------------------------------------------------------------------------
   ******    ********    *************
  ********   *********   *************
  **         **      **       ***               POLICY POST
  **         **      **       ***
  **         **      **       ***               July 26, 1995
  **         **      **       ***               Number 22
  ********   *********        ***
   ******    ********         ***

  CENTER FOR DEMOCRACY AND TECHNOLOGY
------------------------------------------------------------------------
  A briefing on public policy issues affecting civil liberties online
------------------------------------------------------------------------
CDT POLICY POST Number 22                       July 26, 1995

CONTENTS: (1) Senate Judiciary Committee Holds Cyberporn Hearing
          (2) House Science Subcommittees Hold Hearing to Explore 
              Parental Control Technology -- Law Enforcement Officials 
              Say Exon CDA is Wrong Approach
          (3) Subcribe To The CDT Policy Post Distribution List
          (4) About CDT, Contacting US

This document may be re-distributed freely provided it remains in its
entirety.
------------------------------------------------------------------------

(1) SENATE JUDICIARY COMMITTEE HOLDS CYBERPORN HEARING

SUMMARY

On Monday July 24, 1995 the Senate Judiciary Committee held the first 
ever hearing on the issue of children's access to inappropriate material 
on the Internet. The principal focus of the hearing was to discuss 
Senator Grassley's "Protection of Children from Computer Pornography Act 
of 1995" (S. 892). CDT Executive Director Jerry Berman testified before 
the panel.

Senator Grassley (R-IA) deserves praise for holding the first 
Congressional hearing on this important issue. In addition, both Senator 
Grassley and Senator Leahy took great pains to ensure that both sides of 
the issue were represented. Although CDT may disagree with Senator 
Grassley's approach, we believe that this hearing represented an 
essential step towards advancing the dialogue on what has become an 
over-hyped and dramatically misunderstood issue.

Senator Grassley's legislation, which has been co-sponsored by several 
other prominent members such as Dole (R-KS), Hatch (R-UT), and Thurmond 
(R-SC), would impose criminal penalties on a service provider that 
"knowingly" transmits indecent material to a minor, or who "willfully" 
permits its network to be used to transmit indecent material to a minor 
(S. 892, Sec (b)(2) & (b)(3)). 

Two important points emerged from the testimony:

1. Current law prohibits the distribution of obscenity and child
   pornography, as well as online stalking and solicitation of minors.
   As troubling and disturbing as some of the testimony was, no evidence
   was presented that there are gaps in current law which would be
   filled by the Grassley legislation.
 
2. Serious questions exist as to the constitutionality of the Grassley
   Bill. Although Senator Grassley has repeatedly stated that his bill 
   is narrowly drawn and targets only the bad actors, no evidence was
   presented to establish that a court would not interpret the statute 
   more broadly, resulting in a complete ban on constitutionally 
   protected speech online.

WITNESSES

Witnesses testifying before the panel included:

* Donnelle Gruff, a 15 year old Florida girl described as a victim of an
  online stalker,
* P--- S---, a mother of two from Baltimore MD and volunteer for
  Enough Is Enough
* Dr. Susan Elliot, a mother from McLean VA

* Bill Burrington, Assistant General Counsel, America Online
* Barry Crimmins, a children's rights advocate
* Stephen Balkam, Executive Director, Recreational Software Advisory
  Counsel

* Jerry Berman, Executive Director, Center for Democracy and Technology
* Michael S. Hart, Executive Director of Project Gutteberg, Professor of 
  Electronic Texts, Illinois Benedictine College
* Dee Jepsen, Enough Is Enough (an anti-pornography group)

DOES THE GRASSLEY BILL PROTECT CHILDREN?

The testimony of 15 year old Donnelle Gruff focused on her experience as 
the victim of a stalker, while Dr. Elliot and Ms. S---, two mothers of 
young children, described how their children had used commercial online 
services to access files they deemed inappropriate. 

Donnelle Gruff testified that she had been harassed and stalked by the 
sysop of a Florida BBS she had visited. The sysop had obtained her name, 
age, and address from her records and reportedly stalked Gruff while she 
was at home.

During questioning however, Gruff's step-father told Senator Patrick 
Leahy (D-VT) that Florida law enforcement officials were currently 
investigating the case, and that they had given no indication that 
current law is insufficient with respect to prosecuting such cases. 
Senator Leahy noted that, as difficult and disturbing as Gruff's case 
is, it illustrates a need for additional law enforcement resources and 
education, but is not an issue of gaps in current federal or state laws. 
Senator Leahy mentioned similar recent prosecutions in Florida, and 
noted that the Grassley legislation does not explicitly prohibit online 
stalking of minors.

