Fun_People Archive
20 Feb
SENATOR EXON INTRODUCES ONLINE INDECENCY LEGISLATION
Date: Mon, 20 Feb 95 13:22:55 PST
From: Peter Langston <psl>
To: Fun_People
Subject: SENATOR EXON INTRODUCES ONLINE INDECENCY LEGISLATION
From: bostic@CS.Berkeley.EDU (Keith Bostic)
From: slowdog <slowdog@wookie.net>
Subject: PETITION to Stop S.314
*** PROTECT THE INTERNET. READ THIS MESSAGE ***
This document is an electronic Petition Statement to the
U.S. Congress regarding pending legislation, the
"Communications Decency Act of 1995" (S. 314) which will
have, if passed, very serious negative ramifications for
freedom of expression on Usenet, the Internet, and all
electronic networks. The proposed legislation would remove
guarantees of privacy and free speech on all electronic
networks, including the Internet, and may even effectively
close them down as a medium to exchange ideas and
information.
For an excellent analysis of this Bill by the Center for
Democracy and Technology (CDT), refer to the Appendix
attached at the end of this document. The text to S. 314
is also included in this Appendix.
This document is somewhat long, but the length is necessary
to give you sufficient information to make an informed
decision. Time is of the essence, we are going to turn
this petition and the signatures in on 3/16/95, so if you
are going to sign this please do so ASAP or at least before
midnight Wednesday, March 15, 1995.
Even if you read this petition after the due date, please
submit your signature anyway as we expect Congress to
continue debating these issues in the foreseeable future
and the more signatures we get, the more influence the
petition will have on discussion. And even if Congress
rejects S. 314 while signatures are being gathered, do
submit your signature anyway for the same reason.
Please do upload this petition statement as soon as
possible to any BBS and on-line service in your area.
If you have access to one of the major national on-line
services such as CompuServe, Prodigy, AOL, etc., do try
to upload it there. We are trying to get at least 5000
signatures. Even more signatures are entirely possible
if we each put in a little effort to inform others, such
as friends and coworkers, about the importance of this
petition to electronic freedom of expression.
Here is a brief table of contents:
(1) Introduction (this section)
(2) The Petition Statement
(3) Instructions for signing this petition
(4) Credits
(Appendix) Analysis and text of S. 314 (LONG but excellent)
******(2) The Petition Statement
In united voice, we sign this petition against passage of S. 314 (the
"Communications Decency Act of 1995") for these reasons:
S. 314 would prohibit not only individual speech that is "obscene, lewd,
lascivious, filthy, or indecent", but would prohibit any provider of
telecommunications service from carrying such traffic, under threat of
stiff penalty. Even aside from the implications for free speech, this
would cause an undue - and unjust - burden upon operators of the various
telecommunications services. In a time when the citizenry and their
lawmakers alike are calling for and passing "no unfunded mandates" laws
to the benefit of the states, it is unfortunate that Congress might seek to
impose unfunded mandates upon businesses that provide the framework for
the information age.
An additional and important consideration is the technical feasibility of
requiring the sort of monitoring this bill would necessitate. The
financial burden in and of itself - in either manpower or technology to
handle such monitoring (if even legal under the Electronic Communications
Privacy Act) - would likely cause many smaller providers to go out of
business, and most larger providers to seriously curtail their services.
The threat of such penalty alone would result in a chilling effect in the
telecommunications service community, not only restricting the types of
speech expressly forbidden by the bill, but creating an environment
contrary to the Constitutional principles of free speech, press, and
assembly - principles which entities such as the Internet embody as
nothing has before.
