The Exon bill
The Exon amendment is yet another attempt to limit free expression on the Internet, this
time using a flawed model equating the Internet with a radio broadcaster, and imposing
penalties on third parties who simply carry the traffic without looking at it. Several
different takes on the bill appear below.
The Electronic Messaging Association issued an alert describing the bill (which was originally introduced in the
previous Congressional session). EDUPAGE also issued a
warning about its comeback, then followed it up with more details. The EFF
issued a long analysis, complete with the entire bill as amended (and provides more detail and tracking
data at their Web site). The Privacy Forum reproduced the EMA alert,
followed by commentary and the text of the bill. The Washington Post wrote an editorial against the bill, and the Voters Telecommunications Watch has been
tracking the issue extensively.
Desipte all of this uniformly negative attention, the bill passed the Senta Commerce Committee. Even the Department of
Justice has opposed the bill. But it is anyone's guess as to
whether the bill will make it completely through Congress.
+---------------------------------------------------------+
-> EMA ALERT <-
News For and About the Members of the
ELECTRONIC MESSAGING ASSOCIATION
============================================================
February 3, 1995 -- Number 18
<---------------------------------------------------------->
***** SPECIAL ALERT *****
- Congress to consider making all system operators liable
for messaging content. Bill would force employers to
monitor message content. ACTION NEEDED NOW!
<---------------------------------------------------------->
UNREASONABLE NETWORK POLICING PROPOSED
Yesterday, Senator Jim Exon (D-NE) introduced S.314, the
Communications Decency Act of 1995, in the United States
Senate. In an effort to stamp out digital pornography, it
makes all telecommunications providers doing business in the
United States (from the telephone companies all the way down
to offices that use LANs) liable for the content of anything
sent over their networks. To avoid the possibility of tens
of thousands of dollars in fines and up to two years in
jail, business owners would be forced to police their
networks and monitor in advance all messages sent over them.
WITHOUT ACTION - COULD BE LAW IN MONTHS
This bill is substantially the same as the one he put
forward last year. He will offer it as an amendment to the
pending telecommunications deregulation legislation in the
U.S. Senate, which is expected to be enacted by July. Last
year, his amendment was adopted even though many thought it
hastily drafted and poorly thought out. Fortunately, the
telecommunications deregulation legislation died. This
year, a more conservative U.S. Congress may be even more
reluctant to challenge a "morality" amendment; and its
legislative vehicle, the telecommunications deregulation
legislation, stands a much better chance of passage this
year.
ACTION NEEDED NOW
Action by the business community is needed now. Please
notify your corporate government affairs office and/or your
legal counsel. This measure could be adopted as an
amendment to the telecommunications bill IN A MATTER OF
WEEKS (or potentially added to any legislation pending on
the U.S. Senate floor), if business does not mobilize
against it. S.314 will not stop digital pornography, but it
could devastate the messaging business. If you are
interested in further information or are able to participate
in lobbying efforts over the next few weeks, contact Sarah
Reardon at EMA (see below).
------------------------------------------------------------
EMA ALERT is published and copyrighted (1995) by the
Electronic Messaging Association. Permission to reproduce
and/or redistribute with attribution is hereby given to all
EMA members. For more information about anything in EMA
ALERT, contact EMA via e-mail - use either X.400 (S=info;
O=ema; A=mci; C=us) or Internet (info@ema.org) address,
facsimile (1-703-524-5558), or telephone (1-703-524-5550).
Any EMA staff member can be addressed directly via e-mail by
using, for X.400, G=; S=; O=ema; A=mci;
C=us, and, for Internet, @ema.org.
EMA's postal address is 1655 N. Fort Myer Dr. #850,
Arlington, VA 22209 USA.
EDUPAGE 12/20/94
ONLINE INDECENCY BILL POISED FOR A COMEBACK
A measure introduced last summer by Sen. James Exon (D-Neb.) giving the FCC
authority to regulate "indecency" on the net will likely make a comeback in
the upcoming legislative session. "Nobody wants to pass the Exon
amendment," says the Electronic Frontier Foundation's Mike Godwin, citing
the difficulty in implementing it and its possible unconstitutionality.
"But if it goes to a vote, they'll pass it," he notes, since no politician
wants to appear in favor of pornography. (Scientific American Dec. '94
p.43)
EDUPAGE 2/19/95
ANTI-CYBERPORN BILL INTRODUCED
Sen. James Exon (D-Neb.) has introduced legislation calling for two-year
prison terms for anyone convicted of sending obscene or harassing e-mail.
Commercial providers have protested, noting their service is more like a
telephone company, which is not held responsible for the conversations
carried over its conduits, but Exon remains unmoved: "If I were against
this, if I didn't want to be bothered with it, if I felt it might
complicate my ability to make money on the superhighway, that's the
argument I would make." Meanwhile the Center for Democracy and Technology
is pushing for more sophisticated filters that users could customize to
block specific types of messages. "You could have the Pat Robertson rating
system, the Motion Picture rating system, the Playboy rating system," says
the Center's founder. (Wall Street Journal 2/8/95 B6)
Subject: ALERT: S314 Online "Decency Act" Threatens All Online Providers
------------------------------------------------------------------------
EFF is working with the Electronic Messaging Association and others to
oppose the Exon bill, S314, the Communications Decency Act of 1995.
We believe policy makers should take into account the ability of those using
the net to avoid materials they find offensive. There will likely be
increased use of labels and headers to help people avoid unwanted materials
and guide their childrens' use of the net in the future. Meanwhile, it is
simply a bad idea to make it a crime to "transmit" offensive material,
especially when the "transmitter" is passive and not monitoring the
content of "transmission".
This bill would perpetrate the online equivalent of making anyone who
builds a street liable for the fact that you can go to the red light
district on it. This bill if passed into law will gravely chill the free
flow of information online and inappropriately criminalize sysops and
sysadmins for wrongdoing over which they have no control.
It is clear from recent discussions with Sen. Exon and his staff that the
sponsors of the bill were apparently unaware that the bill, as written,
criminalizes essentially everyone involved in networking with the sole
exception of govt.-decreed common carriers like telephone companies.
The possibility of a re-write was being considered as of Feb. 8.
Contact: David Johnson, Sr. Policy Fellow, djohnson@eff.org, +1 202 861 7700
* Analysis and text of the bill
[This analysis provided by the Center for Democracy and Technology, a
non-profit public interest organization. CDT's mission is to develop and
advocate public policies that advance constitutional civil liberties and
democratic values in new computer and communications technologies.
For more information on CDT, ask Jonah Seiger .]
