The Honorable John McCain
United States Senate
Senate Russell Office Building 241
Washington, D.C. 20510

Dear Senator:

Telecommunications conferees are currently assessing how best to protect children and others from exposure to offensive or dangerous on-line material. The conferees are considering two sharply different proposals.

The Exon-Coats amendment adopted by the Senate requires the FCC to regulate cyber-speech -- policing all obscene, lewd, lascivious, filthy or indecent material. Violators of this nebulous standard could receive fines as high as $100,000 and jail sentences of up to two years.

The Cox-Wyden-White amendment adopted by the House of Representatives explicitly bars the FCC from regulating in any way communications on the Internet. Instead, it frees on-line service providers from legal obstacles that heretofore have prevented these companies from screening and filtering content as they see fit, or empowering their customers to do so.

We are writing to express our strong support for the Cox-Wyden-White approach. Intrusive content regulation of cyber-speech will unduly chill free expression and needlessly undermine the vitality of the on-line/Internet market at the very time that the marketplace is addressing the concerns that motivate the supporters of the Exon/Coats amendment.

We believe that any new law in this area should:

• recognize the important societal interest in fostering free expression;
• clearly identify proscribed content;
• target and punish active wrongdoers, not passive actors such as access and service providers;
• when in doubt, favor the market over government intervention;
• recognize that cyberspace is an evolving market with enormous potential to benefit all Americans; and,
• build on strong market incentives for on-line and other firms to empower parents to control the material their families receive.

We urge all conferees to examine carefully the marketplace solutions that are available today or will be in the very near future before rushing headlong into regulating this nascent industry. Software that blocks out obscene and indecent content is already available and is rapidly being improved. It is offered to subscribers at no additional cost by companies such as America Online, Inc. An industry consortium working with MIT will soon make available standard protocols that will permit individuals and third parties to screen and filter out any objectionable content on the Internet.

While we are all still discovering the true potential of the Internet and on-line services, there can be little doubt that intrusive regulation is unnecessary and will have unintended effects. We urge the conferees to give due weight to First Amendment concerns as they grapple with these important issues. The fundamental issues implicated in this first attempt to regulate content in cyberspace are not new. The same balancing of interests in free speech against interests in suppressing obscene or otherwise unprotected speech have long been debated for print media. There is no good policy reason, nor any principled legal justification, for treating closed electronic media like on-line services any differently.

Sincerely,

Robert W. Crandall, Ph.D. Senior Fellow, Brookings Institution
Former Advisor, Office of Commissioner Glen Robinson, Federal Communications Commission

Robert Corn-Revere Adjunct Scholar, CATO Institute
Partner, Hogan & Hartson, L.L.P.
Former Chief Counsel, Office of Interim Chairman James H. Quello, FCC Commission

Jeffrey Eisenach, Ph.D. President, The Progress & Freedom Foundation Former Senior Economist, Federal Trade Commission

James L. Gattuso, Esq. Vice President for Policy Development, Citizens for a Sound Economy Former Deputy Chief, Office of Plans and Policy, Federal Communications Commission Adam D. Thierer Alex C. Walker Fellow, Heritage Foundation Thomas W. Hazlett, Ph.D. Visiting Scholar, American Enterprise Institute Professor, University of California, Davis Former Chief Economist, Federal Communications Commission Peter W. Huber, Esq. Senior Fellow, The Manhattan Institute Partner, Kellogg, Huber, Hansen, Todd & Evans, P.L.L.C. George A. Keyworth II Chairman, The Progress & Freedom Foundation Grover G. Norquist President, Americans for Tax Reform Peter K. Pitsch Adjunct Fellow, The Progress & Freedom Foundation Former Chief of Staff, Office of Chairman Dennis R. Patrick, Federal Communications Commission J. Gregory Sidak, Esq. F.K. Weyerhaeuser Chair in Law and Economics, American Enterprise Institute Former Deputy General Counsel, Federal Communications Commission (Titles used for identification purposes only)