The Congressional Record is a unique source of public documentation. It started in 1873, documenting nearly all the major and minor policies being discussed and debated.
“LIES THAT PORNOGRAPHERS TELL” mentioning the U.S. Dept. of Justice was published in the Senate section on pages S9770-S9775 on July 12, 1995.
The publication is reproduced in full below:
LIES THAT PORNOGRAPHERS TELL
Mr. EXON. Mr. President, I am going to be asking unanimous consent for publication of a letter in the Record at the appropriate point, and I would like to ask unanimous consent that the heading of this letter, when it appears in the Record, be entitled ``Lies That Pornographers Tell.''
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. EXON. Mr. President, the letter that I referenced is a letter from attorney Bruce Taylor, of the National Law Center for Families and Children, dated July 10, 1995, and I ask unanimous consent that that letter, and an introductory memorandum, be printed in the Record.
There being no objection, the material was ordered to be printed in the Record, as follows:
National Law Center for Children & Families
memorandum of opinion in support of the communications decency amendment as adopted by the u.s. senate on june 14, 1995
The National Law Center for Children and Families (``NLC'')
\1\ is of the opinion that the Communications Decency Amendment (``CDA'') is both effective and constitutional, as adopted by the United States Senate on June 14, 1995, by a vote of 84-16 in favor of Amendment 1288 to Title IV of S. 652, The Telecommunications Competition and Deregulation Act of 1995.
Footnotes at the end of article.
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The CDA would clearly extend the historical proscriptions against the knowing distribution of obscenity to the burgeoning computer service networks, such as the
``Internet'', ``Use Net'', and ``World Wide Web''. The amendment also forbids the knowing dissemination of
``indecent'' material to minor children. Both provisions cover non-commercial, as well as commercial, transmissions. These are critically needed updates in federal law. Present law does not prohibit providing indecency to minors over computer-phone modem facilities, since children are protected from indecency only in commercial dial-porn messages over the phone lines, 47 U.S.C. Sec. 223(b)(2) and
(c), or when broadcast over TV and radio communications, 18 U.S.C. Sec. 1464. Likewise, the CDA would clearly cover all distributions of hard-core obscenity over the computer networks, whereas existing law has been applied only to commercial sales of obscenity by computer bulletin board use of phone facilities, 18 U.S.C. Sec. 1465.\2\
``This much has been categorically settled by the Court, that obscene material is unprotected by the First Amendment.''--Miller v. California, 413 U.S. 15, at 23 (1973)
``A requirement that indecent language be avoided will have its primary effect on the form, rather than the content, of serious communication. There are few, if any, thoughts that cannot be expressed by the use of less offensive language.''--F.C.C. v. Pacifica Foundation, 438 U.S. 726, at 743 n.18 (1978)
In Miller v. California, 413 U.S. at 24-25, the Court announced it's ``Miller Test'' and held, at 29, that its three part test constituted ``concrete guidelines to isolate
`hard core' pornography from expression protected by the First Amendment''. The Court has consistently upheld federal and state obscenity laws which prohibit the public and commercial dissemination of such unprotected hard-core obscenity. The United States Government and the States have long banned the use of the mails for transporting obscenity. See: Rosen v. United States, 161 U.S. 29, 41-42 (1896); Roth v. United States, Alberts v. California, 354 U.S. 476, 493-94
(1957). The use of common carriers has also been banned for the transportation of obscenity, even for private use. See: United States v. Orito, 413 U.S. 139, 141-44 (1973). The Court has held that telephone companies are ``communication common carriers'' subject to federal jurisdiction. See: United States v. RCA, 358 U.S. 334, 348-49 (1959); F.C.C. v. Sanders Bros. Radio Station, 309 U.S. 470, 474 (1940). In 1988, Congress amended 18 U.S.C. Sec. 1465 to include new technologies, such as computer-phone modem systems, by adding the words ``uses a facility or means of interstate commerce'' to the prohibitions on commercial shipments of obscenity across state lines. (See: H.R. 3889, The Child Protection and Obscenity Enforcement Act of 1988, 100th Cong., 2nd Sess.)
\3\ By that 1988 Act, Congress also criminalized the use of cable, subscription, and satellite TV to distribute obscenity, 18 U.S.C. Sec. 1468.
Congress also spent several years developing a valid dial-porn statute, resulting in the present, constitutionally valid, version of 47 U.S.C. Sec. 223 (b) and (c), as amended in 1988-89. The Supreme Court upheld the power to completely ban obscenity from the phone systems. Sable Communications of Calif., Inc. v. F.C.C., 492 U.S. 115, 124-26 (1989). In the Sable case, the Court struck down a total ban on indecent dial-porn to adults, but discussed with approval the reasonableness of the F.C.C.'s ``least restrictive'' practical methods to screen out minors, such as credit cards, access code-pin numbers, and scrambling. Id. at 121-22, 128-31. This blueprint for a valid statutory-F.C.C. scheme was adopted by Congress and upheld by the courts as a valid means to prohibit the distribution of indecency to minors by these
``least restrictive means'' that allow adult access while providing adequate safeguards to protect all but ``the most enterprising and
disobedient young people''. Information Providers' Coalition v. F.C.C., 928 F.2d 866 (9th Cir. 1991); Dial Information Services v. Thornburgh, 938 F.2d 1535 (2nd Cir. 1991), cert. denied, 112 S.Ct. 966 (1992).