In addition, Senator Leahy questioned whether government content 
restrictions would be an effective solution to protecting children 
online. "I hear a lot of rhetoric (from Congress) about getting 
government out of our lives, but here it seems as if the rhetoric is a 
little off of reality. Parents, not the government, should make the 
choices" about what their children should be permitted to access.

Both Dr. Elliot and Ms. S--- testified that their children had stumbled 
across material while surfing the Internet that they, as parents, felt 
should not be accessible to children. Both described how their children 
had accessed "pornographic" images, and had been propositioned for 
"cybersex" while visiting a chat room on a commercial online service. In 
addition, Dr. Elliot described some of the images as representing 
'bestiality and sodomy'.

Barry Crimmins, a child protection advocate, testified that he has found 
numerous images of child pornography on America Online. Crimmins accused 
AOL of neglecting to adequately police its network. When questioned by 
Senator Leahy, Crimmins acknowledged that the distribution of child 
pornography and stalking or solicitation of minors is prohibited under 
current law. Crimmins added that while he thought the commercial online 
service should do more to remove such material, he believes that more 
vigorous enforcement of existing law would help to address his concerns.

WHAT IS THE SCOPE OF THE ISSUE -- IS CURRENT LAW SUFFICIENT?

Often in the course of the debate on this issue, the term "pornographic" 
is assumed to be interchangeable with both "indecency" and "obscenity". 
However as Senator Russ Feingold (D-WI) noted, "pornography" has no 
legal standing, and when legislating in this area Congress must be 
careful to avoid confusing these legal distinctions. 

In determining what material would be considered illegal under current 
law, the distinction between "obscene" and "indecent" material must be 
made completely clear. When pressed by Senator Feingold, Dr. Elliot 
agreed that precise definitions are important, but argued that the files 
that her child downloaded from the Internet that depicted bestiality and 
sodomy that would be, "obscene by any standard". 

Images of bestiality and sodomy, as Dr. Elliot described, would be 
considered obscene in virtually every community in the United States, 
and hence are illegal under current law. Though it raises difficult 
jurisdictional questions, obscenity has been clearly defined by the 
Courts. Moreover, trafficking in obscenity (18 USC Sec 1462, 1464, 1466) 
as well as child pornography (18 USC Sec 2252) have been successfully 
applied to punish conduct on computer networks. As Senator Leahy pointed 
out in his statement, the Justice Department is currently prosecuting 
cases involving material similar to that described by Dr. Elliot.

Indecent material, on the other hand, is constitutionally protected and 
is much more difficult to define. The most common understanding of what 
constitutes indecent material includes the 7 dirty words, images of 
nudity, and other suggestive material. Moreover, the Supreme Court has 
ruled that any attempts by government to restrict access to indecent 
material must be accomplished in the "least restrictive means", and the 
determination of this standard is entirely dependent on the medium (see 
Sable Communications v. FCC, 492 US 115; 109 S.Ct. 2829; 106 L.Ed. 2d 93 
(1989). 

Some of the material described by the witnesses would be considered 
obscene, and hence is already prohibited under current law. Other 
examples, including Ms. S---'s description of her daughter being 
propositioned for "cybersex", would likely not be considered obscene. 

Senator Feingold urged the committee to carefully consider the 
distinctions between "obscene" and "indecent" speech, and urged his 
colleagues to "exercise caution and restraint." 

How broadly should we define indecency, Feingold asked Dr. Elliot, 
"Where should we draw the line? Should we prohibit Playboy? swearing? 
The Catcher In The Rye? What about a discussion forum about how to avoid 
getting AIDS?". 

Because technologies currently exist to screen out messages such as 
those described by Ms. S---, it is unlikely that a broad prohibition on 
such messages would pass constitutional muster. In this case, Congress 
must look to other, less restrictive methods of preventing children from 
having access to such materials -- including promoting the development 
and availability of user control technologies.

CONSTITUTIONAL ISSUES

Throughout the hearing, Senator Grassley stated that his legislation is 
carefully crafted and narrowly drawn in order to preserve the First 
Amendment rights of adults while protecting children from inappropriate 
material. Grassley stated that his bill would hold an online service 
provider liable only in cases where they "knowingly" allow their network 
to be used to transmit indecent material to a minor or "willfully" allow 
an individual to use their network to do so. 

However, as CDT's Jerry Berman and America Online's Bill Burrington 
argued the wording of the statute and the variety of possible 
interpretations could lead to severe chilling effect on the free flow of 
legitimate information in cyberspace and force online service providers 
to limit or remove certain areas of their service.

