Testimony of

                     Jerry Berman, Executive Director
                    Center for Democracy and Technology

                                Regarding

The "Protection of Children from Computer Pornography Act of 1995" 
                                 (S. 892)

                                 before

                       the Senate Judiciary Committee


                              July 24, 1995

Mr. Chairman and Member of the Subcommittee:

My name is Jerry Berman, Executive Director of the Center for Democracy 
and Technology.  The Center is pleased to have opportunity to address 
the subcommittee on one of the critical civil liberties issues of our 
day: the question of the most effective and constitutional means of 
protecting children from inappropriate material on the Internet.  We are 
pleased, therefore, the have the opportunity to offer our views on the 
proposed "Protection of Children from Computer Pornography Act of 1995." 
(S. 892)  

The Center for Democracy and Technology (CDT) is an independent, non-
profit public interest policy organization in Washington, DC.  The 
Center's mission is to develop and implement public policies to protect 
and advance individual liberty and democratic values in new digital 
media. The Center achieves its goals through policy development, public 
education, and coalition building.
        
The Center is also the coordinator of the Interactive Working Group 
(IWG), an ad hoc working group of over 85 organizations from the 
computer and communications industries, and the public interest 
community.  Since January 1995, the IWG has been working to address the 
question of how to protect children from inappropriate material online 
in a manner which is consistent with Constitutional values and continued 
innovation in interactive media.

I.  Broad reach and sweeping impact of the "Protection of Children from
    Computer Pornography Act of 1995."

The "Protection of Children from Computer Pornography Act of 1995" 
(S.892) has been presented as a narrowly drawn statute, designed to 
target the "bad actors."  Unfortunately, based on CDT's analysis, the 
proposed statute is in fact strickingly broad.  In some senses, it is 
even more sweeping than the Communications Decency Act. 

A.  The Grassley bill creates broad criminal liability for online
    services providers, video dialtone network operators, full service
    network providers, schools, libraries, private businesses, and many
    content providers
        
Notwithstanding the intent of the drafters, the Grassley bill sweeps a 
number of commercial and noncommercial entities into its ambit.  Covered 
entities include:

*  commercial online service providers,
*  schools,
*  libraries,
*  universities which offer access to the Internet,
*  other public information resources, 
*  small and large businesses which provide their employees with access
   to the Internet.  

In addition, since the bill covers all "electronic communications 
service" providers (see §2(b)(1(B)), S. 892 also threatens criminal 
liability for:

*  video dialtone networks operated by local telephone companies, and
*  full service networks operated by cable television companies.

Included as well would be any commercial or noncommercial provider of 
content which operates its own computer to distribute that content.  As 
a result, all of the individuals and institutions which publish through 
the World Wide Web and operate their own computers attached to the 
Internet would face liability under this bill.  To the extent that a 
content provider -- whether an individual or a large publishing company 
-- operates a computer which makes information available to others, that 
publisher would be subject to the provisions of S. 892.

B.  Broad scienter requirements in S. 892 would force the segration of
    the Internet into a children's network and a separate adult network
       
The scienter requirements in the proposed statute appear to have been 
designed in order to limit the scope of the statute.  However, as 
drafted, the statute is subject to broad, sweeping interpretation when 
applied by criminal courts.  These overly broad scienter requirements 
would force all who provide access to the Internet or other online 
services to create, in effect, separate networks for children and for 
adults.  Such a stark separation would likely be the only way to for 
online service providers and system operators to avoid liability under 
S. 892.

The new proposed §(b)(2) of 18 U.S.C. §1464 would criminalize the 
"knowing" transmission of indecent material to minors by any electronic 
communication service provider.  According to one interpretation, the 
application of this knowledge requirement could apply to any provider 
who knows that a specific individual is a minor, and then transmits 
indecent material to that individual.  Or, another interpretation could 
hold that service providers know that minors are on their service and 
that there is indecent material on the Internet.  Thus, service 
providers -- including schools, libraries and private businesses -- 
would be criminally liable for merely providing minors with access to 
the Internet.  Nothing in the statute or relevant case law suggests that 
courts applying this law would be compelled to adopt the former, more 
narrow, interpretation.  Rather, it is perfectly plausible to read the 
proposed §(b)(2) as a punishment for any service provider or system 
operator who makes indecent material publicly available to an audience 
that may include minors.  