The Senate version of the Communications Decency Amendments, as sponsored by Senators Exon and Coats, amends 47 U.S.C. Sec. 223 in a way that is consistent with and follows the Court's pronouncements on First Amendment requirements discussed in the cases cited above. Such an extension of the valid dial-porn law to computer porn would prohibit only illegal obscenity and restrict indecency only to minors, while allowing adults access to non-obscene indecent communications when the F.C.C.'s technical screening devices are used, or when similarly effective practical means are developed by the users or service or access providers themselves, even if beyond those of the present F.C.C. regulations. The ``Exon-Coats'' amendment is, thus, more protective of legitimate rights than the existing dial-porn scheme.
It is not a valid argument that ``consenting adults'' should be allowed to use the computer BBS and ``Internet'' systems to receive whatever they want. If the materials are obscene, the law can forbid the use of means and facilities of interstate commerce and common carriers to ship or disseminate the obscenity. See: Paris Adult Theatre I v. Slaton, 413 U.S. 49, 57 (1973). The Supreme Court has forbidden the criminalization of the mere possession of obscenity in the privacy of one's own home, Stanley v. Georgia, 394 U.S. 557, 568 (1969), but has rejected any
``correlative right to receive it, transport it, or distribute it'' since there is no ``zone of constitutionally protected privacy [that] follows such material when it is moved outside the home area protected by Stanley''. Orito, supra, 413 U.S. at 141-42. To the contrary, the Court has held that there is ``a long-recognized legitimate interest in regulating the use of obscene material in local commerce and in all places of public accommodation''. Paris Adult Theatre, supra, 413 U.S. at 58. The Court also held that Stanley
``does not extend to one who is seeking . . . to distribute obscene material to the public, nor does it extend to one seeking to import obscene materials from abroad, whether for private use or public distribution''. United States v. Thirty-Seven Photographs, 402 U.S. 363 376-77 (1971) (adding that ``Congress may declare it contraband''). Perhaps the best defense for the CDA was summarized by the Court in Orito, supra at 143-44, where it held that Section 1462 could not be used to ship obscenity from San Francisco to Milwaukee by a common carrier, the airlines, stating:
``Given (a) that obscene material is not protected under the First Amendment . . . (b) that the Government has a legitimate interest in protecting the public commercial environment by preventing such material from entering the stream of commerce . . . and (c) that no constitutionally protected privacy is involved . . . we cannot say that the Constitution forbids comprehensive federal regulation of interstate transportation of obscene material merely because such transport may be by private carriage, or because the material is intended for the private use of the transporter.
. . . Congress may regulate on the basis of the natural tendency of the material in the home being kept private and the contrary tendency once material leaves that area, regardless of a transporter's professed intent. Congress could reasonably determine such regulation to be necessary to effect permissible federal control of interstate commerce in obscene material, based as that regulation is on a legislatively determined risk of ultimate exposure to juveniles or to the public and the harm that exposure could cause.'' [Citations omitted.]
As the late Chief Justice Burger stated in Paris Adult Theatre, supra at 69: ``The States have the power to make a morally neutral judgment that public exhibition of obscene material, or commerce in such material, has a tendency to injure the community as a whole, to endanger the
public safety, or to jeopardize, in Mr. Chief Justice Warren's words, the states' [and the Nation's] `right . .
. to maintain a decent society.'' The Court has also recognized that legislatures ``must be allowed a reasonable opportunity to experiment with solutions to admittedly serious problems'', Young v. American Mini Theatres, 427 U.S. 50, 71 (1976), and Congress has taken up such challenges by updating the various federal obscenity, child pornography and exploitation, and telephone and broadcasting statutes to cover new ways that people invent from time to time to traffic in unprotected obscenity and the provision of indecency to minors. The overlap of some criminal acts by inclusion in two or more federal statutes, like the corresponding prohibitions of the various state laws, is a testament to the need to keep all federal statutes comprehensive and paying their individual roles in deterring harmful, unprotected conduct and allowing prosecution under various circumstances. Shortly after World War II, the Court upheld application of the common carrier laws to cover the new technology of phonograph records, recognizing the power and intent of Congress to legislate comprehensively to prohibit traffic in obscenity. United States v. Alpers, 338 U.S. 680682-83
(1950). Congress later amended Section 1462 to specifically include phonographs, so as to clarify and give undeniable notice to all what the law prohibits. Such a task is now before the Congress and the Communications Decency Amendment serves this dual and noble purpose.
(Congress should likewise consider updating and clarifying Section 1462 to plainly prohibit commercial and non-commercial use of any and all common carriers, including telephone, wire, cable, microwave, satellite, computers, etc., for carriage of obscenity for private and public use in interstate, intrastate, and foreign commerce and travel. Times are changing, technology is advancing, but obscenity is till obscene, unprotected, and harmful.)
Much of the hard-core obscenity on the BBS and ``Internet-World Wide Web'' networks is placed there for sale or advertisement by members of the pornography syndicates and by fledgling pornographers. However, the vast amount of hard-core pornography on today's computer bulletin boards and interactive nets is placed there indiscriminately by individual ``porn pirates'' who post freely available pictures of violence, rape, bestiality, torture, excretory functions, group sex, and other forms of hard and soft core pornography which are as available to teenage computer users as to men who are addicted to pornography. A tough federal law is needed to deter such unprotected and viciously harmful activity and the CDA does just that, making such activity a felony in order to deter those who would violate such federally protected interests and public decency and safety concerns. This proposed law would remove hard-core obscenity from most of the generally available computer boards and sites and isolate those who continue so that the remaining obscenity distributors may be identified and prosecuted or deterred by their own lack of anonymity. Present law is not successfully serving its intended deterrence and apprehension roles, obviously.
