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CDT report on Senate and House hearings on Online Pornography
Somewhat interesting it seems, an ultra-conservative House is the First
Amendment's bigest friend on the Online "porn" issue, while a much more
moderate Senate is it's biggest enemy ...
--
Christopher E Stefan * [email protected] * finger for PGP key
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** ** ** *** POLICY POST
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** ** ** *** July 26, 1995
** ** ** *** Number 22
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CENTER FOR DEMOCRACY AND TECHNOLOGY
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A briefing on public policy issues affecting civil liberties online
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CDT POLICY POST Number 22 July 26, 1995
CONTENTS: (1) Senate Judiciary Committee Holds Cyberporn Hearing
(2) House Science Subcommittees Hold Hearing to Explore
Parental Control Technology -- Law Enforcement Officials
Say Exon CDA is Wrong Approach
(3) Subcribe To The CDT Policy Post Distribution List
(4) About CDT, Contacting US
This document may be re-distributed freely provided it remains in its
entirety.
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(1) SENATE JUDICIARY COMMITTEE HOLDS CYBERPORN HEARING
SUMMARY
On Monday July 24, 1995 the Senate Judiciary Committee held the first every
hearing on the issue of children's access to inappropriate material on the
Internet. The principal focus of the hearing was to discuss Senator
Grassley's "Protection of Children from Computer Pornography Act of 1995"
(S. 892). CDT Executive Director Jerry Berman testified before the panel.
Senator Grassley (R-IA) deserves praise for holding the first Congressional
hearing on this important issue, as well as for taking great pains to
ensure that both sides of the issue were represented. Although CDT may
disagree with Senator Grassley's approach, we believe that this hearing
represented an essential step towards advancing the dialogue on what has
become an over-hyped and dramatically misunderstood issue.
Senator Grassley's legislation, which has been co-sponsored by several
other prominent members such as Dole, Hatch, and Thurmond, would impose
criminal penalties on a service provider that "knowingly" transmits
indecent material to a minor, or who "willfully" permits its network to be
used to transmit indecent material to a minor (S. 892, Sec (b)(2) &
(b)(3)).
Two important points emerged from the testimony:
1. Current law prohibits the distribution of obscenity and child
pornography, as well as online stalking and solicitation of minors.
As troubling and disturbing as some of the testimony was, no evidence
was presented that there are gaps in current law which would be
filled by the Grassley legislation.
2. Serious questions exist as to the constitutionality of the Grassley
Bill. Although Senator Grassley has repeatedly stated that his bill is
narrowly drawn and targets only the bad actors, no evidence was
presented to establish that a court would not interpret the statute
more broadly, resulting in a complete ban on constitutionally
protected speech online.
WITNESSES
Witnesses testifying before the panel included:
* Donnelle Gruff, a 15 year old Florida girl described as a victim of an
online stalker,
* Patricia Shao, a mother of two from Baltimore MD and volunteer for
Enough Is Enough
* Dr. Susan Elliot, a mother from McLean VA
* Bill Burrington, Assistant General Counsel, America Online
* Barry Crimmins, a children's rights advocate
* Stephen Balkam, Executive Director, Recreational Software Advisory
Counsel
* Jerry Berman, Executive Director, Center for Democracy and Technology
* Michael S. Hart, Executive Director of Project Gutteberg, Professor of
Electronic Texts, Illinois Benedictine College
* Dee Jepson, Enough Is Enough (an anti-pornography group)
DOES THE GRASSLEY BILL PROTECT CHILDREN?
The testimony of 15 year old Donnelle Gruff focused on her experience as
the victim of a stalker, while Dr. Elliot and Ms. Shao, two mothers of
young children, described how their children had used commercial online
services to access files they deemed inappropriate.
Donnelle Gruff testified that she had been harassed and stalked by the
sysop of a Florida BBS she had visited. The sysop had obtained her name,
age, and address from her records and reportedly stalked Gruff while she
was at home.
During questioning however, Gruff's step-father told Senator Leahy that
Florida law enforcement officials were currently investigating the case,
and that they had given no indication that current law is insufficient with
respect to prosecuting such cases. Senator Leahy noted that, as difficult
and disturbing as Gruff's case is, it illustrates a need for additional law
enforcement resources and education, but is not an issue of gaps in current
federal or state laws. Senator Patrick Leahy (D-VT) noted similar recent
prosecutions in Florida, and noted that the Grassley legislation does not
explicitly prohibit online stalking of minors.
In addition, Senator Leahy questioned whether government content
restrictions would be an effective solution to protecting children online.
"I hear a lot of rhetoric (from Congress) about getting government out of
our lives, but here it seems as if the rhetoric is a little off of reality.
Parents, not the government, should make the choices" about what their
children should be permitted to access.
