From Communications Daily, Thursday June 1 1995

DRAFT BILL WOULD GIVE FCC ROLE IN REGULATING ON-LINE SPEECH

Civil Liberties Groups Opposed

FCC could become involved for first time in efforts to keep indecent speech off on-line services under new draft proposal for legislation circulating in Congress. Proposed changes would be made in language sponsored by Sen. Exon (D-Neb.) that's included in S-652. Newest version further attempts to limit exposure of children to indecent material, while providing new defenses for on-line operators. However, civil liberties groups charge that attempt at compromise falls short.

New draft is aimed at information providers who transmit or make available "any indecent comment, request, suggestion, proposal, image or other communications to any person under 18 years of age." Additional language would provide new defenses for on-line providers, including that they didn't have "editorial control" over material; however, provision wouldn't apply to provider that gave up editorial control with knowledge that company with control intended to violate law.

Proposal also would allow FCC to prescribe by regulation procedures or reasonable steps to prevent transmission of indecent communications. According to draft bill: "Such steps and FCC procedures may include enabling the user to restrict or prevent access to communications described in this section."

Jill Lesser of People for the American Way said that civil liberties groups "are still not satisfied" with new draft and that draft language, proposed by on-line service providers, Justice Dept. and American Family Assn., isn't acceptable. She said there have been talks to try to replace Exon's language with bill proposed by Sen Leahy (D-Vt.) calling for study of on-line obscenity, but Exon hasn't agreed to withdraw his wording. Draft was put together by Exon staff after consultation with industry, groups concerned with social issues, DoJ. Officially, Administration officials said new draft hadn't changed their position as outlined in letter to Leahy in May that said Exon bill could pose hazards for law enforcement in addition to harm to civil liberties. Senate is expected to take up telecommunications bill next week after finishing work on terrorism legislation.

ACLU said in analysis of draft that new language "in its existing or revised form, violates both free speech and privacy rights." It added: "The Exon amendment cannot be 'fixed.' It must be rejected." Among ACLU's objections: (1) There's no definition of obscenity. Group said govt. has "chosen to stage prosecutions" to take advantage of community standards, in case of Tenn. postal inspector downloading material from Cal. bulletin board. (2) It would extend liability for obscene or indecent communications to noncommercial providers, change that would be "more restrictive" than original Exon bill. (3) It would provide new defenses for on-line operators, but ACLU said smaller system operators probably couldn't afford court case to prove innocence. (4) Involvement of FCC should be eliminated: "Giving federal regulators the authority to determine the rules for distributing on-line content will radically affect the freedom of cyberspace and will have a severe direct effect and an equally severe chilling effect on on-line speech."

Center for Democracy & Technology said bill still would be unconstitutional because regulation of indecency has been approved by courts only in very limited cases. It would be impossible to determine what's indecent, Center said, and prohibited items would include rap music lyrics or novel Lady Chatterly's Lover, although those would be available in other locations. On question of FCC involvement, Center said: "Instead of just passing this critical question off to a regulatory body, Congress must identify both legal and voluntary means to encourage the development of more and more flexible and accessible user control techniques."

Center also said noncommercial information providers would be put at disadvantage by preempting some state laws, but leave libraries, schools and others subject to more regulation: "We find no valid public policy argument which would accord greater protection to commercial speech than is granted to noncommercial users of the net."