The CDA would also channel indecent speech and pictures that are not obscene away from the general access public boards and sites where minors and non-consenting adults could take advantage of the serious uses and benefits of this new computer technology. The service and access providers could and would set up consensual access
``adult'' boards and sites where adults could subscribe or provide credit cards and/or access-pin codes and engage in all the ``adult'' (pornographic) speech they wish to consent to. This is no more burdensome than obtaining dial-porn, or cable television's pay-per-view or premium channels, or asking for ``men's sophisticate magazines'' at the convenience stores, or going to hard-core ``adult'' bookstores or into the ``adult'' porn section of video stores, etc., etc., etc. The hysterical arguments about indecency laws banning serious works of literature or library art, so cleverly but hypocritically pandered by the porn user's advocates, are no more real than they would have been under existing laws or in past enforcement actions by the F.C.C. The generations of law enforcement and judicial supervision have narrowly tailored the application of obscenity laws to ``hard-core pornography'' and indecency laws to intentional patterns of patently offensive sex, graphic sexual nudity, and four-letter ``Seven Dirty Words''. As the Court said in Pacifica, sura, 438 U.S. at 743, ``the Commission's definition of
indecency will deter only the broadcasting of patently offensive references to excretory and sexual organs and activities''. The Court in Pacifica, at 742, also stressed that ``indecency is largely a function of context'' and that speech is not indecent unless it is so patently offensive for the time, place, and manner of its utterance that the community would universally disapprove of its open availability in those circumstances.
A review of the decisions of the Supreme Court and other federal and state courts shows that a slip of a four letter word of showing nudity for legitimate reasons has never been, nor would it be, found indecent under the F.C.C.'s, the Court's, or the Justice Department's interpretation of the term ``indecent''. Those in the ACLU and EFF who sound the screeching alarm are merely trying to deafen the gullible to drown out the screams of the children and parents who are being screamed off the modern age's most promising tool for education and global communications. They don't seek in earnest to ``empower'' parents to protect children, they want to force parents by the power of their arrogance to kick the kids off the system so they can trade dirty words and pictures. The Internet does not belong to the most obscene and indecent characters of this world, it was created and should be available to everyone, like radio, television, and telephone services, like the mails, common carriers, and other public interstate facilities. To these concerns should Congress turn in this critical time. The recent study of computer porn by the prestigious Carnegie Mellon University, as reported in the venerable Georgetown University law review provides ample reality to the real alarm being heard by the public and responsible public officials. The obscenity and indecency is totally out of control and the law is behind the times. The CDA merely modernizes existing federal law so that the old maxim that ``the law is presumed to know what everyone knows'' can be fulfilled.
The CDA as adopted by the Senate is both fair and reasonable. It intentionally safeguarded legitimate corporate and private rights. Some provisions of the CDA have even been criticized by pro-family groups as too lenient and providing too many defenses for pornographers, as well as too much exemption and good-faith defense for the on-line computer service access providers, such as Prodigy, CompuServe, NETCOM, and America On Line. The present version of the Amendment would, indeed, exempt the phone company carriers and computer access providers only to the extent that they provide mere access for users to connect to the services and boards of other companies and individuals beyond their control. This would not make the law ineffectual, however, it would simply channel the blame to those who deserve it and enlist the responsible corporations into taking good-faith efforts to avoid and block hard-core pornography and channel indecent speech to adults. To the extent any phone or computer access company would offer obscenity in their own boards, they would be as liable as anyone else. Likewise for making indecent material available to minors under age 18, if they do it-they are liable, but if they don't do it-they aren't liable if someone else does it. This puts the primary criminal liability on those who distribute obscenity to anyone and on those who make indecency available to minors without taking reasonable steps to limit it to adults. Although some people and groups may feel that the phone and computer access providers should bear responsibility for the traffic in obscenity and indecency that is available to minors, but the law need not extend the strictness of its liability to those who act in good faith or merely provide carriage to the illegal materials of others. Existing Section 1462 does not criminalize the act of the common carrier in merely carrying illegal materials. It prohibits the user from using the carrier to transport the obscenity. The carrier would be liable only if it acted beyond its role as a carrier and conspired with, or intentionally aided and abetted, the misuse of company facilities for illegal purposes. The same type of knowledge and
criminal involvement would be required under the CDA and could be applied to such conduct.\4\ The CDA's restrictions to protect minors from indecent speech are the ``least restrictive means'' to protect minors while allowing adults access to non-obscene speech. This is all the public can demand of its laws. The law cannot impose strict liability, but the CDA is designed to provide a serious criminal deterrent to those who would put obscenity onto the computer nets or who would publicly post indecent materials within easy reach of children.
Consistent with this aim, the Amendment contains ``good faith'' defenses that would allow any company, carrier, Internet connector, or private individual to create reasonable and effective ways to screen children out of adult conversations and allow adults to use indecent, non-obscene, speech among adults. This would encourage, and enable (or
``empower''), the access providers to take steps to enforce corporate responsibility and family friendly policies and monitor their systems against abuse. When they do take such steps, the good faith defense would protect them from becoming liable for unfound or unknown abuses by others, and that is all we think the law can ask of them at this point. There is only so much that can be done in a way that is
``technically feasible'' at any point in time (as the Court reminded us in Sable), and the CDA would not require anyone to take steps that are not technically feasible and does not, and should not, expect anyone to take all steps that may be technically possible.
