robb
Simon
Wellstone
So, the amendment (No. 1362) was agreed to.
Mr. FORD. Mr. President, I move to reconsider the vote.
Mr. COATS. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
The PRESIDING OFFICER (Mr. DeWine). The majority leader is
recognized.