The threat of a broad interpretation of this new statute would compel 
all who provide access to the Internet to restrict all public discussion 
areas and public information sources from subscribers, unless they prove 
that they are over the age of eighteen.  Under this statute, a service 
provider could not even provide Internet access to a minor with the 
approval of the child's parent.  Since every online service provider 
would have to similarly restrict access to minors, this proposed statute 
would create two separate Internets, one for children and one for 
adults.  Access by a child to the adult network would create criminal 
liability for the service provider.

II.  The vagueness of the "Protection of Children from Computer   
     Pornography Act of 1995" will create a chilling effect on all forms
     of speech on the Internet and great confusion among schools, 
     libraries, businesses, and online service providers who offer 
     access to the Internet.

A.   Application of "willful" standard is unclear in the bill as drafted 
     and will lead to confusion among service providers and users
        
The 'willful' standard also creates the possibility for significant 
confusion, given the widely divergent readings of the 'willful' 
requirement.  In some instances, 'willful' is read as a so-called "tax 
standard," implying that to be convicted one must manifest a voluntary 
and intentional act which is violation of a known legal duty.  Cheek v. 
United States, 111 S.Ct 604 (1991).  However, courts have also found 
that willfulness means nothing more than a person acted knowingly and 
deliberately.  United States v. Peltz, 433 F.2d 48, 54-055 (2d 
Cir.1970), cert. denied, 401 U.S. 955 (1971).  The drafters of the Model 
Penal Code define willful as merely knowing action,  and do not require 
specific intent to violate a known legal duty.   Recent Supreme Court 
jurisprudence in the area of money laundering, on the other hand, has 
required that the defendant's actions demonstrate knowledge that his or 
her conduct is, in fact, a violation of the law.  United States v. 
Ratzlaf, 114 S.Ct 655 (1994).  

A broad reading of "willful," requiring primarily purposive action 
leading to a minor's access to indecency, but not knowledge of the fact 
that such actions constituted violations of the law, would subject many 
service providers to liability under § 1464.  A more narrow reading of 
this requirement, could diminish the overreaching impact of the statute, 
however, such an interpretation is by no means guaranteed.  While 
Ratzlaf may offer some support in this regard, the Court also noted that 
" 'Willful,' ... is a 'word of many meanings,' and 'its construction' 
[is] often ... influenced by its content.' " Id. at 659 (citations 
omitted).  The context was supplied, in part, by the statute in 
question, which had previously construed "willful" as knowing violation 
of a known legal duty. Id.  No such context is available in 18 U.S.C. § 
1464 to aid a court in intepretation.  
        
Confusion as to providers legal duty will create a tremendous chilling 
effect on all online communications.  In order to minimize their risk, 
service providers will be forced to adopt rules governing their users 
behavior that are likely to be highly restrictive.


B.  Heavy-handed content regulation will squander the democratic
    potential of interactive media
        
As the popularity and accessibility of the Internet and commercial 
online services grows, and as the medium becomes easier to use, the 
political uses of the net have flourished.  Political discourse is 
facilitated by a variety of different communications techniques possible 
online, including newsgroups, mailing list discussion groups, chat 
sessions, and a host of electronic publishing capabilities.  Any 
regulation creating criminal penalties for communication of indecent 
material would have a substantial chilling effect on all who use 
interactive media.  Such a chilling effect would severely inhibit the 
growth of the Internet as a political forum.  
        
Political groups left,  right,  and center are using the Internet to 
communicate, to organize, and to advocate their own views.  Advocacy 
organizations have found World Wide Web services are critical to 
political education activities, and an increasing number of grass roots 
and community groups are coming to rely on the Internet to keep in touch 
with members and constituents.  In fact, even some Senators offices are 
using the World Wide Web to communicate with and solicit feedback from 
constituents.   As a nation we should be encouraging political discourse 
in this new medium, because of its potential to raise the level of 
political discussion beyond the sound bite and to involve more citizens 
in the political process.  One aspect of encouraging political discourse 
in interactive media is to assure all users that their First Amendment 
and privacy rights will be respected fully.
        
Indeed, the Internet and other online services are fast becoming a new 
public forum for political discourse for American citizens.  In order to 
preserve the freedom and openness of this new political arena, it is 
critical to avoid creating a chilling effect on individual expression.