This bill would also allow the States to enforce their own obscenity and ``harmful to minors'' laws against the pornographers and porn pirates. If they chose to regulate the carriers and connectors, they would be bound by the Supremacy Clause of the Constitution and the First Amendment to using consistent measures. This ``pre-emption clause'', subsection
(g), is not intended to be inconsistent with existing requirements for the States to meet under any criminal law. The joint role of federal and state prosecution of those who distribute the obscenity, and indecency to minors, is intended to be a specifically preserved.\5\
The good faith defense also allows responsible users and providers to utilize the existing regulations from the F.C.C. for dial-porn systems, until such time as the F.C.C. makes new regulations specifically for the computer networks. This means that a company or individual who takes a credit card, pin number, or access code would be protected under present F.C.C. rules if a minor stole his parent's Visa card or dad's porn pin number. In other words, some responsibility still resides with parents to watch what their kids are watching on the computer. This is serious business and there is a lot of very harmful pornography on the ``Internet'', so parents better take an interest in what their children have access to, and cannot rely on the law or the businesses to solve the entire problem for them. Federal law can make it a crime to post hard-core obscenity on the computer boards, but many people are willing to break the law. The porn pirates are posting the kind of porn that hasn't been sold by the pornography syndicates in their ``adult'' bookstores in nearly 20 years. This law should deter them for doing that any longer and it would allow federal prosecutors to charge them for it now.
The defenses to indecency are available to every one, so that every one has a chance to act responsibly as adults in protecting children from indecency. This is what the Supreme Court will require for the indecency provisions to be upheld as ``least restrictive'' under the First Amendment. Conversely, no one has a defense to obscenity when they distribute or make obscenity available. The only exception to this is for the carriers and connectors in their role as mere access connectors, only then would they be exempt from the obscenity traffic of others. However, if the on-line service providers go beyond solely providing access, and attempt to pander or conspire with pornographers, for instance, then they would lose their obscenity exemption and be liable along with every one else. This is a limited remedy to prevent the bill from causing a ``prior restraint'' on First Amendment rights. This bill would be nothing at all if it were struck down or enjoined before it could be used against those who are posting, selling, and disseminating all the pornography on the computer networks.
There has been some criticism that this bill in adopting good faith defenses would make it ineffectual and that this would weaken the bill in the same way that the existing dial-porn law is not completely effective. We disagree. The defenses in the dial-porn law were necessary to having that law upheld by the courts. Without them, it was struck down by the Supreme Court. Only after the F.C.C. provided its technical screening defenses was the law upheld by the federal appeals courts. This law adopts those constitutionally required measures for indecency and for obscenity only for the mere access providers. The dial-porn law has removed the pre-recorded message services from the phone lines. The pornographers have gone to live credit card calls. To the extent they are still obscene, they can and should be prosecuted by the Department of Justice, with the help of the F.B.I. That is what it will take to remove the rest of the illegal dial-porn services. The most ineffective part of the dial-porn law is not the F.C.C. defenses, they are fine. What is broken is the phone company defense in the statute, 47 U.S.C. Sec. 223(c)(2)(B), that allows the bell companies to rely on ``the lack of any representation by a provider'' of dial-porn that the provider is offering illegal messages. This means that if the dial-porn company does not tell the phone company that the messages are obscene or going to children as indecency, then the phone company doesn't have to block all the dial-porn lines until an adult subscribes in writing. This is not workable and should be fixed by Congress. The dial-porn law should also be amended to give good faith reliance only of a false representation by a dial-porn provider. If the phone company doesn't know about a dial-porn service, then they should not be responsible. However, the phone company should block all the dial-porn lines and only unblock them on adult request. This is the provision that is causing the phone companies not to act, not the F.C.C. defenses. There is no such provision in the CDA that would allow the carriers or connectors to wait for the pornographers to confess guilt before they must act. If they know, they must act in good faith. No more, no less. This computer porn law is, therefore, better than the existing dial-porn law in that respect.
This amendment would allow federal prosecutions against the pornographers and porn pirates immediately, thus removing much of the hard-core material from the networks that the carriers would be providing access to. A more perfect solution, if any there could be, cannot wait several months or years. If Congress has to exempt the connectors as long as they merely carry the signal and otherwise act in good faith, then so be it. If they abuse it, then Congress can take that break away when it is shown that they don't deserve it. In the meantime, the CDA will give federal law enforcement agencies a tool to get at those who are responsible for distributing the obscenity that is at the heart of the complaints at present. It is a good and constitutional law and arguments that it is too much Government involvement, or not enough, are not true, not realistic, and should not lead Congress to bypass this opportunity to enact an effective remedy to protect the public and our children from this insidious problem.
Bruce A. Taylor, June 29, 1995.
