CDT POLICY POST No.7 -- SENATOR LEAHY STATES STRONG OPPOSITION TO EXON AMENDMENT -- CENTER FOR DEMO

[Dave Farber <>]

From: djw () cdt org (Daniel J. Weitzner)


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  A briefing on public policy issues affecting civil liberties online
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CDT POLICY POST 3/30/95                                      Number 7




The Center for Democracy and Technology is pleased to distribute this
statement delivered by Senator Patrick Leahy (D-VT) on the floor of the
Senate today.  Leahy makes clear his opposition to the bill, explains that
the Exon approach is the wrong way to regulate interactive media, and
declares that the bill would threaten the free speech and privacy rights of
all users of interactive services.  


At the close of his statement, Senator Leahy calls on the Interactive
Working Group (an ad hoc group of civil liberties and
computer/telecommunications industry groups coordinated by CDT) to explore
alternatives to the Exon bill.  We are delighted to have such a strong
civil liberties advocate on our side in the struggle over protecting and
defining free speech in interactive media.




STATEMENT OF SENATOR LEAHY
ON CENSORING CYBERSPACE


MARCH 30, 1995


Mr. President:  I rise today to speak about legislation that would *impose*
government regulation on the content of communications transmitted over
computer networks.  Ironically, this legislation was accepted without
debate by the Commerce Committee as an amendment to a draft
telecommunications bill whose purported purpose is to *remove* regulation
from significant parts of the telecommunications industry.  It is rumored
that this matter could be headed for consideration by the Senate on Monday,
although the bill has yet to be introduced and the Commerce Committee has
yet to issue its report on the measure.


        There is no question that we are now living through a revolution in
telecommunications with cheaper, easier to use and faster ways to
communicate electronically with people within our own homes and
communities, and around the globe.


        A byproduct of this technical revolution is that supervising our
children takes on a new dimension of responsibility.  Very young children
are so adept with computers that they can sit at a keypad in front of a
computer screen at home or at school and connect to the outside world
through the Internet or some other on-line service.  Many of us are, thus,
justifiably concerned about the accessibility of obscene and indecent
materials on-line and the ability of parents to monitor and control the
materials to which their children are exposed.  But government regulation
of the content of all computer communications, even private communications,
in violation of the First Amendment is not the answer-- it is merely a
knee-jerk response.


        Although well-intentioned, my good friend from Nebraska, Senator
Exon, is championing an approach that I believe unnecessarily intrudes into
personal privacy, restricts freedoms and upsets legitimate law enforcement
needs.  He successfully offered the Commerce Committee an amendment that
would make it a felony to send certain kinds of communications over
computer networks, even though some of these communications are otherwise
constitutionally protected speech under the First Amendment.  This
amendment would chill free speech and the free flow of information over the
Internet and computer networks, and undo important privacy protections for
computer communications.  At the same time, this amendment would undermine
law enforcement's most important tool for policing cyberspace by
prohibiting the use of court-authorized wiretaps for any "digital
communications".


        Under this Exon Amendment, those of us who are users of computer
e-mail and other network systems would have to speak as if we were in
Sunday School every time we went on-line.  I, too, support raising our
level of civility in communications in this country, but not with a
government sanction and possible prison sentence when someone uses an
expletive.  The Exon amendment makes it a felony punishable by two years
imprisonment to send a personal e-mail message to a friend with "obscene,
lewd, lascivious, filthy, or indecent" words in it.  This penalty adds new
meaning to the adage, "Think twice before you speak."  All users of
Internet and other information services would have to clean up their
language when they go on-line, whether or not they are communicating with
children.


        It would turn into criminals people, who in the privacy of their
own homes, download racy fiction or "indecent" photographs.  This would
have a significant chilling effect on the free flow of communications over
the Internet and other computer networks.  Furthermore, banning the use of
"lewd, filthy, lascivious or indecent words, which fall under
constitutional protection, raises significant First Amendment problems.


        Meanwhile, the amendment is crafted to protect the companies who
provide us with service.  They are given special defenses to avoid criminal
liability.  Such defenses may unintentionally encourage conduct that is
wrong and borders on the illegal.


