ACLU Cyber-Liberties Update, 12/22/95

[Lynnclu@aol.com]

----------------------------------------------------------------
December 22, 1995
ACLU CYBER-LIBERTIES UPDATE
A bi-weekly e-zine on cyber-liberties cases and controversies
at the state and federal level.
----------------------------------------------------------------
IN THIS ISSUE:

*    ACLU Letter to U.S. Senators Opposing the Telecommunications
Deregulation Bill, S. 652 (H.R. 1555) As Reported by the Conference Committee

----------------------------------------------------------------
FEDERAL PAGE (Congress/Agency/Court Cases)
----------------------------------------------------------------

December 22, 1995
Via Fax

     Subject:  Why the Telecommunications Deregulation Bill, S. 652 (H.R.
1555),
               As Reported by the Conference Committee Should Be Rejected


Dear Senator:

The American Civil Liberties Union urges you to vote against S. 652 (H.R.
1555), the
telecommunications deregulation bill as reported by the conference committee.
 The conference committee has produced a bill that will immediately damage
freedom of expression, the bedrock value at the core of the First Amendment
and will structure the telecommunications industry so that free speech and
privacy are in permanent jeopardy.  While the final text is still being
written, these provisions are sufficiently destructive that they warrant
rejection of the entire bill.

Many reasons could be cited why S. 652 should be rejected;  we will focus on
just three areas where the conferees have needlessly chosen to attack
essential First Amendment values.

 I.  The "Deregulation" Bill Will Establish a Big Government Censorship
Regime with
     New Speech Crimes for the Internet and Online Communications.

Title V of the telecommunications bill as adopted by the conference committee
will:

-    Subject first-year college students under 18 to two years in prison and
$100,000 fine if they engage in overly salacious dating patter online (even
in their private e-mail).

-    Subject parents to the same prison term and fine if they provide their
own teen-ager with online materials that the parents have decided have merit
if the material is deemed to violate the bill.

-    Subject adults merely looking on their own home computer at something
deemed
obscene to prison for five years for the first peek, plus another ten years
if they look
again.  This is not far-fetched.  Electronic "footprints" are left behind
whenever a user       goes somewhere in cyberspace.  Some of the censorship
groups backing the bill      openly support prosecuting anyone who looks at
such material as way of "drying up" demand for it -- so these groups have an
incentive to pressure prosecutors to follow those footprints back to the
adults at home.

-    Effectively reduce voluntary communications among consenting adults to
those
appropriate only for children.  Much of what consenting adults -- even
married consenting
adults -- prize about some of  their communications could well be deemed by
outsiders as indecent if addressed to minors.  The bill will infantalize all
communications in cyberspace as users worry about how to avoid prosecution if
prohibited material is sought out by someone underage.  The educational value
of the Internet would be reduced to the equivalent of the children's section
in the video store.

-    Define its new speech crimes so broadly that it will hold access and
service providers
criminally liable for content they did not create unless the providers have
legal
departments large and skilled enough to utilize limited and vague defenses.
 Even then, the defenses would have to be established in costly and
time-consuming court proceedings.  The predictable effect will be enormous
self-censorship, coerced by the government's failure to precisely define what
is being made criminal and the threat of prison for transgressors.

-    Subject all Americans to the most narrow of community standards found in
the most
socially limiting of locations.  Even those who have chosen to adopt the
social mores of
such locations should not insist on imposing those mores on the millions of
Americans who have chosen to live elsewhere. 

These proposals violate the Constitution.  They are also profoundly bad
public policy.
          
Title V of the bill is unconstitutional because it takes speech protected by
the First Amendment and tries to regulate it in a way that violates what the
Supreme Court has said must be the touchstone for regulating protected
speech.  For example, the bill fails to use the constitutionally required
"least restrictive means" to obtain its putative goals.  It also fails to
take into account the particular characteristics of interactive media in the
online environment, rendering its attempt to create new speech crimes
constitutionally impermissible.  Title V also unconstitutionally invades the
privacy rights of those who communicate online.   

Cyberspace is the first genuinely mass medium in human history, where many
individuals can speak to many others at the same time, and where the
"start-up" costs of "publishing" are so minimal that almost all users are
potential publishers.  This is a democratic and truly libertarian
communications medium without a centralized governing body.  There is no
network president or standards department, for example, ultimately overseeing
everything that is broadcast -- in fact there is no "network" but instead an
endless series of independent areas like newsgroups, chat rooms, bulletin
boards and web sites.  The conference bill tries to force cyberspace into the
mold of the old media
with a government-dictated, centralized command structure.  

Cyberspace gives its users -- including parents concerned about their
children --  an
unprecedented power over what materials are  accessed, or not accessed, from
their computers.  Parents, for example,  already have available software and
other technology that will let them control what their children access from
their computer.

Tragically, the conferees have rejected further private sector development of
user
empowerment technologies.  Instead, the conference bill imposes the most
restrictive regime of government  regulation over content on what should be
the least governmentally  restricted of all media.  In doing so, the bill
would strangle cyberspace, violating the free speech and privacy rights of
all those who communicate online.  

The ACLU believes that all adults have the right to choose for themselves
what they see or say online.  The conferees have chosen to invest a minority
of  censorship extremists with the coercive power of the criminal law and
Federal prison in order to impose on the rest of us their constricted view of
what we should say or see. 

This is a truly historic turning point.  Title V of the bill from the
conference committee confronts the Congress with a stark choice: 
     
-    Will the 104th Congress be seen in history as one who stood up for the
freedom of communications in cyberspace and the Internet, or will it be
counted as a tool of certain censorship groups determined to impose their
conception of "proper" speech on all of us?

-    Will the 104th Congress stand up for the continuing vitality of private
sector
development of interactive media, or will it impose a big-government
bureaucratic regulatory regime on cyberspace and the content of its
communications?

