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** ** ** *** POLICY POST
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** ** ** *** December 1, 1995
** ** ** *** Number 30
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A briefing on public policy issues affecting civil liberties online
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CDT POLICY POST Number 30 December 1, 1995
CONTENTS: (1) UPDATE: Conferees Close To Decision on Cyberporn Issue
(2) How To Subscribe To The CDT Policy Post Distribution List
(3) About CDT, Contacting Us
This document may be re-distributed freely provided it remains in its
entirety. Excerpts may be re-posted by permission (editor@cdt.org)
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(1) UPDATE: CONFEREES CLOSE TO DECISION ON CYBERPORN ISSUE
>From all accounts, the telecom conferees are beginning to focus on the
net-censorship issue at the staff level, and a decision could be reached
in the next two weeks.
CDT has learned that the conferees are looking at several different
approaches to dealing with the issue, and at this point all but one
(White) look pretty grim. These are:
(1) A MODIFIED EXON PROPOSAL: Includes the CDA, the House-passed
manager's amendments which prohibit sending indecent material
online, and the Cox/Wyden bill.
(2) THE HYDE/CHRISTIAN COALITION PROPOSAL: Rep. Hyde has endorsed a
proposal offered by conservative religious groups in October (the
so-called Reed, Schafly, Meese proposal, circulated on the net a
few weeks ago). This proposal is more restrictive than the Exon
proposal
(3) THE GRASSLEY PROPOSAL: Conceptually similar to S. 892, the
Grassley/Dole 'Protection of Children from Computer Pornography
Act'. Among other things, the bill would create broad liability for
online indecency for both content providers and online service
providers, without any clear limitation.
(4) COX/WYDEN/WHITE: Rep. Rick White (R-WA), an original co-sponsor of
Cox/Wyden, is preparing an alternative to the 3 proposals above. No
word yet on what it will contain, although it is expected to focus
on parental empowerment as opposed to unconstitutional indecency
restrictions and government regulation of online speech.
Unfortunately, none of the three current proposals on the table (EXON,
HYDE, and GRASSLEY), offer much hope. The fourth, WHITE, does not yet
exist, though the reports we have received indicate that it is likely to be
more reasonable and workable than the others.
Below is an overview of the current status of the issue and an analysis of
the three current proposals.
CURRENT STATUS OF CONFERENCE
----------------------------
A House/Senate conference committee is now in the process of reconciling
the differences between the Senate-passed Exon/Coats CDA and the
House-passed Cox/Wyden bill. Unfortuately, and despite the overwhelming
victory of Cox/Wyden, the reports indicate that the CDA is sill very much
alive.
Because the Senate passed the CDA, and because Exon is a member of the
conference committee, Exon has the necessary leverage and support to push
for his proposal. The same holds true on the House side, where the
principal supporter of the Cox/Wyden position is Rep. Rick White.
Ultimately, the conferees will have to decide how much of each proposal to
accept.
The situation is complicated by the introcution of two new, even more
restrictive proposals (Hyde and Grassley). These proposals have the support
of the Christian Coalition (an influential group with many Republicans on
the conference), meaning that we face a steep, uphill battle in the next
few weeks.
OVERVIEW OF EXON, HYDE, AND GRASSLEY PROPOSALS
----------------------------------------------
Below is an overview of how the 3 proposals treat several of the key
issues, including the use of the indecency standard, the 'display' of
indecent material online, FCC oversight of cyberspace, vicarious liability
for service providers, preemption of inconsistent state laws, and defenses
for service providers.
I. INDECENCY
All three seeks to prohibit indecent material on the Internet or other
interactive media. As mentioned above, indecency is a broad classification
of material including sexually explicit material, the '7 dirty words', and
even classic works of fiction such as The Catcher In the Rye or Ulysses. As
we have long argued, indecency restrictions on the Internet are
unconstitutional given the tremendous amounts of control users have over
the material they receive.
EXON: Prohibits creating, transmitting, or making available any
indecent material to anyone under 18 (Sec 402 (a) - (e)).
