of last resort, definitely not one of first resort. d/ - ------------------- Dave Crocker Brandenburg Consulting Phone: +1 408 246 8253 675 Spruce Dr. Fax: +1 408 249 6205 Sunnyvale, CA 94086 Email: dcrocker@mordor.stanford.edu ------------------------------ Date: Wed, 7 Sep 1994 10:10:59 -0500 From: bsuthoff@sprintlink.net (Brian Suthoff) To: com-priv@psi.com Cc: sreardon@smtp.ema.org Subject: S.1822 & H.R. 3626 Analysis The following analysis was originally distributed by the ELECTRONIC MESSAGING ASSOCIATION and has been re-posted with permission. DISCLAIMER: Sprint does not _necessarily_ support the EMA's analysis. This information is being distributed for information dissemination purposes only. ==================== forwarded message ==================== I. SUMMARY - ------------ S. 1822, The telecommunications bill reported from the Senate Commerce Committee on August 11, 1994, contains provisions introduced by Sen. Exon (D-NE) to curtai transmission of obscene, indecent, or harassing, telecommunications. Although ostensibly simply extending existing federal prohibitions on obscene or harassing telephone calls to other telecommunications devices, these provisions would greatly expand prohibited conduct and would potentially make employers, service providers, and carriers liable for transmission of restricted communications. - ------------- II. ANALYSI - ------------- S. 1822, the Communications Act of 1994, as reported by the Senate Commerce, Science, and Transportation Committee on August 11, 1994 contains Title VIII, "Obscene, Harassing, and Wrongful Utilization of Telecommunications Facilities," introduced by Senator Exon. Senator Exon's interest in such provisions was reportedly spurred by reports of electronic stalking on the Internet. The Exon provisions address obscenity on radio and cable television, but of particular interest to EMA are Sec. 801, on obscene or harassing use of telecommunications facilities, and Sec. 804, which extends the Electronic Communications Privacy Act (ECPA) to include digital communications According to Sen. Exon's CONGRESSIONAL RECORD statement, Title VIII is intended to "update[] for the digital world of the future" the anti-harassment, decency, and anti-obscenity restrictions on telephone calls in current law, applying these restrictions equally to all telecommunications devices. The Exon provisions of S. 1822 would not, however, simply apply existing law to new telecommunications devices. Because of differences between existing telephon technology and telecommunications technology such a electronic messaging, the Exon provisions would potentially prohibit a wide array of currently allowed electronic communications. Furthermore, the Exon provisions would broaden existing law by subjecting transmitters, as well a the individuals who send obscene or harassing communications, to criminal liability. A. RESTRICTIONS ON NONCONSENSUAL INDECENC AND HARASSMENT (SEC. 223 (A) Current law, as codified in Sec. 223 (a) of th Communications Act of 1934, prohibits any "obscene, lewd lascivious, filthy, or indecent" communications by telephone.[1] (Communications Act of 1934, Sec. 223 (a) (47 U.S.C. 223 (a))). Sec. 223 (a) also prohibits intentional harassment by telephone, including by anonymous calls, repeated hang-ups, or repeated harassing calls. (47 U.S.C. 223 (a)(1)(A - D)). Finally, Sec. 223 (a)(2) prohibits knowingly permitting a telephone facility under one's control to be used for such purposes. The courts have interpreted Sec. 223 (a) narrowly to apply only to nonconsensual or unsolicited telephone calls. The Exon provisions would make two fundamental changes in existing Sec. 223 (a), with potentially wide-ranging, and possibly unintended, consequences. First, the Exon provisions expand the prohibitions on obscene or indecent or harassing telephone calls to communication by all telecommunications devices. Second, the Exon provisions extend the prohibition against making obscene or indecent communications to "TRANSMIT[TING] OR OTHERWISE MAK[ING AVAILABLE" any such communication. (S. 1822, Sec. 801 (a (emphasis added)). In addition, the Exon provisions would raise the penalty for such violations from the current up to $50,000 or six months in prison, to up to $100,000 or tw years in prison. The Exon provisions would have a number of consequences for electronic messaging. First, unless the court-created limitation on the scope of the Sec. 223 (a) anti-obscenity and indecency provisions to NONCONSENSUAL telephone calls is applied as well to all telecommunications, the provision would prohibit ALL "obscene, lewd, lascivious, filthy, o indecent" telecommunications, whether or not consensual. Services or carriers that transmit "or otherwise make[] available" such communications would be liable. Thus, the amended Communications Act would, on its face, prohibit indecent communications between consenting adults. This provision, unless limited to nonconsensual communications as the courts have done with regard to the existing prohibition on such telephone calls, is most likely unconstitutional. Nevertheless, the legislative history of this provision should clarify that the amended language is intended to apply only to nonconsensual communications.