1996-02-12
Craig A. Johnson
Senator Leahy, the knight of the Net, has struck another blow for
online decency. Thanks to Todd Lappin for getting this out so
quickly.
--caj
======================================================
Date: Mon, 12 Feb 1996 17:08:57 -0800 (PST)
To: •••@••.•••
From: •••@••.••• (--Todd Lappin-->)
Subject: UPDATE: Leahy Proposes Repeal of Communications Decency Act
Senator Patrick Leahy has introduced legislation designed to repeal
the Internet "indecency" provisions of the telecommunications reform
bill President Clinton signed into law last Thursday.
The text of Leahy's proposal, as well as his (very articulate) floor
statement, follows below. Both are worth reading.
Leahy was one of only five Senators to vote against the telco bill on
February 1, 1996. He is also one of the few legislators on Capitol
Hill who truly understands what the Net is all about.
If you'd like to send the Senator a message of support, his e-mail
address is: •••@••.•••.
Onward,
--Todd Lappin-->
Section Editor
WIRED Magazine
===================================================================
FILE s1567.is
S 1567 IS
104th CONGRESS
2d Session
To amend the Communications Act of 1934 to repeal the
amendments relating to obscene and harassing use of
telecommunications facilities made by the Communications
Decency Act of 1995.
IN THE SENATE OF THE UNITED STATES
February 9 (legislative day, FEBRUARY 7), 1996
Mr. LEAHY (for himself and Mr. FEINGOLD) introduced the
following
bill; which was read twice and referred to the Committee
on Commerce, Science, and Transportation
A BILL
To amend the Communications Act of 1934 to repeal the
amendments relating to obscene and harassing use of
telecommunications facilities made by the Communications
Decency Act of 1995.
[Italic->] Be it enacted by the Senate and House of
Representatives of the United States of America in Congress
assembled, [<-Italic]
SECTION 1. REPEAL OF AMENDMENTS.
Effective on the day after the date of the enactment of
the
Communications Decency Act of 1995, the amendments made to
section 223 of the Communications Act of 1934 (47 U.S.C.
223) by section 502 of the Communications Decency Act of
1995 are repealed and the provisions of such section 223 as
in effect on the day before such date shall have force and
effect.
[end bill text]
Floor Statement On Repealing The Communications Decency Act
February 9, 1996
_________________________________________________________________
Mr. LEAHY. Mr. President, last week, the Congress passed
telecommunications legislation. The President signed it into law
this week. For a number of reasons, and I stated them in the
Chamber at the time, I voted against the legislation. There were a
number of things in that legislation I liked and I am glad to see
them in law. There were, however, some parts I did not like, one of
them especially. Today I am introducing a bill to repeal parts of
the new law, parts I feel would have far-reaching implications and
would impose far-reaching new Federal crimes on Americans for
exercising their free speech rights on-line and on the Internet.
The parts of the telecommunications bill called the "Communications
Decency Act" are fatally flawed and unconstitutional. Indeed, such
serious questions about the constitutionality of this legislation
have been raised that a new section was added to speed up judicial
review to see if the legislation would pass constitutional muster.
The legislation is not going to pass that test.
The first amendment to our Constitution expressly states that
"Congress shall make no law abridging the freedom of speech." The
new law flouts that prohibition for the sake of political
posturing. We should not wait to let the courts fix this mistake.
Even on an expedited basis, the judicial review of the new law
would take months and possibly years of litigation. During those
years of litigation unsuspecting Americans who are using the
Internet in unprecedented numbers and more every day, are going to
risk criminal liability every time they go on-line.
Let us be emphatically clear that the people at risk of committing
a felony under this new law are not child pornographers, purveyors
of obscene materials or child sex molesters. These people can
already be prosecuted and should be prosecuted under longstanding
Federal criminal laws that prevent the distribution over computer
networks of obscene and other pornographic materials harmful to
minors, under 18 U.S.C. sections 1465, 2252 and 2423(a); that
prohibit the illegal solicitation of a minor by way of a computer
network, under 18 U.S.C. section 2252; and that bar the illegal
luring of a minor into sexual activity through computer
conversations, under 18 U.S.C. section 2423(b). In fact, just last
year, we passed unanimously a new law that sharply increases
penalties for people who commit these crimes. In fact, just last
year, we passed unanimously a new law that sharply increases
penalties for these people.