CDT POLICY POST 2/9/95
SENATOR EXON INTRODUCES ONLINE INDECENCY LEGISLATION
A. OVERVIEW
Senators Exon (D-NE) and Senator Gorton (R-WA) have
introduced legislation to expand current FCC regulations on
obscene and indecent audiotext to cover *all* content carried
over all forms of electronic communications networks. If
enacted, the "Communications Decency Act of 1995" (S. 314)
would place substantial criminal liability on
telecommunications service providers (including telephone
networks, commercial online services, the Internet, and
independent BBS's) if their network is used in the
transmission of any indecent, lewd, threatening or harassing
messages. The legislation is identical to a proposal offered
by Senator Exon last year which failed along with the Senate
Telecommunications reform bill (S. 1822, 103rd Congress,
Sections 801 - 804). The text the proposed statute, with proposed
amendment, is appended at the end of this document.
The bill would compel service providers to chose between
severely restricting the activities of their subscribers or
completely shutting down their email, Internet access, and
conferencing services under the threat of criminal liability.
Moreover, service providers would be forced to closely
monitor every private communication, electronic mail message,
public forum, mailing list, and file archive carried by or
available on their network, a proposition which poses a
substantial threat to the freedom of speech and privacy
rights of all American citizens.
S. 314, if enacted, would represent a tremendous step
backwards on the path to a free and open National Information
Infrastructure. The bill raises fundamental questions about
the ability of government to control content on
communications networks, as well as the locus of liability
for content carried in these new communications media.
To address this threat to the First Amendment in digital
media, CDT is working to organize a broad coalition of public
interest organizations including the ACLU, People For the
American Way, and Media Access Project, along with
representatives from the telecommunications, online services,
and computer industries to oppose S. 314 and to explore
alternative policy solutions that preserve the free flow of
information and freedom of speech in the online world. CDT
believes that technological alternatives which allow
individual subscribers to control the content they receive
represent a more appropriate approach to this issue.
B. SUMMARY AND ANALYSIS OF S. 314
S. 314 would expand current law restricting indecency and
harassment on telephone services to all telecommunications
providers and expand criminal liability to *all* content
carried by *all* forms of telecommunications networks. The
bill would amend Section 223 of the Communications Act (47
U.S.C. 223), which requires carriers to take steps to prevent
minors from gaining access to indecent audiotext and
criminalizes harassment accomplished over interstate
telephone lines. This section, commonly known as the Helms
Amendment (having been championed by Senator Jesse Helms),
has been the subject of extended constitutional litigation in
recent years.
* CARRIERS LIABLE FOR CONDUCT OF ALL USERS ON THEIR
NETWORKS
S. 314 would make telecommunication carriers (including
telephone companies, commercial online services, the
Internet, and BBS's) liable for every message, file, or other
content carried on its network -- including the private
conversations or messages exchanged between two consenting
individuals.
Under S. 314, anyone who "makes, transmits, or otherwise
makes available any comment, request, suggestion, proposal,
image, or other communication" which is "obscene, lewd,
lascivious, filthy, or indecent" using a "telecommunications
device" would be subject to a fine of $100,000 or two years
in prison (Section (2)(a)).
In order to avoid liability under this provision, carriers
would be forced to pre-screen all messages, files, or other
content before transmitting it to the intended recipient.
Carriers would also be forced to prevent or severely restrict
their subscribers from communicating with individuals and
accessing content available on other networks.
Electronic communications networks do not contain discrete
boundaries. Instead, users of one service can easily
communicate with and access content available on other
networks. Placing the onus, and criminal liability, on the
carrier as opposed to the originator of the content, would
make the carrier legally responsible not only for the conduct
of its own subscribers, but also for content generated by
subscribers of other services.
This regulatory scheme clearly poses serious threats to the
free flow of information throughout the online world and the
free speech and privacy rights of individual users. Forcing
carriers to pre-screen content would not only be impossible
due to the sheer volume of messages, it would also violate
current legal protections.
* CARRIERS REQUIRED TO ACT AS PRIVATE CENSOR OF ALL
PUBLIC FORUMS AND ARCHIVES
S. 314 would also expand current restrictions on access to
indecent telephone audiotext services by minors under the age
of 18 to cover similar content carried by telecommunications
services (such as America Online and the Internet). (Sec
(a)(4)).
As amended by this provision, anyone who, "by means of
telephone or telecommunications device, makes, transmits, or
otherwise makes available (directly or by recording device)
any indecent communication for commercial purposes which is
available to any person under the age of 18 years of age or
to any other person without that person's consent, regardless
of whether the maker of such communication placed the call or
initiated the communication" would be subject of a fine of
$100,000 or two years in prison.
This would force carries to act as private censors of all
content available in public forums or file archives on their
networks. Moreover, because there is no clear definition of
indecency, carriers would have to restrict access to any
content that could be possibly construed as indecent or
obscene under the broadest interpretation of the term. Public
forums, discussion lists, file archives, and content
available for commercial purposes would have to be
meticulously screened and censored in order to avoid
potential liability for the carrier.
Such a scenario would severely limit the diversity of content
available on online networks, and limit the editorial freedom
of independent forum operators.
ADDITIONAL NOTABLE PROVISIONS
* AMENDMENT TO ECPA
Section (6) of the bill would amend the Electronic
Communications Privacy Act (18 USC 2511) to prevent the
unauthorized interception and disclosure of "digital
communications" (Sec. 6). However, because the term "digital
communication" is not defined and 18 USC 2511 currently
prevents unauthorized interception and disclosure of
"electronic communications" (which includes electronic mail
and other forms of communications in digital form), the
effect of this provision has no clear importance.
* CABLE OPERATORS MAY REFUSE INDECENT PUBLIC ACCESS
PROGRAMMING
Finally, section (8) would amend sections 611 and 612 of the
Communications Act (47 USC 611 - 612) to allow any cable
operator to refuse to carry any public access or leased
access programming which contains "obscenity, indecency, or
nudity".
C. ALTERNATIVES TO EXON: RECOGNIZE THE UNIQUE USER CONTROL
CAPABILITIES OF INTERACTIVE MEDIA
Government regulation of content in the mass media has always
been considered essential to protect children from access to
sexually-explicit material, and to prevent unwitting
listeners/views from being exposed to material that might be
considered extremely distasteful. The choice to protect
children has historically been made at the expense of the First
Amendment ban on government censorship. As Congress moves to
regulate new interactive media, it is essential that it
understand that interactive media is different than mass
media. The power and flexibility of interactive media offers
a unique opportunity to enable parents to control what
content their kids have access to, and leave the flow of
information free for those adults who want it. Government
control regulation is simply not needed to achieve the
desired purpose.
Most interactive technology, such as Internet browsers and
the software used to access online services such as America
Online and Compuserve, already has the capability to limit
access to certain types of services and selected information.
Moreover, the electronic program guides being developed for
interactive cable TV networks also provide users the
capability to screen out certain channels or ever certain
types of programming. Moreover, in the online world, most
content (with the exception of private communications
initiated by consenting individuals) is transmitted by
request. In other words, users must seek out the content
they receive, whether it is by joining a discussion or
accessing a file archive. By its nature, this technology
provides ample control at the user level. Carriers (such as
commercial online services, Internet service providers) in
most cases act only as "carriers" of electronic transmissions
initiated by individual subscribers.
