Cox/Wyden passed, but so did "Managers' Amendment"

------------------------------------------------------------------------ ****** ******** ************* ******** ********* ************* ** ** ** *** POLICY POST ** ** ** *** ** ** ** *** August 4, 1995 ** ** ** *** Number 23 ******** ********* *** ****** ******** *** CENTER FOR DEMOCRACY AND TECHNOLOGY ------------------------------------------------------------------------ A briefing on public policy issues affecting civil liberties online ------------------------------------------------------------------------ CDT POLICY POST Number 23 August 4, 1995 CONTENTS: (1) House Approves Cox/Wyden 'Internet Freedom' Bill 420 to 4 Major Victory for Cyberspace -- Indecency Statues Remain A Serious Issue (2) Subcribe To The CDT Policy Post Distribution List (3) About CDT, Contacting US This document may be re-distributed freely provided it remains in its entirety. ------------------------------------------------------------------------ (1) HOUSE PASSES COX/WYDEN 'INTERNET FREEDOM' AMENDMENT MAJOR VICTORY FOR CYBERSPACE -- INDECENCY STATUTES REMAIN A MAJOR ISSUE By a overwhelming vote of 420 to 4, the US House of Representatives today approved the 'Internet Freedom and Family Empowerment' amendment, sponsored by Reps. Chris Cox (R-CA) and Ron Wyden (D-OR), which would prohibit the federal government from regulating content on the Internet, commercial online services, and other interactive media. Unlike the Senate-passed Exon/Coats Communications Decency Act (CDA), the Cox/Wyden amendment ensures that individuals and parents can decide for themselves what information they or their children receive. By contrast, the Exon/Coats CDA would grant the Federal Communications Commission (FCC) broad powers to regulate the expression of each and every one of the millions of users of the Internet. The Cox/Wyden amendment: * Prohibits the FCC from imposing content regulations on the Internet or other interactive media. * Removes disincentives for online service providers to exercise editorial control over their networks and to provide blocking and screening technologies to their uses. * Seeks to create a uniform national policy prohibiting content regulations in interactive media. CDT believes that the Cox/Wyden amendment is an enlightened approach to addressing the issue of children's access to objectionable material online. Unlike the Senate-passed CDA, the Cox/Wyden approach recognizes that the Internet is a global, decentralized network, with abundant capacity for content and tremendous user control. House passage of the Cox/Wyden amendment sets the stage for a direct battle between the House and Senate on the issue of government content regulation in interactive media. CDT will work vigorously to ensure that the Cox/Wyden amendment replaces the Exon/Coats CDA in the final version of telecommunications Reform legislation. NEW UNCONSTITUTIONAL INDECENCY RESTRICTIONS ALSO APPROVED Although the House vote today significantly advanced freedom of speech on the Internet, the threat of unconstitutional indecency restrictions remains. In a vote unrelated to the Cox/Wyden amendment, the House also approved changes to federal obscenity laws which would criminalize the transmission of constitutionally protected speech online. These amendments were approved as part of the "Managers Amendment" to the Telecommunications reform bill (HR 1555). Although these amendments are more narrowly drawn than the Exon/Coats CDA or the Grassley/Dole "Protection of Children from Computer Pornography Act (S. 892), they clearly violate the First Amendment and remain an issue of serious concern to CDT. The new criminal law amendments are opposed by several prominent members of both the House and Senate, including Cox and Wyden. As the bill makes its way through the House/Senate conference committee, CDT will work with Reps. Cox and Wyden, Senator Leahy, and others to: * Remove the unconstitutional indecency restrictions added as part of the "Managers amendment" * Ensure that the Cox/Wyden amendment replaces the Exon/Coats CDA in the final telecommunications reform bill * Clarify that the Cox/Wyden amendment does not affect privacy protections under the Electronic Communications Privacy Act (ECPA) * Strengthen provisions that pre-emption state online censorship laws. COX/WYDEN AMENDMENT PROTECTS CYBERSPACE FROM GOVERNMENT INTRUSION, RECOGNIZES PARENTAL CONTROL POSSIBILITIES The Cox/Wyden bill seeks to accomplish four principal objectives: * PROHIBIT FCC CONTENT REGULATION OF THE INTERNET AND INTERACTIVE COMMUNICATIONS SERVICES. The bill explicitly prohibits the Federal Communications Commission from imposing or content or other regulations on the Internet or other interactive communications services (Sec 2 (d)). This provision recognizes that Interactive media is different from traditional mass media (such as broadcast radio and television), and will enshrine in statue strong protections for all content carried on the Internet and other interactive communications services. Instead of relying on government censors to determine what is or is not appropriate for audiences, this provision recognizes that individuals and parents are uniquely qualified to make those judgments. * REMOVE DISINCENTIVES FOR ONLINE SERVICE PROVIDERS TO EXERCISE EDITORIAL CONTROL OVER THEIR NETWORKS AND TO DEPLOY BLOCKING AND SCREENING TECHNOLOGIES FOR THEIR SUBSCRIBERS. The bill would remove liability for providers of interactive communications services who take good faith steps to restrict access to obscene or indecent materials to minors or provide software or hardware to enable their users to block objectionable material.