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  **        **      **      ***               POLICY POST
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  **        **      **      ***               December 4, 1995
  **        **      **      ***               Number 31
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  A briefing on public policy issues affecting civil liberties online
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CDT POLICY POST Number 31                      December 4, 1995

CONTENTS: (1) House Conferees to Vote Wednesday on Fate of Net
          (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) HOUSE CONFEREES TO VOTE WEDNESDAY ON FATE OF THE NET

On Wednesday December 6, members of the House conference committee will 
vote on how to deal with the controversial "cyberporn" issue. The full 
House/Senate conference committee will consider the issue within the 
next two weeks.

After months of contentious debate, the conferees must now choose 
between two proposals: one proposal sponsored by Representative Henry 
Hyde (R-IL) and an alternative proposed by Rep. Rick White (R-WA).  The 
Hyde proposal would severely restrict freedom of speech on the Internet, 
and grant the Federal Communications Commission new authority to 
regulate online content. The White proposal relies on parents, not 
federal bureaucrats, to determine what material is and is not 
appropriate for themselves and their children, though it also imposes 
new criminal penalties for individuals who transmit material that is 
"harmful to minors".

The outcome of this decision will have tremendous implications on the 
future of freedom of expression and the development of interactive media 
as a whole. If the Hyde proposal prevails, the Internet as we know it 
will never be the same. 

CDT firmly believes that no new laws in this area are necessary. Current 
law is already working to punish online stalkers and prosecute the 
distribution of obscene material online. However, choosing nothing is 
not an option available to the Conference Committee. Given the options 
before the committee, CDT believes that the effort of Congressman White 
should be commended. He has tried to find a resolution to this issue 
which preserves freedom of speech and relies on user empowerment over 
government control of online content. Rep. White's proposal represents 
the only option on the table which will not destroy the Internet and the 
future of interactive communications technologies. Although this is a 
difficult choice for the Net.Community, White must prevail at this 
stage.

The Hyde proposal, which is being pushed heavily by the Christian 
Coalition, would severely restrict freedom of speech and the democratic 
potential of the Internet and other interactive media. It fails to 
recognize the global, decentralized nature of interactive media and its 
tremendous ability for user control. The proposal would be wholly 
ineffective at accomplishing its stated objective of protecting children 
from objectionable material, while destroying the Internet in the 
process.

If the conferees choose Hyde's approach over White, the Federal 
Communications Commission will, for the first time ever, have the 
authority to regulate online content and the underlying technologies of 
the net itself. In addition, the First Amendment and the free flow of 
information online will be chilled by an overly broad "indecency" 
standard. Online service providers will be forced to monitor all traffic 
to ensure that no "indecent" material is transmitted (creating a 
nightmare for freedom of speech and privacy), or shut down some service 
all together for fear of expensive law suits or prison sentences. And 
although all these provisions can be challenged in court, recent history 
with the so-called "dial-a-porn" and indecency an cable channels 
(Alliance for Community Media vs. FCC) suggest that such challenges can 
take years to resolve, and even then with no guarantee of success.

Representative White's approach seeks to protect cyberspace from 
intrusion by the federal government, and to empower parents to make 
decisions about what is and is not appropriate for themselves and for 
their children. While the proposal does contain new criminal provisions, 
including restrictions on the display of material that is "harmful to 
minors", it also creates a defense to prosecution for those who take 
good faith, reasonable efforts to label content and enable others to 
block it using user control technologies. 

The fate of the Net, and the future of freedom of speech and the 
democratic potential of interactive media, now rests in the hands of the 
conference committee members.

OVERVIEW OF THE HYDE AND WHITE PROPOSALS

I.  THE HYDE PROPOSAL

Representative Hyde is pushing an unconstitutional and overly regulatory 
proposal which would criminalize the transmission and display of 
"indecent material" (a broad classification which includes everything 
from the so-called '7 dirty words' to classic works of fiction such as 
The Catcher In the Rye and Ulysses), hold carriers liable for material 
created by their subscribers, and grant the Federal Government broad new 
authority over online content and the underlying technologies of the 
Internet. The Hyde proposal has been endorsed by the Christian Coalition 
and other members of the "religious-right".

Among other things, the Hyde proposal would:

1. Create $100,000 fines and 2 year jail terms for anyone who makes or 
   makes available any indecent material to a minor (Sec 402 (d)).