CDT believes that the First Amendment will be better served
by giving parents and other users the tools to select which
information they (and their children) should have access to.
In the case of criminal content the originator of the
content, not the carriers, should be responsible for their
crimes. And, users (especially parents) should be empowered
to determine what information they and their children have
access to. If all carriers of electronic communications are
forced restrict content in order to avoid criminal liability
proposed by S. 314, the First Amendment would be threatened
and the usefulness of digital media for communications and
information dissemination would be drastically limited.
D. NEXT STEPS
The bill has been introduced and will next move to the Senate
Commerce Committee, although no Committee action has been
scheduled. Last year, a similar proposal by Senator Exon
was approved by the Senate Commerce committee as an amendment
to the Senate Telecommunications Bill (S. 1822, which died at
the end of the 103rd Congress). CDT will be working with a
wide range of other interest groups to assure that Congress
does not restrict the free flow of information in interactive
media.
***********************************************************
For more information contact:
Jerry Berman, CDT Executive Director
Daniel Weitzner, CDT Deputy Director
+1 202 637 9800
***********************************************************
TEXT OF 47 U.S.C. 223 AS AMENDED BY S. 314
**NOTE: [] = deleted
ALL CAPS = additions
47 USC 223 (1992)
Sec. 223. [Obscene or harassing telephone calls in the District
of Columbia or in interstate or foreign communications]
OBSCENE OR HARASSING UTILIZATION OF TELECOMMUNICATIONS
DEVICES AND FACILITIES IN THE DISTRICT OF COLUMBIA OR IN
INTERSTATE OR FOREIGN COMMUNICATIONS"
(a) Whoever--
(1) in the District of Columbia or in interstate or foreign
communication by means of [telephone] TELECOMMUNICATIONS
DEVICE--
(A) [makes any comment, request, suggestion or proposal]
MAKES, TRANSMITS, OR OTHERWISE MAKES AVAILABLE ANY COMMENT,REQUEST,
SUGGESTION, PROPOSAL, IMAGE, OR OTHER COMMUNICATION which is
obscene, lewd, lascivious, filthy, or indecent;
[(B) makes a telephone call, whether or not conversation ensues,
without disclosing his identity and with intent to annoy, abuse,
threaten, or harass any person at the called number;]
"(B) MAKES A TELEPHONE CALL OR UTILIZES A TELECOMMUNICATIONS
DEVICE, WHETHER OR NOT CONVERSATION OR COMMUNICATIONS
ENSUES,WITHOUT DISCLOSING HIS IDENTITY AND WITH INTENT TO ANNOY,
ABUSE, THREATEN, OR HARASS ANY PERSON AT THE CALLED NUMBER OR WHO
RECEIVES THE COMMUNICATION;
(C) makes or causes the telephone of another repeatedly or
continuously to ring, with intent to harass any person at the
called number; or
[(D) makes repeated telephone calls, during which conversation
ensues, solely to harass any person at the called number; or]
(D) MAKES REPEATED TELEPHONE CALLS OR REPEATEDLY INITIATES
COMMUNICATION WITH A TELECOMMUNICATIONS DEVICE, DURING WHICH
CONVERSATION OR COMMUNICATION ENSUES, SOLELY TO HARASS ANY PERSON
AT THE CALLED NUMBER OR WHO RECEIVES THE COMMUNICATION,
(2) knowingly permits any [telephone facility]
TELECOMMUNICATIONS FACILITY under his control to be used
for any purpose prohibited by this section, shall be fined not more
than $[50,000]100,000 or imprisoned not more than [six months] TWO
YEARS, or both.
(b)(1) Whoever knowingly--
(A) within the United States, by means of [telephone]
TELECOMMUNICATIONS DEVICCE, makes (directly or by recording device)
any obscene communication for commercial purposes to any person,
regardless of whether the maker of such communication placed the
call or INITIATED THE COMMUNICATION; or
(B) permits any [telephone facility] TELECOMMUNICATIONS
FACILITY under such person's control to be used for an activity
prohibited by subparagraph (A), shall be fined in accordance with
title 18, United States Code, or imprisoned not more than two
years, or both.
(2) Whoever knowingly--
(A) within the United States, [by means of telephone],
makes BY MEANS OF TELEPHONE OR TELECOMMUNICATIONS DEVICE, MAKES,
TRANSMITS, OR MAKES AVAILABLE(directly or by recording device) any
indecent communication for commercial purposes which is available
to any person under 18 years of age or to any other person without
that person's consent, regardless of whether the maker of such
communication placed the call OR INITIATED THE COMMUNICATION; or
(B) permits any [telephone facility] TELECOMMUNICATIONS
FACILITY under such person's control to be used for an activity
prohibited by subparagraph (A), shall be fined not more than
$[50,000] 100,000 or imprisoned not more than [six months]
TWO YEARS, or both.
(3) It is a defense to prosecution under paragraph (2) of this
subsection that the defendant restrict access to the prohibited
communication to persons 18 years of age or older in accordance
with subsection (c) of this section and with such procedures as the
Commission may prescribe by regulation.
(4) In addition to the penalties under paragraph (1), whoever,
within the United States, intentionally violates paragraph
(1) or (2) shall be subject to a fine of not more than $[50,000]
100,000 for each violation. For purposes of this paragraph, each
day of violation shall constitute a separate violation.
(5)(A) In addition to the penalties under paragraphs (1), (2),
and (5), whoever, within the United States, violates paragraph (1)
or (2) shall be subject to a civil fine of not more than $[50,000]
100,000 for each violation. For purposes of this paragraph, each
day of violation shall constitute a separate violation.
(B) A fine under this paragraph may be assessed either--
(i) by a court, pursuant to civil action by the Commission or
any attorney employed by the Commission who is designated by the
Commission for such purposes, or
(ii) by the Commission after appropriate administrative
proceedings.
(6) The Attorney General may bring a suit in the appropriate
district court of the United States to enjoin any act or practice
which violates paragraph (1) or (2). An injunction may be granted
in accordance with the Federal Rules of Civil Procedure.
(c)(1) A common carrier within the District of Columbia or
within any State, or in interstate or foreign commerce, shall not,
to the extent technically feasible, provide access to a
communication specified in subsection (b) from the
telephone of any subscriber who has not previously requested in
writing the carrier to provide access to such communication if the
carrier collects from subscribers an identifiable charge for such
communication that the carrier remits, in whole or in part, to the
provider of such communication.
(2) Except as provided in paragraph (3), no cause of action may
be brought in any court or administrative agency against any common
carrier, or any of its affiliates, including their officers,
directors, employees, agents, or authorized representatives on
account of--
(A) any action which the carrier demonstrates was taken in good
faith to restrict access pursuant to paragraph (1) of this
subsection; or
(B) any access permitted--
(i) in good faith reliance upon the lack of any representation
by a provider of communications that communications provided by
that provider are communications specified in subsection (b), or
(ii) because a specific representation by the provider did not
allow the carrier, acting in good faith, a sufficient period to
restrict access to communications described in subsection (b).