-    Will the 104th Congress stand up for empowering users -- including
parents concerned about their children -- to control what material is
accessed from their computers, or will it give the coercive power of federal
prison sentences to censorship groups who care more about interfering with
what other adults see or say than about protecting their own children?

II.  The "Deregulation" Bill Will Impose a Big-Government Censorship Regime
on
     Television Programming.

The conference committee has agreed to V-chip language in S. 652 that will
stifle expression on broadcast and cable television and prevent parents from
exercising greater control over their children's television viewing habits.
 The V-chip provision will vest the government, not parents, with control
over which television programs make their way to the family television set.

The V-chip hardware is technology that will automatically block a program
from television reception if it carries a certain encoded rating in its
transmission.  The encoding would be transmitted on the same signal that
currently carries closed captioning information.  

However, the V-chip requirement does more than simply call for new hardware
in television sets; the bill would set up a television rating system driven
by government guidelines on content.  Although the television industry is
given a one-year window to "voluntarily" develop and transmit an encoded
ratings scheme for violent, sexual, or indecent programing, the Federal
Communications Commission would have the power to reject the industry's
system in favor of its own.  In this way,  the government ultimately decides
what content is appropriate for viewing and what is not.

The bill calls for the government to form an "advisory committee" to set
recommendations for guidelines on rating content, and those guideline will be
formally issued by the FCC.  Although the V-chip's congressional sponsors
have claimed that these guidelines will not be mandatory, the ratings
guidelines will surely have a chilling effect on the creative process in
television programming. Would producers make a television mini-series about
the violent Civil War?  Perhaps not, if the broadcast will automatically be
blocked from the television sets of countless families who will not have the
opportunity to make an independent judgement as to the program's
appropriateness. 

The weightiest and clearest guidelines for content rating would be that of
the government. Such chilling of expression by the government violates the
First Amendment.  The Supreme Court has held that violent expression enjoys
full constitutional protection.  Furthermore, what would constitute "sexual"
expression would be left up to the government's advisory committee or the
industry's "voluntary" internal censors.  Would a news program or documentary
on breast cancer be blocked as "sexual" expression?  That answer is yet
unclear, but what is clear is that the encoded ratings will block expression
fully protected by the First Amendment.

Furthermore, the V-chip scheme created by Congress completely shuts out
families from the decision making process.  Instead, it empowers bureaucrats
and television executives to make decisions for parents.  Would the V-chip's
automatic censors block out such "violent" programs as "Schindler's List,"
"Roots," or "The Burning Bed"?   

Other options for true parental control and choice in children's television
viewing will be
destroyed by the government's V-chip mandate.  Private companies have
recently developed technology, such as the Telecommander and the TV Guardian,
that would empower parents to screen out the programs or stations that they
feel are inappropriate for their children.  Additionally, there is the
possibility of a true "choice chip," which would allow parents to subscribe
to the private rating service of their choice, whether run by the National
PTA, TV Guide or the Christian Coalition.

Technology and initiatives developed by private business will be crushed by
the government's mandatory censoring technology and ratings system.  The
government will step in as a surrogate parent to turn off the television when
a child turns to the "wrong" channel.  However, the government's version of
what is "wrong" might include a documentary, an afterschool special, or other
programming that a parent would actually want their child to watch.  Thus,
the "V" in V-chip is for the government's "victory" over parental control and
the First Amendment.

III.      The Bill Will Foster Communications Monopolies that Stifle
Diversity and Free Speech.

A core value of the First Amendment's guarantees of free speech and free
press is the vital role in preserving liberty played by robust discussion of
public issues among a diversity of viewpoints.

Unfortunately, the bill undoes much of the existing protection ensuring
diversity in points of view by allowing a greater concentration of media.
 The conference report would, for example, allow the FCC to use waivers so
that a single corporation could own the television station, radio station,
cable system, newspaper, phone company and Internet access provider in a
locality.  On the national level, the bill will allow a greater concentration
of control over programming sources.

No clearer example exists of the destructive impact on free speech such media
concentration will have than CNN's recent rejection of advertisements
opposing the telecommunications bill itself.  CNN's corporate owners, of
course, have vital interests generally being advanced by the bill, but the
decision to reject opposing ads (followed up by a decision to reject all ads
on the bill -- when the issue was generally developing in favor of CNN's
owners) is the kind of content control that will only be repeated as media
concentration increases. 

Conclusion

The American Civil Liberties Union urges you to oppose the conference version
of S. 652 (H.R. 1555), the telecommunications deregulation bill because it
will impose new speech crimes on cyberspace and  new censorship on television
programming, as well as jeopardize the future of free speech in this country
by destroying the diversity of media ownership.

Sincerely yours,

Laura W. Murphy
Director


Donald Haines
Legislative Counsel

----------------------------------------------------------------
ONLINE RESOURCES FROM THE ACLU NATIONAL OFFICE
----------------------------------------------------------------
Stay tuned for news on the ACLU's world wide web site, under construction at
http://www.aclu.org/.  America Online users should check out our live chats,
auditorium events, *very* active message boards, and complete news on civil
liberties, at keyword ACLU.

----------------------------------------------------------------
ACLU Cyber-Liberties Update
Editor: Ann Beeson (beeson@aclu.org)
American Civil Liberties Union National Office
132 West 43rd Street
New York, New York 10036

To subscribe to the ACLU Cyber-Liberties Update, send a message to
cyber-liberties@aclu.org with "subscribe Cyber-Liberties Update" in the
subject line of your message.  To terminate your subscription, send a message
to cyber-liberties@aclu.org with "unsubscribe" in the subject line.

For general information about the ACLU, write to info@aclu.org.
----------------------------------------------------------------