____
footnotes
\1\ The National Law Center for Children and Families
(``NLC'') is a non-profit legal advice organization which supports law enforcement and governmental agencies in the prosecution and improvement of federal and state laws dealing with obscenity and the protection of children.The author of this Memorandum, NLC's Chief Counsel, Bruce Taylor, has been prosecuting obscenity and child pornography cases since 1973, presenting over 85 cases to juries and numerous oral arguments on appeal, as: Senior Trial Attorney, Child Exploitation and Obscenity Section, Criminal Division, U.S. Department of Justice (1989-94); Assistant Attorney General of Arizona (1989); General Counsel, Citizens for Decency through Law, Inc. (1979-89); Associate in Bertsch, Fludine, Millican & O'Malley, L.P.A. (1978-79); Assistant Director of Law, City of Cleveland (1977-78); Assistant Prosecutor, City of Cleveland (175-77); Chief Law Clerk to the Cleveland Prosecutor (1973-75) (see attached Resume of Bruce A. Taylor).
\2\ The CDA and existing Section 223 are attached hereto.
\3\ It was under Section 1465 that the Government convicted the operators of Amateur Action BBS in the Western District of Tennessee for shipping hard-core obscenity, depicting rape, incest, torture, children, excretory functions, etc, etc., from Milpitas, Cal., to Memphis by computer-phone modern facilities. The case is U.S. v. Thomas and is presently pending in the U.S. Court of Appeals for the Sixth Circuit. Interestingly, the A.C.L.U. and the Electronic Frontier Foundation, and some interactive computer service and access providers argued, as amici curiae in support of the Defendants, that present law did not apply to the computer systems, BBS and Internet networks, and that the material should be judged according to the ``cyberspace'' community standards of the customers of such pornographic distributors. This alone should illustrate the need to clarify and update all federal laws on this subject.
\4\ In this regard, the Senate version of the CDA would be more clear if it were amended to add the words: ``or who aids, abets, or advertises for,'' after the phrase ``or a conspirator with'' in subsection (f)(1).
\5\ In this regard, the CDA would be more clear by replacing the words ``this section'' at the end of the pre-emption clause, subsection (g); with: ``subsections (a)(2), (d)(2), or (e)(2)''. As we pointed out in Senate colloquies, this is intended to preserve the right and ability of the states to enforce this obscenity and harmful to minors statutes, consistent with the decision of the Court in Roth-Alberts, supra, 354 U.S. at 493-94.
Lies That Pornographers Tell
National Law Center
for Children and Families,
July 10, 1995.Re Cox-Wyden bill on the Internet connectors as consistent with Exon-Coats Senate CDA.Hon. Christopher Cox,House of Representatives, Cannon House Office Building,
Washington, DC.Hon. Ron Wyden,House of Representatives, Longworth House Office Building,
Washington, DC.
Dear Representatives Cox and Wyden: Please excuse the length of this letter, but much misinformation needs to be corrected and this is an issue of utmost importance to America's children and families. You have been lied to. I'd like to give you my views on the pornographer's propaganda and offer an explanation of the true meaning of the Exon-Coats amendment dealing with computer assisted obscenity and the problem of indecency being made available to minors.
A review of your proposed legislation to protect the computer information service providers shows that you are trying to accomplish the same objectives as the Senate version of the Communications Decency Amendment (``CDA''). Whatever you may have been led to believe about the ``Exon-Coats Amendment'' is obviously incorrect. The Senate bill accomplishes the same benefits and protections your proposed bill seeks to provide. However, I feel your bill, in giving immunity and a defense without a corresponding offense, will have the opposite effect to that which you seek.
Your bill imposes no obligations or prohibitions on either the computer or phone companies, nor on the pornographers. No one would be required to remove or restrict obscenity from the Internet or any BBS bulletin board systems, or to restrict indecency from minors. If any company wishes to take responsible corporate policy measures, your bill would only seek to protect them from civil liability. Under the Senate CDA, every company must clean up its own facilities, could not assist other persons to violate the law, and would be protected from both civil and criminal liability for good faith steps to enforce a responsible policy and restrict obscenity from everyone and indecency from minors.
Your explanatory statement for the Cox-Wyden Bill to protect the access provider Internet connectors (Prodigy, AOL, etc.) expressed a genuine concern for the unfairness of holding these connectors liable civilly for acts they may take in good faith to restrict or prevent the transmission of offensive materials over their facilities and services.
I think that your proposed measure is consistent with and intends a like result as the Communications Decency Amendment
(CDA) of Senators Coats and Exon. The defense-immunity in your proposal, and the exemption and defenses in the CDA, as passed by the Senate, are co-extensive, not different. It is apparent to me that your purpose would be furthered by supporting the Senate's CDA (and even adding some additional provisions to the House version of the CDA, as discussed below and in my attached Memorandum of Opinion in Support of the CDA).
The New York decision against Prodigy, to which you referred, is a lawsuit result to which we also disagree. In fact, the Exon-Coats amendment recognized the same concern by granting those access providers and phone carriers an exemption from criminal liability for crimes committed by others over the facilities of others beyond their control, in
(f)(1). The CDA also provides a good faith defense to offenses committed over one of their own facilities, if they take steps to restrict or prevent such offensive or unlawful communications, in (f)(3). Then, the CDA provided a civil hold-harmless provision to protect users and providers from liability for lawful acts taken in good faith to avoid liability for the offenses specified in 47 U.S.C. Sec. 223, as amended, in (f)(4).
The Senate CDA does not exempt access providers ``if they exercise `no control' over the information their customers get'', as your release states. Just the opposite is true. A phone carrier or access connector is only exempt, under
(f)(1), from crimes committed over facilities over which that company ``has no
control''. If they have control, they must act (such as over their own boards and chat lines and over services with which they enter contracts or carriage agreements). If they truly have no control, they are not strictly liable for another's offenses (such as over a university or pornographer's board existing independently on the Internet or Use Net or World Wide Web to which they
``solely'' provide unassisted access.
