From: "E. ALLEN SMITH" <EALLENSMITH@mbcl.rutgers.edu>
Date: Wed, 6 Dec 95 15:45:35 PST
To: tcmay@got.net
Subject: Re: News on Congressional Debate on Exon
Message-ID: <01HYHWSWQVWG9S3RQJ@mbcl.rutgers.edu>
MIME-Version: 1.0
Content-Type: text/plain


	The following are from NandO.net, CDT, and EFF respectively. Sorry
about the lack of editing, but I'm having editor problems. I don't know what
the "fused" bill looks like. The White one can be gotten around through tactics
such as daemons deleting "adults only" signifiers when passing through one's
(or a virally-infected) machine, or via the offshore (unfiltered) server idea.
Otherwise, everything that Congress doesn't like may wind up being accessible
only via identification.
	If it's more like the Exon & Hyde one, then we've got real problems.
That one is broad enough to be probably tossed out by the courts (or by
Clinton if he ever shows the guts).
	-Allen

  __________________________________________________________________________

      (c) 1995 Copyright Nando.net
      (c) 1995 Associated Press
      
   
   
   WASHINGTON (Dec 6, 1995 - 16:57 EST) -- House lawmakers agreed
   Wednesday on a plan that would make it illegal for a company to
   knowingly transmit sexually explicit and other "indecent" material to
   minors over computers.
   
   The agreement makes it all but certain that if legislation overhauling
   the nation's telecommunications laws is enacted, it will contain some
   of the most sweeping anti-smut provisions ever imposed on computer
   communications.
   
   The plan is part of negotiations on a larger telecommunications bill
   and settles differences among House members who were deeply divided
   over how to best limit children's exposure to smut carried on computer
   services, including the global network, Internet.
   
   The plan not only toughens an anti-smut provision contained in a a
   House telecommunications bill, but brings it in line with a provision
   in the Senate's telecommunications bill.
   
   "We're on the road to an agreement that most can agree to," said Sen.
   J. James Exon, D-Neb., author of Senate's anti-smut provision, which
   like the House plan also outlaws the transmission of indecent material
   to minors.
   
   House and Senate lawmakers serving on a committee to reconcile House-
   and Senate-passed telecommunications bills met for the second time in
   six weeks on Wednesday.
   
   "I'm determined to finish this bill," said Sen. Larry Pressler,
   R-S.D., architect of the Senate's telecommunications measure and
   chairman of the conference committee.
   
   Supporters are scrambling to bring a final bill to each chamber for a
   vote by Dec. 15. Rep. Thomas Bliley, R-Va., the primary author of the
   House bill, said the conference could be completed "within days."
   
   While the panel ended up reconciling nearly three dozen largely
   non-controversial provisions contained in both bills, it has yet to
   resolve differences on the most contentious issues -- the conditions
   by which Bell companies may enter the long-distance business and media
   ownership.
   
   A tentative agreement on another contentious issue -- cable
   deregulation -- would lift existing price regulations on all but the
   smallest cable TV systems in at least three years. Small systems would
   be deregulated upon enactment.
   
   The House's anti-smut plan -- a combination of dueling proposals from
   Rep. Rick White, R-Wash., and Henry Hyde, R-Ill., would prohibit
   content providers on a computer service from "knowingly sending or
   directly sending" sexually explicit material to anyone 18 years old
   and younger.
   
   Companies that provide access to computer networks, like America
   Online and CompuServe, would not be liable under the provision, White
   said.
   
   The Department of Justice would enforce the provision, which also
   carries criminal penalties of up to two years in jail and $100,000 in
   fines.
   
   Businesses and civil liberties groups opposed Hyde's plan to toughen
   the House's anti-smut provision by making it illegal for a content
   provider to knowingly transmit indecent materials.
   
   Instead, they had rallied behind a proposal from White, whose district
   includes the headquarters of Microsoft, that among other things, would
   have prohibited only the transmission of materials "harmful to minors"
   and would not have outlawed indecent transmissions.
   
   The Center for Democracy and Technology Policy, one of the main groups
   pushing for weaker anti-smut provisions, had no immediate comment on
   the House plan.
   
   But Mike Russell, a spokesman for the Christian Coalition, which
   backed Hyde's tougher standard, said: "It is clearly going in our
   direction. We were holding out for tougher language and it appears
   we're going to get it."
   
   Indecent speech, unlike obscenity, is protected under the First
   Amendment. Though the House plan doesn't yet specifically define
   "indecent," the standard legal and regulatory definition says it is
   material that describes in terms patently offensive, as measured by
   contemporary community standard, sexual or excretory activities or
   organ.
   
   Transmission of obscene materials whether by print, broadcast, cable
   or computers is illegal. Obscenity is something that, measured by
   community standards, lacks, among other things serious artistic,
   political or scientific or social merit.
   
   


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

(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

------------------------------------------------------------------------
---
(2) HOW TO SUBSCRIBE TO THE CDT POLICY POST LIST

CDT Policy Posts, which is what you have just finished reading, are the
regular news publication of the Center For Democracy and Technology. CDT
Policy Posts are designed to keep you informed on developments in public
policy issues affecting civil liberties online.

SUBSCRIPTION INFORMAITON

1. SUBSCRIBING TO THE LIST

To subscibe to the policy post distribution list, send mail to
"Majordomo@cdt.org" with:

    subscribe policy-posts

in the body of the message (leave the subject line blank)


2. UNSUBSCRIBING FROM THE LIST

If you ever want to remove yourself from this mailing list,
you can send mail to "Majordomo@cdt.org" with the following command
in the body of your email message:

    unsubscribe policy-posts youremail@local.host (your name)

(leave the subject line blank)

You can also visit our subscription web page
URL:http://www.cdt.org/join.html

-----------------------------------------------------------------------
(3) ABOUT THE CENTER FOR DEMOCRACY AND TECHNOLOGY/CONTACTING US

The Center for Democracy and Technology is a non-profit public interest
organization based in Washington, DC. The Center's mission is to develop
and advocate public policies that advance constitutional civil liberties
and democratic values in new computer and communications technologies.