[2] Second, the Exon provisions restrict anyone from transmitting, "or otherwise mak[ing] available," "obscene lewd, lascivious, filthy, or indecent" communications. (S 1822 Sec. 801 (a)(1)(B)). This goes beyond and is in addition to the existing prohibition on KNOWINGLY permitting a telephone facility under one's control to be used for purposes prohibited by Sec. 223 (a). The Exon provisions expand the prohibition on knowing use of telephone facilities to knowing use of TELECOMMUNICATIONS facilities. (S. 1822 Sec. 801(a)(2)). Even the latter provision may prove troublesome if service providers are deemed to "know" about the use of Bulletin Boards for or Electronic Mail for harassment or indecent remarks. These provisions could have a chilling effect o electronic message services, providers, carriers, or anyon else who could be deemed to "transmit[] or otherwise make[] available" prohibited electronic communications. Thus, for example, if someone sent an indecent electronic comment from a workstation, the employer, the e-mail service provider, an the carrier could all potentially be held liable, and subject to up to $100,000 in fines or up to two years in prison. This provision also has potentially chilling effects on electronic bulletin boards, discussion groups, and basic electronic mail communications. Although some service providers regularly screen bulletin boards to ensure that n obscene or indecent remarks appear upon them, the incredible proliferation of such bulletin boards makes comprehensive screening practically impossible.[3] Bulletin Boards on the Internet, and, potentially, electronic messages, include numerous postings making racist remarks, arguing that the Holocaust never occurred, etc. All of these could conceivably be considered "indecent," or annoying, abusive or harassing, any of which could subject employers, services, and carriers to liability. It is questionable whether the prohibition on obscene or indecent communications, even if limited to nonconsensual communications, can be accomplished in electronic communications without chilling the First Amendment. Electronic bulletin boards and discussion groups blur th concept of intent: anyone perusing bulletin boards or discussion groups on the Internet has the potential to stumble, as if accidentally stumbling into an X-rated movie theater, upon indecent material.[4] Such an encounter ma not be "consensual." The Internet practice of "flaming" fellow users very frequently involves use of indecency. Any such flame, which is by definition nonconsensual,[5] would subject anyone who "makes available" the communication (again, potentially including an employer, service provider, common carrier, etc.) to full liability under this section. B. RESTRICTIONS ON COMMERCIA OBSCENITY (SEC. 223 (B)) The Exon provisions amend current law which is intended to restrict consensual obscene or indecent telephone calls, such as dial-a-porn. Current Sec. 223 (b) prohibits use of the telephone to make obscene communications for commercial purposes, regardless of whether the maker of such communication placed the call (i.e., regardless of consent) (47 U.S.C. 223 (b)(1)). Current Sec. 223 (b) also prohibits making indecent communications available to persons under age 18. (47 U.S.C. 223 (b)(2)). Current law allows common carriers to avoid liability under the provision limiting indecent material to persons over 18 by complying with F.C.C rules[6] and by offering subscribers the right to block access to indecent material. The Exon provisions exten these prohibitions to all telecommunications. (S. 1822 Sec. 801 (a)(3)). By simply applying existing telephone provisions to telecommunications, the Exon provisions again raise problems by the unique nature of non-telephone telecommunications. For example, may a service or provider be liable if it does not check the ages of all members of a household, and allow a family to block access to members under the age of 18 Numerous electronic bulletin boards on line contain indecent material,[7] and indecent material may spring up in an discussion group, or even when a rap artist discusses his lyrics, or a record company puts a new release on line, as has been done in recent months. Because subscribers ar required to pay a commercial fee (beyond their basic subscription fee, which would presumably be analogous to a telephone common carrier fee) to access these services, indecent material on these services may subject providers to liability.