April 26, 1995

The Honorable Larry Pressler
United States Senate
243 Russell Senate Office Building
Washington, DC 20510

Dear Senator Pressler:

In response to a request from your staff I am writing this letter to set 
forth my concerns regarding the Exon Amendment, titled the "Communications 
Decency Act of 1995," which has been attached to the telecommunications bill. 
While I believe that Senator Exon had the best of intentions in proposing this 
legislation which was intended to protect children from pornographic images 
available on the Internet, the bill has been perverted in an attempt to 
placate online service companies and others. I am confident that in its 
current form the bill is opposed by substantially all pro-family groups in 
America.

Prior to my current position, I served as section chief of the Child 
Exploitation and Obscenity Section in the Criminal Division in the US 
Department of Justice, the office responsible for prosecuting violators 
of obscenity and child pornography laws. I am familiar with the current 
state of law regarding prohibitions on computer pornography. I my opinion 
the current federal dial-a-porn law (which the Exon bill amends) already
prohibits commercial distribution of obscenity via computers. It is 
also my opinion (although this point is not as clear in the law as the 
first) that federal criminal, specifically Title 18, sections 1462 and 
1465 prohibit distribution of obscenity via computer whether or not for 
commercial purpose. The only purpose of additional legislation in this 
area, therefore, should be to clarify current law and perhaps strengthen 
penalties. It was my understanding that this was the original intention
of Senator Exon. Now, however, the Exon bill weakens the federal 
dial-a-porn law. The following represents my particular objections to 
the most egregious parts of the bill:

1. The bill provides numerous defenses to prosecution to those companies 
   which provide access to the Internet which are necessary because such 
   companies are not liable unless they knowingly aid in the commission of 
   a violation. If they are knowingly participating in a violation, then 
   they _should_ be subject to the law, and congress should not provide a 
   defense to protect them.

2. The bill provides an additional defense for those who knowingly transmit 
   obscenity of indecency but are not engaged in a commercial activity, the 
   predominant purpose of which is the transmission of obscenity or indecency. 
   Under this provision, the burden would be on the prosecutor to demonstrate 
   that the predominant commercial activity of the defendant is the transmission 
   of obscenity and indecency. This is too great a burden for the prosecutor and 
   is entirely unique in law.

3. The bill includes a pre-emption clause which may limit states from 
   providing greater protections to children than the Exon bill.

4. The scienter or knowledge requirement contained in the bill is entirely 
   unreasonable. The bill requires that the defendant had "actual knowledge of 
   the specific content" of the material. It would be impossible for a prosecutor
   to demonstrate that the defendant had the requisite knowledge in most every case.
   The current knowledge requirement in obscenity cases is that the prosecutor must
   show that the defendant knew or had reason to know of the _general nature and 
   character of the work_.

While I have other objections to the bill, the above states my objections to 
provisions which would weaken current federal law regarding the prosecution of 
illegal pornography.

I have met with Senator Exon and several members of his staff who are working
on this bill. I am certain that the Senator is genuinely trying to provide 
effective legislation in this important area.  Perhaps before the 
telecommunications legislation reaches the floor he will propose amendments
which will remove objectionable portions of the bill. If not, I hope you will 
do what you can to amend the telecommunications bill to remove the Exon 
provisions.

Most Sincerely,
{sig}
Patrick A. Trueman
Director of Governmental Affairs