BEFORE
THE COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
WRITTEN TESTIMONY OF
WILLIAM W. BURRINGTON
ASSISTANT GENERAL COUNSEL
AND DIRECTOR OF GOVERNMENT AFFAIRS
AMERICA ONLINE, INC.
VIENNA, VIRGINIA
AND
CHAIRMAN OF THE ONLINE POLICY COMMITTEE
INTERACTIVE SERVICES ASSOCIATION
SILVER SPRING, MARYLAND
HEARINGS ON S. 892 AND INDECENCY ON THE INTERNET
July 24, 1995
Mr. Chairman and members of the Committee, I am William W. Burrington,
Chairman of the Online Policy Committee of the Interactive Services
Association and Assistant General Counsel and Director of Government
Affairs for America Online, Inc. in Vienna, Virginia. I appear before
you today on behalf of the Interactive Services Association ("ISA") and
its Online Policy Committee.1
As the oldest non-profit North American association serving businesses
that deliver telecommunications-based interactive services to consumers,
the ISA has been responsive to concerns about the social and political
impact of this new interactive medium that millions of Americans use
every day. ISA's 300-plus members (see Appendix A) represent the full
spectrum of industries now active in delivering personal interactive
services. ISA's membership includes companies from the advertising,
broadcasting, cable, computer, financial services, marketing,
publishing, telephone, and travel industries.
We understand that the purpose of these hearings is to discuss the
responsibility of interactive online services, including those that
provide access to the Internet, for the act of transmitting material to
minors that is deemed to be indecent. Our industry is concerned about
children's access via online services to materials that their parents
believe to be inappropriate. We also want to ensure that Congress
creates an effective response that will not devastate the myriad
benefits to our country that will result from active participation in
the National Information Infrastructure. We want to work with Congress
to protect children, empower parents to screen out unwanted material,
and preserve constitutional guarantees of free speech, free press, and
individual privacy.
In its zeal to "clean up" the content of a small portion of electronic
communications, S.892 would target for liability online service
providers while ignoring content providers and subscribers who create,
control, and upload indecent material onto networks. For example,
although access by minors to Playboy magazine may be restricted in some
states, it is not restricted under federal law. This legislation,
however, creates the anomalous result of punishing online service
providers for permitting the electronic distribution of Playboy to
minors although federal law does not punish the publisher. This is not
to say that the publisher should be punished; we simply cannot agree
that the constitution would permit computer distribution to be
criminalized when the publishing of the same material is not.
What's more, the online providers would be liable under S.892 for
indecent communication regardless of any measures they may take to limit
access or to screen content providers on their system. Statutory
defenses for providers who make good faith efforts to screen and block
indecent materials to minors would provide an industry incentive to
develop effective blocking and screening devices. The lack of such
defenses in S.892 would serve as a disincentive for investing in such
efforts.
ISA is also concerned about the criminalization of indecent speech,
given that this speech is protected by the Constitution and can be
restricted only in a few narrowly defined situations. The Supreme
Court's Sable decision mandates that regulations on indecent speech must
be narrowly drawn to protect minors without unnecessary interference
with the First Amendment. The regulation proposed by S.892 is not the
least restrictive alternative. It prohibits any "communication that
contains indecent material" as well as indecent material itself directed
at minors. This type of regulation is not likely to pass constitutional
muster.
Rather than criminalizing the mere transmission of certain materials,
Congress should support and encourage the entrepreneurial spirit of the
interactive services industry to build parental empowerment tools and
encourage the industry to make such solutions widely available to
consumers. Even without any legislation, the market is already acting to
address the concerns of parents, educators, and others who are
interested in controlling the flow of information accessible via
computer. Just last week, companies such as America Online Inc., Webster
Network Strategies, SurfWatch Software, and Netscape announced new
products and services that allow users to screen from their online
systems content they find offensive.
In my testimony today, I would like to address several issues:
1. Constitutional guarantees of free speech and press should be
cautiously guarded. We urge Congress to consider the least
restrictive alternatives in achieving the goal of protecting minors
from indecent materials;
2. The online service provider industry should be encouraged to provide
voluntary editorial control over its services and to continue its
research and development of parental empowerment technology tools.
This industry should not be cast in the role of national censor,
determining which information may be fit for children, but
nonetheless subject to criminal liability if it guesses incorrectly
in any given instance; and
3. The ISA agrees with the Department of Justice and the American Family
Association that existing laws suffice to punish the use of computer
networks for obscenity and child pornography. We believe that current
law negates the need for new legislation, either federally or at the
state level.