(Sec 2 (c)) In addition, the bill would overturn the recent court decision (Stratton Oakmont, Inc. v. Prodigy Services Co., N.Y. Sup. Ct. May 24, 1995) which held Prodigy liable for content on its network because the service screens for sexually explicit material and language. Prodigy now faces a $200 million lawsuit. The bill does not intend to create an obligation for providers to monitor or screen content or to allow violation of Federal privacy statutes (such as the Electronic Communications Privacy Act), although some concerns remain on these points. CDT remains committed to addressing these concerns as the legislation moves to conference, and has been assured by Rep. Cox and Wyden that these issues will be addressed. * PRE-EMPT INCONSISTENT STATE LAWS REGULATING CONTENT ON INTERACTIVE COMMUNICATIONS SERVICES. The bill seeks to pre-empt States from enforcing inconsistent laws, including restrictions on content available on interactive communications services. (Sec 2 (e)(2)) The actual scope of this preemption remains an issue of some discussion. CDT believes that any legislation in this area MUST contain a strong pre-emption of inconsistent state laws. A patchwork of state laws which impose varying, and in some cases contradictory, obligations on service providers and content providers must be avoided. CDT will work to ensure that the Cox/Wyden bill creates a uniform national policy which prohibits states from imposing content regulations on interactive media. * NO EFFECT ON CRIMINAL LAW. The bill is not intended to prevent the enforcement of the current dial-a-porn statute or other Federal criminal statutes such as obscenity, child pornography, harassment, etc. (Sec 2 (e)(1)) NET ACTIVISM A CRITICAL FACTOR When Senator Exon (D-NE) first proposed the CDA in February 1995, the net.community reacted with strong opposition. A coalition of online activist organizations, including CDT, EFF, People for the American Way, EPIC, the ACLU and organized with the Voters Telecommunications Watch (VTW), worked tirelessly over the last six months to mobilize grass roots opposition to the CDA. Through our efforts of generating thousands of phone calls to Congressional offices and an online petition which generated over 100,000 signatures in support of an alternative to the CDA, the net.community was able to demonstrate that we are a political force to be reckoned with. The net.campaign and public education efforts helped to encourage House Speaker Newt Gingrich (R-GA) to come out against the CDA, and was an important factor in Reps. Cox and Wyden's decision to propose their alternative. As the legislation moves to the conference committee and then on to final passage, the net.community must be prepared to continue to fight to ensure that the new criminal provisions are removed and that the Cox/Wyden amendment is not weakened. GENESIS OF THE COX/WYDEN AMENDMENT After the Senate passed the CDA by a vote of 84-16 on June 14, CDT stepped up our efforts to find an alternative which protected the First Amendment and recognized the unique nature of interactive media. Both on our own and through the Interactive Working Group (a group of over 80 public interest organizations and leading computer and communications companies, content providers, and others, coordinated by CDT. The IWG includes the ACLU, People for the American Way, the Progress and Freedom Foundation, America Online, MCI, Compuserve and Prodigy, and many other organizations and corporations), worked directly with Reps. Cox and Wyden to bolster the case that parental control technologies offered an effective alternative to government content regulations. To this end, the IWG held a demonstration for members of Congress and the press in mid-July to demonstrate parental control feature of products offered by Netscape, SurfWatch, WebTrack, America Online, and Prodigy. In addition, the IWG issued a comprehensive report reviewing current technology and the state of current laws prohibiting trafficking in obscenity, child pornography, stalking, threats, and other criminal conduct online (this report can be viewed on CDT's web site URL:http://www.cdt.org/iwg/IWGrept.html). Through these efforts and the efforts of VTW's online coalition, to educate members of the House about the problems with the Exon/CDA and the promise of interactive media, the House today has enacted an enlightened approach to dealing with children's access to inappropriate material online. Today's vote represents a tremendous victory for the first amendment and the promise of cyberspace. NEXT STEPS The House Telecommunications legislation (HR 1555) is expected to pass later today (8/4). The Senate approved similar legislation (S. 652) in June. Both bills now move to a House/Senate Conference Committee where differences will be worked out. The Conference Committee is expected to begin deliberation in early September. Once the Conference Committee agrees on a version of the bill, it will be sent back to both the House and Senate for final approval. This vote is expected to occur before the end of October. The Internet-censorship provisions of the Senate bill are among the key difference between the House and Senate proposals. However, several key members of the Senate, including Senator Patrick Leahy (D-VT) and Russ Feingold (D-WI) have expressed opposition to the Exon/Coats approach. CDT will fight vigorously throughout the remainder of this Congress to ensure that the Exon/Coats CDA does not become law. We will also work to remove the new unconstitutional criminal law amendments passed by the House today. ------------------------------------------------------------------------ (3) How To Subcribe To The CDT Policy Post Distribution List CDT Policy Posts, which is what you have just finished reading, are the regular news publication of the Center For Democracy and Technology. CDT Policy Posts are designed to keep you informed on developments in public policy issues affecting civil liberties online. SUBSCRIPTION INFORMAITON 1. 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