By comparison, placing the burden for content control upon each individual
user is surprisingly simple in the online and interactive world, and there
is no legitimate reason to shift that burden to providers who carry that
content. Unlike traditional broadcast media, networked media is
comparatively easy to screen on the user end - giving the reader, viewer,
or participant unparalleled control over his or her own information
environment. All without impacting or restricting what any other user
wishes to access. This makes regulation such as that threatened by this
S. 314 simply unnecessary.
In addition, during a period of ever-increasing commercial interest in
arenas such as the Internet, restriction and regulation of content or the
flow of traffic across the various telecommunications services would have
serious negative economic effects. The sort of regulation proposed by this
bill would slow the explosive growth the Internet has seen, giving the
business community reason to doubt the medium's commercial appeal.
We ask that the Senate halt any further progress of this bill. We ask
that the Senate be an example to Congress as a whole, and to the nation
at large - to promote the general welfare as stated in the Preamble to
the Constitution by protecting the free flow of information and ideas
across all of our telecommunications services.
******(3) Instructions for signing the petition
======================================
Instructions for Signing This Petition
======================================
It must first be noted that this is a petition, not a
vote. By "signing" it you agree with *all* the requests
made in the petition. If you do not agree with everything
in this petition, then your only recourse is to not sign
it.
In addition, all e-mail signatures will be submitted to
Congress, the President of the United States, and the
news media.
Including your full name is optional, but *very highly
encouraged* as that would add to the effectiveness of the
petition. Signing via an anonymous remailer is highly
discouraged, but not forbidden, as an attempt will be made
to separately tally signatures from anonymous remailers.
Because this is a Petition to the U.S. Congress, we ask
that you state, as instructed below, whether or not you
are a U.S. citizen. We do encourage non-U.S. citizens to
sign, but their signatures will be tallied separately.
Signing this petition is not hard, but to make sure your
signature is not lost or miscounted, please follow these
directions EXACTLY:
1) Prepare an e-mail message. In the main body (NOT the
Subject line) of your e-mail include the ONE-LINE statement:
SIGNED <Internet e-mail address> <Full name> <US Citizen>
You need not include the "<" and ">" characters. 'SIGNED'
should be capitalized. As stated above, your full name is
optional, but highly recommended. If you do supply your
name, please don't use a pseudonym or nickname, or your
first name -- it's better to just leave it blank if it's
not your full and real name. If you are a U.S. citizen,
please include at the end of the signature line a 'YES',
and if you are not, a 'NO'. All signatures will be
tallied whether or not you are a U.S. Citizen
****************************************************
Example: My e-mail signature would be:
SIGNED dave@kachina.altadena.ca.us Dave C. Hayes YES
****************************************************
2) Please DON'T include a copy of this petition, nor any
other text, in your e-mail message. If you have comments
to make, send e-mail to me personally, and NOT to the
special petition e-mail signature address.
3) Send your e-mail message containing your signature to
the following Internet e-mail address and NOT to me:
===========================
s314-petition@netcom.com
===========================
4) Within a few days of receipt of your signature, an
automated acknowledgment will be e-mailed to you for e-mail
address verification purposes. You do not need to respond or
reply to this acknowledgement when you receive it. We may
also contact you again in the future should we need more
information, such as who your House Representative and
Senators are, which is not asked here as it is unclear
whether such information is needed.
Thank you for signing this petition!
******(4) Credits
The petition statement was written by slowdog
<slowdog@wookie.net>, super.net.freedom.fighter.
The rest of this document mostly collated from the net
by Dave Hayes, net.freedom.fighter.
Much help came from Jon Noring, INFJ and
self.proclaimed.net.activist who made a few
suggestions and will be tallying the signatures.
Thanks to the EFF and CDT for the excellent analysis of
the bill.
(p.s., send your signature to s314-petition@netcom.com)
******(Appendix) Analysis and text of S. 314
[This analysis provided by the Center for Democracy and
Technology, a non-profit public interest organization.
CDT's mission is to develop and advocate public policies
that advance Constitutional civil liberties and democratic
values in new computer and communications technologies.
For more information on CDT, ask Jonah Seiger
<jseiger@cdt.org>.]
