---------------------------------------------------------------- December 22, 1995 ACLU CYBER-LIBERTIES UPDATE A bi-weekly e-zine on cyber-liberties cases and controversies at the state and federal level. ---------------------------------------------------------------- IN THIS ISSUE: * ACLU Letter to U.S. Senators Opposing the Telecommunications Deregulation Bill, S. 652 (H.R. 1555) As Reported by the Conference Committee ---------------------------------------------------------------- FEDERAL PAGE (Congress/Agency/Court Cases) ---------------------------------------------------------------- December 22, 1995 Via Fax Subject: Why the Telecommunications Deregulation Bill, S. 652 (H.R. 1555), As Reported by the Conference Committee Should Be Rejected Dear Senator: The American Civil Liberties Union urges you to vote against S. 652 (H.R. 1555), the telecommunications deregulation bill as reported by the conference committee. The conference committee has produced a bill that will immediately damage freedom of expression, the bedrock value at the core of the First Amendment and will structure the telecommunications industry so that free speech and privacy are in permanent jeopardy. While the final text is still being written, these provisions are sufficiently destructive that they warrant rejection of the entire bill. Many reasons could be cited why S. 652 should be rejected; we will focus on just three areas where the conferees have needlessly chosen to attack essential First Amendment values. I. The "Deregulation" Bill Will Establish a Big Government Censorship Regime with New Speech Crimes for the Internet and Online Communications. Title V of the telecommunications bill as adopted by the conference committee will: - Subject first-year college students under 18 to two years in prison and $100,000 fine if they engage in overly salacious dating patter online (even in their private e-mail). - Subject parents to the same prison term and fine if they provide their own teen-ager with online materials that the parents have decided have merit if the material is deemed to violate the bill. - Subject adults merely looking on their own home computer at something deemed obscene to prison for five years for the first peek, plus another ten years if they look again. This is not far-fetched. Electronic "footprints" are left behind whenever a user goes somewhere in cyberspace. Some of the censorship groups backing the bill openly support prosecuting anyone who looks at such material as way of "drying up" demand for it -- so these groups have an incentive to pressure prosecutors to follow those footprints back to the adults at home. - Effectively reduce voluntary communications among consenting adults to those appropriate only for children. Much of what consenting adults -- even married consenting adults -- prize about some of their communications could well be deemed by outsiders as indecent if addressed to minors. The bill will infantalize all communications in cyberspace as users worry about how to avoid prosecution if prohibited material is sought out by someone underage. The educational value of the Internet would be reduced to the equivalent of the children's section in the video store. - Define its new speech crimes so broadly that it will hold access and service providers criminally liable for content they did not create unless the providers have legal departments large and skilled enough to utilize limited and vague defenses. Even then, the defenses would have to be established in costly and time-consuming court proceedings. The predictable effect will be enormous self-censorship, coerced by the government's failure to precisely define what is being made criminal and the threat of prison for transgressors. - Subject all Americans to the most narrow of community standards found in the most socially limiting of locations. Even those who have chosen to adopt the social mores of such locations should not insist on imposing those mores on the millions of Americans who have chosen to live elsewhere. These proposals violate the Constitution. They are also profoundly bad public policy. Title V of the bill is unconstitutional because it takes speech protected by the First Amendment and tries to regulate it in a way that violates what the Supreme Court has said must be the touchstone for regulating protected speech. For example, the bill fails to use the constitutionally required "least restrictive means" to obtain its putative goals. It also fails to take into account the particular characteristics of interactive media in the online environment, rendering its attempt to create new speech crimes constitutionally impermissible. Title V also unconstitutionally invades the privacy rights of those who communicate online. Cyberspace is the first genuinely mass medium in human history, where many individuals can speak to many others at the same time, and where the "start-up" costs of "publishing" are so minimal that almost all users are potential publishers. This is a democratic and truly libertarian communications medium without a centralized governing body. There is no network president or standards department, for example, ultimately overseeing everything that is broadcast -- in fact there is no "network" but instead an endless series of independent areas like newsgroups, chat rooms, bulletin boards and web sites. The conference bill tries to force cyberspace into the mold of the old media with a government-dictated, centralized command structure. Cyberspace gives its users -- including parents concerned about their children -- an unprecedented power over what materials are accessed, or not accessed, from their computers. Parents, for example, already have available software and other technology that will let them control what their children access from their computer. Tragically, the conferees have rejected further private sector development of user empowerment technologies. Instead, the conference bill imposes the most restrictive regime of government regulation over content on what should be the least governmentally restricted of all media. In doing so, the bill would strangle cyberspace, violating the free speech and privacy rights of all those who communicate online. The ACLU believes that all adults have the right to choose for themselves what they see or say online. The conferees have chosen to invest a minority of censorship extremists with the coercive power of the criminal law and Federal prison in order to impose on the rest of us their constricted view of what we should say or see. This is a truly historic turning point. Title V of the bill from the conference committee confronts the Congress with a stark choice: - Will the 104th Congress be seen in history as one who stood up for the freedom of communications in cyberspace and the Internet, or will it be counted as