Before I address these points, I would like to provide an overview of
the online service industry.
INDUSTRY OVERVIEW
Online service providers offer interactive services to millions of
subscribers across the United States. In fact, there are presently over
8 million subscribers to computer-based online services. "Interactive
services" are easy-to-use, telecommunications-based services designed
for information exchange, communications, transactions, and
entertainment. These services can be accessed by a personal computer,
telephone, screen telephone, or television. Online service providers may
simply transmit the communications created by others, or they may
additionally offer content such as "bulletin boards" or "home pages."
Interactive services are unlike any previous communications media. When
an individual listens to the radio or watches television, the Supreme
Court has recognized that the individual may be "surprised" by an
indecent message; that is, by the time the viewer has seen the message,
it is too late to avoid it or look away. This is the rationale behind
some time, place, and manner restrictions on speech communication
through such media. In the online medium, it is much less likely that a
user will be surprised by indecent or obscene material. The online
medium generally requires that a user take affirmative steps, such as
using electronic mail or accessing a particular service through the
click of an icon or typing in a particular address, prior to receiving
communications. Although random online assault by indecent images or
messages is possible, it is certainly not the norm.
I really can't talk about interactive services without mentioning the
Internet. The Internet is a world-wide phenomenon available in over 90
countries, connecting some 5 million different computer systems, and
accessed by an estimated 10 - 30 million people. These connected
computer systems are operated by universities and other nonprofits,
research institutions, governments, businesses, and individuals. There
is no central governing body or policy governing worldwide user
behavior. Further, some obscene and indecent material originates in
countries other than the United States, and is therefore beyond the
practical reach of American law.
The vast majority of all communication available over the Internet and
other online services, however, is educational, informative, or
entertaining. The ability to access and successfully use a variety of
information will increase the productivity and enjoyment of American
life. For example, American students have vast educational opportunities
literally at their fingertips via the Internet. The majority of
educational databases currently originate in the United States. Should
Internet access be cut off because of the threat of criminal liability,
students across the globe will have access to information that is
withheld from American students. Not only would this handicap our future
by denying educational opportunities to students, but it would handicap
America's international competitiveness as well by decreasing access to
productivity-enhancing services.
Finally, interactive television services will bring video and other
programming into households on demand. Currently, online services enable
millions of people to communicate with each other and to access news,
weather, sports, and financial information through the touch of a
keyboard. These services enable personal communication across America as
well as around the globe.
Interactive services empower their users. Since the beginning of
consumer online services in the early 80s, one key fact has emerged and
is often overlooked. Tools provided by interactive services can act as
an extension of the person, compensating for differing abilities related
to, for example, age or physical health. Electronic grocery shopping can
be both a convenience to many, and a lifeline to a homebound individual
who is seeking to stay independent. Communities, too, will experience
increasing social and political empowerment through electronic
communication, forums, information sharing, and collaborative planning.
Perhaps more than any other medium that has been used by American
citizens, interactive services support the fundamental principles of our
democracy. And as services evolve to multimedia presentation, so, too,
will applications tailored to those of us with hearing, speech, sight,
mobility or other challenges. This empowerment of the public offers a
unique opportunity for individuals, parents, and families to make
conscious choices about the types of material they wish to receive via
their computer terminals.
With this basic overview in mind, I will now address the first of the
issues:
I. S. 892 IS NOT THE LEAST RESTRICTIVE ALTERNATIVE FOR LIMITING ACCESS
TO CERTAIN SPEECH.
Let me clarify that S.892 applies to online service providers only to
the extent that they are transmitting material. That is, for the
purposes of this bill, it is not relevant whether the online provider
was the source of the indecent communication to a minor or if it merely
transmitted an indecent communication that originated elsewhere. S.892
is simply unworkable because it is not narrowly focused on the bad
actors; online service providers cannot police and be aware of the
specific content of each communication, and yet they are penalized for
transmitting certain communications. Conspicuously absent from S.892 is
any mention of the creator of the offending materials.