To the extent the phone and access companies learn of other people abusing their systems with unlawful activities, they can and must act in good faith to prevent or restrict access to the offensive and unlawful materials, under (f)(3). The phone carriers and access providers are liable for all unlawful activity they know of on their own facilities, under
(d)(1) and (e)(1). They are also liable for knowingly allowing others to use their facilities for unlawful acts, under (d)(2) and (e)(2).
The key to responsible action, to taking ``good samaritan'' policy measures, therefore, is in the operation of the good faith defenses. If a bill provided strict liability on a carrier or connector for all unlawful acts they know of on their systems, then their only avoidance of liability would be to pull the plug or to maintain complete ignorance (not to know is not to act ``knowingly'', so they won't look for what would give them guilty knowledge). A strict liability law, without good faith defenses, would have the effect of making the phone and computer companies turn a blind eye. The Senate version requires responsible action and empowers them to use technically feasible soft-ware and hard-ware measures and protects them from liability in doing so. Your bill seeks the effect of the Senate version, and the opposite effect of a
``no defense'' bill.
Your bill provides a similar exemption from liability for good faith acts to restrict access to objectionable material, in (c) of IFFEA. Without the exemption in (f)(1) and the defenses in (f)(3) of the CDA, the telephone-computer porn statute would provide near strict liability for the carriers and connectors without any incentive to protect themselves except to avoid all knowledge of the offensive materials.
Ignorance would be their best defense if the good faith defenses are removed from the Senate version and they would be criminally, as well as civilly, liable if they knew there were unlawful materials on other facilities over which they had no control but to which they knew one could gain access by using their facilities to reach the Internet and get to those other boards and web sites. The unfairness of this result is the reason the Exon-Coats amendment was structured the way it is and your bill shows a like interest in having a fair application of the law without extending undue liability to those who take responsible action.
Here's how the Senate's CDA really works:
No substantive changes are made to existing ``dial-a-porn'' provisions in 47 U.S.C. Sec. 223 (b) and (c). Subsection 223(a) is clarified only to codify that subsection's historic interpretation as applying to unconsented harassing and obscene calls for annoyance or threat. This merely codifies present law and prevents subsection (a) from any argument that it would ban all ``indecent'' or ``obscene'' phone or computer conversations.
The CDA adds four new offenses, two in each of the new subsections (d) and (e), which are subdivisions (d)(1) and
(d)(2) and then (e)(1) and (e)(2):
(d)(1) knowingly make or make available obscenity;
(d)(2) knowingly allow one's own facility to be used by others to make or make obscenity available;
(e)(1) knowingly make or make available indecency to minors;
(e)(2) knowingly allow one's own facility to be used by others to make or make indecency available to minors.
The (d)(1) and (e)(1) offenses apply to everyone, the pornographers, and the persons who post or sell it on a bulletin board or chat line or web site, and any board or site owner-operator who knowingly conspires with them or aids
& abets them. They also apply to phone carriers and computer connectors who would provide such unlawful materials as one of their own services.
The (d)(2) and (e)(2) offenses are ``carriers'' crimes and apply only to phone carriers and access connectors who own-operate telecom. facilities used by others to make computer-modem connections to the Internet, Use Net, World Wide Web, or private BBS boards. To the extent a computer connector acts as a mere conduit, they act like carriers when they connect someone to the facilities of others on the nets or boards. To that extent, only, they are and should be treated as carriers are treated for the same activity.
Legally, the access provider-connectors (Prodigy, America On Line, CompuServe, NETCOM, etc.) are not ``common carriers''
like the telephone companies (ATT, MCI, Sprint, and the Bell companies). The Senate CDA specifically recognizes this in the last sentence of (f)(3), thus precluding FCC jurisdiction over the operation of those ``enhanced information services''. (Your bill, conversely, merely states, in (d), that nothing in your bill gives FCC jurisdiction. Nothing prevents FCC jurisdiction from another source or act, just that your bill doesn't confer it.) The Senate's CDA allow the FCC only to develop defenses and technical methods to screen out children from indecency and allow adults to have reasonable access to indecent material among themselves, like it did for dial-a-porn. The FCC's technical screening devices (credit cards, access-pin codes, and blocking) were cited by the Supreme Court as effective ``least restrictive means'' to screen out minors without affecting adult's rights to non-obscene but indecent communications among adults. Allowing these FCC regulations, along with any present or future soft or hard-ware solutions to restrict indecency to adults, makes the indecency provisions of subsection (e) of the CDA constitutional and effective.
Since existing federal law (18 U.S.C. Sec. 1462 and 47 U.S.C. Sec. 223) treats common carriers differently, because of their role as public access carriers, the CDA treated the access connectors in like fashion when they act as common carriers by merely providing access to the facilities of others beyond their control. To the extent a connector gives one access to its own facilities or services, like its own boards and chat sites that are within its control, it is liable like anyone else and must police its own operations. This is like dial-a-porn, where Mountain Bell (which does not provide lines to dial-porn providers) would not be liable for a call from a customer in Arizona who calls through Mountain Bell, then is carried from Mountain Bell by ATT to NYNEX, and reaches a dial-porn company in New York with which NYNEX has a contract. NYNEX can and should be liable if it is culpable, but Mountain Bell should not. The CDA apportions the same criminal liability on those who share the same criminal blame.
