December 5, 1995
Parody is becoming reality, I refer to the debate going on in the Telecommunications conference over how to impose government regulation over constitutionally protected indecent speech on the Internet.
Last year, the magazine PC Computing published an April Fool's parody saying that I had introduced a bill, number 040194-- for April 1, 1994---to ban drinking on the Information Superhighway. According to the article, the imagined bill would prohibit anyone from using a public computer network while intoxicated. The article also noted that a rider was added onto this imagined bill to make "it a felony to discuss sexual matters on any public-access network, including the Internet, American Online, and CompuServe." Senators were chided for thinking there is a physical highway and that a permit was required to "drive" a modem on the Information Highway. The article noted that complaints about the imagined bill are "getting nowhere" because "Who wants to come out and support drunkenness and computer sex?" The parody concludes on a gloomy note, with the following words:
"there is nothing to stop this bill from becoming law. You can register your protests with your congressperson or Mr. Lirpa Sloof in the Senate Legislative Analysts Office. Her name spelled backward says it all."
The name spelled backwards is "April Fools." But many readers could not spell backwards, and thought this was a real article. Unfortunately for my staff, many of those readers called my office outraged at the intrusiveness of the bill.
Unfortunately for all Internet users, the debate taking place in the telecommunications conference about imposing far-reaching new federal crimes for indecent speech over the Internet is not a parody but very real.
The Telecommunications Conference has been meeting over the past few weeks with the enormous task of changing our communications laws to allow new competition among phone companies, broadcasters, cable operators and the wireless systems while also protecting universal service and other appropriate consumer protections. You would think they would have their hands full with just that task.
Yet, they are also looking at new federal crimes, despite the absence of any Senate Judiciary Committee Members on the conference. As part of the telecommunications bill, the Senate passed the Exon-Coats "Communication Decency Act," which would punish with two-year jail terms any Internet user who posted a message with indecent language or used a four-letter word in a message to a minor. Service providers would also risk criminal language, unless the provider adheres to a federally-mandated blocking technology. The Christian Coalition has complained that these provisions do not go far enough, and is urging the conferees to make the proposed crimes even tougher.
We should not underestimate the effect that the heavy-hand of government regulation will have on the future growth of the Internet. The legislation has not even passed and we are seeing that just the threat of it is already having a chilling effect on the Internet. Last week, a Vermonter from Underhill, Vermont found that her personal profile on America Online had been deleted because she used vulgar words. In fact, she used AOL to communicate with other breast cancer survivors. what was the vulgar word she had used? BREAST. After many angry complaints, AOL apologized and again allowed the word to be used by its subscribers when "appropriate."
One wonders if, in the future, recipes for Chicken Cacciatore sent online will only call for dark meat to avoid using the dreaded "B-" word.
I understand that proposals are being made to the telecommunications conference that would impose even more draconian restrictions for online speech than those passed in the Exon-Coats "Communications Decency Act." Make no mistake, we already have crimes on the books that apply to the Internet, by banning obscenity, child pornography, and threats from being distributed over computers.
Unlike these current laws, which do not regulate constitutionally protected speech, certain proposals being considered by the telecommunications conference do. One proposal would impose criminal penalties on anyone who transmits indecency--which is protected by the First Amendment--on the Internet. While the proponents of the proposals claim that they do not "ban" indecency--only prohibit making it available to minors--the practical result of such a restriction on the Internet is the complete criminalization of all indecent speech.
Because indecency means very different things to different people, an unimaginable amount of valuable political, artistic, scientific and other speech will disappear in this new medium. What about, for example, the university health service that posts information online about birth control and protections against the spread of AIDS? With many students in college under 18, this information would likely disappear under threat of prosecution. In bookstores and on library shelves the protection of indecent speech is clear, and the courts are unwavering. Why are some of our colleagues trying to alter the protection of the Fist Amendment here and cripple this new mode of communication?
In addition to effectively banning indecent speech, the conference is considering proposals to impose criminal liability on both the "speakers" of indecent content as well as online service providers. The result would be to draft the service providers into the role of "Net police." Service providers like America Online and Prodigy, telephone companies providing modem connections, and libraries and schools hooking our nation's children up to this brilliant new medium would face the risk of being fined and even jailed.
To avoid liability, service providers, libraries and schools would bear the onus of asserting complicated defenses to prosecution. The implications of being hauled into court in the first place--especially for schools and libraries-- should not go unnoticed. Many providers will seek to avoid the risk of litigation altogether by censoring all online speech to that appropriate for Kindergarten children, or refusing to serve children at all.
These extreme proposals on the table in the telecommunications conference would leave online communications in a severely disadvantaged position in our society. While Newsweek magazine's recent cover story trumpeted the vision of the computer mogul Bill Gates, the U.S. Congress is simultaneously poised to shut down this new medium and vastly change the landscape of the "information age." We must stop being paternalistic luddites and embrace our new communications potential.
I understand that Representative White will make an alternative proposal to the telecommunications conference tomorrow. His proposal avoids regulating constitutionally protected speech, and limits any regulation to materials "harmful to minors." This is a bit of a step in the right direction, but still leaves Internet users guessing at what may be considered harmful to minors in different areas of this diverse country.
The Internet and other computer networks hold enormous promise for enhancing our lives in ways that would have been unthinkable only a brief decade ago. But the growth of this network will no doubt be chilled if users fear that they risk criminal liability by using particular words that might, in some jurisdictions, be considered indecent. Or, if service providers simply refuse to provide Internet access to children under 18 years of age, due to the risk of criminal liability.
I have written, along with several other Members, to the Chairman and Ranking Member of the Senate Commerce Committee urging the conferees to appreciate the implications that these proposals will have for the Internet. They should not rush consideration of these weighty issues. This is a great new communications medium and the conference should deliberate carefully before it gives its blessing to new crimes, for saying things that some people, some where in this country, may deem to be indecent for children.
We should all be concerned lest the parody becomes a reality.