Suppose you were an idiot. And suppose you were a member of Congress. But I repeat myself. -- Mark Twain
[Folks, here's an excerpt from EFFector Online of Nov. 6, '95 about the
right's push for Internet censorship including the 10/95 letter from Ed
Meese and the Christian right. You can contact the EFF people at
[email protected] -staff]
Since the very first day that Senator J.J. Exon (D-NE) proposed censorship legislation for the Internet, the Christian Right has pushed for the most restrictive regulations they could think of.
The Religious Right (which does not necessarily speak for all religious people concerned with this issue) recently tipped their hand in a letter to Sen. Larry Pressler (R-SD) and Rep. Thomas Bliley (R-VA) requesting a new and more restrictive net censorship proposal.
There are essentially three new dangerous elements of their campaign to shut down cyberspace:
INTERNET PROVIDERS, ONLINE SERVICES, AND LIBRARIES CRIMINALLY LIABLE FOR
The Religious Right has proposed to hold anyone who provides access to the Internet or other interactive media, including online services providers, ISP's, BBS's, Libraries, and Schools, criminally liable for all speech carried on the network.
In order to avoid liability under this provision, service providers would be forced to monitor user's electronic communications to be assured that no "indecent" material is transmitted across their networks.
This proposal is MORE RESTRICTIVE than the Exon Communications Decency Act, or any other net censorship legislation currently in Congress.
In their letter to Congress, the Religious Right says:
[Providers] would simply be required to avoid KNOWING violations of the law. [emphasis added]
However, the "knowing" standard is vague enough that the mere knowledge that such material exists could be sufficient to trigger criminal liability. A single complaint or even a news report could force a service provider to take down a web page, remove posts to chat rooms or other discussion forums, or shut down listservs in order to avoid going to jail and facing huge fines.
A STANDARD FOR INDECENCY
The proposals pushed by the Christian Coalition relies on the unconstitutional "indecency standard". Like the Exon Communications Decency Act, the Christian Coalition seeks to regulate all indecent speech online.
Indecency is a broad category that includes everything from George Carlin's "seven dirty words" to such classic novels and "The Catcher in the Rye" and "Lady Chatterly's Lover".
The Supreme Court has ruled that restrictions on indecent speech are Constitutional only if they rely on the "least restrictive means". Broad indecency restrictions on interactive media do not satisfy the "least restrictive means" test, because interactive media allows users and parents tremendous control over the information they receive.
Any legislation which attempts to apply an indecency restriction to the Internet is unconstitutional on its face.
The Christian Coalition's proposal that relies on an indecency restriction contemplates dumbing down every conversation, web page, newsgroup, and mailing list on the Internet to the level of what is not offensive to children.
What kind of discussions between adults are possible in an arena where everything has been reduced to the level of the Lion King?
UNPRECEDENTED CONTROL OVER ONLINE SPEECH FOR THE FCC The Christian Coalition would give the FCC broad jurisdiction over cyberspace. It would allow the FCC jurisdiction over your online speech, and over the design Internet software, such as web browsers and filtering programs that parents can use to control their children's access to the Internet.
The Internet has developed from a government project to a market-driven
economic boom for thousands of businesses. Giving the FCC authority
over this medium would significantly hinder the growth of this new
THE LETTER FROM ED MEESE AND THE CHRISTIAN RIGHT
October 16, 1995
The Honorable Thomas J. Bliley, Jr. Chairman
Committee on Commerce
United States House of Representatives
Washington, DC 20515
The Honorable Larry Pressler, Chairman
Committee on Commerce, Science, and Transportation
United States Senate
Washington, DC 20510
Re: Computer Pornography Provisions in Telecommunications Bill
Dear Mr. Chairmen:
We are writing to urge the conference committee seeking to reconcile the telecommunications bills passed by the House and Senate include in the final bill the strongest possible criminal law provisions to address the growing and immediate problem of computer pornography without any exemptions, defenses, or political favors of any kind accorded to those who knowingly participate in the distribution of obscenity to anyone or indecency to children. While there is no perfect solution to the problem of computer pornography, Congress could not hope to solve this problem by holding liable only some who are responsible for the problem.