Violators face $100,000 fines and up to 2 years in jail
HYDE: Criminalizes transmission or display of indecent material to
anyone under 18 (amendment to 18 USC 1465). Creates $100,000
fines and 2 years in jail for anyone who makes or makes
available any indecent material to a minor (Sec 402 (d)).
GRASSLEY: Punishes 'Content Providers" who knowingly make an indecent
communication to anyone under 18 (Sec (3)).
Also punishes "Access Providers' who 'willfully' provide a
minor with access to a computer communications facility on
which indecent communications are available (Sec. (f)).
Violators face $100,000 fines and up to 2 years in jail
II. 'DISPLAY CRIME'
All three proposals seek to prohibit the 'display' of indecent material in
various ways. They are modeled on the concept of 'brown paper bags' or
other blinders which cover adult magazines at 7-11 type stores, though in
the online context the current proposals are much more restrictive and
would apply to individual content providers (not just the owner of the
store).
These provisions would apply to web pages, ftp and gopher archives, usenet
newsgroups, etc.
EXON: Prohibits the display of indecent material to minors (Sec
(e)(1)). Violators face $100,000 fines and 2 years in jail.
HYDE: Prohibits the display of indecent material to minors (Sec
402 (d)). Violators face $100,000 fines and 2 years in jail.
Proposal is identical to Exon described above.
GRASSLEY: Prohibits the display of indecent material to minors (Sec
(e)), as well as knowingly allowing a minor access to a
computer network on which indecent material is available (Sec
(f)). Under this provision, anyone who allows a minor access
to the Internet, including an online service provider or even
the child's parent, could go to jail if they "know"
indecent material is available and allow a minor acess.
III. FCC ROLE
Two of the new proposals would grant the FCC new authority to regulate
cyberspace.
EXON: Grants the FCC jurisdiction over online speech and over
blocking and filtering technologies (Sec (f)(1) - (4).
HYDE: Grants the FCC broad authority over online speech and over
blocking and filtering technologies (Sec (e)(1)).
GRASSLEY: No FCC role proposed.
IV. VICARIOUS LIABILITY FOR CARRIERS
All three proposals would hold carriers criminally liable merely for
transmitting content created by others. Holding carriers liable for content
on their networks would (1) force carriers to ensure that their networks
are not being used to transmit prohibited material (creating a free speech
and privacy nightmare), or (2) remove all incentives for those carriers who
may wish to exercise limited editorial control over their networks to act
responsibly.
EXON: Amends 18 USC 1465 to prohibit 'transmission' by computer of
indecent material to minors. This provision could be read to
apply to apply to service providers (Sec. 410).
HYDE: Similar to Exon proposal, amendments to 18 USC 1465 would
prohibit 'transmission' by computer of indecent material to
minors. This provision could be read to apply to service
providers.
GRASSLEY: Would hold access providers liable for knowingly providing
minors access to a computer service on which indecent material
is available (sec (f)).
V. PREEMPTION
More and more states are attempting to pass their own net-censorship bills.
Some are more restrictive than others. However, because interactive media
is interstate and international, entire networks will be forced to adhere
to the most restrictive standards unless Congress enacts a uniform national
policy and pre-empts states from enforcing inconsistent or incompatible
regulations.
The pre-emption provisions vary between the three proposals:
EXON: Pre-empts states from imposing liability on commercial
entities, nonprofit libraries and schools. However, states
could enact tougher restrictions on individual users, BBS's,
non-profit organizations, and non-profit computer networks
(freenets) (Sec. (g)
HYDE: Contains no pre-emption of state laws, allowing states to
impose stricter regulations and even enact inconsistent laws.
GRASSLEY: Explicitly prohibits pre-emption. States would be free to
enact any restrictions, even if they are more restrictive (Sec
(I)).
