ACLU Opposes Exon-Like Speech Crimes in Managers Amend. to House Telco Bill

[ACLUNATL@aol.com]

**PLEASE WIDELY REDISTRIBUTE THIS DOCUMENT UNTIL SATURDAY AUGUST 5, 1995**

8/2/95  
ACLU Cyber-Liberties Alert:  
Oppose Exon-Like Speech Crimes in the Managers Amendment to the House Telco
Bill  
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The House is expected to begin considering the telecommunications bill (HR
1555) tonight, August 2, 1995, and to vote on the bill by Friday, August
5th.  The managers for the telco bill on the House floor -- Representatives
Bliley (R-VA), Hyde (R-IL), and Dingell (R-MI) will be introducing an
omnibus "Managers Amendment" to HR 1555. 
 
The Managers Amendment would create, among many other unrelated changes,
new Exon-like speech crimes that would censor the Internet. 
 
To prevent online censorship and preserve free speech and privacy rights on
the Internet, we urge you to voice your opposition to this dangerous
amendment.  
  
The Managers Amendment would add an entirely new Exon-like provision to the
existing federal obscenity laws.  The provision would make it a crime to
"intentionally communicate by computer ... to any person the communicator
believes has not attained the age of 18 years, any material that, in
context, depicts or describes, in terms patently offensive as measured by
contemporary community standards, sexual or excretory activities or
organs."  (18 U.S.C. 1465) 
  
This provision, like the Exon amendment passed by the Senate, would
effectively reduce all online content to that which is suitable only for
children.  It also raises the same questions about service provider
liability that were raised by the Exon amendment. 
 
The Managers Amendment would also make it a crime to "receive" material
from overseas "by computer," thereby subjecting both Internet users and
service providers to new prosecutions (18 U.S.C. 1462).   
In addition, these new provisions, like the Exon amendment, would cover
private e-mail.  
  
Finally, the criminal code changes in the Managers Amendment would reduce
all online speech to the obscenity standards of the most restrictive
community in the United States -- unless the courts clarified the relevant
"community standards" for cyberspace (and we're losing the cases in court
so far).   
 
If the House adopts the Managers Amendment, both the House and Senate
versions of the telco bill will include severe attacks on cyber-liberties.
This would make it difficult for the conference committee to avoid some
kind of severe online censorship provisions in the final version of the
telecommunications deregulation bill.  
  
The Cox/Wyden amendment, which has received widespread support, will be
offered as a separate amendment to HR 1555.  Cox/Wyden is far preferable in
approach to either the Exon amendment in the Senate telco bill or the
Exon-like speech crime provisions in the Managers Amendment to the House
telco bill. Cox/Wyden also prohibits FCC censorship of Internet speech. 
 
However, the ACLU remains concerned about certain ambiguities and some
genuine problems in the Cox/Wyden bill.  When Cox/Wyden is adopted by the
House, we will work with the conference committee to resolve these
concerns, but we are troubled that they have not been resolved up to now. 
Representative Cox has committed again to working out these problems.  We
hope this will prove successful.  
  
But an affirmative vote on Cox/Wyden will not stop online censorship,
especially if the Exon-like Managers Amendment is also approved by the
House!!  
  
**Please call your Representative today to express your opposition to the
speech crime provisions in the Managers Amendment to the telco bill (HR
1555).  Express your support for the approach of the Cox/Wyden amendment.**

In addition to lobbying on the telco bill, and to lobbying the Rules
Committee to prevent floor action on either the Exon amendment or the
Exon-like new speech crimes provisions, the ACLU delivered the following
letter to Republican members and some Democrats in the House of
Representatives today: 
  
------------------  
  
RE:  Important Statements by Conservatives and Others on Unconstitutional 
Provisions of Telecommunications Deregulation Legislation (H.R. 1555 in the
House)  
  
Dear Representative:  
  
On behalf of the American Civil Liberties Union, we are pleased to provide
the enclosed statements from The Wall Street Journal, the Cato Institute,
Speaker Newt Gingrich, the Center for Democracy and Technology and the
Interactive Working Group.  All address the importance of leaving American
citizens free to decide -- not have some government bureaucracy control --
what they wish to watch on television or access by computer. 
 