(3) Notwithstanding paragraph (2) of this subsection, a provider
of communications services to which subscribers are denied access
pursuant to paragraph (1) of this subsection may bring an action
for a declaratory judgment or similar action in a court. Any such
action shall be limited to the question of whether the
communications which the provider seeks to provide fall within
the category of communications to which the carrier will provide
access only to subscribers who have previously requested such
access.
*********************************************
NOTE: This version of the text shows the actual text of current law as
it would be changed. For the bill itself, which consists of unreadable
text such as:
[...]
(1) in subsection (a)(1)--
(A) by striking out `telephone' in the matter above
subparagraph (A) and inserting `telecommunications device';
(B) by striking out `makes any comment, request,
suggestion, or proposal' in subparagraph (A) and inserting
`makes, transmits, or otherwise makes available any
comment, request, suggestion, proposal, image, or other
communication';
(C) by striking out subparagraph (B) and inserting the
following:
`(B) makes a telephone call or utilizes a
[...]
See:
ftp.eff.org, /pub/EFF/Legislation/Bills_new/s314.bill
gopher.eff.org, 1/EFF/Legislation/Bills_new, s314.bill
http://www.eff.org/pub/EFF/Legislation/Bills_new/s314.bill
Date: Sun, 12 Feb 95 14:15 PST
From: privacy@vortex.com (PRIVACY Forum)
Subject: PRIVACY Forum Digest V04 #04
PRIVACY Forum Digest Sunday, 12 February 1995 Volume 04 : Issue 04
-----------------------------------------------------------------------------
[...]
Date: Tue, 07 Feb 1995 20:57:00 EST
From: overlord@megalith.miami.fl.us (Carlos Amezaga)
Subject: Special Alert! Unreasonable Network Policing Proposed
-> EMA ALERT <-
News For and About the Members of the
ELECTRONIC MESSAGING ASSOCIATION
February 3, 1995 -- Number 18
***** SPECIAL ALERT *****
- Congress to consider making all system operators liable
for messaging content. Bill would force employers to
monitor message content. ACTION NEEDED NOW!
UNREASONABLE NETWORK POLICING PROPOSED
Yesterday, Senator Jim Exon (D-NE) introduced S.314, the
Communications Decency Act of 1995, in the United States Senate. In
an effort to stamp out digital pornography, it makes all
telecommunications providers doing business in the United States (from
the telephone companies all the way down to offices that use LANs)
liable for the content of anything sent over their networks. To avoid
the possibility of tens of thousands of dollars in fines and up to two
years in jail, business owners would be forced to police their
networks and monitor in advance all messages sent over them.
WITHOUT ACTION - COULD BE LAW IN MONTHS
This bill is substantially the same as the one he put forward last
year. He will offer it as an amendment to the pending telecommunications
deregulation legislation in the U.S. Senate, which is expected to be
enacted by July. Last year, his amendment was adopted even though
many thought it hastily drafted and poorly thought out. Fortunately,
the telecommunications deregulation legislation died. This year, a
more conservative U.S. Congress may be even more reluctant to challenge
a "morality" amendment; and its legislative vehicle, the telecommunications
deregulation legislation, stands a much better chance of passage this
year.
ACTION NEEDED NOW
Action by the business community is needed now. Please notify your
corporate government affairs office and/or your legal counsel. This
measure could be adopted as an amendment to the telecommunications
bill IN A MATTER OF WEEKS (or potentially added to any legislation
pending on the U.S. Senate floor), if business does not mobilize
against it. S.314 will not stop digital pornography, but it could
devastate the messaging business. If you are interested in further
information or are able to participate in lobbying efforts over the
next few weeks, contact Sarah Reardon at EMA (see below).
---------------------------------------
EMA ALERT is published and copyrighted (1995) by the Electronic
Messaging Association. Permission to reproduce and/or redistribute
with attribution is hereby given to all EMA members. For more
information about anything in EMA ALERT, contact EMA via e-mail - use
either X.400 (S=info; O=ema; A=mci; C=us) or Internet (info@ema.org)
address, facsimile (1-703-524-5558), or telephone (1-703-524-5550).
Any EMA staff member can be addressed directly via e-mail by using,
for X.400, G=; S=; O=ema; A=mci; C=us, and, for
Internet, @ema.org. EMA's postal address is
1655 N. Fort Myer Dr. #850, Arlington, VA 22209 USA. --
------------------------------
Date: Sun, 12 Feb 95 11:48 PST
From: lauren@vortex.com (Lauren Weinstein; PRIVACY Forum Moderator)
Subject: Some thoughts on S.314
Greetings. The previous messages expresses (possibly well-founded)
alarm at Senate Bill S.314. However, the bill contains a number
of provisions that could be subject to varying interpretations, so
I thought it would be worthwhile if we could spend a bit of time
on the details of the bill itself. I've included the entire text
(it's not very long) at the end of this message.
Since the bill is written mainly as modifications to the 1934 Communications
Act, it would be useful to refer back to that Act for reference, but
I think the salient points should still be clear.
The part of S.314 that appears to be causing the most alarm in the network
community is actually fairly simple--it seems to simply extend the
prohibitions against obscene/harrassing communications from the telephone to
the broader category of "telecommunications devices", presumably to bring
email and similar communications under its jurisdiction. On the face of it,
this seems quite sensible--there is no obvious reason why someone should be
able to conduct the same sorts of harrassments via, for example, email, that
are prohibited as a phone call. Some problems come up, however, in the
interpretation of this prohibition. There are a number of points to
consider:
-- Is the prohibition meant to apply strictly to obscene/harrassing
communications? Would materials openly discussed in some of the
more controversial network newsgroups fall under the prohibition,
even though they are not harrassing in nature? What definition
of obscenity would be used? How does the nature of the audience
(for messages being sent to a group, rather than an individual)
enter into the mix?
-- Is the prohibition truly to be interpreted as making the service
providers responsible for the messages sent by their subscribers
or users? Would services be responsible for helping to track
down offenders when violating messages were sent from their systems,
or are they also expected to take steps to prevent such messages
from being sent in the first place? The latter would imply the
need for active message monitoring, which would be in direct
conflict with other existing laws, regulations, and rulings.
What would happen in the case of systems providing anonymous
access? Should such anonymous accounts be usable as a shield
for harrassing communications without any form of control?
If not, how can they be controlled? How does this compare with the
use of payphones for making obscene calls and telephone company
responsibilities in such cases? Is there a reasonable middle
ground that can be found?
-- What impact, if any, would there be on intermediate sites carrying
such communications?