a tool of certain censorship groups determined to impose their conception of "proper" speech on all of us? - Will the 104th Congress stand up for the continuing vitality of private sector development of interactive media, or will it impose a big-government bureaucratic regulatory regime on cyberspace and the content of its communications? - Will the 104th Congress stand up for empowering users -- including parents concerned about their children -- to control what material is accessed from their computers, or will it give the coercive power of federal prison sentences to censorship groups who care more about interfering with what other adults see or say than about protecting their own children? II. The "Deregulation" Bill Will Impose a Big-Government Censorship Regime on Television Programming. The conference committee has agreed to V-chip language in S. 652 that will stifle expression on broadcast and cable television and prevent parents from exercising greater control over their children's television viewing habits. The V-chip provision will vest the government, not parents, with control over which television programs make their way to the family television set. The V-chip hardware is technology that will automatically block a program from television reception if it carries a certain encoded rating in its transmission. The encoding would be transmitted on the same signal that currently carries closed captioning information. However, the V-chip requirement does more than simply call for new hardware in television sets; the bill would set up a television rating system driven by government guidelines on content. Although the television industry is given a one-year window to "voluntarily" develop and transmit an encoded ratings scheme for violent, sexual, or indecent programing, the Federal Communications Commission would have the power to reject the industry's system in favor of its own. In this way, the government ultimately decides what content is appropriate for viewing and what is not. The bill calls for the government to form an "advisory committee" to set recommendations for guidelines on rating content, and those guideline will be formally issued by the FCC. Although the V-chip's congressional sponsors have claimed that these guidelines will not be mandatory, the ratings guidelines will surely have a chilling effect on the creative process in television programming. Would producers make a television mini-series about the violent Civil War? Perhaps not, if the broadcast will automatically be blocked from the television sets of countless families who will not have the opportunity to make an independent judgement as to the program's appropriateness. The weightiest and clearest guidelines for content rating would be that of the government. Such chilling of expression by the government violates the First Amendment. The Supreme Court has held that violent expression enjoys full constitutional protection. Furthermore, what would constitute "sexual" expression would be left up to the government's advisory committee or the industry's "voluntary" internal censors. Would a news program or documentary on breast cancer be blocked as "sexual" expression? That answer is yet unclear, but what is clear is that the encoded ratings will block expression fully protected by the First Amendment. Furthermore, the V-chip scheme created by Congress completely shuts out families from the decision making process. Instead, it empowers bureaucrats and television executives to make decisions for parents. Would the V-chip's automatic censors block out such "violent" programs as "Schindler's List," "Roots," or "The Burning Bed"? Other options for true parental control and choice in children's television viewing will be destroyed by the government's V-chip mandate. Private companies have recently developed technology, such as the Telecommander and the TV Guardian, that would empower parents to screen out the programs or stations that they feel are inappropriate for their children. Additionally, there is the possibility of a true "choice chip," which would allow parents to subscribe to the private rating service of their choice, whether run by the National PTA, TV Guide or the Christian Coalition. Technology and initiatives developed by private business will be crushed by the government's mandatory censoring technology and ratings system. The government will step in as a surrogate parent to turn off the television when a child turns to the "wrong" channel. However, the government's version of what is "wrong" might include a documentary, an afterschool special, or other programming that a parent would actually want their child to watch. Thus, the "V" in V-chip is for the government's "victory" over parental control and the First Amendment. III. The Bill Will Foster Communications Monopolies that Stifle Diversity and Free Speech. A core value of the First Amendment's guarantees of free speech and free press is the vital role in preserving liberty played by robust discussion of public issues among a diversity of viewpoints. Unfortunately, the bill undoes much of the existing protection ensuring diversity in points of view by allowing a greater concentration of media. The conference report would, for example, allow the FCC to use waivers so that a single corporation could own the television station, radio station, cable system, newspaper, phone company and Internet access provider in a locality. On the national level, the bill will allow a greater concentration of control over programming sources. No clearer example exists of the destructive impact on free speech such media concentration will have than CNN's recent rejection of advertisements opposing the telecommunications bill itself. CNN's corporate owners, of course, have vital interests generally being advanced by the bill, but the decision to reject opposing ads (followed up by a decision to reject all ads on the bill -- when the issue was generally developing in favor of CNN's owners) is the kind of content control that will only be repeated as media concentration increases. Conclusion The American Civil Liberties Union urges you to oppose the conference version of S. 652 (H.R. 1555), the telecommunications deregulation bill because it will impose new speech crimes on cyberspace and new censorship on television programming, as well as jeopardize the future of free speech in this country by destroying the diversity of media ownership. Sincerely yours, Laura W. Murphy Director Donald Haines Legislative Counsel ---------------------------------------------------------------- ONLINE RESOURCES FROM THE ACLU NATIONAL OFFICE ---------------------------------------------------------------- Stay tuned for news on the ACLU's world wide web site, under construction at http://www.aclu.org/. 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