Both Dr. Elliot and Ms. Shao testified that their children had stumbled
across material while surfing the Internet that they, as parents, felt
should not be accessible to children. Both described how their children had
accessed "pornographic" images, and had been propositioned for "cybersex"
while visiting a chat room on a commercial online service. In addition, Dr.
Elliot described some of the images as representing 'bestiality and
sodomy'.
Barry Crimmins, a child protection advocate, testified that he has found
numerous images of child pornography on America Online. Crimmins accused
AOL of neglecting to adequately police its network. When questioned by
Senator Leahy, Crimmins acknowledged that the distribution of child
pornography and stalking or solicitation of minors is prohibited under
current law. Crimmins added that while he thought the commercial online
service should do more to remove such material, he believes that more
vigorous enforcement of existing law would help to address his concerns.
WHAT IS THE SCOPE OF THE ISSUE -- IS CURRENT LAW SUFFICIENT?
Often in the course of the debate on this issue, the term "pornographic" is
assumed to be interchangeable with both "indecency" and "obscenity".
However as Senator Feingold (D-WI) noted, "pornography" has no legal
standing, and when legislating in this area Congress must be careful to
avoid confusing these legal distinctions.
In determining what material would be considered illegal under current law,
the distinction between "obscene" and "indecent" material must be made
completely clear. When pressed by Senator Feingold, Dr. Elliot agreed that
precise definitions are important, but argued that the files that her child
downloaded from the Internet that depicted bestiality and sodomy that would
be, "obscene by any standard".
Images of bestiality and sodomy, as Dr. Elliot described, would be
considered obscene in virtually every community in the United States, and
hence are illegal under current law. Though it raises difficult
jurisdictional questions, obscenity has been clearly defined by the Courts.
Moreover, current law already prohibits trafficking in obscenity (18 USC
Sec 1462, 1464, 1466) as well as child pornography (18 USC Sec 2252) have
been successfully applied to punish conduct on computer networks. As
Senator Leahy pointed out in his statement, the Justice Department is
currently prosecuting cases involving material similar to that described by
Dr. Elliot.
Indecent material, on the other hand, is constitutionally protected and is
much more difficult to define. The most common understanding of what
constitutes indecent material includes the 7 dirty words, images of nudity,
and other suggestive material. Moreover, the Supreme Court has ruled that
any attempts by government to restrict access to indecent material must be
accomplished in the "least restrictive means", and the determination of
this standard is entirely dependent on the medium (see Sable Communications
v. FCC, 492 US 115; 109 S.Ct. 2829; 106 L.Ed. 2d 93 (1989).
Some of the material described by the witnesses would be considered
obscene, and hence is already prohibited under current law. Other examples,
including Ms. Shao's description of her daughter being propositioned for
"cybersex", would likely not be considered obscene.
Senator Russ Feingold (D-WI) urged the committee to carefully consider the
distinctions between "obscene" and "indecent" speech, and urged his
colleagues to "exercise caution and restraint."
How broadly should we define indecency, Feingold asked Dr. Elliot, "Where
should we draw the line? Should we prohibit playboy? swearing? The Catcher
In The Rye? What about a discussion forum about how to avoid getting
AIDS?".
Because technologies currently exist to screen out messages such as those
described by Ms. Shao, it is unlikely that a broad prohibition on such
messages would pass constitutional muster. In this case, Congress must look
to other, less restrictive methods of preventing children from having
access to such materials -- including promoting the development and
availability of user control technologies.
CONSTITUTIONAL ISSUES
Throughout the hearing, Senator Grassley stated that his legislation is
carefully crafted and narrowly drawn in order to preserve the first
amendment rights of adults while protecting children from inappropriate
material. Grassley stated that his bill would hold an online service
provider liable only in cases where they "knowingly" allow their network to
be used to transmit indecent material to a minor or "willfully" allow an
individual to use their network to do so.
However, as CDT's Jerry Berman and America Online's Bill Burrington argued
the wording of the statute and the variety of possible interpretations
could lead to severe chilling effect on the free flow of legitimate
information in cyberspace and force online service providers to limit or
remove certain areas of their service.
BROAD KNOWLEDGE REQUIREMENT
The scope of the "knowing" standard in the Grassley bill is an issue of
some dispute. Senator Grassley and his staff maintain that it is intended
to apply narrowly, but no evidence was presented that demonstrated why a
court would apply a narrow interpretation. Instead, a court is likely to
interpret the "knowing" requirement broadly.
Berman cautioned that because of this uncertainty, online service providers
would be forced to rely on the broadest possible interpretation of the
statute in order to avoid liability, resulting in a severe chilling effect
on all online communications:
"The threat of a broad interpretation of this new statute would compel all
who provide access to the Internet to restrict *all* public discussion
areas and public information sources from subscribers, unless they prove
that they are over the age of eighteen. Under this statute, a service
provider could note even provide Internet access to a minor *with the
approval* of the child's parent. Since every online service provider would
have to similarly restrict access to minors, this proposed statute would
create two separate Internets, one for children and one for adults."