Online services are entitled to at least the same level of First
Amendment protection accorded to other news disseminators, such as
newspapers. See Miami Herald Co. v. Tornillo, 418 U.S. 241 (1974). In
fact, online service providers are likely entitled to even greater
protection because of the virtually infinite capacity of the medium to
accommodate all speakers and points of view. It is precisely for this
reason that legislators must use an abundance of caution prior to
regulating and criminalizing online speech activities. As the Supreme
Court cautioned in its landmark decision New York Times v. Sullivan, 376
U.S. 254, 279 (1964), such a limitation on speech "dampens the vigor and
limits the variety of public debate... [and] is inconsistent with the
First Amendment."
As the U.S. Supreme Court has acknowledged, expression that is indecent
but not obscene is protected by the First Amendment. Consequently, to
regulate indecent expression in a constitutional manner, "[i]t is not
enough to show that the Government's ends are compelling; the means must
be carefully tailored to achieve those ends." Sable Communications of
California, Inc. v. F.C.C., 492 U.S. 115, 126 (1989). S. 892 is not a
narrowly tailored effort to serve the compelling interest of preventing
minors from being exposed to indecent communications on computer
networks. Furthermore, it fails to encourage industry to develop further
measures that will improve user control over online services.
S. 892 would depart from the federal criminal law's general rule that
the originators of obscene material are liable for its distribution, not
the entities who unwittingly carry out the distribution, such as a
telephone network, a trucking company, or a courier service. See, e.g.,
18U.S.C. $$ 1462, 1465. Without a federal law that prohibits a person
from using a computer to transmit an indecent communication to a minor,
S.892 proposes to impose criminal liability on access providers who
permit others to use their computer network facilities to transmit
indecent communications to minors. That is, the bill proposes to punish
access providers for permitting others to do something that federal law
does not prohibit. It is, in the words of the Supreme Court in Sable,
"another case of 'burn[ing] the house to roast the pig.'" The new S.892
approach is not likely to survive constitutional scrutiny.
Moreover, the so-called dial-a-porn regulations that evolved after
nearly a decade of constitutional attack contained "safe harbor"
defenses for industry. See Dial Information Services v. Thornburgh,
938F.2d 1535 (2d Cir. 1991). S. 892 provides no such defenses, again
rendering it constitutionally vulnerable on the grounds that there are
other approaches less restrictive but just as effective in achieving its
goal of denying access by minors to indecent communications on computer
networks.
Finally, in the context of private communications such as electronic
mail, S.892 places online providers in an impossible position: it holds
them criminally responsible for indecent communications to minors while
the Electronic Communications Privacy Act of 1986 ("ECPA") forbids them
from monitoring electronic mail. See 18 U.S.C. $$ 2701, 2702. The bill
would treat online providers differently than other communications
carriers: even with regard to communications that rises to the level of
criminal activity, neither the Postal Service, Federal Express, nor Bell
Atlantic is expected to know the contents of hand-written mail or of
telephone conversations between persons conspiring in a criminal
enterprise, nor are they held liable for failing to prevent any harm
that may result.
II. VOLUNTARY EDITORIAL CONTROL AND USER EMPOWERMENT TOOLS ARE THE MOST
EFFECTIVE CONSTITUTIONAL APPROACH TO PREVENTING ACCESS BY CHILDREN
TO INDECENT MATERIALS.
As a matter of public policy, Congress should rely on the
entrepreneurial spirit of the interactive services industry to build
parental empowerment tools and encourage the industry to work together
to ensure that such solutions are widely available. Technological relief
is currently available and more is under way. Prosecutors appear to have
the prosecutorial tools they need, too. The Justice Department certainly
has not asked for new criminal laws to combat smut on the Internet.
While industry has demonstrated its willingness to serve an editorial
function, a current obstacle to wide implementation of measures to block
or filter out offensive materials is the threat of liability for any
offending material that may fail to get screened. Two months ago in New
York, for example, Prodigy was found to be a "publisher" of libelous
statements made by a subscriber on one of its online bulletin boards "in
large measure" because of measures that Prodigy took to be "a family
oriented computer network." Prodigy was liable even though it was (and
is) unable to control the content of user communications and was unaware
of the particular offending statement. Congress should not now legislate
another disincentive -- criminal liability -- rather, it should continue
to let the market respond to the demand for editing functions and
screening tools.
In addition, the online service provider industry has developed a broad
array of technological screening devices, with the promise of more to
come. It is sad and ironic that S.892 intends to reward industry for its
efforts with criminal liability. The current industry initiatives
include the following:
First, providers can control the audience. At America Online, for
example, we require a credit card or checking account to open an online
account, which, like the dial-a-porn regulation's credit card
requirement, presumes that the new subscriber is an adult.