[8] C. EXPANSION OF THE ELECTRONIC COMMUNICATIONS PRIVACY ACT (ECPA) The Electronic Communications Privacy Act (ECPA), codified in the U.S. Code at Title 18, generally prohibits unauthorized electronic surveillance, such as wiretapping of employees. (18 U.S.C. 2511. See Alderman v. U.S., 394 U.S. 165 (1969)). Title VIII adds conforming language which amends the prohibition on surveillance to ensure that it covers all electronic communications, including digital communications. (S. 1822 Sec. 804). ECPA has been amended before to account for the evolution of technology. When passed in 1968, ECPA prohibited surveillance only of wire or oral communications. ECPA was amended in 1986 to prohibit as well surveillance of electronic communications. Sec. 804 of S. 1822 would ensure that all electronic communications, including digital communications, are covered. - ----------- III. STATUS - ----------- The Exon language is in the committee-reported print of the bill that currently awaits Senate floor consideration. The House-passed telecommunications bill, H.R. 3626, contains no comparable provision. The Senate is currently not scheduled to consider the telecommunications bill until after conclusion of consideration of health care reform legislation, although given the uncertainty of health care reform, that schedule may change. Senator Hollings, Chairman of the Senate Commerce Committee, has scheduled a hearing of the committee to consider the telecommunications bill as passed by the Committee for September 20, 1994, although it is rumored that the hearing may be moved up to September 14. - -------------- IV. PROGNOSIS - -------------- It is possible that a substitute version of the bill with modified language could be considered by the Senate, but no indication has been received that this will be the case. Any Senate floor amendment to materially lessen the scope of anti-obscenity or indecency provisions may well b politically risky. Following Senate passage, conference committee presents another opportunity for modification. A coalition of groups affected by the amendment has been discussing attempts to modify the Exon language. They are currently pursuing meetings with House and Senate staff and are considering attempting to draft alternative language fo inclusion. The Electronic Frontier Foundation states that it believes that the Exon provisions should be removed entirely from the bill (perhaps as late Conference negotiation between the Senate and the House) and should be addressed separately in stand-alone legislation. ENDNOTES: - -------- [1] Courts have not defined precisely what constitutes indecency, although courts have held that mere offensiveness is insufficient. [2] Sec. 806 of Sen. Exon's provisions, which requires that cable channels "unsuitable for children" be fully scrambled for nonsubscribers, indicates that he does not intend to prohibit indecent, non-obscene, consensual communications. Sec. 806 does not prohibit such "indecent" programming as the Playboy Channel, but merely ensures that it will be limite to consenting adults. [3] This problem is compounded by the indefiniteness of th definition of indecency. [4] The proliferation of such material on the Internet is evident in the proliferation of bulletin boards devote solely to sexual topics. According to a newsgroup list compiled by Digital Equipment Corp., the most popular bulletin board on the Internet, after a bulletin board providing rules for new users, is alt.sex.stories, which half a million Internet users log on to each month. The next most popular category is alt.binaries.pictures.erotica, followed by the alt.sex discussion group [5] One could argue, however, that the practices of logging on to the Internet or entering a discussion group or bulletin board, constitutes "consent," or waiver of the right to object, to whatever communications may ensue. The unresolve issue of consent demonstrates the difficulty of simply applying existing obscenity or anti-harassment law governin telephones to all telecommunications. [6] For example, F.C.C. rules require that companies require a credit card for provision of services [7] See supra note 4 [8] Although it might be argued that the basic subscription fee of on-line services is analogous to a telephone common carrier fee, in this case the carrier (the service provider) is providing both the basic communications and the information services (i.e., the Bulletin Board). Thus the electronic telecommunications carrier is analogous to both the telephone company and the dial-a-porn operator for enforcement