IP: Hse. Conferees Set To Vote On Fate of Net

[Dave Farber <farber () central cis upenn edu>]

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  **        **      **      ***               POLICY POST
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  **        **      **      ***               December 4, 1995
  **        **      **      ***               Number 31
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  A briefing on public policy issues affecting civil liberties online
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CDT POLICY POST Number 31                      December 4, 1995


CONTENTS: (1) House Conferees to Vote Wednesday on Fate of Net
          (2) How To Subscribe To The CDT Policy Post Distribution List
          (3) About CDT, Contacting Us


This document may be re-distributed freely provided it remains in its
entirety. Excerpts may be re-posted by permission (editor () cdt org)
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(1) HOUSE CONFEREES TO VOTE WEDNESDAY ON FATE OF THE NET


On Wednesday December 6, members of the House conference committee will
vote on how to deal with the controversial "cyberporn" issue. The full
House/Senate conference committee will consider the issue within the next
two weeks.


After months of contentious debate, the conferees must now choose between
two proposals: one proposal sponsored by Representative Henry Hyde (R-IL)
and an alternative proposed by Rep. Rick White (R-WA).  The Hyde proposal
would severely restrict freedom of speech on the Internet, and grant the
Federal Communications Commission new authority to regulate online content.
The White proposal relies on parents, not federal bureaucrats, to determine
what material is and is not appropriate for themselves and their children,
though it also imposes new criminal penalties for individuals who transmit
material that is "harmful to minors".


The outcome of this decision will have tremendous implications on the
future of freedom of expression and the development of interactive media as
a whole. If the Hyde proposal prevails, the Internet as we know it will
never be the same.


CDT firmly believes that no new laws in this area are necessary. Current
law is already working to punish online stalkers and prosecute the
distribution of obscene material online. However, choosing nothing is not
an option available to the Conference Committee. Given the options before
the committee, CDT believes that the effort of Congressman White should be
commended. He has tried to find a resolution to this issue which preserves
freedom of speech and relies on user empowerment over government control of
online content. Rep. White's proposal represents the only option on the
table which will not destroy the Internet and the future of interactive
communications technologies. Although this is a difficult choice for the
Net.Community, White must prevail at this stage.


The Hyde proposal, which is being pushed heavily by the Christian
Coalition, would severely restrict freedom of speech and the democratic
potential of the Internet and other interactive media. It fails to
recognize the global, decentralized nature of interactive media and its
tremendous ability for user control. The proposal would be wholly
ineffective at accomplishing its stated objective of protecting children
from objectionable material, while destroying the Internet in the process.


If the conferees choose Hyde's approach over White, the Federal
Communications Commission will, for the first time ever, have the authority
to regulate online content and the underlying technologies of the net
itself. In addition, the First Amendment and the free flow of information
online will be chilled by an overly broad "indecency" standard. Online
service providers will be forced to monitor all traffic to ensure that no
"indecent" material is transmitted (creating a nightmare for freedom of
speech and privacy), or shut down some service all together for fear of
expensive law suits or prison sentences. And although all these provisions
can be challenged in court, recent history with the so-called "dial-a-porn"
and indecency an cable channels (Alliance for Community Media vs. FCC)
suggest that such challenges can take years to resolve, and even then with
no guarantee of success.


Representative White's approach seeks to protect cyberspace from intrusion
by the federal government, and to empower parents to make decisions about
what is and is not appropriate for themselves and for their children. While
the proposal does contain new criminal provisions, including restrictions
on the display of material that is "harmful to minors", it also creates a
defense to prosecution for those who take good faith, reasonable efforts to
label content and enable others to block it using user control
technologies.


The fate of the Net, and the future of freedom of speech and the democratic
potential of interactive media, now rests in the hands of the conference
committee members.


OVERVIEW OF THE HYDE AND WHITE PROPOSALS


I.  THE HYDE PROPOSAL


Representative Hyde is pushing an unconstitutional and overly regulatory
proposal which would criminalize the transmission and display of "indecent
material" (a broad classification which includes everything from the
so-called '7 dirty words' to classic works of fiction such as The Catcher
In the Rye and Ulysses), hold carriers liable for material created by their
subscribers, and grant the Federal Government broad new authority over
online content and the underlying technologies of the Internet. The Hyde
proposal has been endorsed by the Christian Coalition and other members of
the "religious-right".


Among other things, the Hyde proposal would:


1. Create $100,000 fines and 2 year jail terms for anyone who makes or
   makes available any indecent material to a minor (Sec 402 (d)).