-- How would email service providers' responsibilities differ from
those of telephone common carriers? Would common carriers offering
email services have a different level of responsibility? It's worth
noting that in general, common carriers are pretty well protected
from responsibility for materials sent over their systems (there
have, however, been a number of exceptions to this, pretty rare and
sometimes bizarre but present nonetheless).
It's also important to note that many email service providers, though
they may believe they are operating as "common carriers", may not
fit the strict legal definition of common carrier. Until there is
case law addressing such situations, there's no way to know how
they might fare in these sorts of situations.
There are other interesting aspects to S.314 as well. One facet
that seems particularly questionable is the lumping together of
nudity, indecency, and obscenity into one category for certain
decision-making purposes. U.S. Supreme Court decisions have clearly
drawn separations between these categories--trying to clump them
back together again may well be subject to reversal. It's hard enough
trying to pin down the definition of obscenity. There have been
conflicting court decisions on how "community standards" should or
can affect national publications and national broadcasters.
And finally, there are aspects of S.314 that could have significant
financial effects as well. The clause requiring the scrambling or
blocking of *both* video and audio of cable services not meant for
children could require the wholesale replacement of the set-top boxes
used by many cable systems, since many systems currently only scramble
video and not audio, leaving the audio accessible to those with
cable-ready televisions capable of tuning the appropriate channels.
At a time when Congress is looking at already repealing the hardly dry
cable industry re-regulation rules, some more big cable rate increases
could be in the near future.
Overall, S.314 seems to have some valid ideas, but like so much of the
legislation (much of it highly "ideological" in nature) now flowing through
the pipe, the details and effects would seem to need a good deal more
thought and/or elaboration. Whether we're talking about telecommunications
law or a balanced budget, the devil is in the details. To push through laws
just so that the folks back home can be told that "something was done", and
leaving the details to be thrashed out in the future with unknown impacts,
does not seem like the best way to proceed.
--Lauren--
-------------------------------------------
S 314 IS
104th CONGRESS
1st Session
To protect the public from the misuse of the telecommunications
network and telecommunications devices and facilities.
IN THE SENATE OF THE UNITED STATES
February 1 (legislative day, January 30), 1995
Mr. Exon (for himself and Mr. Gorton) introduced the following
bill; which was read twice and referred to the Committee on
Commerce, Science, and Transportation
A BILL
To protect the public from the misuse of the telecommunications
network and telecommunications devices and facilities.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the `Communications Decency Act of 1995'.
SEC. 2. OBSCENE OR HARASSING USE OF TELECOMMUNICATIONS FACILITIES
UNDER THE COMMUNICATIONS ACT OF 1934.
(a) Offenses: Section 223 of the Communications Act of 1934 (47
U.S.C. 223) is amended--
(1) in subsection (a)(1)--
(A) by striking out `telephone' in the matter above
subparagraph (A) and inserting `telecommunications device';
(B) by striking out `makes any comment, request,
suggestion, or proposal' in subparagraph (A) and inserting
`makes, transmits, or otherwise makes available any
comment, request, suggestion, proposal, image, or other
communication';
(C) by striking out subparagraph (B) and inserting the
following:
`(B) makes a telephone call or utilizes a
telecommunications device, whether or not conversation or
communications ensues, without disclosing his identity and
with intent to annoy, abuse, threaten, or harass any person
at the called number or who receives the communication;' and
(D) by striking out subparagraph (D) and inserting the
following:
`(D) makes repeated telephone calls or repeatedly
initiates communication with a telecommunications device,
during which conversation or communication ensues, solely
to harass any person at the called number or who receives
the communication; or';
(2) in subsection (a)(2), by striking `telephone facility'
and inserting `telecommunications facility';
(3) in subsection (b)(1)--
(A) in subparagraph (A)--
(i) by striking `telephone' and inserting
`telecommunications device'; and
(ii) inserting `or initiated the communication' and
`placed the call', and
(B) in subparagraph (B), by striking `telephone facility'
and inserting `telecommunications facility'; and
(4) in subsection (b)(2)--
(A) in subparagraph (A)--
(i) by striking `by means of telephone, makes' and
inserting `by means of telephone or telecommunications
device, makes, knowingly transmits, or knowingly makes
available'; and
(ii) by inserting `or initiated the communication'
after `placed the call'; and
(B) in subparagraph (B), by striking `telephone facility'
and inserting in lieu thereof `telecommunications facility'.
(b) Penalties: Section 223 of such Act (47 U.S.C. 223) is amended--
(1) by striking out `$50,000' each place it appears and
inserting `$100,000'; and
(2) by striking `six months' each place it appears and
inserting `2 years'.
(c) Prohibition on Provision of Access: Subsection (c)(1) of such
section (47 U.S.C. 223(c)) is amended by striking `telephone' and
inserting `telecommunications device.'
(d) Conforming Amendment: The section heading for such section is
amended to read as follows:
`obscene or harassing utilization of telecommunications devices and
facilities in the district of columbia or in interstate or foreign
communications'.
SEC. 3. OBSCENE PROGRAMMING ON CABLE TELEVISION.
Section 639 of the Communications Act of 1934 (47 U.S.C. 559) is
amended by striking `$10,000' and inserting `$100,000'.
SEC. 4. BROADCASTING OBSCENE LANGUAGE ON RADIO.
Section 1464 of title 18, United States Code, is amended by
striking out `$10,000' and inserting `$100,000'.
SEC. 5. INTERCEPTION AND DISCLOSURE OF ELECTRONIC COMMUNICATIONS.
Section 2511 of title 18, United States Code, is amended--
(1) in paragraph (1)--
(A) by striking `wire, oral, or electronic communication'
each place it appears and inserting `wire, oral,
electronic, or digital communication', and
(B) in the matter designated as `(b)', by striking `oral
communication' in the matter above clause (i) and inserting
`communication'; and
(2) in paragraph (2)(a), by striking `wire or electronic
communication service' each place it appears (other than in the
second sentence) and inserting `wire, electronic, or digital
communication service'.
SEC. 6. ADDITIONAL PROHIBITION ON BILLING FOR TOLL-FREE TELEPHONE
CALLS.
Section 228(c)(6) of the Communications Act of 1934 (47 U.S.C.
228(c)(6)) is amended--
(1) by striking `or' at the end of subparagraph (C);
(2) by striking the period at the end of subparagraph (D) and
inserting a semicolon and `or'; and
(3) by adding at the end thereof the following:
`(E) the calling party being assessed, by virtue of being
asked to connect or otherwise transfer to a pay-per-call
service, a charge for the call.'.
SEC. 7. SCRAMBLING OF CABLE CHANNELS FOR NONSUBSCRIBERS.
Part IV of title VI of the Communications Act of 1934 (47 U.S.C.
551 et seq.) is amended by adding at the end the following:
`SEC. 640. SCRAMBLING OF CABLE CHANNELS FOR NONSUBSCRIBERS.