III.  The "Protection of Children from Computer Pornography Act of 
      1995" is unconstitutional under the First Amendment for failure to 
      adopt the least restrictive means
       
The proposed statute extends indecency restrictions enacted to apply to 
the broadcast radio and television media to new interactive 
communications media such as the Internet, commercial online services, 
and electronic bulletin board systems.  Though indecency restrictions 
have been applied to broadcasting for some time, reflexive extension of 
the same restrictions to new interactive communications media is simply 
unconstitutional.  The Supreme Court has long held that "each medium of 
expression presents special First Amendment problems."  In light of the 
substantial control that users and parents have over content that enters 
their homes via interactive media, government restrictions on indecency 
as proposed by the Grassley bill are unconstitutional.

A.   Censorship of indecent, but not obscene, communications for the 
     purpose of protecting minors must employ the least restrictive 
     means available to accomplish their goal
        
Indecent communications are protected by the First Amendment, unlike 
obscenity which is altogether unprotected.  Sable Communications of 
California v. FCC, 492 US 115; 109 S.Ct. 2829; 106 L.Ed. 2d 93 (1989). 
Indecent communications, which do not rise to the level of obscenity,  
can only be limited in order to serve a compelling state purpose and 
must be done using the least restrictive means possible.  Id. at 125.  
The Sable court found that the protection of minors from access to 
indecent material is a compelling state purpose, but that "it is not 
enough that the Government's ends are compelling; the means must be 
carefully tailored to achieve those ends." Id.   
        
As a threshold matter, the Sable court found that the constitutional 
basis for upholding indecency regulations in broadcast media articulated 
in Pacifica Foundation v. FCC, 438 US 726, 98 S.Ct. 3026, 57 L.Ed. 2d 
1073 (1978), were inapplicable in any other media besides over-the-air 
broadcasting.   492 U.S. at 127.  Pacifica accepted that the FCC had 
authority to enforce content regulation based on the dual finding that 
1) radio was a "uniquely pervasive medium"  that intruded (dirty words 
and all) into peoples homes, and 2) the only way to protect children 
from exposure to objectionable content was to keep it off the air 
altogether.   Sable rejects this finding of "pervasiveness" as 
"emphatically narrow" and irrelevant to other media such as telephone 
audiotext services. 492 U.S. at 127
        
Thus, the Sable "least restrictive means" standard became the test by 
which all regulations on access to constitutionally protected indecent 
material were judged.  Nearly ten years of litigation along with 
adjustment of the statute and regulation were required before the 
current statute was found constitutional under this standard.  See Dial 
Information Services v. Thornburg, 938 F.2d 1535 (2d Cir., 1991)(finding 
FCC regulations implementing § 223(b) constitutional).  During the 
course of the dispute over the application of § 223 to audiotext 
services, courts considered and rejected a number of means by which 
carriers were required to shield minors from access to indecent 
information.  First, time channeling rules, requiring that services only 
be accessible during hours when children were asleep, were found to 
violate the First Amendment because they had the effect of denying 
access to adults as well as children.  Carlin Communications v. FCC, 749 
F.2d 113, 121 (2d Cir. 1984) (Carlin I).  Next, the courts rejected a 
requirement that carriers provide access to indecent services only once 
customers entered access codes or passwords, which were to be issued 
after verification that the customer was over 18.  Carlin Communications 
v. FCC, 787 F.2d 846 (2d Cir. 1986)(Carlin II).
        
The finding of the Dial court, approving the constitutionality of § 223 
and associated regulations depended on the legislative determination 
that the telephone company blocking of service pending age verification 
or use of a credit card are the only means to enable parents to restrict 
their children from access to indecent audiotext services.   

B.  Background on dial-a-porn rules: lack of user control leads to 
    indecency restrictions
        
As was the case for broadcast indecency restrictions considered in 
Pacifica, the dial-a-porn restrictions were only found constitutional 
because of the uniquely intrusive and uncontrollable nature of the 
audiotext services.  A key legislative motivation for imposing these 
rules during the 1980s was that indecent information available through 
audiotext services in the telephone system were openly available to 
children in such a way that it was difficult for parents to control 
access by their children.  The views of Congressman Bliley recounts the 
prevailing view of the need for the legislation: "It constitutes an 
attractive nuisance in every home in America where children are present. 
There is no completely effective way to prevent children from being 
exposed to "indecent" or "obscene" dial-a-porn so long as it is lawfully 
and commercially marketed. . . ."  Bliley continues:

"Telephones are precisely like radio and television because of their 
easy accessibility to children and the virtual impossibility for parents 
to monitor their use . . . . [D]ial-a-porn is presently in the home 
whether the homeowner wants it or not.  Today one cannot have telephone 
service in the privacy of one's family environment without being 
required to [have] dial-a-porn with it. Families with children must give 
up telephone service to be "left alone" from exposure of their children 
to this intruder." 
        