Second, providers can help the subscribers control the audience. For
example, at Prodigy, the registered head of each household, using a
credit card for verification, must activate an Internet connection for
each family member. America Online within two months will expand its
existing parental control offerings with a new feature that will enable
parents to block access to all but the "Kids Only" area of the service
with content targeted and programmed specifically for kids. This will
allow parents to have access to all America Online features, but limit
their children's access to the Kids Only area.
Third, providers can exercise control over the topics of the chat lines
and conferences that they sponsor and, consistent with federal law,
monitor many of these activities. On these chat lines and conferences,
online providers enforce rules that require that messages transmitted
for posting be relevant to the subject of these activities.
Fourth, while online operators cannot legally monitor e-mail, they act
on complaints brought to their attention by subscribers who receive
offensive material by e-mail. All that a subscriber needs to do is
forward the e-mail to the provider; at that point, the provider can take
appropriate action based on the message. If, for example, the sender is
a subscriber of CompuServe, CompuServe can act against the sender if he
or she has breached the operating rules. If the e-mail message indicates
possible unlawful activity, the online provider will forward the
material to law enforcement officials for investigation.
Fifth, particularly with regard to the Internet, many providers are
incorporating powerful new blocking and filtering technology to empower
parents to make choices -- consistent with their own particular values
-- about the material that their children can access. Currently at
America Online, for example, parents are able to block their children's
access to Internet newsgroups while permitting them other access to the
Internet. In addition, America Online last week announced a relationship
with SurfWatch Software, Inc. that will provide its adult subscribers
with easy tools to block unwanted inappropriate material on the World
Wide Web. SurfWatch, which also is available to families who do not
subscribe to commercial online services, incorporates a roster of sites
known to carry sexually explicit content that is automatically updated
each month.
NET NANNY and CYBERsitter are among other affordable products for
controlling children's access to the Internet that are currently
available. Another software product, WEBTrack School Edition (SE), which
its developer recently announced would be provided at no charge to
primary and secondary schools, gives school administrators the
capability to restrict access to five categories of Internet sites (sex,
drugs, hate speech, criminal skills, and online gambling) while allowing
full access to the rest of the Internet's resources.
Among the more innovative proposals on the drawing boards is "KidCode,"
currently being developed by Internet standards developers. KidCode
would establish voluntary labeling systems that identify Internet
information that is inappropriate for children. These labels could then
be used in new ways to empower parents and educators to select the
Internet content that children could access.
The attention that content on computer networks has recently received
continues to spur industry to invest in technologies that will further
empower parents to protect their children from access to inappropriate
materials.
But all of the empowerment tools in the world will not work unless we
educate parents about their existence and use. Consequently, in
conjunction with the efforts to deploy new empowerment tools, the ISA
will launch an online and off-line Parental Empowerment Program next
month. Even preceding this effort, which may include information kits
that parents can request via an 800-number service and World Wide Web
Home Page, the ISA and seven major online operators teamed with the
National Center for Missing Children to publish a pamphlet entitled
"Child Safety on the Information Highway." (See Appendix B). The
pamphlet is available at no charge by calling 1-800-THE-LOST and over
all the major online services. This pamphlet advises parents in setting
rules and guidelines for their children's online activities, and helps
parents understand the risks involved on the information superhighway.
Our goal is to educate parents better about the tools available to keep
indecent and other inappropriate materials out of the hands of computer-
literate minors.
The goal of empowering and educating parents is to allow them to make
their own choices and to customize those choices depending upon the age
of their children and their own family values, not those of some
monolithic government or special interest group. Finally, we realize
that parents may not be as computer savvy as their own kids. For that
reason, we have made all of our parental empowerment tools very simple
and easy to implement with the click of a mouse. Our goal -- to make
these technology features easier for parents to use than setting the
clock on their VCR.
Technology is one solution; parental awareness is another. These will
work far better than cold words in a criminal statute to protect
America's children from inappropriate material on the Internet. Indeed,
the new technological tools will permit parents who wish to do so to
block out a whole lot more than just material that online providers, if
they permit its transmission, will go to jail for.
III. NEW LEGISLATION IS UNNECESSARY TO MEET CONGRESSIONAL GOALS.
Law enforcement agencies and prominent pro-family groups agree that
current laws already authorize prosecutions of constitutionally
unprotected speech on computer networks.2 Illegal conduct over computer
networks has been punished under existing federal laws concerning
trafficking in obscenity, child pornography, harassment, illegal
solicitation or luring of minors, and threatening to injure someone. The
desire to create additional legislation in this area is somewhat curious
in light of the ability to prosecute wrongdoers under current laws and
of the prosecutions that have taken place.