`(a) Requirement: In providing video programming unsuitable for
children to any subscriber through a cable system, a cable operator
shall fully scramble or otherwise fully block the video and audio
portion of each channel carrying such programming so that one not a
subscriber does not receive it.
`(b) Definition: As used in this section, the term `scramble'
means to rearrange the content of the signal of the programming so
that the programming cannot be received by persons unauthorized to
receive the programming.'.
SEC. 8. CABLE OPERATOR REFUSAL TO CARRY CERTAIN PROGRAMS.
(a) Public, Educational, and Governmental Channels: Section
611(e) of the Communications Act of 1934 (47 U.S.C. 531(e)) is
amended by inserting before the period the following: `, except a
cable operator may refuse to transmit any public access program or
portion of a public access program which contains obscenity,
indecency, or nudity'.
(b) Cable Channels for Commercial Use: Section 612(c)(2) of the
Communications Act of 1934 (47 U.S.C. 532(c)(2)) is amended by
striking `an operator' and inserting `a cable operator may refuse
to transmit any leased access program or portion of a leased access
program which contains obscenity, indecency, or nudity.
------------------------------
End of PRIVACY Forum Digest 04.04
************************
Washington Post editorial of 2-26.95.
Hobbling the Internet
OBSCENITY LAWS that defer to "local community standards" in
determining obscenity are running into real complications on the Internet,
where images and text cross state, local and even national boundaries at
the touch of a button and where, unlike with telephone calls or distrbution
of pornography through the mail, there is often no "sender" in the
traditional sense. Anyone in cyberspace can rove the world, scan displays
or files and "download" material to his or her own computer without
anyone's help or knowledge. This has already gotten some people into
serious trouble, as with the case of two California systems operators who
were held liable--and were actually jailed--for images downloaded without
their knowledge in a southern state where local laws ruled them obscene.
Now Sen.James Exon (D-Neb.) has introduced a bill on "indecency" in
electrocic communications that could expand those kinds of unpredictable
liability even further-- enough so that not only the Internet's free-speech
enthusiasts but also businesses looking to expand there are warning that
the bill is recklessly overbroad.
The bill sounds simple: It would amend an existing law aimed at curbing
harassment, obscenity or threats made by telephone, changing the word
"telephone" to "telecommunications devices" and widening criminal
liability to anyone who "makes, transmits, or otherwise makes available any
comment, request, suggestion, proposal, image or other communication" that
is found "obscene, lewd, lascivious, filthy or indecent",-- even privately
exchanged messages between adults. Opponents complain this would cripple
the Internet, and in particular commercial e-mail or access networks that
sell accounts to customers, by forcing them to monitor and if necessary
block every individual message sent or received (since any could lead to
images' being downloaded anywhere, by anyone). Universities could be
similarly liable, adding another layer to what's already a vexed issue at
many schools that must decide whether to curb student access to
pornographic "bulletin boards." The labor costs of such monitoring could
drive up the cost of maintaining a system and slow the explosive growth
rate.
The language of Sen. Exon's bill appears to make only minor changes
to the laws on telephone harassment and indecency, adding, for instance,
the phrase "or utilizing a telecommunications device" to references to
using a telephone to make or transmit an obscene, indecent or harassing
communication. Groups such as the Electronic Frontier Foundation that seek
to keep the Internet in the state of near-complete freedom that has sparked
and continues to spark such amazing technical and commercial innovation
have rightly pointed to the problems brought up by using the word
"transmit," which means something vastly broader for computer networks than
for phone companies. It's just one example of the danger of pushing
through a law based on a careless analogy from one technology to another,
and choking off a robustly growing communications enterprise in pursuit of
an ideal of "decency" that is adults' own business.
From EFFEctor 8.03:
WHERE CAN I LEARN MORE ABOUT THE BILL? (URL INCLUDED)
The Voters Telecommunications Watch has set up a gopher page where
you can get a copy of the bill (including analyses by the American
Civil Liberties Union, the Center for Democracy and Technology, the
Electronic Messaging Association, and others). Here's the URL:
WWW URL: gopher://gopher.panix.com/11/vtw/exon
S.314, the Communications Decency Act of 1995
(or "Exon Amendment") has passed the Senate Commerce Committee
despite phone banks overloaded by protests. The amendment
was modified to exempt communications companies.
The telecommunications reform bill to which it's attached
is scheduled for Senate consideration as early as this week.
For current information and online initiatives (including
an Internet petition with 100K signatures), see
or . [TidBITS, 3/27/95. Also NYT, 3/(24,26)/95, A1.]
The exemption for online service providers means that
"those who engage in free speech on the net shall hang separately,
rather than together." The Exon/Gorton amendment "includes no
provisions protecting freedom of speech or privacy. It still
criminalizes consensual communications in a variety of vague
categories which fall short of the legal definition of obscenity."
[Prentiss Riddle , comp.org.eff.talk, 3/24/95.]
A policy briefing by the Center for Democracy and Technology,
3/24/95, says the revised Communications Decency Act would put
net traffic under FCC control and would create a sharp statutory
distinction between print media and new interactive media --
including interactive TV, video on demand, and distance learning.
One would not be able to download the same materials that could be
bought or exchanged on paper. The net is treated as "one big
radio station whose broadcasts are constantly assaulting unwilling
listeners." [Jonah Seiger , comp.org.eff.talk,
3/24/95.]
EFFector Online Volume 08 No. 04 May 6, 1995 editors@eff.org
A Publication of the Electronic Frontier Foundation ISSN 1062-9424
In This Issue:
Dept. of Justice Opposes Exon Bill - But Calls for Replacement
A Note About This Newsletter
Calendar of Events
What YOU Can Do
* See http://www.eff.org/Alerts/ or ftp.eff.org, /pub/Alerts/ for more
information on current EFF activities and online activism alerts! *
----------------------------------------------------------------------
Subject: Dept. of Justice Opposes Exon Bill - But Calls for Replacement
-----------------------------------------------------------------------
Below is a letter from the Justice Department in response to (D-VT) Sen. Pat
Leahy's recent enquiry regarding the DoJ's position on the Exon/Gorton
Communications Decency Act. The CDA was recently folded into larger
Senate telecom deregulation bill S. 652, after significant but
insufficient amendment to reduce system operator liability. The House
version of the bill, still in its original form, remains a separate bill,
H.R.1004, whose sponsor appears to have had second thoughts and has
called for slowing the bill down.
As grassroots, and especially online, activists and concerned citizens
continue to raise serious doubts about this bill, and as organizations
like EFF, Voters' Telecommunications Watch, the Center for Democracy and
Technology, and dozens of others, work to derail it, the following letter
comes as a pleasant surprise for the most part.
The Department of Justice maintains first and foremost that the bill will
greatly harm law enforcement's efforts against obscenity and sexual abuse
of minors, in a number of ways. Most of these flaws in the bill are due
to imprecise application of terms like "digital" and insufficient
consideration of the effects that supposedly minor changes to one section of
the telecommunications regulations have on other sections, their enforcement
and their interpretation by the courts.