CDT POLICY POST 2/9/95
SENATOR EXON INTRODUCES ONLINE INDECENCY LEGISLATION
A. OVERVIEW
Senators Exon (D-NE) and Senator Gorton (R-WA) have
introduced legislation to expand current FCC regulations
on obscene and indecent audiotext to cover *all* content
carried over all forms of electronic communications
networks. If enacted, the "Communications Decency Act of
1995" (S. 314) would place substantial criminal liability
on telecommunications service providers (including
telephone networks, commercial online services, the
Internet, and independent BBS's) if their network is used
in the transmission of any indecent, lewd, threatening or
harassing messages. The legislation is identical to a
proposal offered by Senator Exon last year which failed
along with the Senate Telecommunications reform bill (S.
1822, 103rd Congress, Sections 801 - 804). The text the
proposed statute, with proposed amendment, is appended at
the end of this document.
The bill would compel service providers to chose between
severely restricting the activities of their subscribers
or completely shutting down their email, Internet access,
and conferencing services under the threat of criminal
liability. Moreover, service providers would be forced to
closely monitor every private communication, electronic
mail message, public forum, mailing list, and file archive
carried by or available on their network, a proposition
which poses a substantial threat to the freedom of speech
and privacy rights of all American citizens.
S. 314, if enacted, would represent a tremendous step
backwards on the path to a free and open National
Information Infrastructure. The bill raises fundamental
questions about the ability of government to control
content on communications networks, as well as the locus
of liability for content carried in these new
communications media.
To address this threat to the First Amendment in digital
media, CDT is working to organize a broad coalition of
public interest organizations including the ACLU, People
For the American Way, and Media Access Project, along with
representatives from the telecommunications, online
services, and computer industries to oppose S. 314 and to
explore alternative policy solutions that preserve the
free flow of information and freedom of speech in the
online world. CDT believes that technological
alternatives which allow individual subscribers to control
the content they receive represent a more appropriate
approach to this issue.
B. SUMMARY AND ANALYSIS OF S. 314
S. 314 would expand current law restricting indecency and
harassment on telephone services to all telecommunications
providers and expand criminal liability to *all* content
carried by *all* forms of telecommunications networks.
The bill would amend Section 223 of the Communications Act
(47 U.S.C. 223), which requires carriers to take steps to
prevent minors from gaining access to indecent audiotext
and criminalizes harassment accomplished over interstate
telephone lines. This section, commonly known as the
Helms Amendment (having been championed by Senator Jesse
Helms), has been the subject of extended Constitutional
litigation in recent years.
* CARRIERS LIABLE FOR CONDUCT OF ALL USERS ON THEIR
NETWORKS
S. 314 would make telecommunication carriers (including
telephone companies, commercial online services, the
Internet, and BBS's) liable for every message, file, or
other content carried on its network -- including the
private conversations or messages exchanged between two
consenting individuals.
Under S. 314, anyone who "makes, transmits, or otherwise
makes available any comment, request, suggestion,
proposal, image, or other communication" which is
"obscene, lewd, lascivious, filthy, or indecent" using a
"telecommunications device" would be subject to a fine of
$100,000 or two years in prison (Section (2)(a)).
In order to avoid liability under this provision, carriers
would be forced to pre-screen all messages, files, or
other content before transmitting it to the intended
recipient. Carriers would also be forced to prevent or
severely restrict their subscribers from communicating
with individuals and accessing content available on other
networks.
Electronic communications networks do not contain discrete
boundaries. Instead, users of one service can easily
communicate with and access content available on other
networks. Placing the onus, and criminal liability, on
the carrier as opposed to the originator of the content,
would make the carrier legally responsible not only for
the conduct of its own subscribers, but also for content
generated by subscribers of other services.
This regulatory scheme clearly poses serious threats to
the free flow of information throughout the online world
and the free speech and privacy rights of individual
users. Forcing carriers to pre-screen content would not
only be impossible due to the sheer volume of messages, it
would also violate current legal protections.