To the extent that particular gaps may appear in the future, or if any
obstacles arise to prosecution of those who make obscenity or indecency
available to minors, Congress should examine whether there is a need for
additional training or additional resources for enforcement of the
current laws. No less an authority than the Department of Justice, the
agency responsible for investigating and prosecuting these crimes, has
requested not precipitous action but rather an in-depth analysis of the
complex legal and policy issues surrounding the goals of protecting
children while respecting First Amendment and privacy rights of computer
users.3
It is also critical that Congress preserve a uniform national standard
governing the behavior of online service providers. During the past
year, at least five states -- Connecticut, Georgia, New Jersey,
Oklahoma, and Virginia -- have enacted laws aimed at obscenity or
harassment on computer networks. These statutes may create standards
that are inconsistent with the goal of incenting industry to create
technological tools to block and screen particular communications.
Again, industry should be encouraged to continue to work with
communities to develop tools that allow the appropriate levels of access
to and control of online services.
Multiple regulations would be more than burdensome for online service
providers; they may be impossible to satisfy for technical and economic
reasons. Moreover, state requirements could conflict with one another,
creating a situation in which compliance in one state could create
culpability in another. Finally, because service providers are unable to
accommodate varying standards, they would be forced to meet the content
and activity standards of the most restrictive state. In this way, one
state legislature, rather than the federal government, would control the
content of our country's contribution to the global information
superhighway.
Permitting every state to adopt its own standard would lead to
uncertainty for business and drive away market participants, thereby
severely undermining our nation's ability to develop and make use of the
National Information Infrastructure to promote national economic,
educational, and social goals.
CONCLUSION
Perhaps more than any other medium that has ever been used by Americans,
online services support the fundamentals of our participatory democracy.
Our government's role should be to facilitate -- not inhibit -- the
development of the National and Global Information Infrastructure. And
that is what government has done to date. The Congress has begun making
congressional information available online; the White House and some
federal agencies have set up sites on the World Wide Web; and federal
agencies have established advisory committees to make recommendations on
policies for the NII.
We believe that for every child empowered by the Internet's benefits
there should be a parent empowered to protect his or her children from
the risks that exist on the Internet, as elsewhere in life. We believe
that empowering technology, and education not cumbersome regulation, is
the most effective and least intrusive means for serving the public
interest in protecting minors.
Any changes in federal law should seek to remove any disincentives for
creating "child safe" areas rather than to impose criminal liability
upon online providers for permitting others to engage in conduct not
prohibited by federal law or S. 892 -- the transmission by others of
indecent materials to minors.
footnootes:
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1 ISA's Online Operators Policy Committee is comprised of: America
Online, Inc.; Apple e-World; CompuServe; Delphi Internet Services Corp.;
GEnie; Interchange Network Company; MCI; Microsoft Network; Prodigy
Services Company; and Ziff Davis Interactive.
2 For example, in his May 6, 1995 letter to Rep. Thomas Bliley, the
American Family Association's Patrick Trueman, the Section Chief during
Bush and Reagan Administrations of the Child Exploitation and Obscenity
Section of the Justice Department's states:
"[T]he federal criminal code currently prohibits distribution of both
child pornography and obscenity by computer."
In the Justice Department's May 3, 1995 letter to Sen. Patrick Leahy,
Kent Markus, the Acting Assistant Attorney General for Legislative
Affairs, states:
"[W]e have applied current law to this emerging problem. . . . The
Department's Criminal Division has, indeed, successfully prosecuted
violations of federal child pornography and obscenity laws which were
perpetrated with computer technology."
3 In the Justice Department's May 3, 1995 letter to Sen. Patrick Leahy,
Kent Markus, the Acting Assistant Attorney General for Legislative
Affairs, states:
"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 noncommercial communications they
receive over interactive telecommunications systems."
In the Justice Department's June 13, 1995 letter to Sen. James Exon,
Acting Assistant Attorney General Markus states: "Again, we are
committed to protecting children while also respecting First Amendment
and privacy rights. While substantial progress has been made in your
revised proposal, it still raises a number of complex legal and policy
issues that call for in-depth analysis prior to congressional action."
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