BROAD KNOWLEDGE REQUIREMENT

The scope of the "knowing" standard in the Grassley bill is an issue of 
some dispute. Senator Grassley and his staff maintain that it is 
intended to apply narrowly, but no evidence was presented that 
demonstrated why a court would apply a narrow interpretation. 

Berman cautioned that because of this uncertainty, online service 
providers would be forced to rely on the broadest possible 
interpretation of the statute in order to avoid liability, resulting in 
a severe chilling effect on all online communications:

"The threat of a broad interpretation of this new statute would compel 
all who provide access to the Internet to restrict *all* public 
discussion areas and public information sources from subscribers, unless 
they prove that they are over the age of eighteen.  Under this statute, 
a service provider could not even provide Internet access to a minor 
*with the approval* of the child's parent.  Since every online service 
provider would have to similarly restrict access to minors, this 
proposed statute would create two separate Internets, one for children 
and one for adults."

America Online's Bill Burrington agreed, stating that the potential for 
a broad interpretation of the statute would compel AOL and other online 
service providers to adhere to the broadest possible reading in order to 
avoid potential liability.  Burrington argued that would force AOL to 
shut down many parts of its service and place providers in the 
unenviable position of national censor.

"Constitutional guarantees of free speech and press should be cautiously 
guarded," Burrington stated, "The online service provider industry 
should be encouraged to provide *voluntary* editorial control over its 
service and to continue its research and development of parental 
empowerment technology tools.  This industry should not be cast in the 
role of national censor, determining which information may be fit for 
children, but nonetheless subject to criminal liability if it guesses 
incorrectly in any given instance." 

Senator Dewine (R-OH) asked several questions of many of the witnesses, 
and expressed concerne about the potential for an overly board 
interpretation of the knowledge standard.

BROAD INTERPRETATION OF 'INDECENCY'

As addressed earlier, a precise definition of 'indecent' speech has 
never been firmly established, and whether material would be considered 
indecent depends largely on the nature of the medium it is communicated 
through. Because of this, and because under the Grassley bill carriers 
would be liable for transmitting indecent speech, carriers would be 
forced to adhere to the broadest, most inclusive definition of 
indecency. This would include, among other things, the 7 dirty words, 
description of genitalia, nudity, and other material which is protected 
in other media.

This issue was raised by Michael Hart, Executive Director of Project 
Gutteberg, who stressed that broad restrictions on indecency would 
prevent people from enjoying serious works of fiction on the Internet. 
Project Gutteberg makes electronic texts of books available on the 
Internet. Hart stated, with great emotion, that the proposed indecency 
restrictions contemplated by the Grassley bill would force him to remove 
some of Shakespeare's plays, The Catcher In The Rye, Lady Chatterly's 
Lover, Alice in Wonderland, and other books which have been classified 
as indecent in some parts of the United States. Although such an effect 
may not be intended by the drafters of the Grassley legislation, no 
evidence was offered at the hearing to counter Mr. Hart's concerns.

EXON vs. BERMAN

CDT's Jerry Berman urged the Committee to act cautiously before voting 
to further restrict First Amendment guarantees of freedom of speech.  
Berman urged the Senate to fulfill its traditional role as the 
"deliberative body", and to carefully consider the implications before 
enacting broad new statutes to cover new media.  Referring to both the 
Exon CDA and the Grassley bill, Berman stressed that the country would 
be better served if the Senate did not enact legislation simply to 
"provide the illusion that the United States Senate could do something 
in this area".

This remark drew a sharp rebuttal from Senator Exon, who, though not a 
member of the Judiciary Committee, sat in on the hearing on the 
invitation of Senator Grassley.  Exon defended his bill and accused CDT 
and others of launching "viscous attacks" against him and his 
legislation. Berman was not given a chance to respond.

"We are concerned about the situation", Exon argued, yet "we are 
viscously attacked for trying to have a rational discussion.  We don't 
want to create a false sense of security [but] we have a responsibility 
to protect children".  In addition, Exon dismissed parental control 
technologies as too little too late, arguing that "for every block there 
is a way around that block", and that such technologies may not be 
available in every home, allowing children to access inappropriate 
material at the homes of neighbors who may not employ such tools.

WHAT WAS LEARNED?

Although the hearing did illustrate that sexually explicit material can 
be found on the Internet, no substantial evidence was presented to 
indicate that law enforcement is currently unable to prosecute 
violations of obscenity, child pornography, stalking, or child 
solicitation laws. Moreover, although Senator Grassley intends his 
legislation to be narrow, serious questions were raised about whether 
other, more board interpretations are possible. 