However, and to their credit, the DoJ has also identified four distinct
and serious threats to privacy posed by the CDA. Besides making it
easier for system crackers to evade detection, Sen. Exon's legislation
would also negate the "exclusionary rule" of 18 USC section 2515,
reducing the privacy protections of phone calls in one way, and
additionally weaken this privacy by introducing a loophole into the
wiretap statute that would broadly allow monitoring by anyone of private
voice communications. The Department further warns that one section of the
bill "would encourage intrusion by on-line service providers into the
private electronic mail communications of individual users. [The section]
actually promotes intrusions into private electronic mail by making it
'safer' to monitor private communications than to risk liability. At the
same time, [the section] would defeat efforts by the government to
enforce federal privacy protections against illegal eavesdropping."
Not all is sunshine however, and those concerned about civil liberties online
should keep one eye open for a replacement bill in the not too distant
future. The Acting Assistant Attorney General notes that "While we agree
with the goal of various legislative proposals designed to keep obscenity
and child pornography off of the information superhighway, we are
currently developing a legislative proposal that will best meet these
challenges and provide additional prosecutorial tools. This legislative
package is being developed while taking into consideration the need to
protect fundamental rights guaranteed by the First Amendment."
Needless to say, many of us will remain skeptical.
***********
Department of Justice Letter to Sen. Leahy
May 3, 1995
Honorable Patrick J. Leahy
United States Senate
Washington, DC 20510
I write to respond to your letter of March l, 1995 concerning our
prosecution of violations of federal child pornography and obscenity laws
and your April 21, 1995 request for the views of the United States
Department of Justice on the "Communications Decency Act," which has been
incorporated as title IV of the proposed "Telecommunications Competition
and Deregulation Act of 1995," S. 652. In accordance with your request,
the analysis of the Communications Decency Act focuses on sections 402
and 405 of the bill.
The Department's Criminal Division has, indeed, successfully prosecuted
violations of federal child pornography and obscenity laws which were
perpetrated with computer technology. In addition, we have applied
current law to this emerging problem while also discovering areas where
the new technology may present challenges to successful prosecution.
While we agree with the goal of various legislative proposals designed to
keep obscenity and child pornography off of the information superhighway,
we are currently developing a legislative proposal that will best meet
these challenges and provide additional prosecutorial tools. This
legislative package is being developed while taking into consideration
the need to protect fundamental rights guaranteed by the First Amendment.
With respect to the communications Decency Act, while we understand that
section 402 is intended to provide users of online services the same
protection against obscene and harassing communications afforded to
telephone subscribers, this provision would not accomplish that goal.
Instead, it would significantly thwart enforcement of existing laws
regarding obscenity and child pornography, create several ways for
distributors and packagers of obscenity and child pornography to avoid
criminal liability, and threaten important First Amendment and privacy
rights.
Similarly, while we understand that section 405 of this bill is intended
to expand privacy protections to "digital" communications, such
communications are already protected under existing law. Moreover, this
provision would have the unintended consequences of jeopardizing law
enforcement's authority to conduct lawful, court-ordered wiretaps and
would prevent system administrators from protecting their systems when
they are under attack by computer hackers.
Despite the flaws in these provisions, the Administration applauds the
primary goal of this legislation: prevent obscenity from being widely
transmitted over telecommunications networks to which minors have access.
However, the legislation raises complex policy issues that merit close
examination prior to Congressional action. We recommend that a
comprehensive review be undertaken of current laws and law enforcement
resources for prosecuting online obscenity and child pornography, and the
technical means available to enable parents and users to control the
commercial and non commercial communications they receive over
interactive telecommunications systems.
The following are the Department's primary objections to sections 402 and
405 of the pending telecommunication bill:
First, Section 402 of the bill would impose criminal sanctions on the
transmission of constitutionally protected speech. Specifically,
subsections 402(a)(1) and (b)(2) of the bill would criminalize the
transmission of indecent communications, which are protected by the First
Amendment. In _Sable Communications of Cal. v. FCC_, 492 U.S. 115 (1989),
the Supreme Court ruled that any restrictions on the content of protected
speech in media other than broadcast media must advance a compelling
state interest and be accomplished by the "least restrictive means." 8y
relying on technology relevant only to 900 number services, section 402
fails to take into account less restrictive alternatives utilizing
existing and emerging technologies which enable parents and other adult
users to control access to content.
Nearly ten years of litigation, along with modifications of the
regulations, were necessary before the current statute as applied to
audiotext services, or "dial-a-porn" calling numbers, was upheld as
constitutional. See _Dial Information Services v. Thornburg_, 938 F. 2d
1535 (2d Cir. 1991). The proposed amendment in section 40-2 of the bill
would jeopardize the enforcement of the existing dial-a-porn statute by
inviting additional constitutional challenges, with the concomitant
diversion of law enforcement resources.
Second, the definition of "knowingly" in section 402 of the bill would
cripple obscenity prosecutions. Under subsection 402(e), only those
persons with "actual knowledge" of the "specific content of the
communication" could be held criminally liable. This definiition would,
make it difficult, if not impossible, to prove guilt, and the standard is
higher than the prevailing knowledge requirements under existing
obscenity and child sexual exploitation statutes. Under _Miller v.
California_, 413 U.S. 629 (1973j, the government must only prove that a
person being prosecuted under an obscenity statute had knowledge of the
general nature of the material being distributed. Large-scale
distributors of child pornography and other obscene materials--among the
most egregious violators -- do not read or view each obscene item they
distribute. the proposed definition in subsection 402(e) would make it
nearly impossible for the government to establish the necessary knowledge
requirement and would thereby severely handicap enforcement of existing
statutes.
Third, section 402 would add new terms and defenses that would thwart
ongoing enforcement of the dial-a-porn statute. Currently, the government
is vigorously enforcing the existing dial-a-porn statute. It took more
than ten years for the government to be able to do so, due to
constitutional challenges. The proposed amendment to this statute
fundamentally changes its provisions and subjects it to renewed
constitutional attack which would hinder current enforcement efforts.
Fourth, section 402 would do significant harm by inserting new and
sweeping defenses that may be applied to nullify existing federal
criminal statutes. The government currently enforces federal criminal
laws preventing the distribution over computer networks of obscene and
other pornographic material that is harmful to minors (under 18 U.S.C.
section 1465, 2252 * 2423 (a)), the illegal solicitation of a minor by
way of a computer network (under 18 U.S.C. section 2252), and illegal
"luring" of a minor into sexual activity through computer conversations
(under 18 U.S.C. section 2423(b)). These statutes apply to all methods of
"distribution" including over computer networks. The new defenses
proposed in subsection 402(d) would thwart ongoing government obscenity
and child sexual exploitation prosecutions in several important ways:
* The first defense under subsection 402 (d)(1) would immunize from
prosecution "any action" by a defendant who operates a computer bulletin
board service as an outlet for the distribution of pornography and
obscenity so long as he does not create or later the material [sic]. In
fact, this defense would establish a system under which distributors of
pornographic material by way of computer would be subject to fewer
criminal sanctions than distributors of obscene videos, books, or magazines.