2. Grant the FCC broad authority over on line speech and over online 
   technology (Sec (e)(1))

3. Criminalize the transmission or display of indecent material to    
   anyone under 18 years of age (Amendment to 18 USC 1465),

4. Not pre-empt state from passing even more restrictive, or even  
   inconsistent, regulations.

See CDT Policy Post No. 30 (December 1, 1995) for a detailed description 
of the Hyde proposal. For more information, including the text of the 
Hyde proposal and other relevant documents, visit CDT's net-censorship 
issues page (http://www.cdt.org/cda.html)

II.  THE WHITE PROPOSAL

The proposal offered by Representative White, an original co-sponsor of 
the Cox/Wyden/White "Internet Freedom and Family Empowerment" Amendment, 
is based on the user empowerment aspects of the original Cox/Wyden/White 
amendment. 

The White proposal substitutes the narrower "harmful to minors" standard 
for "indecency", and prohibits the FCC from imposing content regulations 
on online speech and from meddling in the underlying technologies of the 
Internet.  While the White proposal does prohibit the "display" of 
material that is harmful to minors online, it creates a defense for 
those who take good faith, reasonable steps, to labile content and 
enable users to block or objectionable material using user control 
technologies (such as SurfWatch, the Parental Control features of AOL or 
Prodigy, or the PICS standards being developed by MIT and the World Wide 
Web Consortium).

Briefly, the White proposal would:

1. Prohibit intentionally sending material that is harmful to minors 
   directly to a to someone the sender knows is a minor,

2. Prohibit the display of material that is harmful to minors. However, 
   content providers (including individual users) would be immune to 
   prosecution if they have taken good faith, reasonable efforts to 
   labile their content and enable it to be blocked or filtered by 
others 
   (The MIT/World Wide Web consortium's PICS would be one example),

3. Prohibit the FCC from regulating content on or the technologies of  
   the Internet and other interactive media, 

4. Pre-empt inconsistent state laws, although this provision would not 
   apply to individuals, non-profit providers of interactive computer 
   services (such as BBS's or freenets), or non-profit organizations.

5. Clarify the House-passed Cox/Wyden/White to ensure that it does 
   inadvertently create loopholes in ECPA or other privacy laws,

6. Protect online service providers from vicarious liability for 
   transmitting their subscribers messages or for merely providing  
   access to the Internet.

III. BACKGROUND ON THE "HARMFUL TO MINORS" STANDARD

White's proposal would prohibit sending material that is "harmful to 
minors" directly to a minor, as well as prohibit the display of material 
that is "harmful to minors" unless good faith, reasonable steps to 
labile and enable others to block access to such material.

Harmful to minors is an intermediate standard between indecency and 
obscenity. It is essentially material that is obscene to a minor. It has 
been used in 48 state statutes and has been ruled constitutional by the 
Supreme Court. It is defined as follows:

"'harmful to minors' means any communications or material that is 
obscene or that:

   (a)  taken as a whole, and with respect to minors, appeals to a 
          prurient interest in nudity, sex, or excretion;

   (b)  depicts, represents, or describes in a patently offensive way 
        with respect to what is suitable for minors, ultimate sexual 
        acts, normal or perverted, actual or simulated, sado-masochistic 
        acts or abuse; or lewd exhibition of the genitals, pubic area, 
        buttocks, or post-putertal female breasts; and

   (c)  taken as a whole, lacks serious literary, artistic, political,
        or scientific value for minors.

Materials that would be acceptable under this standard include the text 
of Catcher in the Rye, Ulysses, the use of the "7 dirty words" in 
context, and works of art which contain nudity. These same materials 
would be prohibited under an "indecency" standard. 

NEXT STEPS

Once the House conferees vote on Wednesday, the full House/Senate 
conference committee will consider the issue. If the House conferees 
accept the White proposal, there will be additional opportunities to 
clarify and strengthen the proposal. However, if Hyde prevails, the 
entire battle will be lost.

In addition to the "cyberporn issue", there are several other issues in 
the telecommunications bill which the conferees much resolve, including 
competition in the long distance market, cable rate regulation, and 
universal service, to name a few. The Republican leadership has 
reportedly instructed the conferees to finish all remaining issues this 
week and to have the final bill ready for the full House and Senate 
during the week of December 11. It is not clear whether this deadline 
can actually be met given the range of unresolved issues, but the House 
and Senate leadership appear committed to the timeline. 

CDT will keep you informed of developments on this issue as they occur. 
We will also post the text of the White proposal on our net-censorship 
web page as soon as a final copy is available (we expect it to be posted 
by Tuesday afternoon 12/5).

For more information, visit CDT's net-censorship issues page:  
 
  http://www.cdt.org/cda.html

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(2) HOW TO SUBSCRIBE TO THE CDT POLICY POST LIST

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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.

Contacting us:

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End Policy Post No. 31                                        12/4/95
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