Rawbutt Day

[John Young <jya@pipeline.com>]

   Rasping rawbutts for National Whiners Day here's a duo 
   of pinhole puckers about the shut-your-filthy-hole bill:

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   The Wash Post, Dec 25, 1995:

   Internet Football

   The Internet provisions are still in flux along with the
   rest of the host telecommunications bill, in which this
   newspaper and its parent company have an interest. If these
   provisions go through in anything like their present form,
   then their vulnerability to challenge on First Amendment
   grounds seems clear. It makes sense for a court to sort out
   the constitutional from the technical aspects of this new
   form of "speech," and the sooner the better.

   It won't be easy. The main legal questions about the
   proposed Internet indecency regulations as they now stand
   are inextricably wound up with technical issues. Can the
   "transmitters" of material that is deemed "indecent" ensure
   to a reasonable degree of certainty that underage computer
   users cannot get to it? If they fail, how can they show
   they tried? Several ideas here are flags for trouble.

   No legally solid test exists for the "indecency" standard
   now in the regulations -- patterned on those used for
   earlier dial-a-porn legislation but addressing totally
   different technologies. The coalition of moderate conferees
   had tried to replace the term with the more explicit
   "harmful to minors" but failed by a single vote. The
   Justice Department said in a letter last week that a
   "harmful to minors" standard was more likely than
   "indecency" to pass scrutiny but that "an overly broad
   restriction would likely not withstand constitutional
   scrutiny regardless of the standard chosen."

   That brings up the meaning of "transmit." Who is
   responsible for "transmitting" a smutty text that, say, a
   high school student locates by using an ordinary commercial
   account to (1) find, download and install free software
   that searches the Web, (2) use that tool to find a
   pornographic bulletin board overseas, and (3) make a copy
   to store in his own computer?

   The regulations now would punish anyone who "uses any
   interactive computer service to display [indecent material]
   in a manner available to a person under 18 years of age."
   But the bulletin board overseas isn't subject to U.S. Iaw.
   Most likely it will be up to the commercial providers to
   demand ID for certain types of accounts -- or up to
   account-buying parents to limit the scope of their kids'
   accounts. Whether providers can actually wall off sectors
   of the electronic world without cooperation from the adults
   paying the bills has more to do with the available
   electronic gizmos than with the laws governing the world to
   which they give access.

   There is much complicated back-and-forth about whether
   providers such as America Online and Prodigy will be held
   responsible for the effectiveness of the measures they
   take. But only the courts can decide what truly works. A
   court muddled its way through the Prodigy case on this
   topic in New York State recently. It declined to modify its
   own judgment that the provider was more liable because it
   had tried to create a "PG bulletin board" than if it had
   not. Whether or not this stands, it's a measure of the
   disconnect that persists as this legislation stumbles
   toward final enaction.

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   The NY Times, Dec 26, 1995:

   Mr. Hollings Saves the Phone Bill

   House and Senate conferees seemed ready to negotiate a
   damaging telecommunications compromise until Senator Ernest
   Hollings of South Carolina, the chief Senate negotiator,
   altered that destiny last week. Wielding the threat of a
   filibuster and a deft legislative hand, he rescued the best
   parts of flawed House and Senate bills passed earlier,
   added some good new ideas and threw out most of the rot.

   His draft bill could spark innovation and set off
   consumer-friendly competition among television, cable and
   telephone companies. Its biggest flaw is a heavy-handed and
   probably unconstitutional effort to ban "indecent material"
   from the Internet.

   The original bills sought to break down barriers that keep
   media companies from entering each other's markets. But
   three mistakes were made. The bills would have deregulated
   cable rates before competition by other video companies
   could protect customers from price-gouging cable operators.
   Local phone companies would have been allowed to enter the
   long-distance market before they faced competition from
   cable or other companies. Worse still, the bills would have
   allowed broadcasters, cable operators, telephone companies
   and newspapers to merge too easily. That could expose
   consumers to a frightening concentration of information
   sources.

   Mr. Hollings, with the help of key Republicans like Senator
   Larry Pressler, fixed most of these flaws. His draft bill
   would hold up entry of local phone companies into
   long-distance service until the Federal Communications
   Commission says O.K. after giving weight to an antitrust
   review by the Justice Department. The bill leaves it up to
   the F.C.C. to set reasonable guidelines for mergers. It
   would put off deregulation of most cable rates for three
   years -- enough time for phone and satellite services to
   take on cable operators.

   The one serious error is a prohibition against transmission
   of allegedly indecent materials over the Internet -- the
   network of millions of on-line computer subscribers around
   the world. The indecency standard is probably
   unconstitutionally vague and restrictive. The standard is
   also unnecessary. The law already forbids sending obscene
   materials by computer. To protect children, parents can buy
   easy-to-use programs that block indecent materials from any
   source. The draft bill threatens to trigger further
   Government control of electronic communication -- which has
   blossomed so far precisely because Government has stayed on
   the sidelines. Fortunately, Republican leaders like Speaker
   Newt Gingrich are troubled by the indecency standard. There
   is a good opportunity to knock the provision out before
   Congress takes a vote.

   Some Republicans, miffed when Vice President Al Gore
   declared the draft an Administration victory, threatened to
   withhold support. But telecommunications, the heart of a
   high-tech economy, is too important for small-minded
   sparring. Congress should take up the draft bill, remove
   the indecency provision and put Mr. Holling's good deed
   into law.

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   [The coccyx of a 12-26-95 WSJ eunucher]:

   First Amendment advocates, who have criticized the bill
   because it cracks down on Internet indecency and sets up a
   rating system and show-blocking circuitry against TV
   violence, got one small gift: The bill contains a provision
   for an expedited legal review of the constitutionality of
   those provisions. On the other hand, it also sets up a new
   law allowing 10-year prison terms for anyone who, using
   interstate phone calls, mail or other means, "persuades,
   induces, entices, or coerces" a minor to engage in any
   illegal sexual act.