There is absolutely no disagreement in the Senate, no disagreement
certainly among the 100 Senators about wanting to protect children
from harm. All 100 Senators, no matter where they are from, would
agree that obscenity and child pornography should be kept out of
the hands of children.
All Senators agree that we should punish those who sexually exploit
children or abuse children. I am a former prosecutor. I have
prosecuted people for abusing children. This is something where
there are no political or ideological differences among us.
I believe there was a terribly misguided effort to protect children
from what some prosecutors somewhere in this country might consider
offensive or indecent online material, and in doing that, the
Communications Decency Act tramples on the free speech rights of
all Americans who want to enjoy this medium.
This legislation sweeps more broadly than just stopping obscenity
from being sent to children. It will impose felony penalties for
using indecent four-letter words, or discussing material deemed to
be indecent, on electronic bulletin boards or Internet chat areas
and news groups accessible to children.
Let me give a couple of examples: You send E-mail back and forth,
and you want to annoy somebody whom you talked with many times
before -- it may be your best buddy -- and you use a four-letter
word. Well, you could be prosecuted for that, although you could
pick up the phone, say the same thing to him, and you commit no
crime; or send a letter and say the same word and commit no crime;
or talk to him walking down the street and commit no crime.
To avoid liability under this legislation, users of e-mail will
have to ban curse words and other expressions that might be
characterized as indecent from their online vocabulary.
The new law will punish with 2-year jail terms someone using one of
the "seven dirty words" in a message to a minor or for sharing with
a minor material containing indecent passages. In some areas of the
country, a copy of Seventeen Magazine would be considered indecent,
even though kids buy it. The magazine is among the 10 most
frequently challenged school library materials in the country.
Somebody sends an excerpt from it, and bang, they could be
prosecuted.
The new law will make it a crime "to display in a manner available
to" a child any message or material "that, in context, depicts or
describes, in terms patently offensive as measured by contemporary
community standards, sexual or excretory activities or organs..."
That covers any of the over 13,000 Usenet discussion groups, as
well as electronic bulletin boards, online service provider chat
rooms, and Web sites, that are all accessible to children.
This "display" prohibition, according to the drafters, "applies to
content providers who post indecent material for online display
without taking precautions that shield that material from minors."
What precautions will Internet users have to take to avoid criminal
liability? These users, after all, are the ones who provide the
"content" read in news groups and on electronic bulletin boards.
The legislation gives the FCC authority to describe the precautions
that can be taken to avoid criminal liability. All Internet users
will have to wait and look to the FCC for what they must do to
protect themselves from criminal liability.
Internet users will have to limit all language used and topics
discussed in online discussions accessible to minors to that
appropriate for kindergartners, just in case a child clicks onto
the discussion. No literary quotes from racy parts of Catcher in
the Rye or Ulysses will be allowed. Certainly, online discussions
of safe sex practices, or birth control methods, and of AIDS
prevention methods will be suspect. Any user who crosses the vague
and undefined line of "indecency" will be subject to two years in
jail and fines.
This worries me considerably. I will give you an idea of what
happens. People look at this, and because it is so vague and so
broad and so sweeping, attempts to protect one's self from breaking
the law become even broader and even more sweeping.
A few weeks ago, America Online took the online profile of a
Vermonter off the service. Why? Because the Vermonter used what AOL
deemed a vulgar, forbidden word. The word -- and I do not want to
shock my colleagues -- but the word was "breast." And the reason
this Vermonter was using the word "breast"? She was a survivor of
breast cancer. She used the service to exchange the latest
information on detection of breast cancer or engage in support to
those who are survivors of breast cancer. Of course, eventually,
America Online apologized and indicated they would allow the use of
the word where appropriate.
We are already seeing premonitions of the chilling effect this
legislation will have on online service providers. Far better we
use the laws on the books today to go after child pornographers, to
go after child abusers.
What strikes some people as "indecent" or "patently offensive" may
look very different to other people in another part of the country.
Given these differences, a vague ban on patently offensive and
indecent communications may make us feel good but threatens to
drive off the Internet and computer networks an unimaginable amount
of valuable political, artistic, scientific, health and other
speech.
For example, many museums in this country and abroad are going
hi-tech and starting Web pages to provide the public with greater
access to the cultural riches they offer. What if museums, like the
Whitney Museum, which currently operates a Web page, had to censor
what it made available online out of fear of being dragged into
court? Only adults and kids who can make it in person to the museum
will be able to see the paintings or sculpture censored for online
viewing under this law.