* The second defense provided in subsection 402(d)(2) would exculpate
defendants who "lacked editorial control over the communications." Such a
defense may significantly harm the goal of ensuring that obscene or
pornographic material is not available on the Internet or other computer
networks by creating a disincentive for operators of public bulletin
board services to control postings on their boards.
Moreover, persons who provide critical links in the pornography and
obscenity distribution chains by serving as "package fulfillment centers"
filling orders for obscene materials, could assert the defense that they
lack the requisite "editorial control." This proposed defense would
complicate prosecutions of entire obscenity distribution chains.
* The third defense provided in subsection 402 (d)(3), containing five
subparts, would be available to pornographic bulletin boards operators
who take such innocuous steps as (A) directing users to their "on/off"
switches on their computer as a "means to restrict access" to certain
communications; (B) warning, or advertising to, users that they could
receive obscene material; and (C) responding to complaints about such
minimum, [sic] this proposed defense would lead to litigation over whether
such actions constitute "good faith" steps to avoid prosecution for
violating the section 402, and could thwart existing child pornography
and obscenity prosecutions.
* The fourth defense provided in subsection 402 (d)(4) would exculpate
defendants whose pornography business does not have the "predominate
purpose" of engaging in unlawful activity. This defense would severely
undercut law enforcement's efforts to prosecute makers and distributors
of noncommercial pornography and obscenity.
* The fifth defense provided in subsection 402 (d)(5) would preclude any
cause of action from being brought against any person who has taken good
faith steps to, _inter_alia_, "restrict or prevent the transmission of,
or access to," a communication deemed unlawful under section 402. This
defense would encourage intrusion by on-line service providers into the
private electronic mail communications of individual users. The defense
actually promotes intrusions into private electronic mail by making it
"safer" to monitor private communications than to risk liability. At the
same time, this defense would defeat efforts by the government to enforce
federal privacy protections against illegal eavesdropping.
Finally, but no less significantly, section 405 amends the federal
wiretap statute in several respects, each of which creates considerable
problems. First, it amends the wiretap statute to add the term "digital"
to 10 USC section 2511 (see footnote #1), without considering the effect
of this amendment on other statutory provisions. For example, 10 USC
section 2516 (1) provides that certain government officials may authorize
an application for a wiretap order for wire or oral communications while
18 USC section 2516 (3) provides that other government officials may
authorize an application for a wiretap order for electronic
communications. Since section 405 does not amend 10 USC section 2516, to
include the term "digital," it would appear that _no_ government official
has the authority to authorize an application for a wiretap order for
digital communications. This is particularly problematic, since this
investigative tool is reserved for the most serious cases, including
those involving terrorists, organized crime, and narcotics.
Equally disconcerting, the amendment serves to protect computer hackers
at the expense of all users of the National Information Infrastructure
(NII), including businesses, government agencies and individuals. Prior
to 1994, wiretap statute allowed electronic communication services
providers to monitor _voice_ communications to protect their systems from
abuse. 18 USC section 2511 (2)(a)(i) (1986 version). Thus, when hackers
attacked computer systems and system administrators monitored these
communications, they had no clear statutory authority to do so. In
October 1994, Congress finally remedied this defect by amending 10 USC
section 2511 (2)(a)(i) to permit the monitoring of electronic (i.e.,
digital, non-voice) communications. If section 405 is enacted and these
hacker communications are deemed digital, system administrators will
once again be denied the statutory authority to monitor hacker
communications. It would be most unfortunate if, at the same time
Congress is encouraging the widespread use of the NII, it passed a law
giving system administrator's a Hobson's choice: either allow hackers to
attack systems unobserved or violate federal law.
There are three other concerns as well. First, by adding the term
"digital" without amending the suppression provisions of 18 USC section
2515, voice communications -- if they are deemed "digital" -- will no
longer be protected by the statute's exclusionary rule. This would serve
to reduce the privacy protections for phone calls.
Second, section 405 would replace the words "oral communication" with
"communication" in 18 USC section 2511 (l)(B). This would have
undesirable consequences for law enforcement because it would criminalize
the interception of communications as to which there was no reasonable
expectation of privacy (see footnote #2).
>From the law enforcement perspective, there is simply no sound reason for
eliminating this highly desirable feature of present law. Additionally,
the amendment might also impact upon the news gathering process. For
example, if the conversation of two individuals shouting in a hotel room
were recorded by a news reporter standing outside the room, the reporter
would, under section 405, be violating the wiretap statute. Under current
law, of course, the individuals could not complain about the recording
because, by shouting loud enough to be heard outside the room, they lack
any reasonable expectation of privacy.
Last, the provision in section 402 (d)(5) provides that "no cause of
action may be brought in any court ... against any person on account of
any action which the person has taken in good faith to implement a
defense authorized under this section ...." This would seem to suggest
that any person can freely engage in electronic surveillance otherwise
prohibited under Title III- so long as they claim to be implementing a
section 402 defense. As such, section 402 (d)(5) severely weakens the
privacy protections currently offered by the wiretap statute.
In sum, sections 402 and 405 of the bill would hamper the government's
ongoing work in stopping the dissemination of obscenity and child
pornography and threaten law enforcement's continued ability to use
court-authorized wiretaps. We believe that a comprehensive review be
undertaken [sic] to guide response to the problems that the Communications
Decency Act seeks to address.
I assure you that the Department is aware of the growing use of computers
to transmit and traffic obscenity [sic] and child pornography. The Criminal
Division's Child Exploitation and Obscenity Section is aggressively
investigating and prosecuting the distribution of child pornography and
obscenity through computer networks, and the use of computers to locate
minors for the purpose of sexual exploitation. As we have discussed with
your staff in a meeting focused on these issues, we remain committed to
an aggressive effort to halt the use of computers to sexually exploit
children and distribute obscenity.
Sincerely,
{sig}
Kent Markus
Acting Assistant Attorney General
FOOTNOTES
(1) It should be noted that "digital" communications are already covered
by the wiretap statute. Under current law, a "digital" communication is
either a wire communication under 18 USC sec 2510 (1) (if it contains
voice) or an "electronic communication" under 18 USC sec 2510 (12) (if it
does not contain voice). Since such communications are already covered,
the reason for enacting section 405 is unclear, and it is difficult to
predict how the courts will interpret the amendment.
(2) The definition of "oral communication" in 18 USC sec 2510 (2)
contains a requirement that the communication to be protected must have
been made under circumstances justifying an expectation of privacy.
[End of DoJ document.]
Lenny Foner
Last modified: Tue Dec 12 19:08:37 1995