CDA: The Sequel -- introduced in the U.S. Senate

[Declan McCullagh <declan@well.com>]

Just when you thought the Internet was safe from government
censorship, Sen. Dan Coats has introduced a sequel to the
notorious Communications Decency Act.

The bill punishes commercial distributors of material
that's "harmful to minors" with six months in jail and a
$50,000 fine. Unlike the original CDA, it applies only to
web sites -- not to chatrooms, newsgroups, or email.

Like the original CDA, it's certain to be controversial.
Sen. Coats (R-Indiana), chief GOP sponsor of the original
CDA, said his bill takes into account the Supreme Court's
unanimous vote in June that struck down his first try. "I
have studied the opinion of the Court and come before my
colleagues today to introduce legislation that reflects the
parameters laid out by the Court's opinion," he said on the
Senate floor.
  (ftp://ftp.loc.gov/pub/thomas/c105/s1482.is.txt)

Coats' brainchild is strikingly similar to (and in fact not
as broad as) an ill-fated version of the first CDA that
Rep. Rick White (R-Wash.) and the Center for Democracy and
Technology embraced as a "compromise" in December 1995.
Like Coats' bill, the White-CDT measure restricted material
that was "harmful to minors."
  (http://www.epic.org/cda/hyde_letter.html)

A Coats staffer said the measure requires adult
pornographers to place images behind a firewall. "If you're
involved in the commercial distribution of material that's
harmful to minors, you have to take the bad stuff and put
it on the other side of a credit card or PIN number," David
Crane said.

But the bill applies to more than just visual pornography.
Its definition of material that could hurt minors includes
any offensive sexual "communication" or "writing" without
redeeming value. It applies to text-only web pages -- or
bookstores that place sample chapters on the web.

Since it covers anyone who "through the World Wide Web is
engaged in the business of the commercial distribution of
material that is harmful to minors," it could apply to
Internet providers and online services as well.

The FCC and the Department of Justice would be required to
publish on their web sites "such information as is
necessary to inform the public of the meaning of the term
`material that is harmful to minors.'" Solveig Singleton, a
lawyer at the Cato Institute, says: "The Supreme Court
struggled for years to come up with a national defintion of
obscenity. They failed. Harmful to minors is
obscenity-lite. The FCC and Department of Justice won't
have any luck coming up with a definition of
obscenity-lite."

Not a problem, predicts former porn-prosecutor Bruce
Taylor, now the head of the National Law Center for
Children and Families. "This bill will ensure that the
hardcore pornographers don't get off the hook," he says.

Next step for Coats is to attract co-sponsors and to forward
his bill to the Senate Commerce committee. Some judges
criticized Congress for holding no hearings on the original
CDA; Coats isn't going to make that mistake again. "There
will be a concerted effort to build a substantial
legislative history," says David Crane.

This bill won't be the end of Congressional interest in
cyberporn. "You'll probably see other legislation come
forward. Introducing this is not abandoning our other
concerns," Crane says.

-Declan