purposes. # ============================================================= ELECTRONIC MESSAGING ASSOCIATION 1655 North Fort Myer Drive, Suite 85 Arlington, VA 22209 USA TEL: 1-703-524-5550 FAX: 1-703-524-5558 X.400: S=info; O=ema; A=mci; C=us Internet: info@ema.org ============================================================= ----------------------------- Date: Wed, 7 Sep 1994 11:14:45 -0400 From: Henry Clark To: davidc@iij.ad.jp, schoff@us.psi.com Cc: com-priv@psi.com, net-99@mcs.net Subject: Re: Class C addresses >Whether you "own" the number is unimportant Ahh, but this is a basic change in philosophy. Previously, we've always said "have a hunk o address and keep it for as long as you need it". We're now saying "sorry, we only leased you that address and the lease is up". Additionally, there's no numbers in gettin customers to switch, plus we've given them stone knives and bear skins to help them renumber their network. >Why should >a foreign ISP pay large sums of money simply because a service provider >in the US refuses to aggregate their routes Try the following sed command on that sentence: s/aggregate their routes/force their customers to renumber/g See point above henry ------------------------------ Date: Thu, 08 Sep 1994 01:53:43 +0900 From: David R Conrad To: Henry Clark Cc: com-priv@psi.com, net-99@mcs.net Subject: Re: Class C addresses >>Whether you "own" the number is unimportant >Ahh, but this is a basic change in philosophy. Previously, we've >always said "have a hunk o address and keep it for as long as you >need it". We're now saying "sorry, we only leased you that address >and the lease is up". I would contend that we've never actually said anything one way or the other as the issue just wasn't signifcant until quite recently. >Additionally, there's no numbers in getting >customers to switch, plus we've given them stone knives and bear skins >to help them renumber their network. I definitely agree here. To me, solutions to these issues are a prerequisite to any "lease terminations" >>Why should >>a foreign ISP pay large sums of money simply because a service provider >>in the US refuses to aggregate their routes? >s/aggregate their routes/force their customers to renumber/gp As I've pointed out to someone else who indicated the same thing, there is a difference between me as an ISP taking drastic (but cheap) measures to keep my routers from crashing and you no longer being able to reach my customers. Yes, I agree this is not a way for an ISP to win more customers but then neither is ISP wide route flaps as routers constantly crash and reboot. Cheers, - -drc ------------------------------ Date: Wed, 7 Sep 1994 13:21:05 -0400 From: Henry Clark To: davidc@iij.ad.jp Cc: com-priv@psi.com, net-99@mcs.net Subject: Re: Class C addresses >I would contend that we've never actually said anything one way or >the other as the issue just wasn't signifcant until quite recently. That's not what people think when they get their shiny new net number from the InterNIC... they know that the address is theirs until hell freezes over. Granted, the allocation strategy has been less than optimal until now and that's why certain brands of routers have had a routing table size problem. That's a solvable problem with $$... henry ------------------------------ Date: Wed, 7 Sep 1994 09:37:48 -0700 (PDT) From: "Joseph W. Stroup" , com-priv@psi.com, net-99@mcs.com Subject: Re: Latest CIX Mes Marty, Part of what you say is true. Bill Washburn asked members how many people were going to attend this meeting. Members responded. Plane tickets were purchased. The the board decides to limit the attendance to ONE member from each company - and Rick mails out this info on a holiday. Great. Many people are able to manage a meeting with 150 attending - This is an important time for the CIX. Alot of people hate the CIX and you know it Things need to change in this industry and change NOW. Allowing members to only send one rep. is wrong. This needs to be reversed at once. Lets hear from you Joseph Stroup On Wed, 7 Sep 1994, Martin L. Schoffstall wrote: > Gordon, > > They never landed on the moon, it was all filmed in a remote desert lot, > and Adolf Hitler is alive and well in Brazil. > > Instead of trying to glean gems about Sprint why don't you call them and ask > them on the tele if they are going to stay or leave the CIX. > > To my knowledge MCI has yet to join the CIX since the requirements from da > one were a signed agreement and a (signed) check. > > Controlling the flow of information by having 49 participants vs maybe 54 is > kind of funny. Near the beltway telling 3 people a SECRET means it will be > public knowledge within 24 hours, and the contents of the CIX member meeting > discussions are far from a secret. [A friend of mine actually told me that