* CARRIERS REQUIRED TO ACT AS PRIVATE CENSOR OF ALL
PUBLIC FORUMS AND ARCHIVES
S. 314 would also expand current restrictions on access to
indecent telephone audiotext services by minors under the
age of 18 to cover similar content carried by
telecommunications services (such as America Online and
the Internet). (Sec (a)(4)).
As amended by this provision, anyone who, "by means of
telephone or telecommunications device, makes, transmits,
or otherwise makes available (directly or by recording
device) any indecent communication for commercial purposes
which is available to any person under the age of 18 years
of age or to any other person without that person's
consent, regardless of whether the maker of such
communication placed the call or initiated the
communication" would be subject of a fine of $100,000 or
two years in prison.
This would force carries to act as private censors of all
content available in public forums or file archives on
their networks. Moreover, because there is no clear
definition of indecency, carriers would have to restrict
access to any content that could be possibly construed as
indecent or obscene under the broadest interpretation of
the term. Public forums, discussion lists, file archives,
and content available for commercial purposes would have
to be meticulously screened and censored in order to avoid
potential liability for the carrier.
Such a scenario would severely limit the diversity of
content available on online networks, and limit the
editorial freedom of independent forum operators.
ADDITIONAL NOTABLE PROVISIONS
* AMENDMENT TO ECPA
Section (6) of the bill would amend the Electronic
Communications Privacy Act (18 USC 2511) to prevent the
unauthorized interception and disclosure of "digital
communications" (Sec. 6). However, because the term
"digital communication" is not defined and 18 USC 2511
currently prevents unauthorized interception and
disclosure of "electronic communications" (which includes
electronic mail and other forms of communications in
digital form), the effect of this provision has no clear
importance.
* CABLE OPERATORS MAY REFUSE INDECENT PUBLIC ACCESS
PROGRAMMING
Finally, section (8) would amend sections 611 and 612 of
the Communications Act (47 USC 611 - 612) to allow any
cable operator to refuse to carry any public access or
leased access programming which contains "obscenity,
indecency, or nudity".
C. ALTERNATIVES TO EXON: RECOGNIZE THE UNIQUE USER
CONTROL CAPABILITIES OF INTERACTIVE MEDIA
Government regulation of content in the mass media has
always been considered essential to protect children from
access to sexually-explicit material, and to prevent
unwitting listeners/views from being exposed to material
that might be considered extremely distasteful. The
choice to protect children has historically been made at
the expense of the First Amendment ban on government
censorship. As Congress moves to regulate new interactive
media, it is essential that it understand that interactive
media is different than mass media. The power and
flexibility of interactive media offers a unique
opportunity to enable parents to control what content
their kids have access to, and leave the flow of
information free for those adults who want it. Government
control regulation is simply not needed to achieve the
desired purpose.
Most interactive technology, such as Internet browsers and
the software used to access online services such as
America Online and Compuserve, already has the capability
to limit access to certain types of services and selected
information. Moreover, the electronic program guides
being developed for interactive cable TV networks also
provide users the capability to screen out certain
channels or ever certain types of programming. Moreover,
in the online world, most content (with the exception of
private communications initiated by consenting
individuals) is transmitted by request. In other words,
users must seek out the content they receive, whether it
is by joining a discussion or accessing a file archive.
By its nature, this technology provides ample control at
the user level. Carriers (such as commercial online
services, Internet service providers) in most cases act
only as "carriers" of electronic transmissions initiated
by individual subscribers.
CDT believes that the First Amendment will be better
served by giving parents and other users the tools to
select which information they (and their children) should
have access to. In the case of criminal content the
originator of the content, not the carriers, should be
responsible for their crimes. And, users (especially
parents) should be empowered to determine what information
they and their children have access to. If all carriers
of electronic communications are forced restrict content
in order to avoid criminal liability proposed by S. 314,
the First Amendment would be threatened and the usefulness
of digital media for communications and information
dissemination would be drastically limited.