The CDA's (f)(1) only exempts the phone carriers and access connectors when they ``solely'' give one mere access to others' facilities over which they have ``no control''. As to their own boards and sites, they are liable for the offenses when they knowingly and intentionally allow users to transmit obscenity, or indecency to minors, through their systems. In that regard, however, they have the good faith defense in
(f)(3) if they monitor, block, screen, etc., all the offensive material they know about and someone still gets unlawful material through. If they've done all they could to police their own boards, they would be protected. If they do nothing and they know their facilities are being so used for unlawful purposes, they would be liable under (d)(2) and
(e)(2).
The incentive is therefore mandated (f)(3) that they do their own corporate responsible actions to restrict or prevent such transmissions or access. It is obvious, however, that Prodigy cannot police what is posted on a CompuServe board or on an independently operated board on the Internet
(such as a university, pornographer, or private company board). They can, and would, delete such boards from their index and directory listings, and they could block the drive paths to known offending sites and porn pictures (known as
``GIF'' files-Graphic Interchange Format), to the extent technically feasible. If they advertised for such sites or GIF files of others, then they would not be ``solely'' providing access as exempted under (f)(1).
There is one change to the Senate CDA that could be made to specify some things that an access provider could not do to assist a pornographer on another's service, like listings and advertising porn sites and GIF files. To accomplish this result more clearly, I suggest that the House CDA add the words: ``or who aids, abets, or advertises for,'' after the phrase ``or a conspirator with'' in (f)(1). This would mean that the access connectors would be responsible for policing their own boards and services and could not assist or aid the unlawful activities of others that they cannot otherwise control.
Another change I would like to see in the CDA is to correct the last clause of the pre-emption clause, subsection (g), to make it clear and consistent with the first sentence. I suggest the words ``this section'' be replaced with:
``subsections (a)(2), (d)(2), or (e)(2)''.
Finally, I believe Congress has been betrayed by some telephone companies by not blocking all their dial-a-porn numbers unless they receive a written request from the customer for access to those numbers, as intended and provided in 47 U.S.C. Sec. 223(c)(1). The problem lies with the immunity granted by subsection 223(c)(2)(B)(i), which allows the phone carriers to avoid their blocking duties by relying ``upon the lack of any representation'' from a dial-porn provider that the provider is selling illegal messages. In other words, if the phone-sex company does not confess guilt to the phone company, the phone company need do nothing. Since the dial-pornographers don't admit anything, some phone companies don't block anything. This loophole has become a sink hole that Congress should plug. This can be remedied to its original intent by removing the immunity from reliance on silence and giving them immunity only if they
were lied to or unknowingly misled. Two changes to that clause, Sec. 223(c)(2)(B)(i), would remedy this unjust result, as follows: (i) in good faith reliance upon the representation by a provider of communications that communications provided by that provider are not communications specified in subsection (b) of this section, or
Other than the two suggested clarifications to the CDA, and the one suggested correction to the dial-a-porn law, the Senate version of the CDA is eminently fair and as constitutional and effective as the law will allow.
I hope that, when you consider the Senate version in its entirety and as it would be applied and followed in reality, you will agree that the CDA provides the same protections you seek for the legitimate interests of the computer and phone companies, while outlawing illegal obscenity from the computer networks and allowing minor children to take advantage of the educational and growing benefits of the computer without being bombarded with so-called ``adult'' materials. The Internet need not be the ``adult bookstore'' of cyberspace. The Senate bill would put the ``adult'' books in the back room and have adults show ID to get in. Just like in every day life in the rest of the country. This is the least restrictive means to protect children, and they are entitled to at least ``the least'' the law will allow them under the First Amendment.
As for obscenity, the Senate version only prohibits that which is already illegal to distribute by any other federal means. Existing laws in Title 18 of the U.S. Code prohibit: the sale of obscenity on federal property or in Indian Country (Sec. 1460); all mailings of any obscenity
(Sec. 1461); use of a common carrier to ship any obscenity in interstate or foreign commerce or smuggle it into the U.S.A.
(Sec. 1462); broadcasting obscenity or indecency by radio or TV (Sec. 1464); transporting it across state lines by any method, or using an interstate commerce facility such as computer phone-modems, to ship or transit it for sale or distribution (Sec. 1465); selling obscenity at retail that was shipped through interstate commerce (Sec. 1466); and using cable, subscription, or satellite TV systems to distribute obscenity (Sec. 1468).
The Communications Decency Amendment is a good, fair, and constitutional proposal. You and your colleagues have been lied to about what it would do and what it provides. I trust that you seek a proper blend of law and private action and I trust in your instincts to see through the smoke. Without a law, the computer nets will continue to be abused by the purveyors of hard-core obscenity and it will continue to be a place in which responsible adults should fear to let their children play. A law that does not prohibit unlawful materials is no law at all to the pornography syndicates, their associates, and the addicted customers. An overly strict law would not be tolerated by the courts, for fear of an unconstitutional prior restraint.
There is no reasonable doubt that only a carefully worded and First Amendment sensitive statute will survive the legal challenges that the ACLU, Center for Democracy and Technology, Electronic Frontier Foundation, and some commercial pornography companies will mount. The CDA can withstand the tests to be applied, no other proposal can make that claim. This is a serious problem and needs a serious and lawful solution. The CDA would be a valid extension of federal obscenity law to the computer networks and a valid extension of dial-a-porn protections for children from indecent adult material.