In our opinion, the hearing illustrated that current law is sufficient 
to prosecute those who stalk or solicit children online, and that 
complex constitutional issues are raised by congressional attempts to 
restrict indecent material on the Internet.
 
PATHS TO RELEVANT DOCUMENTS

Testimony is available for most of the witnesses from CDT's 
Communications Decency Act Issues page:

  URL:http://www.cdt.org/speech/cda/950724list.html

or from our ftp archive*:

  URL:ftp://ftp.cdt.org/pub/cdt/policy/freespeech

------------------------------------------------------------------------

(2) HOUSE SCIENCE SUBCOMMITTEE HOLDS 'PARENTAL CONTROL TECHNOLOGY' 
HEARING

Two subcommittees of the House Science Committee held a joint hearing  
today (July 26, 1995) on the availability of parental control 
technologies to prevent children from accessing inappropriate material 
on the Internet. The hearing, held by the Subcommittee on Basic 
Research, Chaired by Rep. Schiff (R-NM) and the Subcommittee on 
Technology, Chaired by Rep. Morella (R-FL) provided an important 
counter-balance to Monday's Senate Judiciary Committee Hearing.

Witnesses testifying before the committee included:

Witnesses Demonstrating Technology Solutions

* Tony Rutkowski, Executive Director of the Internet Society
* Ann Duvall, President of SurfWatch Software
* Steve Heaton, General Counsel and Secretary, Compuserve

Law Enforcement Witnesses

* Kevin Manson, Federal Law Enforcement Training Center
* Mike Geraghty, Trooper, New Jersey State Police
* Lee Hollander, Assistant States Attorney, Naples Florida

LAW ENFORCEMENT OFFICIALS SAY CURRENT LAW SUFFICIENT, EXON BILL FLAWED

Today's hearing marked the first time law enforcement officials have 
testified on the issue of children's access to inappropriate material on 
the Internet. All three law enforcement witnesses agreed that, in their 
experience, current law is sufficient to prosecute online stalking, 
solicitation of minors, and the distribution of pornography and child 
pornography. All three said that they are vigorously prosecuting such 
cases. 

Instead of enacting new law, New Jersey State Trooper Mike Geraghty said 
that protecting children is "a matter of training law enforcement 
officers, prosecutors, lawyers and judges about how to enforce existing 
laws [with respect to computer networks]. The laws are good, we have to 
learn how to enforce them".

The three law enforcement witnesses further argued that the Senate-
passed Exon/Coats Communications Decency Act is the wrong approach to 
addressing an issue that is already covered under existing law. "I have 
several problems with the Exon bill as a prosecutor, both in terms of 
its practical enforcement and its constitutionality" said Florida 
Assistant States Attorney Hollander said.

TRANSACTIONAL PRIVACY PROTECTIONS CRITICIZED

In an slightly unrelated asside, Florida Assistant States Attorney Lee 
Hollander criticized privacy protections for online transactional 
information as a hindrance to law enforcement. 

As part of last years Digital Telephony legislation, the standard for 
law enforcement access to online transactional records (logs that 
indicate what files an individual accessed from online archives and 
electronic mail transactions) was raised from a requirement of a mere 
subpoena to a court order from a judge based on the showing of "specific 
and articulable facts" that such records are "relevant and material to 
an ongoing criminal investigation". The higher standard was widely seen 
as a victory for online privacy.

In response to a question of what Congress could do to help aid 
enforcement of existing law, Hollander noted that the higher standard 
for online transactional records adds an additional burden to law 
enforcement investigations. Calling it part of a "ballance between 
privacy and law enforcement", Hollander did not suggest that Congress 
should repeal the court order requirement, only that it made 
prosecutions more difficult (*NOTE: Members of CDT staff worked closely 
on this issue, and consider the court order standard to be a tremendous 
victory for online privacy).

EXON CDA CONDEMNED BY ALL

Condemnation of the Senate-passed CDA was not limited to the law 
enforcement witnesses. Not a single member of the Subcommittee stated 
support for the CDA, and all expressed concern that the issue had not 
received sufficient public consideration by Congress. 

