IP: CDA Passes, Clinton Expected to Sign, CDT Plans Court

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

  The Center for Democracy and Technology  /____/     Volume 2, Number 5


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(1) Congress Passes Online Indecency Bill, Clinton Expected to Sign,
    CDT Plans Court Challenge


By overwhelming margins in both the House and Senate, Congress today (2/1)
approved legislation to dramatically restrict the First Amendment rights of
Internet users.  With this act of Congress, the very same materials which
are legally available today in book stores and libraries would be illegal
if posted on World Wide Web sites or usenet newsgroups. If signed by
President Clinton as expected, this bill will transform the Internet
overnight from the freest communications medium to the most heavily
regulated medium in the United States.


CDT believes this legislation is unconstitutional. We are committed to
challenging it in the courts at the earliest possible opportunity.


Despite the sustained effort over the past 12 months by Senators Leahy
(D-VT), Feingold (D-WI), and Representatives Chris Cox (R-CA), Rick White
(R-WA), and Ron Wyden (D-OR) to defeat the bill, the House passed the
measure on a vote of 414 - 16, while the Senate concurred a few hours later
on a vote of 91 - 5. Ironically, the vote comes exactly one year to the day
that Senator Exon (D-NE) originally introduced the proposal (2/1/95).


CONGRESS MAKES CRIMINALS OF MOST INTERNET USERS


The Communications Decency Act, enacted as part of a massive
telecommunications reform legislation, will impose $250,000 fines and
prison terms for anyone who posts "indecent" material, including the "7
dirty words", the text of classic works of fiction such as The Catcher In
The Rye or Ulysses, artwork containing images of nudes, or rap lyrics, in a
public forum.


CDT strongly opposes this legislation. We believe the bill threatens the
very existence of the Internet as a means for free expression, education,
and political discourse. The bill is an unwarranted, unconstitutional
intrusion by the Federal government into the private lives of all
Americans.


Although the free speech rights of Internet users and the free flow of
information online received a major setback today, the battle is far from
over.  President Clinton is expected to sign the legislation in the coming
days.  Several civil liberties and public interest advocacy groups,
including CDT, People for the American Way, EFF, and the ACLU are already
preparing to challenge these new restrictions in court.  Other affected
entities, including commercial content providers, Internet Service
Providers, and the commercial online services industries, are also expected
to mount court challenges to this legislation.  CDT is confident that the
courts will find the Communications Decency Act unconstitutional and reject
it outright.


INTERNET COMMUNITY ACTIVISM MADE A CRITICAL DIFFERENCE


Although the CDA passed by Congress today represents a significant threat
to the viability of the Internet and the free speech rights of individual
users, the efforts of the Internet.community to mobilize against the bill
kept it from being a lot worse.


The Christian Coalition, with the support of House Judiciary Committee
Chairman Henry Hyde (R-IL), fought hard to hold online service providers
criminally liable for materials generated by their subscribers.
Fortunately, these efforts were not successful. Holding providers liable
would have forced them to pre-screen all material on their networks, or,
worse yet, shut down entire parts of their services for fear of massive
fines and prison sentences. The Christian Coalition was also unsuccessful
in their efforts to remove provisions encouraging the development and
deployment of parental control applications.


Due to the efforts of the 115,000 Internet users who signed the petition
against the CDA, the more than 20,000 users who in one day flooded Congress
with phone calls, faxes, and email messages, and those who throughout 1995
regularly called their Congresspeople to express concerns about the various
proposals, the Internet community showed itself to be a true political
force with real influence over the legislative process.  Although we did
not accomplish all of our most important objectives, we have become a
powerful force.  This is not the last time Congress will consider issues
vital to the interests of Internet users across the United States. We must
never loose sight of the fact that, despite the apparent defeat today,
there is still a tremendous amount of work to be done.


SEVERAL KEY MEMBERS OF CONGRESS FOUGHT FOR THE RIGHTS OF INTERNET USERS


Although a majority of Congress today demonstrated a complete lack of
understanding of the Internet and the implications of the Communications
Decency Act, several members deserve credit for standing up for freedom of
speech and the free flow of information online.


During the course of the debate over the last year on the CDA, Senators
Patrick Leahy (D-VT) and Russ Feingold (D-WI), along with Representatives
Chris Cox (R-CA), Rick White (R-WA), Michael Oxley (R-OH), Ron Wyden
(D-OR), and Ed Markey (D-MA), showed courage and conviction by working to
support enlightened alternatives to government content restrictions.  These
members have shown themselves to be friends of the Internet, and we look
forward to working with them on other issues which lie ahead.


ANALYSIS OF THE COMMUNICATIONS DECENCY ACT PASSED TODAY


The legislation approved today was not changed from a previous version
released December 21, 1995 (See CDT Policy Post No. 33).  Briefly, the
proposal contains several troubling elements.  Among other things, the
bill:


* Relies on the vague and blatantly unconstitutional "indecency"
  standard (Sec 502 (a) - (c))


* Prohibits sending "indecent" material directly to a minor or making
  indecent material available for display in a manner available to a
  minor (including World Wide Web pages, ftp sites, or usenet
  newsgroups) (Sec 502 (d)).


* No longer contains the provision of the Cox/Wyden/White bill
  prohibiting the FCC from imposing content or other regulations on the
  Internet or other interactive media.


* Would allow states to impose additional restrictions on non-commercial
  activities such as free-nets, BBS's, and non-profit content providers
  (Sec 502 (h)).


* Creates a new crime for the solicitation of minors using a computer,
  the US mail, or any other means of interstate or foreign commerce (Sec
  508).


The full text of the bill, along with other relevant background information
(including final vote tallies when available) can be found at CDT's
Internet Censorship Issues Web Page (http://www.cdt.org/cda.html).


As CDT prepares to fight this issue in court, we will continue to update
you on our progress as information becomes available.


For More Information Contact:


Jerry Berman, Executive Director <jberman () cdt org>
Daniel Weitzner, Deputy Director <djw () cdt org>


+1.202.637.9800