Our hope is that you sponsor and support the CDA as passed by the Senate. Your leadership would probably insure its passage. The country, all us parents and grandparents, all of our children, our neighbors, even the addicted customers need your help and that of your fellow Members of the House of Representatives. Please reconsider and look at the Communications Decency Amendment in a new light. It is a good bill. Look for yourself. It won't lie to you like porn advocates have.
Please let us know if we can help you in this regard.
Sincerely yours,
Bruce A. Taylor,
President & Chief Counsel.
Mr. EXON. Mr. President, this letter is by a distinguished lawyer, who has, I guess, as much experience with the prosecution of pornographers as most lawyers in the United States would recognize as a real authority on the subject.
The letter of July 10 is addressed to the Honorable Christopher Cox of the House of Representatives and the Honorable Ron Wyden of the House of Representatives. The subject is the Cox-Wyden bill on Internet connectors as consistent with the Exon-Coats Senate decency amendment. And I quote:
Dear Representatives Cox and Wyden: Please excuse the length of this letter, but much misinformation needs to be corrected and this is an issue of utmost importance to America's children and families. You have been lied to. I'd like to give you my views on the pornographer's propaganda and offer an explanation of the true meaning of the Exon-Coats amendment dealing with computer assisted obscenity and the problem of indecency being made available to minors.
A review of your proposed legislation to protect the computer information service providers shows that you are trying to accomplish the same objectives as the Senate version of the communications decency amendment (``CDA'').
Whatever you may have been led to believe about the ``Exon-Coats amendment'' is obviously incorrect. The Senate bill accomplishes the same benefits and protections your proposed bill seeks to provide. However, I feel your bill, in giving immunity and a defense without a corresponding offense, will have the opposite effect to that which you seek.
Mr. President, although the letter has been printed in the Record, I would like at this time to quote from the last two or three paragraphs:
The communications decency amendment is a good, fair, and constitutional proposal. You and your colleagues have been lied to about what it would do and what it provides. I trust that you seek a proper blend of law and private action and I trust in your instincts to see through the smoke. Without a law, the computer nets will continue to be abused by the purveyors of hard-core obscenity and it will continue to be a place in which responsible adults should fear to let their children play. A law that does not prohibit unlawful materials is no law at all to the pornography syndicates, their associates, and the addicted customers. An overly strict law would not be tolerated by the courts, for fear of an unconstitutional prior restraint.
There is no reasonable doubt that only a carefully worded and first amendment sensitive statute will survive the legal challenges of the ACLU, Center for Democracy and Technology, Electronic Frontier Foundation, and some commercial pornographic companies will mount. The CDA can withstand the tests to be applied, no other proposal can make that claim. This is a serious problem and needs a serious and lawful solution. The CDA would be a valid extension of Federal obscenity law to the computer networks and a valid extension of dial-a-porn protections for children from indecent adult material.
Our hope is that you sponsor and support the CDA as passed by the Senate. Your leadership would probably insure its passage. The country, all us parents and grandparents, all of our children, our neighbors, even the addicted customers need your help and that of your fellow Members of the House of Representatives. Please reconsider and look at the communications decency amendment in a new light. It is a good bill. Look for yourself. It won't lie to you like porn advocates have.
Please let me know if we can be of help in this regard.
Sincerely yours,
Bruce A. Taylor,
President and Chief Counsel for the National Law Center for Children and Families
Mr. President, since the Exon-Coats measure passed with a 84 to 16 majority, the Senate of the United States sent a very loud and clear signal that something has to be done about obscenity. Something has to be done with regard to material that is being used promiscuously on the Internet today. This is a wonderful new system for the distribution of information. But if we are to sit idly by and listen to some of the opponents, who do not want to do anything about this problem, the American people are being convinced and are now being told by national publications, including Time magazine, who last week had an indepth story with a front-page cover showing a child.
This is a carefully crafted piece of legislation. It is obviously necessary, as has become evident to most people who have taken the time to either see this smut--and I use that word very advisedly because it does not begin to describe the bestiality and the sexual perverts that have invaded this system, primarily to make money.
The courts have continually held that we have the right to do something in the courts when we have this kind of material in full swing. We had a hearing in the Commerce Committee today, primarily on violence on television. The people are justifiably upset about that. We also talked today about the large amount of sex and suggested sex that is being thrown at our children today. The Exon-Coats proposal with regard to our Internet system is an important step in the right direction. And as more and more people look at it, and as more and more people recognize all of the lies that are being told about this piece of legislation--simply untruths designed and planted in many publications by those who want the pornographers to run at will and be available at will to our children on the Internet.
Mr. President, I think this is a step in the right direction. I have personally hand delivered a copy of this letter that I had printed in the Record to the Attorney General of the United States, Janet Reno. I have had a personal conversation with the Vice President of the United States about this today. He was very much interested in this letter. I faxed the letter to him. In addition thereto, I have had delivered today to the White House itself, to the attention of the President, this well-thought-out letter that adequately and honestly describes the well-thought-out Exon-Coats amendment. I only hope that the Members of the House of Representatives will awaken. I think too many of them have been misled and lied to about the communications decency amendment. I hope it becomes law.
I thank the Chair and yield the floor.
Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. COHEN. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
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