What about the university health service that posts information
online about birth control and protections against the spread of
AIDS? With many students in college under 18, this information
would likely disappear under threat of prosecution.
What happens if they are selling online versions of James Joyce's
Ulysses or of Catcher in the Rye? Can they advertise this? Can
excerpts be put online? In all likelihood not. The Internet is
breaking new ground important for the economic health of this
country. Businesses, like the Golden Quill Book Shop in Manchester
Center, Vermont can advertise and sell their books around the
country or the world via the Internet. But now, advertisers will
have to censor their ads.
For example, some people consider the Victoria's Secret catalogue
indecent. Under this new law, advertisements that would be legal in
print could subject the advertiser to criminal liability if
circulated online. You could put them in your local newspaper, but
you cannot put it online.
In bookstores and on library shelves, the protections of the First
Amendment are clear. The courts are unwavering in the protection of
indecent speech. In altering the protections of the first amendment
for online communications, I believe you could cripple this new
mode of communication.
At some point you have to start asking, where do we censor? What
speech do we keep off? Is it speech we may find politically
disturbing? If somebody wants to be critical of any one Member of
Congress, are we able to keep that off? Should we be able to keep
that off? I think not. There is a lot of reprehensible speech and
usually it becomes more noted when attempts are made to censor it
rather than let it out in the daylight where people can respond to
it.
The Internet is an American technology that has swept around the
world. As its popularity has grown, so have efforts to censor it.
For example, complaints by German prosecutors prompted an online
service provider to cut off subscriber access to over 200 Internet
news groups with the words "sex", "gay" or "erotica" in the name.
They censored such groups as "clarinet.news.gays," which is an
online newspaper focused on gay issues, and "gay-net.coming-out",
which is a support group for gay men and women dealing with going
public with their sexual orientation.
German prosecutors have also tried to get AOL to stop providing
access to neo-Nazi propaganda accessible on the Internet. No doubt
such material is offensive and abhorrent, but nonetheless just as
protected by our First Amendment as indecent material.
In China, look what they are trying to do. They are trying to
create an "intranet" that would heavily censor outside access to
the worldwide Internet. We ought to be make sure it is open, not
censored. We ought to send that out as an example to China.
Americans should be taking the high ground to protect the future of
our home-grown Internet, and to fight these censorship efforts that
are springing up around the globe. Instead of championing the First
Amendment, however, the Communications Decency Act tramples on the
principles of free speech and free flow of information that has
fueled the growth of this medium.
We have to be vigilant in enforcing the laws we have on the books
to protect our children from obscenity, child pornography and
sexual exploitation. Those laws are being enforced. Just last
September, using current laws, the FBI seized computers and
computer files from about 125 homes and offices across the country
as part of an operation to shut down an online child pornography
ring.
I well understand the motivation for the Communications Decency
Act. We want to protect our children from offensive or indecent
online materials. This Senator --and I am confident every other
Senator-- agrees with that. But we must be careful that the means
we use to protect our children does not do more harm than good. We
can already control the access our children have to indecent
material with blocking technologies available for free from some
online service providers and for a relatively low cost from
software manufacturers.
Frankly, and I will close with this, Mr. President, at some point
we ought to stop saying the Government is going to make a
determination of what we read and see, the Government will
determine what our children have or do not have.
I grew up in a family where my parents thought it was their
responsibility to guide what I read or would not read. They
probably had their hands full. I was reading at the age of 4. I was
a voracious reader, and all the time I was growing up I read
several books a week and went through our local library in the
small town I grew up in very quickly. That love of reading has
stood me in very good stead. I am sure I read some things that were
a total waste of time, but very quickly I began to determine what
were the good things to read and what were the bad things. I had
read all of Dickens by the end of the third grade and much of
Robert Louis Stevenson. I am sure some can argue there are parts of
those that maybe were not suitable for somebody in third grade. I
do not think I was severely damaged by it at all. That same love of
reading helped me get through law school and become a prosecutor
where I did put child abusers behind bars.
Should we not say that the parents ought to make this decision, not
us in the Congress? We should put some responsibility back on
families, on parents. They have the software available that they
can determine what their children are looking at. That is what we
should do. Banning indecent material from the Internet is like
using a meat cleaver to deal with the problems better addressed
with a scalpel.
We should not wait for the courts. Let us get this new
unconstitutional law off the books as soon as possible.
##
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