America Online's Bill Burrington agreed, stating that the potential for a
broad interpretation of the statute would compel AOL and other online
service providers to adhere to the broadest possible reading in order to
avoid potential liability. Burrington argued that would force AOL to shut
down many parts of their service and place providers in the unenviable
position of national censor.
"Constitutional guarantees of free speech and press should be cautiously
guarded," Burrington stated, "The online service provider industry should
be encouraged to provide *voluntary* editorial control over its service and
to continue its research and development of parental empowerment technology
tools. This industry should not be cast in the role of national censor,
determining which information may be fit for children, but nonetheless
subject to criminal liability if it guesses incorrectly in any given
instance."
Senator Dewine (R-OH) asked several questions of many of the witnesses, and
expressed concerned about the potential for an overly board interpretation
of the knowledge standard.
BROAD INTERPRETATION OF 'INDECENCY'
As addressed earlier, a precise definition of 'indecent' speech has
never been firmly established, and whether material would be considered
indecent depends largely on the nature of the medium it is communicated
through. Because of this, and because under the Grassley bill carriers
would be liable for transmitting indecent speech, carriers would be forced
to adhere to the broadest, most inclusive definition of indecency. This
would include, among other things, the 7 dirty words, description of
genitalia, nudity, and other material which is protected in other media.
This issue was raised by Michael Hart, Executive Director of Project
Gutteberg, who stressed that broad restrictions on indecency would prevent
people from enjoying serious works of fiction on the Internet. Project
Gutteberg makes electronic texts of books available on the Internet. Hart
stated, with great emotion, that the proposed indecency restrictions
contemplated by the Grassley bill would force him to remove some of
Shakespeare's plays, The Catcher In The Rye, Lady Chattily's Lover, Alice
in Wonderland, and other books which have been classified as indecent in
some parts of the United States. Although such an effect may not be
intended by the drafters of the Grassley legislation, no evidence was
offered at the hearing to counter Mr. Hart's concerns.
EXON vs. BERMAN
CDT's Jerry Berman urged the Committee to act cautiously before voting to
further restrict First Amendment guarantees of freedom of speech. Berman
urged the Senate to fulfill its traditional role as the "deliberative
body", and to carefully consider the implications before enacting broad new
statutes to cover new media. Referring to both the Exon CDA and the
Grassley bill, Berman stressed that the country would be better served if
the Senate did not enact legislation simply to "provide the illusion that
the United States Senate could do something in this area".
This remark drew a sharp rebuttal from Senator Exon, who, though not a
member of the Judiciary Committee, sat in on the hearing on the invitation
of Senator Grassley. Exon defended his bill and accused CDT and others of
launching "viscous attacks" against him and his legislation. Berman was not
given a chance to respond.
"We are concerned about the situation", Exon argued, yet "we are viscously
attacked for trying to have a rational discussion. We don't want to create
a false sense of security [but] we have a responsibility to protect
children". In addition, Exon dismissed parental control technologies as
too little too late, arguing that "for every block there is a way around
that block", and that such technologies may not be available in every home,
allowing children to access inappropriate material at the homes of
neighbors who may not employ such tools.
WHAT WAS LEARNED?
Although the hearing did illustrate that sexually explicit material can be
found on the Internet, no substantial evidence was presented to indicate
that law enforcement is currently unable to prosecute violations of
obscenity, child pornography, stalking, or child solicitation laws.
Moreover, although Senator Grassley intends his legislation to be narrow,
serious questions were raised about whether other, more board
interpretations are possible.
In our opinion, the hearing illustrated that current law is sufficient to
prosecute those who stalk or solicit children online, and that complex
constitutional issues are raised by congressional attempts to restrict
indecent material on the Internet.
PATHS TO RELEVANT DOCUMENTS
Testimony is available for most of the witnesses from CDT's Communications
Decency Act Issues page*:
URL:http://www.cdt.org/cda.html
or from our ftp archive*:
URL:ftp://ftp.cdt.org/pub/cdt/policy/freespeech
*Due to the volume, these materials may take several days to appear on our site.
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(2) HOUSE SCIENCE SUBCOMMITTEE HOLDS 'PARENTAL CONTROL TECHNOLOGY' HEARING
Two subcommittees of the House Science Committee held a joint hearing
today (July 26, 1995) on the availability of parental control technologies
to prevent children from accessing inappropriate material on the Internet.
The hearing, held by the Subcommittee on Basic Research, Chaired by Rep.