        For example, the amendment would exempt those who exercise no
editorial control over content.  This would have the perverse effect of
stopping responsible electronic bulletin board system (BBS) operators from
screening the boards for hate speech, obscenity and other offensive
material.  Since such screening is just the sort of editorial control that
could land BBS operators in jail for two years if they happened to miss a
bit of obscenity put up on a board, they will avoid it like the plague. 
Thus, this amendment stops responsible screening by BBS operators.


        On the other hand, another defense rewards with complete immunity
any service provider who goes snooping for smut through private messages. 
According to the language of the amendment, on-line providers who take
steps "to restrict or prevent the transmission of, or access to" obscene,
lewd, filthy, lascivious, or indecent communications are not only protected
from criminal liability but also from any civil suit for invasion of
privacy by a subscriber.  We will thereby deputize and immunize others to
eavesdrop on private communications.  Overzealous service providers, in the
guise of the smut police, could censor with impunity private e-mail
messages or prevent a user from downloading material deemed "indecent" by
the service provider.


        I have worked hard over my years in the Senate to pass bipartisan
legislation to increase the privacy protections for personal communcations
over telephones and on computer networks.  With the Exon amendment, I see
how easily all that work can be undone -- without a hearing or even
consideration by the Judiciary Committee, which has jurisdiction over
criminal laws and constitutional matters such as rights of privacy and free
speech.


        Rather than invade the privacy of subscribers, one Vermonter told
me he would simply stop offering any e-mail services or Internet access. 
The Physician's Computer Company in Essex Junction, Vermont, provides
Internet access, e-mail services and medical record tracking services to
pediatricians around the country.  The President of this company let me
know that if this amendment became law, he feared it would "cause us to
lose a significant amount of business."  We should be encouraging these new
high-tech businesses, and not be imposing broad-brush criminal liability in
ways that stifle business in this growth industry.


        These efforts to regulate obscenity on interactive information
services will only stifle the free flow of information and discourage the
robust development of new information services.  If users realize that to
avoid criminal liability under this amendment, the information service
provider is routinely accessing and checking their private communications
for obscene, filthy or lewd language or photographs, they will avoid using
the system.


        I am also concerned that the Exon Amendment would totally undermine
the legal authority for law enforcement to use court-authorized wiretaps,
one of the most significant tools in law enforcement's arsenal for fighting
crime.  The Exon Amendment would impose blanket prohibition on wiretapping
"digital communications."  No exceptions allowed.


        This means that parents of a kidnapping victim could not agree to
have the FBI listen in on calls with the kidnapper, if these calls were
carried in a digital mode.  Or, that the FBI could not get a court order to
wiretap the future John Gotti, if his communications were digital.  Many of
us worked very hard over the last several years and, in particular, during
the last Congress, with law enforcement and privacy advocates to craft a
carefully balanced digital telephony law the increased privacy protections
while allowing legitimate law enforcement wiretaps.  That work will be
undercut by the amendment.  Our efforts to protect kids from on-line
obscenity need not gut one of the most important tools the policy have to
catch crooks, including on-line criminals, their ability to effectuate
court-ordered wiretaps.


        The problem of policing the Internet is complex and involves many
important issues.  We need to protect copyrighted materials from illegal
copying.  We need to protect privacy.  And we need to help parents protect
their children.


        I have asked a coalition of industry and civil liberties groups,
called the Interactive Working Group, to address the legal and technical
issues for policing electronic interactive services.  Instead of rushing to
regulate the content of information services with the Exon amendment, we
should encourage the development of technology that gives parents and other
consumers the ability to control the information that can be accessed over
a modem.


        Empowering parents to control what their kids access over the
Internet and enabling creators to protect their intellectual property from
copyright infringement with technology under their control is far
preferable to criminalizing users or deputizing information service
providers as smut police.


        Let's see what this coalition comes up with before we start
imposing liability in ways that could severely damage electronic
communications systems, sweep away important constitutional rights, and
undercut law enforcement at the same time.


        We should avoid quick fixes today that would interrupt and limit
the rapid evolution of electronic information systems -- for the public
benefit far exceeds the problems it invariably creates by the force of its
momentum.