The recent Justice Department prosecution project targeting those who violated federal child pornography law using America On-Line is instructive in this regard. More than ninety individuals were targeted for prosecution although many others, perhaps as many as 3,000 according to one press report, were originally targeted by the Department of Justice as potential violators of child pornography laws. Apparently due to a shortage of investigative and prosecutorial resources, the project was limited. Since there are insufficient resources to investigate and prosecute but a fraction of those that are trafficking in child pornography by computer, then there will likely be even fewer resources available to investigate and prosecute those involved in obscenity and indecency.
Thousands of individuals both in this country and abroad are regularly placing obscenity and indecency on the Internet. It is not possible to make anything more than a dent in the serious problem of computer pornography if Congress is willing to hold liable only those who place such material on the Internet while at the same time giving legal exemptions or defenses to service or access providers who profit from and are instrumental to the distribution of such material.
The Justice Department normally targest the major offenders of laws. In obscenity cases prosecuted to date, it has targeted large companies which have been responsible for the nationwide distribution of obscenity and who have made large profits by violating federal laws. Prosecution of such companies has made a substantial impact in curbing the distribution of obscenity, with many such offenders going out of business altogether. So too will prosecution of access providers which "knowingly" traffic in obscenity have a substantial impact, a far greater impact than just the prosecution of a person who places one or a few prohibited images on the Internet. Such a person could not traffic in pornography without the aid or facilitation of the service or access providers. Indeed, if Congress includes provisions protecting access or service providers in whatever bill is finally passed, it is likely that most in this country who are trafficking in indecency to children or obscenity would continue to do so since the threat of prosecution would be minuscule, given the numbers of those currently involved in this activity. It is also likely that those outside our country who are engaged in these activities would continue to do so since it would be nearly impossible to extradite them to the United States for prosecution. Thus, unless all who knowingly participate in such matters are subject to the law, the Internet will remain the same and Congress will have failed in its responsibilities to the children and families of America.
Federal law has traditionally assigned equal liability both for those who commit a crime and those who aid and abet a crime. See Title 18 U.S.C. Code Section 2: "(a) whoever [sic] commits an offense against the United States or aids, abets, councils [sic], commands, induces, or procures its commission, is punishable as a principle [sic]." Service or access providers who knowingly participate in the distribution of indecency to children or in obscenity to anyone are aiders and abettors in the commission of those crimes and thus should have liability under any law Congress passes. Current federal law on child pornography provides no no exemption or defense for access providers. Thus, the child pornography law provides a strong deterrent against trafficking in child pornography for those who would otherwise knowingly participate in its distribution by computer whether pedophile or access provider.
The changes in law which we support would not hold an access provider criminally liable for all illegal pornography on the Internet which their services may be used to obtain. Nor would it require that access providers check all communications to ensure that no violations of the law are occurring. They would simply be required to avoid knowing violations of the law. This is an obligation imposed on all citizens. Technology exists today for access providers, through a simple process, to target or flag and remove files containing objectionable material.
We support the House-passed language insofar as it addresses obscenity by amendment Title 18, Sections 1462, 1465, and 1467 of the United States Code. The provision restricting transmission of indecency in the House-passed bill, an amendment to Section 1465, is inadequate, and we urge that it be substantially revised.
Attached is the specific language we support which includes the House passed language on obscenity and includes revisions on both the House passed language on indecency, which would amend Title 18 and the Senate- passed language on indecency, which would amend Title 47. The combination of these provisions, we believe, would provide effective laws to curb obscenity and indecency on the Internet by establishing that all who knowingly participate in the distribution or facilitation of obscenity to anyone or indecency to children would be subject to the law.
Thank you for your concern and attention to this matter.
Edwin Meese III
Donald E. Wildmon
American Family Association
Alan Sears, Former Executive Director
Atty General's Commission on Pornography
Concerned Women for America
Reverend Louis P. Sheldon
Traditional Values Coalition
American Center for Law and Justice
Free Congress Foundation
Morality in Media
National Family Legal Foundation
Morality in Media
Former United States Attorney, N.D., FL
Former Chairman, Atty General's Advisory Committee
Subcommittee on Child Exploitation and Obscenity
Ralf R. Rinkle, PhD, LlD, LsD, MD, Rsvp, Esq.
Head Librarian, The 'Lectric Law Library
Former Chairman, Int'l Committee To Kill Anyone Who Has Ever Been Naked
Former Chairman, Atty General's Advisory Committee
Subcommittee on Oppression of Any Idea Developed After 800 AD
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