Schiff (R-NM) and the Subcommittee on Technology, Chaired by Rep. Constance
Morella (R-FL) provided an important counter-balance to Monday's Senate
Judiciary Committee Hearing.
Witnesses testifying before the committee included:
Witnesses Demonstrating Technology Solutions
* Tony Rutkowski, Executive Director of the Internet Society
* Ann Duvall, President of SurfWatch Software
* Steve Heaton, General Counsel and Secretary, Compuserve
Law Enforcement Witnesses
* Kevin Manson, Federal Law Enforcement Training Center
* Mike Geraghty, Trooper, New Jersey State Police
* Lee Hollander, Assistant States Attorney, Naples Florida
LAW ENFORCEMENT OFFICIALS SAY CURRENT LAW SUFFICIENT, EXON BILL FLAWED
Today's hearing marked the first time law enforcement officials have
testified on the issue of children's access to inappropriate material on
the Internet. All three law enforcement witnesses agreed that, in their
experience, current law is sufficient to prosecute online stalking,
solicitation of minors, and the distribution of pornography and child
pornography. All three said that they are vigorously prosecuting such
cases.
Instead of enacting new law, New Jersey State Trooper Mike Geraghty said
that protecting children is "a matter of training law enforcement officers,
prosecutors, lawyers and judges about how to enforce existing laws [with
respect to computer networks]. The laws are good, we have to learn how to
enforce them".
The three law enforcement witnesses further argued that the Senate-passed
Exon/Coats Communications Decency Act is the wrong approach to addressing
an issue that is already covered under existing law. "I have several
problems with the Exon bill as a prosecutor, both in terms of its practical
enforcement and its constitutionality" said Florida Assistant States
Attorney Hollander said.
TRANSACTIONAL PRIVACY PROTECTIONS CRITICIZED
In an slightly unrelated asside, Florida Assistant States Attorney Lee
Hollander criticized privacy protections for online transactional
information privacy protections as a hindrance to law enforcement.
As part of last years Digital Telephony legislation, the standard for law
enforcemetn access to online transactional records (logs that indicate what
files an individual accessed from online archives and electronic mail
transactions) was raised from a requirement of a mere subpoena to a court
order from a judge based on the showing of "specific and articulable facts"
that such records are "relevant and material to an ongoing criminal
investigation". The higher standard was widely seen as a victory for online
privacy.
In response to a question of what Congress could do to help aid enforcement
of existing law, Hollander noted that the higher standard for online
transactional records adds an additional burden to law enforcement
investigations. Calling it part of a "ballance between privacy and law
enforcement", Hollander did not suggest that Congress should repeal the
court order requirement, only that it made prosecutions more difficult
(*NOTE: Members of CDT staff worked closely on this issue, and consider the
court order standard to be a tremendous victory for online privacy).
EXON CDA CONDEMNED BY ALL
Condemnation of the Senate-passed CDA was not limited to the law
enforcement witnesses. Not a single member of the Subcommittee stated
support for the CDA, and all expressed concern that the issue had not
received sufficient public consideration by Congress.
Chairwoman Morella stressed that Congress should consider technological
options to empower parents to exercise control over what their children
access online before rushing to enact new laws. Rep. Geren (D-TX) expressed
concern about the First Amendment implications of the CDA. Rep. Vern Elhers
(R-MI) stated that he would "oppose bills that make network access
providers (legally) responsible for the content they carry". In what was
perhaps the strongest condemnation of the Senate-passed Communications
Decency Act, Rep. Zoe Loefgren (D-CA) said, "While well intentioned, the
Exon bill a totally wrong approach and a complete misunderstanding of the
Technology."
PARENTAL CONTROL TECHNOLOGY IS THE ONLY EFFECTIVE SOLUTION
Internet Society Executive Director Tony Rutkowski provided Committee
members with a basic overview of the Internet and described Internet
Society (ISOC) and Internet Engineering Task Force (IETF) are currently
looking at content tagging and other voluntary rating systems for future
Internet protocols. Rutkowski stressed that centralized, command and
control style content restrictions would be ineffective in the global,
distributed network environment of the Internet. Rutkowski further noted
that objectionable material constitutes a minuscule amount (less than .05%)
of the total traffic on the network.
Because of the global reach of the Internet and the millions of potential
content providers, Rutkowski argued, the only effective means of addressing
the availability of inappropriate material is to provide user control
applications to empower parents to block and filter what the and their
children access.
SurfWatch President Ann Duvall, demonstrated SurfWatch, and described the
product as "just one example of the computer industry responding to needs
created by the explosive growth of technology". Duvall stressed that the
industry is developing solutions which are simple to use, inexpensive, and
empower parents to make their own choices about what they or their children
should see.
Expressing concern about legislative efforts to control content online,
Duvall noted that 30% of the sites blocked by SurfWatch reside outside the