D. NEXT STEPS
The bill has been introduced and will next move to the
Senate Commerce Committee, although no Committee action
has been scheduled. Last year, a similar proposal by
Senator Exon was approved by the Senate Commerce committee
as an amendment to the Senate Telecommunications Bill (S.
1822, which died at the end of the 103rd Congress). CDT
will be working with a wide range of other interest groups
to assure that Congress does not restrict the free flow of
information in interactive media.
TEXT OF 47 U.S.C. 223 AS AMENDED BY S. 314
**NOTE: [] = deleted
ALL CAPS = additions
47 USC 223 (1992)
Sec. 223. [Obscene or harassing telephone calls in the District
of Columbia or in interstate or foreign communications]
OBSCENE OR HARASSING UTILIZATION OF TELECOMMUNICATIONS
DEVICES AND FACILITIES IN THE DISTRICT OF COLUMBIA OR IN
INTERSTATE OR FOREIGN COMMUNICATIONS"
(a) Whoever--
(1) in the District of Columbia or in interstate or foreign
communication by means of [telephone] TELECOMMUNICATIONS
DEVICE--
(A) [makes any comment, request, suggestion or proposal]
MAKES, TRANSMITS, OR OTHERWISE MAKES AVAILABLE ANY COMMENT,REQUEST,
SUGGESTION, PROPOSAL, IMAGE, OR OTHER COMMUNICATION which is
obscene, lewd, lascivious, filthy, or indecent;
[(B) makes a telephone call, whether or not conversation ensues,
without disclosing his identity and with intent to annoy, abuse,
threaten, or harass any person at the called number;]
"(B) MAKES A TELEPHONE CALL OR UTILIZES A TELECOMMUNICATIONS
DEVICE, WHETHER OR NOT CONVERSATION OR COMMUNICATIONS
ENSUES,WITHOUT DISCLOSING HIS IDENTITY AND WITH INTENT TO ANNOY,
ABUSE, THREATEN, OR HARASS ANY PERSON AT THE CALLED NUMBER OR WHO
RECEIVES THE COMMUNICATION;
(C) makes or causes the telephone of another repeatedly or
continuously to ring, with intent to harass any person at the
called number; or
[(D) makes repeated telephone calls, during which conversation
ensues, solely to harass any person at the called number; or]
(D) MAKES REPEATED TELEPHONE CALLS OR REPEATEDLY INITIATES
COMMUNICATION WITH A TELECOMMUNICATIONS DEVICE, DURING WHICH
CONVERSATION OR COMMUNICATION ENSUES, SOLELY TO HARASS ANY PERSON
AT THE CALLED NUMBER OR WHO RECEIVES THE COMMUNICATION,
(2) knowingly permits any [telephone facility]
TELECOMMUNICATIONS FACILITY under his control to be used
for any purpose prohibited by this section, shall be fined not more
than $[50,000]100,000 or imprisoned not more than [six months] TWO
YEARS, or both.
(b)(1) Whoever knowingly--
(A) within the United States, by means of [telephone]
TELECOMMUNICATIONS DEVICCE, makes (directly or by recording device)
any obscene communication for commercial purposes to any person,
regardless of whether the maker of such communication placed the
call or INITIATED THE COMMUNICATION; or
(B) permits any [telephone facility] TELECOMMUNICATIONS
FACILITY under such person's control to be used for an activity
prohibited by subparagraph (A), shall be fined in accordance with
title 18, United States Code, or imprisoned not more than two
years, or both.
(2) Whoever knowingly--
(A) within the United States, [by means of telephone],
makes BY MEANS OF TELEPHONE OR TELECOMMUNICATIONS DEVICE, MAKES,
TRANSMITS, OR MAKES AVAILABLE(directly or by recording device) any
indecent communication for commercial purposes which is available
to any person under 18 years of age or to any other person without
that person's consent, regardless of whether the maker of such
communication placed the call OR INITIATED THE COMMUNICATION; or
(B) permits any [telephone facility] TELECOMMUNICATIONS
FACILITY under such person's control to be used for an activity
prohibited by subparagraph (A), shall be fined not more than
$[50,000] 100,000 or imprisoned not more than [six months]
TWO YEARS, or both.