The current statute and Federal Communications Commission regulations 
promulgated thereunder were found constitutional only after nearly ten 
years of litigation and efforts by Congress and the Commission to bring 
the statute within constitutionally acceptable bounds. Indecency 
restrictions applied to interactive media would require a wholesale 
review of the constitutionality as applied to new media such as online 
services and the Internet.  Interactive media operates in such a 
different manner that the constitutional issues must be considered 
afresh given the new factual backdrop.

C.  Reliance on government censorship to restrict access to indecency 
    fails to take into account the fact that interactive media offers 
    parents a much greater degree of control then broadcast services or 
    900 number services.
        
Indecency restrictions in interactive media would presumably be 
motivated by the same goal of protecting minors as the existing statute.   
However, the means adopted for achieving the goal are impermissible 
under the First Amendment because they are not the least restrictive 
means of accomplishing the legitimate government purpose.  Interactive 
media is materially different than analog telephone and audiotext 
technology in that it offers users the ability to exercise control over 
precisely what information one accesses.  Given the dramatic difference 
between telephone technology and interactive services such as the 
Internet and other interactive media, we believe that blocking by the 
carrier as demanded by § 223 would not meet the "least restrictive 
means" test.  

Just as the Sable court found broadcast indecency regulations 
inapplicable to the telephone system because of differences in the 
medium, regulations designed for audiotext services in the telephone 
system are constitutionally inapplicable to new interactive media.  
Indeed, indecency restrictions on material transport by US Mail have 
also been struck down by the Supreme Court precisely because "the 
receipt of mail is far less intrusive and uncontrollable"  than 
broadcast information that was the subject of the Pacifica case.
        
Technologies already exist that enable users to access certain 
information based on a variety of characteristics, or, to exclude 
certain types of information from access.   With such filtering 
technology, users, instead of the government or network operators, can 
exercise control over the information content that they receive in an 
interactive network environment.  User control could be exercised in two 
ways.  First, one could screen out all messages or programs based on 
information in the header.  If a parent wanted to prevent a child from 
seeing a particular movie or from participating in a particular online 
discussion group, then the computer or other information appliance used 
by the child could be set by the parent to screen out the objectionable 
content.  Such features can often be protected with passwords which 
would be assigned, for example, by the responsible adults in the house.  
Second, the same systems can be used to enable blocking of content based 
on third-party rating systems.  
        
Given the flexibility of interactive technology, we need not rely on 
just one rating system.  In fact, a single rating system or a single set 
of filters would merely replace a single government censor with a single 
private censor, with no real gain for the free flow of information.  
Properly implemented, interactive media can accommodate multiple 
filtering systems, giving users and parents the opportunity to select 
and block information based on a true diversity of criteria.  The 
national Parent Teachers Association or different religious 
organizations could set up rating systems which would be available on 
the network to those who desired them.  Rather than relying on the 
judgment of the government, or of the service provider, viewers can 
limit access to content based on the judgment of a group whose values 
they share.
        
Interactive media can enable individuals and parents to prevent 
themselves or their children from using their PCs or TVs to access 
certain kinds of content.  With such control mechanisms within the 
practical reach of parents, the governmental purpose generally cited for 
indecency regulations -- the protection of children -- could be 
accomplished without government content restrictions.  In particular, 
the reasoning of Pacifica (intrusion of the indecent message into homes) 
and Sable (inability of parents to exercise control) would no longer 
justify most content regulation.  
        
To date, Congress has made no finding that a law such as that proposed 
by Senator Grassley is the "least restrictive means" to protect children 
from indecent material.  Indeed, we believe that parental empowerment 
technology and public education would be far more effective and far less 
restrictive of adult's right to receive indecent material.  The very 
fact that the Grassley bill proposes that the Justice Department study 
blocking and filtering technology  suggests that the issue should be 
investigated further before Congress can be said to have concluded that 
it has found the "least restrictive means" to protect children.

