May 3, 1995

Honorable Patrick J. Leahy
United States Senate
Washington, DC  20510

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 packages 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 non 
commercial communications they receive over interactive telecommunications 
systems.

The following are the Department's primary objections to sections 402 and 405 
of the pending telecommunication 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 40-2 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 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. section 1465, 2252 & 2423 (a)), the 
illegal solicitation of a minor by way of a computer network (under 18 U.S.C. 
section 2252), and illegal "luring" of a minor into sexual activity through 
computer conversations (under 18 U.S.C. section 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 later 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 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 computer as a "means to restrict access" to certain 
  communications; (B) warning, or advertising to, users that the 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 
10 USC section 2511 (see footnote #1), without considering the effect of this 
amendment on other statutory provisions.  For example, 10 USC section 2516 (1) 
provides that certain government officials may authorize an application for a 
wiretap order for wire or oral communications while 18 USC section 2516 (3) 
provides that other government officials may authorize an application for a 
wiretap order for electroniccommunications. Since section 405 does not amend 10 
USC section 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, sincethis 
investigative tool is reserved for the most serious cases, including those 
involving terrorists, organized crime, and narcotics.

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, wiretap statute 
allowed electronic communication services providers to monitor _voice_ 
communications to protect their systems form abuse. 18 USC section 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 10 USC section 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 USC section 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 USC section 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 
(see footnote #2).

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 under 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 for the purpose of sexual 
exploitation. AS we have discussed with your staff in a meeting focused on these 
issues, we remain committed to an aggressive effort to halt the use of computers 
to sexually exploit children and distribute obscenity.

Sincerely,

{sig}

Kent Markus
Acting Assistant Attorney General

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FOOTNOTES

(1) It should be noted that "digital" communications are already covered by 
the wiretap statute. Under current law, a "digital" communications is either 
a wire communication under 18 USC sec 2510 (1) (if it contains voice) or an 
"electronic communication" under 18 USC 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.

(2) The definition of "oral communication" in 18 USC sec 2510 (2) contains a 
requirement that the communication to be protected must have been made under 
circumstances justifying an expectation of privacy.