Contacting us:

General information:  info@cdt.org
World Wide Web:       URL:http://www.cdt.org
FTP                   URL:ftp://ftp.cdt.org/pub/cdt/

Snail Mail:  The Center for Democracy and Technology
             1001 G Street NW * Suite 500 East * Washington, DC 20001
             (v) +1.202.637.9800 * (f) +1.202.637.0968

-----------------------------------------------------------------------
End Policy Post No. 31                                        12/4/95
-----------------------------------------------------------------------

   
     _________________________________________________________________
   
   Return to the Net-Censorship Issues Page
   Return to the CDT Home Page

Below is an open letter to Internet users from Rep. Rick White (R-WA),
co-sponsor of the Cox/Wyden/White anti-censorship legislation, discussing
his new proposed amendment to the telecom bill, which is now in joint
conference committee.  As most of you are aware, several amendments to
to the bill, many of them conflicting, are to be "reconciled", with the
result, constitutional or otherwise, being sent to both houses of
Congress for (likely) final approval, and thence to the President for his
(at least fairly likely) signature.  Among those amendments are several
patently unconstitutional proposals, from the original Exon/Coats
"Communications Decency Act", to a new, even more censorious amendment
supported by the Christian Coalition, Ed Meese, and other representatives
of the "religious right".

EFF does not endorse any of the proposals that have been floated in
the conference committee.  We take the position that no content-control
legislation should be passed. EFF remains committed to mounting
constitutional challenges in court to any such legislation that passes.


[begin forward]

From: REPWHITE@HR.HOUSE.GOV
Date: 04 Dec 1995 22:07:22 EST
Subject: An open letter from Rep. Rick White to the Internet Communi
To: mech@EFF.ORG

Please forward this message to interested members of the Internet community.

Thank you.

Congressman Rick White

--

AN OPEN LETTER TO THE INTERNET COMMUNITY

December 4, 1995

To members of the Internet Community and Concerned Citizens:

     For the past several months, I have closely followed the online debate
over Congressional attempts to impose content controls on the Internet.  Your
phone calls, letters, and email were instrumental in convincing 420 of my
House colleagues to support the Cox/Wyden/White "Internet Freedom and Family
Empowerment Act."

     As you may know, on Wednesday, December 6th, the Telecommunications
Reform Legislation Conference Committee, of which I am a member, will choose
between two competing proposals:  one offered by my colleague, House
Judiciary Committee Chairman Henry Hyde (R-IL), and my own proposal.  I
believe that the decision we reach on Wednesday will have a significant
impact on the future of the Internet.  While many of us who use the Internet
feel that Congress should steer clear of any new regulation of the Internet
and online information services, the reality is that proponents of more
severe restrictions on online content have been successful in convincing many
in Congress that new regulations are necessary.

     The conference committee is charged with reconciling several competing
approaches to addressing children's access to objectionable material online.
 In June, the Senate, by an overwhelming majority passed the Exon/Coats
"Communications Decency Act."  In August, the House passed the
Cox/Wyden/White "Internet Freedom and Family Empowerment Act," which
emphasized parental empowerment over government content regulations.  At the
same time, the House also approved a new indecency crime sponsored by
Chairman Hyde.

     As an avid Internet user and a strong believer in the enormous potential
of cyberspace to educate, expand commercial opportunities, and create jobs,
I have developed an alternative proposal that I expect to offer to conferees
on Wednesday.  My proposal will ensure freedom of speech and encourage the
development of technological tools to help parents prevent their children
from accessing inappropriate material online.  It would also prohibit the
Federal Communications Commission from controlling online content and from
meddling in the underlying technologies of the net.

     In addition, my proposal will create tough penalties for those few bad
actors who send truly objectionable material directly to minors or display
such material.  However, those who make good faith, reasonable efforts to
label content and enable it to be blocked or filtered by parental control
technologies (such as the PICS standards currently being developed by MIT and
the World Wide Web Consortium) would be immune from prosecution.

     Briefly, my proposal:

*  Substitutes the narrow, "harmful to minors" standard instead of the
   broad, vague, and constitutionally suspect "indecency" standard.
   The "harmful to minors" standard refers to material that is sexually
   explicit and, taken as a whole, lacks serious literary, artistic,
   political or scientific value for minors.

*  Prohibits the Federal Government from regulating online content or
   from having oversight over the underlying technologies of the net.

*  Would prohibit displaying material that is "harmful to minors," but
   create immunity for those who make good faith and reasonable efforts
   to implement parental empowerment technologies that enable screening
   of unwanted content.

*  Would not impose liability on online service providers merely for
   transmitting the messages of their users.

     At this time, the only option for the conference committee is to choose
between the White proposal or the Hyde substitute amendment.  As the only
option that minimizes government intrusion on freedom of speech, relies on
parents to make their own choices about what material comes into their homes,
and prevents the FCC from imposing regulations on online content, I hope you,
as well as my colleagues in Congress, will agree with my approach.

                              Sincerely,
                                   /s/
                              Rick White
                              Member of Congress

*************************************************
http://www.house.gov/white/welcome.html
repwhite@hr.house.gov
*************************************************

[end forward]



--
<HTML><A HREF="http://www.eff.org/~mech/">    Stanton McCandlish
</A><HR><A HREF="mailto:mech@eff.org">        mech@eff.org
</A><P><A HREF="http://www.eff.org/">         Electronic Frontier Foundation
</A><P>       Online Activist    </HTML>