IV.  Criminalizing behavior of service providers is not an effective 
     means of protecting children from indecent material

A.  Regulating decentralized interactive media following the pattern of
    old-style, centralized communications media such as broadcasting is
    impractical
        
The Internet and other interactive communications media are 
fundamentally decentralized media.  Unlike centralized broadcast radio 
and television services, there are no central control points through 
which either a single network operator or government censors can control 
particular content.  On the Internet there are literally millions of 
speakers and publishers.  This proliferation of individual speakers 
stands in sharp contrast to broadcast television or even cable 
television, where one may count five, ten, or perhaps one hundred 
speakers, each of whom controls a channel.  Federal broadcast content 
regulators can direct their regulations at the operators of a particular 
channel in order to enforce their regulations.  However, content control 
on the Internet would have to be targeted at each and every one of the 
millions of US and international citizens that speak daily online.  Any 
attempt to impose centralized content control in a bureaucratic manner 
on this fundamentally decentralized medium is bound to stifle the growth 
of the medium, squander the democratic potential of the Internet, and 
may even cut the United States off from the growing global information 
infrastructure.
        
As a decentralized medium, the Internet and other interactive services 
have flourished in a largely unregulated environment.  Indeed, recent 
Congressional decisions to commercialize the Internet have lead to a 
tremendous increase in the number of users who have access to the 
Internet and great innovations such as the World Wide Web.  Indeed, the 
innovative, entrepreneurial Internet marketplace has even produced a 
variety of software and services that help protect children from 
inappropriate material online.  Imposition of content regulations would 
seriously retard the growth of the Internet marketplace.  What's more, 
content control is unlikely to be effective in protecting children.

B.  The global nature of the Internet makes control by the user or
    parent the only effective means of restricting access to indecent 
    material
         
While the vast majority of content on the Internet is intended for 
legitimate educational, cultural, political, or entertainment value, 
some material on the Internet may not be appropriate for children. 
Moreover, much of this material is accessible from the United States but 
transmitted from other countries, beyond the practical reach of U.S. 
law.  In order to protect children we must rely on powerful blocking and 
filtering technology to empower parents to make choices about the 
material which their children can access.
        
Entrepreneurial effort has already produced blocking and filtering 
products for families and schools.  The vast majority of the content on 
the Internet is labeled or identified in some manner.  If information is 
not labeled, intended users cannot find it.  Therefore, the inherent 
power of computer software allows the creation of computer programs 
which enable parents to block material from the reach of their children 
automatically, without the need for constant parental supervision.  
Affordable software such as SurfWatch and NetNanny already enable 
parents to allow their children to "surf the net" freely, but keep them 
away from objectionable material.  The Netscape Proxy Server, WEBTrack, 
and the Apple Communications Server can be installed in schools or other 
institutions to open their institutions to the Internet without allowing 
their students to have access to objectionable sites.
        
The global and decentralized nature of interactive media requires new 
approaches to child protection.  Censorship of centralized media such as 
radio and television may be effective at keeping the "seven dirty words" 
off the airwaves.  However, on the Internet, with hundreds of thousands 
of content creators all over the world, US law, no matter how tough, 
will never be able to keep offensive material out of the reach of kids.
        
Industry-wide initiatives are developing standard label and blocking 
conventions to increase the effectiveness of blocking.  Microsoft, 
Netscape and Progressive Networks have announced efforts to develop 
blocking and label conventions.  The Internet technical standards 
developers are now considering a proposal called "KidCode", which would 
establish voluntary labeling systems that identify Internet information 
which is inappropriate for children.  The flexibility of interactive 
media allows multiple rating systems to co-exist so that individuals and 
families can chose a rating system that best reflects their own values.
        
Parental choice assures full respect for the free speech rights in 
interactive media.  Relying on parents, not the government, to make 
choices about the content that they and their families receive assures 
maximum respect for First Amendment rights of adults to receive and 
transmit constitutionally-protected material, and allows families, not 
federal bureaucrats, to determine what information is most consistent 
with their own moral values.

V.      Conclusion
        
Again, I thank the committee for the opportunity to appear and offer the 
views of the Center for Democracy and Technology on this very important 
issue.  We look forward to working with you toward a resolution of this 
issue which empowers parents, protects children, and preserves full 
First Amendment freedoms in new, interactive communciations media.