Rasping rawbutts for National Whiners Day here's a duo of pinhole puckers about the shut-your-filthy-hole bill: ---------- The Wash Post, Dec 25, 1995: Internet Football The Internet provisions are still in flux along with the rest of the host telecommunications bill, in which this newspaper and its parent company have an interest. If these provisions go through in anything like their present form, then their vulnerability to challenge on First Amendment grounds seems clear. It makes sense for a court to sort out the constitutional from the technical aspects of this new form of "speech," and the sooner the better. It won't be easy. The main legal questions about the proposed Internet indecency regulations as they now stand are inextricably wound up with technical issues. Can the "transmitters" of material that is deemed "indecent" ensure to a reasonable degree of certainty that underage computer users cannot get to it? If they fail, how can they show they tried? Several ideas here are flags for trouble. No legally solid test exists for the "indecency" standard now in the regulations -- patterned on those used for earlier dial-a-porn legislation but addressing totally different technologies. The coalition of moderate conferees had tried to replace the term with the more explicit "harmful to minors" but failed by a single vote. The Justice Department said in a letter last week that a "harmful to minors" standard was more likely than "indecency" to pass scrutiny but that "an overly broad restriction would likely not withstand constitutional scrutiny regardless of the standard chosen." That brings up the meaning of "transmit." Who is responsible for "transmitting" a smutty text that, say, a high school student locates by using an ordinary commercial account to (1) find, download and install free software that searches the Web, (2) use that tool to find a pornographic bulletin board overseas, and (3) make a copy to store in his own computer? The regulations now would punish anyone who "uses any interactive computer service to display [indecent material] in a manner available to a person under 18 years of age." But the bulletin board overseas isn't subject to U.S. Iaw. Most likely it will be up to the commercial providers to demand ID for certain types of accounts -- or up to account-buying parents to limit the scope of their kids' accounts. Whether providers can actually wall off sectors of the electronic world without cooperation from the adults paying the bills has more to do with the available electronic gizmos than with the laws governing the world to which they give access. There is much complicated back-and-forth about whether providers such as America Online and Prodigy will be held responsible for the effectiveness of the measures they take. But only the courts can decide what truly works. A court muddled its way through the Prodigy case on this topic in New York State recently. It declined to modify its own judgment that the provider was more liable because it had tried to create a "PG bulletin board" than if it had not. Whether or not this stands, it's a measure of the disconnect that persists as this legislation stumbles toward final enaction. ---------- The NY Times, Dec 26, 1995: Mr. Hollings Saves the Phone Bill House and Senate conferees seemed ready to negotiate a damaging telecommunications compromise until Senator Ernest Hollings of South Carolina, the chief Senate negotiator, altered that destiny last week. Wielding the threat of a filibuster and a deft legislative hand, he rescued the best parts of flawed House and Senate bills passed earlier, added some good new ideas and threw out most of the rot. His draft bill could spark innovation and set off consumer-friendly competition among television, cable and telephone companies. Its biggest flaw is a heavy-handed and probably unconstitutional effort to ban "indecent material" from the Internet. The original bills sought to break down barriers that keep media companies from entering each other's markets. But three mistakes were made. The bills would have deregulated cable rates before competition by other video companies could protect customers from price-gouging cable operators. Local phone companies would have been allowed to enter the long-distance market before they faced competition from cable or other companies. Worse still, the bills would have allowed broadcasters, cable operators, telephone companies and newspapers to merge too easily. That could expose consumers to a frightening concentration of information sources. Mr. Hollings, with the help of key Republicans like Senator Larry Pressler, fixed most of these flaws. His draft bill would hold up entry of local phone companies into long-distance service until the Federal Communications Commission says O.K. after giving weight to an antitrust review by the Justice Department. The bill leaves it up to the F.C.C. to set reasonable guidelines for mergers. It would put off deregulation of most cable rates for three years -- enough time for phone and satellite services to take on cable operators. The one serious error is a prohibition against transmission of allegedly indecent materials over the Internet -- the network of millions of on-line computer subscribers around the world. The indecency standard is probably unconstitutionally vague and restrictive. The standard is also unnecessary. The law already forbids sending obscene materials by computer. To protect children, parents can buy easy-to-use programs that block indecent materials from any source. The draft bill threatens to trigger further Government control of electronic communication -- which has blossomed so far precisely because Government has stayed on the sidelines. Fortunately, Republican leaders like Speaker Newt Gingrich are troubled by the indecency standard. There is a good opportunity to knock the provision out before Congress takes a vote. Some Republicans, miffed when Vice President Al Gore declared the draft an Administration victory, threatened to withhold support. But telecommunications, the heart of a high-tech economy, is too important for small-minded sparring. Congress should take up the draft bill, remove the indecency provision and put Mr. Holling's good deed into law. ---------- [The coccyx of a 12-26-95 WSJ eunucher]: First Amendment advocates, who have criticized the bill because it cracks down on Internet indecency and sets up a rating system and show-blocking circuitry against TV violence, got one small gift: The bill contains a provision for an expedited legal review of the constitutionality of those provisions. On the other hand, it also sets up a new law allowing 10-year prison terms for anyone who, using interstate phone calls, mail or other means, "persuades, induces, entices, or coerces" a minor to engage in any illegal sexual act.