(3) It is a defense to prosecution under paragraph (2) of this
subsection that the defendant restrict access to the prohibited
communication to persons 18 years of age or older in accordance
with subsection (c) of this section and with such procedures as the
Commission may prescribe by regulation.
(4) In addition to the penalties under paragraph (1), whoever,
within the United States, intentionally violates paragraph
(1) or (2) shall be subject to a fine of not more than $[50,000]
100,000 for each violation. For purposes of this paragraph, each
day of violation shall constitute a separate violation.
(5)(A) In addition to the penalties under paragraphs (1), (2),
and (5), whoever, within the United States, violates paragraph (1)
or (2) shall be subject to a civil fine of not more than $[50,000]
100,000 for each violation. For purposes of this paragraph, each
day of violation shall constitute a separate violation.
(B) A fine under this paragraph may be assessed either--
(i) by a court, pursuant to civil action by the Commission or
any attorney employed by the Commission who is designated by the
Commission for such purposes, or
(ii) by the Commission after appropriate administrative
proceedings.
(6) The Attorney General may bring a suit in the appropriate
district court of the United States to enjoin any act or practice
which violates paragraph (1) or (2). An injunction may be granted
in accordance with the Federal Rules of Civil Procedure.
(c)(1) A common carrier within the District of Columbia or
within any State, or in interstate or foreign commerce, shall not,
to the extent technically feasible, provide access to a
communication specified in subsection (b) from the
telephone of any subscriber who has not previously requested in
writing the carrier to provide access to such communication if the
carrier collects from subscribers an identifiable charge for such
communication that the carrier remits, in whole or in part, to the
provider of such communication.
(2) Except as provided in paragraph (3), no cause of action may
be brought in any court or administrative agency against any common
carrier, or any of its affiliates, including their officers,
directors, employees, agents, or authorized representatives on
account of--
(A) any action which the carrier demonstrates was taken in good
faith to restrict access pursuant to paragraph (1) of this
subsection; or
(B) any access permitted--
(i) in good faith reliance upon the lack of any representation
by a provider of communications that communications provided by
that provider are communications specified in subsection (b), or
(ii) because a specific representation by the provider did not
allow the carrier, acting in good faith, a sufficient period to
restrict access to communications described in subsection (b).
(3) Notwithstanding paragraph (2) of this subsection, a provider
of communications services to which subscribers are denied access
pursuant to paragraph (1) of this subsection may bring an action
for a declaratory judgment or similar action in a court. Any such
action shall be limited to the question of whether the
communications which the provider seeks to provide fall within
the category of communications to which the carrier will provide
access only to subscribers who have previously requested such
access.
*********************************************
NOTE: This version of the text shows the actual text of current law as
it would be changed. For the bill itself, which consists of unreadable
text such as:
[...]
(1) in subsection (a)(1)--
(A) by striking out `telephone' in the matter above
subparagraph (A) and inserting `telecommunications device';
(B) by striking out `makes any comment, request,
suggestion, or proposal' in subparagraph (A) and inserting
`makes, transmits, or otherwise makes available any
comment, request, suggestion, proposal, image, or other
communication';
(C) by striking out subparagraph (B) and inserting the
following:
`(B) makes a telephone call or utilizes a
[...]
See:
ftp.eff.org, /pub/EFF/Legislation/Bills_new/s314.bill
gopher.eff.org, 1/EFF/Legislation/Bills_new, s314.bill
http://www.eff.org/pub/EFF/Legislation/Bills_new/s314.bill
- dog
http://www.phantom.com/~slowdog
Stop the Communications Decency Act!
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© 1995 Peter Langston
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