VI. DEFENSES
All three proposals contain defenses designed to protect service providers
from liability in certain circumstances. While we have long held the
position that defenses are important (since holding service providers
liable for their subscribers content creates huge problems for free speech
and privacy), it is not clear that all these defenses will work as
advertised.
EXON: (1) No control -- Providers cannot be held liable for
providing access to material if the provider has no
control over the material (Sec (f)(1)).
(2) FCC Determination Of Good Faith -- Providers cannot be
held liable if they have taken good faith actions, as
prescribed by the FCC, to restrict access to prohibited
material (Sec. (f)(3)).
(3) Employers -- Employers will not be held liable for the
actions of an employee's activities online (unless the
conduct is part of their job or the employer authorizes
it) (Sec (f)(2)).
HYDE: (1) FCC Determination Of Good Faith -- No liability if a
person has complied with regulations designed to restrict
access to indecent communications to those under 18 as
enacted by the FCC, which is required to prepare final
regulations 120 days after passage of the bill.
No other defenses are offered.
GRASSLEY: (1) Defense for Screening -- The proposal creates a defense
to prosecution if a person has taken good faith efforts to
restrict or prevent the transmission of or access to
indecent materials (Sec. (g))
(2) Employers -- Employers will not be held liable for the
actions of an employee's activities online (unless the
conduct is part of their job or the employer authorizes
it) (Sec. h)
SUMMARY
-------
While this may all seem pretty bleak, all is not lost just yet. As
mentioned earlier, Rep. Rick White (R-WA) is reportedly about to offer an
alternative to the Exon/Hyde/Grassley proposals. The White proposal is
expected to be based on the Cox/Wyden/White 'parental empowerment'
approach.
However, even if the White approach is, as expected, preferable to the 3
alternatives, the fact that Exon, Hyde, and Grassley are all pushing more
restrictive proposals means that it is unlikely we will come out of this
with everything we want. The Christian Coalition is too powerful,
especially with the Chairman of the House Judiciary Committee on their
side, to not have some influence on the final outcome of this debate.
We have a great deal of work ahead of us. Once the White proposal is
available, we will be able to get a better sense of our chances for
salvaging a palatable outcome. We will keep you informed of developments as
they occur.
BACKGROUND
----------
As you know, the House and Senate have passed two very different approaches
to dealing with objectionable material online as part of a massive
telecommunications reform bill.
In June, the Senate passed the Exon/Coats CDA, which would create a crime
for transmitting or displaying indecent material online. "Indecent"
material is a vague and constitutionally suspect classification of material
which includes everything from sexually explicit material to the '7 dirty
words', to the text of classic works of fiction such as Catcher in the Rye.
In addition, the Exon/Coats CDA would grant the FCC broad authority to
regulate online speech as well as the underlying technology of the Internet
and other interactive media.
In August, the House passed the Cox/Wyden/White 'Internet Freedom and
Family Empowerment Act'. Cox/Wyden/White would prohibit the FCC from
imposing content or other regulations on the Internet or other interactive
media, remove disincentives which prohibit online service providers from
deploying blocking and filtering applications, and create a uniform
national policy of user control, rather than government censorship, for
addressing objectionable material online. However, the House also passed
the so-called 'Managers Amendments', which would criminalize sending
indecent material to a minors.
FOR ADDITIONAL INFORMATION:
--------------------------
The text of the Exon, Hyde, and Grassley proposals are available on CDT's
net-censorship issues web page (URL below). Additional background
information, including the texts of the Senate-passed Exon Bill, Cox/Wyden,
the House-passed 'manager's amendments', and other relevant material is
also available at the CDT net-censorship page:
URL: http://www.cdt.org/cda.html
For additional information contact:
The Center for Democracy and Technology +1.202.637.9800
Daniel Weitzner, Deputy Director
Jonah Seiger, Policy Analyst
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(3) ABOUT THE CENTER FOR DEMOCRACY AND TECHNOLOGY/CONTACTING US
The Center for Democracy and Technology is a non-profit public interest
organization based in Washington, DC. 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.
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End Policy Post No. 30 12/1/95
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