While we do not agree with everything in any one of these statements, we
hope that you will find them of assistance as the House considers
telecommunications legislation.  You will be asked to vote on House
amendments paralleling those so devastatingly critiqued in these materials.

We urge your attention to two amendments that we believe are clearly
unconstitutional.  
  
The first amendment (included as item #41 in the managers amendment) would,
similar to the now heavily discredited Exon amendment, unconstitutionally
interfere with the free market and free speech approach that has turned the
Internet into the incredible source of entrepreneurial promise and
educational impact it is today.  
  
Although the July 31st memorandum on the managers amendment claimed that
this provision "creates criminal liability for intentionally sending
obscenity over computers," the amendment in fact deals with more expression
than just obscenity as the Supreme Court has defined it.  Instead the
amendment mixes elements of both obscenity (which the Supreme Court has
said is not constitutionally protected) and indecency (which is First
Amendment-protected speech) and seeks to make it a Federal crime for anyone
to communicate such material to someone under 18.  This provision of the
managers amendment is clearly unconstitutional for all the reasons so
eloquently expressed in the enclosed materials.  It is also silly.  Does
the Congress of the United States really intend that the Federal criminal
justice system will be used to send two 17-year-olds to Federal prison for
five years because their online dating chatter took an overly salacious
turn?  
  
This provision is, further, profoundly unwise policy.  It is another
example of what, in the Senate/Exon context, the Wall Street Journal
referred to as the "ham-handed approach" or resorting to the
"big-bureaucracy method to solve problems."  More importantly, this
government-dictated control would interfere with the implementation of
parental control technologies (including those in use today; see the CDT
report) because software developers would wait to deploy their products
widely or develop improvements until the inevitable legal challenges to the
combined obscenity/indecency provision are finally resolved.  This Federal
criminal law approach would be another "constitutional glue factory" that,
for example, in telephones took a decade to untangle before that law could
take effect.  Meanwhile, consenting adults will have their own free speech
limited to "child-proof" e-mail, and parents will be deprived of meaningful
technology to control what their children access on the Internet.   
 
We urge you to vote against this Big Government, anti-private sector and
unconstitutional addition to the Federal criminal code by voting against
the managers amendment.  
  
We also ask that you oppose the so-called "V-chip" amendment proposed by
Representative Markey.  The "V-chip" amendment would also stifle other
approaches and actually serve to lessen, not increase, effective parental
control over what their children watch on television.  The Markey amendment
would operate to censor broadcast and cable television programs, putting
time slots or channels under the power of a Federal government ratings
authority.  Despite assertions to the contrary, the plain language of the
amendment requires the formation of such a Federal government authority, to
be established by the Federal Communications Commission as an advisory
committee to form rules to identify and rate programming.  The actual
censorship would be effectuated through the mandatory installation in
television sets of "V-chips."  
  
The ACLU opposes the "V-chip" amendment because it would install an
unconstitutional government-run system designed to censor First
Amendment-protected expression on television.  The amendment would have the
effect of actually usurping control from parents in favor of a government
approval panel.  Under this regime, when the "V-chip" is activated,
government-mandated technology would operate to block an entire television
program based on expression that a government rating authority -- rather
than the parents -- finds to be violent, sexual or otherwise inappropriate.
We urge you to vote against the Markey "V-chip" amendment.   
 
Once the free enterprise system has identified a market (e.g., for parental
control technologies), private sector development works much faster and
provides a greater range of choices than having a government bureaucracy
foist its choice for a "winning technology" on parents and other consumers.
The Markey "V-chip" amendment would strangle development of the new
technologies that will give parents much more precise control over what
their children watch.  The Coburn amendment, on the other hand, would
review and encourage this private sector development of parental control
technology for televisions, and we believe that it merits your support.  As
the Wall Street Journal concluded, "The more forward-moving solution is to
empower parents and encourage good corporate citizenship."   
 
We appreciate this opportunity to express our reasons for opposing both the
Markey "V-chip" amendment and these criminal code changes in the managers
amendment.  We hope you find the enclosed materials helpful as the House
considers telecommunications deregulation.   
 
Sincerely yours,  
  
Laura W. Murphy, Director  
Washington National Office  
  
Donald Haines  
Legislative Counsel