2. Grant the FCC broad authority over on line speech and over online
   technology (Sec (e)(1))


3. Criminalize the transmission or display of indecent material to
   anyone under 18 years of age (Amendment to 18 USC 1465),


4. Not pre-empt state from passing even more restrictive, or even
   inconsistent, regulations.


See CDT Policy Post No. 30 (December 1, 1995) for a detailed description of
the Hyde proposal. For more information, including the text of the Hyde
proposal and other relevant documents, visit CDT's net-censorship issues
page (http://www.cdt.org/cda.html)


II.  THE WHITE PROPOSAL


The proposal offered by Representative White, an original co-sponsor of the
Cox/Wyden/White "Internet Freedom and Family Empowerment" Amendment, is
based on the user empowerment aspects of the original Cox/Wyden/White
amendment.


The White proposal substitutes the narrower "harmful to minors" standard
for "indecency", and prohibits the FCC from imposing content regulations on
online speech and from meddling in the underlying technologies of the
Internet.  While the White proposal does prohibit the "display" of material
that is harmful to minors online, it creates a defense for those who take
good faith, reasonable steps, to labile content and enable users to block
or objectionable material using user control technologies (such as
SurfWatch, the Parental Control features of AOL or Prodigy, or the PICS
standards being developed by MIT and the World Wide Web Consortium).


Briefly, the White proposal would:


1. Prohibit intentionally sending material that is harmful to minors
   directly to a to someone the sender knows is a minor,


2. Prohibit the display of material that is harmful to minors. However,
   content providers (including individual users) would be immune to
   prosecution if they have taken good faith, reasonable efforts to
   labile their content and enable it to be blocked or filtered by others
   (The MIT/World Wide Web consortium's PICS would be one example),


3. Prohibit the FCC from regulating content on or the technologies of
   the Internet and other interactive media,


4. Pre-empt inconsistent state laws, although this provision would not
   apply to individuals, non-profit providers of interactive computer
   services (such as BBS's or freenets), or non-profit organizations.


5. Clarify the House-passed Cox/Wyden/White to ensure that it does
   inadvertently create loopholes in ECPA or other privacy laws,


6. Protect online service providers from vicarious liability for
   transmitting their subscribers messages or for merely providing
   access to the Internet.


III. BACKGROUND ON THE "HARMFUL TO MINORS" STANDARD


White's proposal would prohibit sending material that is "harmful to
minors" directly to a minor, as well as prohibit the display of material
that is "harmful to minors" unless good faith, reasonable steps to labile
and enable others to block access to such material.


Harmful to minors is an intermediate standard between indecency and
obscenity. It is essentially material that is obscene to a minor. It has
been used in 48 state statutes and has been ruled constitutional by the
Supreme Court. It is defined as follows:


"'harmful to minors' means any communications or material that is obscene
or that:


   (a)  taken as a whole, and with respect to minors, appeals to a
          prurient interest in nudity, sex, or excretion;


   (b)  depicts, represents, or describes in a patently offensive way
        with respect to what is suitable for minors, ultimate sexual
        acts, normal or perverted, actual or simulated, sado-masochistic
        acts or abuse; or lewd exhibition of the genitals, pubic area,
        buttocks, or post-putertal female breasts; and


   (c)  taken as a whole, lacks serious literary, artistic, political,
        or scientific value for minors.


Materials that would be acceptable under this standard include the text of
Catcher in the Rye, Ulysses, the use of the "7 dirty words" in context, and
works of art which contain nudity. These same materials would be prohibited
under an "indecency" standard.


NEXT STEPS


Once the House conferees vote on Wednesday, the full House/Senate
conference committee will consider the issue. If the House conferees accept
the White proposal, there will be additional opportunities to clarify and
strengthen the proposal. However, if Hyde prevails, the entire battle will
be lost.


In addition to the "cyberporn issue", there are several other issues in the
telecommunications bill which the conferees much resolve, including
competition in the long distance market, cable rate regulation, and
universal service, to name a few. The Republican leadership has reportedly
instructed the conferees to finish all remaining issues this week and to
have the final bill ready for the full House and Senate during the week of
December 11. It is not clear whether this deadline can actually be met
given the range of unresolved issues, but the House and Senate leadership
appear committed to the timeline.


CDT will keep you informed of developments on this issue as they occur. We
will also post the text of the White proposal on our net-censorship web
page as soon as a final copy is available (we expect it to be posted by
Tuesday afternoon 12/5).


For more information, visit CDT's net-censorship issues page:


  http://www.cdt.org/cda.html


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End Policy Post No. 31                                        12/4/95
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