Chairwoman Morella stressed that Congress should consider technological 
options to empower parents to exercise control over what their children 
access online before rushing to enact new laws. Rep. Geren (D-TX) 
expressed concern about the First Amendment implications of the CDA. 
Rep. Vern Elhers (R-MI) stated that he would "oppose bills that make 
network access providers (legally) responsible for the content they 
carry". In what was perhaps the strongest condemnation of the Senate-
passed Communications Decency Act, Rep. Zoe Loefgren (D-CA) said, "While 
well intentioned, the Exon bill a totally wrong approach and a complete 
misunderstanding of the Technology."

PARENTAL CONTROL TECHNOLOGY IS THE ONLY EFFECTIVE SOLUTION

Internet Society Executive Director Tony Rutkowski provided Committee 
members with a basic overview of the Internet and noted that the 
Internet Society (ISOC) and Internet Engineering Task Force (IETF) are 
currently looking at content tagging and other voluntary rating systems 
for future Internet protocols. Rutkowski stressed that centralized, 
command and control style content restrictions would be ineffective in 
the global, distributed network environment of the Internet. Rutkowski 
further noted that objectionable material constitutes a minuscule amount 
(less than .05%) of the total traffic on the network. 

Because of the global reach of the Internet and the millions of 
potential content providers, Rutkowski argued, the only effective means 
of addressing the availability of inappropriate material is to provide 
user control applications to empower parents to block and filter what 
the and their children access. 

SurfWatch President Ann Duvall, demonstrated SurfWatch, and described 
the product as "just one example of the computer industry responding to 
needs created by the explosive growth of technology".  Duvall stressed 
that the industry is developing solutions which are simple to use, 
inexpensive, and empower parents to make their own choices about what 
they or their children should see. 

Expressing concern about legislative efforts to control content online, 
Duvall noted that 30% of the sites blocked by SurfWatch reside outside 
the United States. "There is not a simple, national solution to the 
problem of children accessing inappropriate material on the Internet. 
Excessive government regulations might jeopardize private sector 
opportunities. SurfWatch firmly believes that the technology industry 
can and must respond to these socio-technological issues. We also affirm 
that parents must be involved in any solution"

Compuserve General Counsel Steve Heaton agreed with some of the 
Committee members that parents have a right to be concerned about the 
availability of certain material on the Internet, but stressed that 
government solutions are no substitute for empowering users. Heaton 
described some of the current parental control technology, and outlined 
Compuserve's plans to develop KidNet, an interactive service designed 
specifically for kids. 

Heaton cautioned against overly broad attempts to regulate content on 
the Internet and other interactive communications service: "The cyber 
community, made up of hundreds of thousands of computers distributed 
across the globe, is truly a world without borders. Directly regulating 
cyberspace -- history's only true functioning anarchy -- may prove 
impossible. This makes it imperative that laws focus on individual 
responsibility and that education and empowerment among users and 
concerned parents be emphasized."

PATHS TO RELEVANT DOCUMENTS

Testimony from the Science Committe hearing will be available on CDT's 
Communications Decency Act Issues Page beginning Friday July 28. 

  URL:http://www.cdt.org/cda.html

It will also be available on our ftp site

  URL://ftp.cdt.org/pub/cdt/policy/freespeech

------------------------------------------------------------------------
(3) How To Subcribe To The CDT Policy Post Distribution List

CDT Policy Posts, which is what you have just finished reading, is the 
regular news publication of the Center For Democracy and Technology. CDT 
Policy Posts are designed to keep you informed on developments in public 
policy issues affecting civil liberties online.

SUBSCRIPTION INFORMAITON

1. SUBSCRIBING TO THE LIST

To subscibe to the Policy Post distribution list, send mail to 
"Majordomo@cdt.org" with:

    subscribe policy-posts 

in the body of the message (leave the subject line blank)


2. UNSUBSCRIBING FROM THE LIST

If you ever want to remove yourself from this mailing list,
you can send mail to "Majordomo@cdt.org" with the following command
in the body of your email message:

    unsubscribe policy-posts youremail@local.host (your name)

(leave the subject line blank)

-----------------------------------------------------------------------
(4) ABOUT THE CENTER FOR DEMOCRACY AND TECHNOLOGY/CONTACTING US

The Center for Democracy and Technology is a non-profit public interest
organization. The Center's mission is to develop and advocate public
policies that advance constitutional civil liberties and democratic
values in new computer and communications technologies.

Contacting us:

General information on CDT can be obtained by sending mail to
 info@cdt.org

World-Wide-Web:

   http://www.cdt.org/

ftp:

   ftp://ftp.cdt.org/pub/cdt/

snail mail:

Center For Democracy and Technology
1001 G Street, NW Suite 700 East
Washington, DC 20001
voice: +1.202.637.9800
fax:   +1.202.637.0968
                                  ###