**PLEASE WIDELY REDISTRIBUTE THIS DOCUMENT UNTIL SATURDAY AUGUST 5, 1995** 8/2/95 ACLU Cyber-Liberties Alert: Oppose Exon-Like Speech Crimes in the Managers Amendment to the House Telco Bill ----------------------------------------------------------------- The House is expected to begin considering the telecommunications bill (HR 1555) tonight, August 2, 1995, and to vote on the bill by Friday, August 5th. The managers for the telco bill on the House floor -- Representatives Bliley (R-VA), Hyde (R-IL), and Dingell (R-MI) will be introducing an omnibus "Managers Amendment" to HR 1555. The Managers Amendment would create, among many other unrelated changes, new Exon-like speech crimes that would censor the Internet. To prevent online censorship and preserve free speech and privacy rights on the Internet, we urge you to voice your opposition to this dangerous amendment. The Managers Amendment would add an entirely new Exon-like provision to the existing federal obscenity laws. The provision would make it a crime to "intentionally communicate by computer ... to any person the communicator believes has not attained the age of 18 years, any material that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs." (18 U.S.C. 1465) This provision, like the Exon amendment passed by the Senate, would effectively reduce all online content to that which is suitable only for children. It also raises the same questions about service provider liability that were raised by the Exon amendment. The Managers Amendment would also make it a crime to "receive" material from overseas "by computer," thereby subjecting both Internet users and service providers to new prosecutions (18 U.S.C. 1462). In addition, these new provisions, like the Exon amendment, would cover private e-mail. Finally, the criminal code changes in the Managers Amendment would reduce all online speech to the obscenity standards of the most restrictive community in the United States -- unless the courts clarified the relevant "community standards" for cyberspace (and we're losing the cases in court so far). If the House adopts the Managers Amendment, both the House and Senate versions of the telco bill will include severe attacks on cyber-liberties. This would make it difficult for the conference committee to avoid some kind of severe online censorship provisions in the final version of the telecommunications deregulation bill. The Cox/Wyden amendment, which has received widespread support, will be offered as a separate amendment to HR 1555. Cox/Wyden is far preferable in approach to either the Exon amendment in the Senate telco bill or the Exon-like speech crime provisions in the Managers Amendment to the House telco bill. Cox/Wyden also prohibits FCC censorship of Internet speech. However, the ACLU remains concerned about certain ambiguities and some genuine problems in the Cox/Wyden bill. When Cox/Wyden is adopted by the House, we will work with the conference committee to resolve these concerns, but we are troubled that they have not been resolved up to now. Representative Cox has committed again to working out these problems. We hope this will prove successful. But an affirmative vote on Cox/Wyden will not stop online censorship, especially if the Exon-like Managers Amendment is also approved by the House!! **Please call your Representative today to express your opposition to the speech crime provisions in the Managers Amendment to the telco bill (HR 1555). Express your support for the approach of the Cox/Wyden amendment.** In addition to lobbying on the telco bill, and to lobbying the Rules Committee to prevent floor action on either the Exon amendment or the Exon-like new speech crimes provisions, the ACLU delivered the following letter to Republican members and some Democrats in the House of Representatives today: ------------------ RE: Important Statements by Conservatives and Others on Unconstitutional Provisions of Telecommunications Deregulation Legislation (H.R. 1555 in the House) Dear Representative: On behalf of the American Civil Liberties Union, we are pleased to provide the enclosed statements from The Wall Street Journal, the Cato Institute, Speaker Newt Gingrich, the Center for Democracy and Technology and the Interactive Working Group. All address the importance of leaving American citizens free to decide -- not have some government bureaucracy control -- what they wish to watch on television or access by computer. While we do not agree with everything in any one of these statements, we hope that you will find them of assistance as the House considers telecommunications legislation. You will be asked to vote on House amendments paralleling those so devastatingly critiqued in these materials. We urge your attention to two amendments that we believe are clearly unconstitutional. The first amendment (included as item #41 in the managers amendment) would, similar to the now heavily discredited Exon amendment, unconstitutionally interfere with the free market and free speech approach that has turned the Internet into the incredible source of entrepreneurial promise and educational impact it is today. Although the July 31st memorandum on the managers amendment claimed that this provision "creates criminal liability for intentionally sending obscenity over computers," the amendment in fact deals with more expression than just obscenity as the Supreme Court has defined it. Instead the amendment mixes elements of both obscenity (which the Supreme Court has said is not constitutionally protected) and indecency (which is First Amendment-protected speech) and seeks to make it a Federal crime for anyone to communicate such material to someone under 18. This provision of the managers amendment is clearly unconstitutional for all the reasons so eloquently expressed in the enclosed materials. It is also silly. Does the Congress of the United States really intend that the Federal criminal justice system will be used to send two 17-year-olds to Federal prison for five years because their online dating chatter took an overly salacious turn? This provision is, further, profoundly unwise policy. It is another example of what, in the Senate/Exon context, the Wall Street Journal referred to as the "ham-handed approach" or resorting to the "big-bureaucracy method to solve problems." More importantly, this government-dictated control would interfere with the implementation of parental control technologies (including those in use today; see the CDT report) because software developers would wait to deploy their products widely or develop improvements until the inevitable legal challenges to the combined obscenity/indecency provision are finally resolved. This Federal criminal law approach would be another "constitutional glue factory" that, for example, in telephones took a decade to untangle before that law could take effect. Meanwhile, consenting adults will have their own free speech limited to "child-proof" e-mail, and parents will be deprived of meaningful technology to control what their children access on the Internet. We urge you to vote against this Big Government, anti-private sector and unconstitutional addition to the Federal criminal code by voting against the managers amendment. We also ask that you oppose the so-called "V-chip" amendment proposed by Representative Markey. The "V-chip" amendment would also stifle other approaches and actually serve to lessen, not increase, effective parental control over what their children watch on television. The Markey amendment would operate to censor broadcast and cable television programs, putting time slots or channels under the power of a Federal government ratings authority. Despite assertions to the contrary, the plain language of the amendment requires the formation of such a Federal government authority, to be established by the Federal Communications Commission as an advisory committee to form rules to identify and rate programming. The actual censorship would be effectuated through the mandatory installation in television sets of "V-chips." The ACLU opposes the "V-chip" amendment because it would install an unconstitutional government-run system designed to censor First Amendment-protected expression on television. The amendment would have the effect of actually usurping control from parents in favor of a government approval panel. Under this regime, when the "V-chip" is activated, government-mandated technology would operate to block an entire television program based on expression that a government rating authority -- rather than the parents -- finds to be violent, sexual or otherwise inappropriate. We urge you to vote against the Markey "V-chip" amendment. Once the free enterprise system has identified a market (e.g., for parental control technologies), private sector development works much faster and provides a greater range of choices than having a government bureaucracy foist its choice for a "winning technology" on parents and other consumers. The Markey "V-chip" amendment would strangle development of the new technologies that will give parents much more precise control over what their children watch. The Coburn amendment, on the other hand, would review and encourage this private sector development of parental control technology for televisions, and we believe that it merits your support. As the Wall Street Journal concluded, "The more forward-moving solution is to empower parents and encourage good corporate citizenship." We appreciate this opportunity to express our reasons for opposing both the Markey "V-chip" amendment and these criminal code changes in the managers amendment. We hope you find the enclosed materials helpful as the House considers telecommunications deregulation. Sincerely yours, Laura W. Murphy, Director Washington National Office Donald Haines Legislative Counsel