Date: Mon, 27 Mar 1995 12:42:35 -0500
Posted-Date: Mon, 27 Mar 1995 12:42:35 -0500
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From: farber@central.cis.upenn.edu (Dave Farber)
Subject: EFF Statement on Gorton/Exon "Communications Decency" Amendment 
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To: interesting-people@eff.org (interesting-people mailing list)
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Communications Decency Act Passes Senate Commerce Committee
-----------------------------------------------------------

Electronic Frontier Foundation - March 25, 1995  -  Distribute widely


March 23, 1995, the Senate Commerce Committee passed telecom legislation 
that included an amended version of the Communications Decency Act of 
1995, commonly known as "the Exon Amendment." This draft was introduced 
by Sen. Slade Gorton (R-VT). The Electronic Frontier Foundation (EFF) 
opposes the inclusion of the "decency" provisions in this legislation for 
the following reasons:


* The bill places operators of smaller systems at risk.

While the new version of the bill seems to attempt to protect large
information service providers by including a list of available defenses,
smaller bulletin board systems (BBSs) and other information services
that cannot afford to assert these defenses in court are left without any
protection at all.  Operators of smaller, local systems will be unable to
test the line where constitutional speech ends and criminal speech begins.
These small businesses of the online world are put at a competitive
disadvantage.

Also, protections such as lack of editorial control (Section 402[d][2])
may not apply to the majority of bulletin board systems and many other
online services that provide content as well as conduit, nor to systems that
present certain types of moderated forums.

The ambiguity of the coverage and defenses leaves gaps that raise
serious constitutional issues.  In 1989, the Supreme Court in
_Sable_Communications_v._FCC_ established that indecent material cannot be
banned entirely, and that prohibiting indecency to protect minors
is an unconstitutional violation of the free speech rights of adults.
The prohibition of "filthy" speech has no legal authority whatsoever.

The Gorton/Exon amendment may fail to distinguish between consensual and
non-consensual activities, and between private and public communications.
A steamy love note sent privately between spouses could be a criminal
violation of this statute, and there may be a potential for system
operators to be held liable for failing to label users' private email as
"filthy".

Finally, the Communications Decency bill attempts to apply to online
media many restrictions that do not apply to printed or verbal expression.
Transmitting an online version of a "lascivious" book could subject the
sender to unreasonable fines and imprisonment, while mailing the book in
hardcopy or reading aloud from the book would be protected under the
First Amendment.


* The bill is vague and leaves system operators open to prosecution under
  diverse community standards.

The bill does not define "obscene" communications, leaving individual
states to assert their own definition of community standards and to prosecute
system operators maintaining systems anywhere in the country.

_U.S._v._Thomas_, a case currently under appeal in Memphis federal
court - in which two system operators running a BBS in California were
convicted of obscenity charges after a federal officer dialed in from
Tennessee and downloaded material from the BBS - clearly illustrates the
danger of leaving terms like "obscenity" undefined in an online world.

Also, passages such as "to provide users with the means to restrict
access to communications" (Section 402[d][3][A]) are so vague that the
entire Internet is already either in violation or in compliance,
depending upon interpretation. Such failures to express clearly the
extent and nature of the defenses would allow prosecutors to claim and
"prove" virtually any lack of such means to restrict access given a
sympathetic court, leaving system operators attempting to comply with the
law little guidance on how to avoid being brought up on criminal charges.


* The bill would negate the rights of adults to choose what to read and
  with whom to associate, as well as the rights of parents to decide what
  is and is not appropriate for their own children.

EFF supports the ability of online communities to establish their own
standards and to self-regulate content as a more reasonable and realistic
model of dealing with potential problems of online subject matter.
Parents can direct their children to areas of age-appropriate material
online, where participants, including parents, engage in "neighborhood
watch" activities to limit possibly offensive content.  "Filtering"
technologies already in development and use by online services can further
help to ensure that parents can restrict their own children's access to
electronically-distributed materials.

In general, passing restrictive laws is not the way to solve problems with
rapidly evolving technologies like telecommunications - particularly when
the laws are based on obsolete regulations of wholly different media.
It is ironic that the Gorton/Exon amendment, which would chill the
development of online services and communities, has been attached to a
bill deregulating communications infrastructure. This deregulation
has been presented as a boost to the pace of development of the very
technology to support these services and communities.

EFF believes that parents, not Congress or the FCC, have the right and
responsibility to determine what is appropriate for their children to
see, and we do not think Congress should make outlaws out of adults for
engaging in speech that may not be suitable for minors.  As Supreme
Court Justice Felix Frankfurter ruled in _Butler_v._Michigan_ in 1957:

  The State insists that, by thus quarantining the general reading public
  against books not too rugged for grown men and women in order to shield
  juvenile innocence, it is exercising its power to promote the general
  welfare. Surely this is to burn the house to roast the pig...The incidence
  of this enactment is to reduce the adult population of Michigan to
  reading only what is fit for children.


For amendment text, updates and action alerts, see:
ftp.eff.org, /pub/Alerts/
gopher.eff.org, 1/Alerts
http://www.eff.org/pub/Alerts/

For more information, contact the Electronic Frontier Foundation
ask@eff.org
+1 202 861 7700 (voice), +1 202 861 1258 (fax)