Somewhat interesting it seems, an ultra-conservative House is the First Amendment's bigest friend on the Online "porn" issue, while a much more moderate Senate is it's biggest enemy ... -- Christopher E Stefan * flatline@ironhorse.com * finger for PGP key ---------- Forwarded message ---------- ------------------------------------------------------------------------------- ------------------------------------------------------------------------ ****** ******** ************* ******** ********* ************* ** ** ** *** POLICY POST ** ** ** *** ** ** ** *** July 26, 1995 ** ** ** *** Number 22 ******** ********* *** ****** ******** *** CENTER FOR DEMOCRACY AND TECHNOLOGY ------------------------------------------------------------------------ A briefing on public policy issues affecting civil liberties online ------------------------------------------------------------------------ CDT POLICY POST Number 22 July 26, 1995 CONTENTS: (1) Senate Judiciary Committee Holds Cyberporn Hearing (2) House Science Subcommittees Hold Hearing to Explore Parental Control Technology -- Law Enforcement Officials Say Exon CDA is Wrong Approach (3) Subcribe To The CDT Policy Post Distribution List (4) About CDT, Contacting US This document may be re-distributed freely provided it remains in its entirety. ------------------------------------------------------------------------- (1) SENATE JUDICIARY COMMITTEE HOLDS CYBERPORN HEARING SUMMARY On Monday July 24, 1995 the Senate Judiciary Committee held the first every hearing on the issue of children's access to inappropriate material on the Internet. The principal focus of the hearing was to discuss Senator Grassley's "Protection of Children from Computer Pornography Act of 1995" (S. 892). CDT Executive Director Jerry Berman testified before the panel. Senator Grassley (R-IA) deserves praise for holding the first Congressional hearing on this important issue, as well as for taking great pains to ensure that both sides of the issue were represented. Although CDT may disagree with Senator Grassley's approach, we believe that this hearing represented an essential step towards advancing the dialogue on what has become an over-hyped and dramatically misunderstood issue. Senator Grassley's legislation, which has been co-sponsored by several other prominent members such as Dole, Hatch, and Thurmond, would impose criminal penalties on a service provider that "knowingly" transmits indecent material to a minor, or who "willfully" permits its network to be used to transmit indecent material to a minor (S. 892, Sec (b)(2) & (b)(3)). Two important points emerged from the testimony: 1. Current law prohibits the distribution of obscenity and child pornography, as well as online stalking and solicitation of minors. As troubling and disturbing as some of the testimony was, no evidence was presented that there are gaps in current law which would be filled by the Grassley legislation. 2. Serious questions exist as to the constitutionality of the Grassley Bill. Although Senator Grassley has repeatedly stated that his bill is narrowly drawn and targets only the bad actors, no evidence was presented to establish that a court would not interpret the statute more broadly, resulting in a complete ban on constitutionally protected speech online. WITNESSES Witnesses testifying before the panel included: * Donnelle Gruff, a 15 year old Florida girl described as a victim of an online stalker, * Patricia Shao, a mother of two from Baltimore MD and volunteer for Enough Is Enough * Dr. Susan Elliot, a mother from McLean VA * Bill Burrington, Assistant General Counsel, America Online * Barry Crimmins, a children's rights advocate * Stephen Balkam, Executive Director, Recreational Software Advisory Counsel * Jerry Berman, Executive Director, Center for Democracy and Technology * Michael S. Hart, Executive Director of Project Gutteberg, Professor of Electronic Texts, Illinois Benedictine College * Dee Jepson, Enough Is Enough (an anti-pornography group) DOES THE GRASSLEY BILL PROTECT CHILDREN? The testimony of 15 year old Donnelle Gruff focused on her experience as the victim of a stalker, while Dr. Elliot and Ms. Shao, two mothers of young children, described how their children had used commercial online services to access files they deemed inappropriate. Donnelle Gruff testified that she had been harassed and stalked by the sysop of a Florida BBS she had visited. The sysop had obtained her name, age, and address from her records and reportedly stalked Gruff while she was at home. During questioning however, Gruff's step-father told Senator Leahy that Florida law enforcement officials were currently investigating the case, and that they had given no indication that current law is insufficient with respect to prosecuting such cases. Senator Leahy noted that, as difficult and disturbing as Gruff's case is, it illustrates a need for additional law enforcement resources and education, but is not an issue of gaps in current federal or state laws. Senator Patrick Leahy (D-VT) noted similar recent prosecutions in Florida, and noted that the Grassley legislation does not explicitly prohibit online stalking of minors. In addition, Senator Leahy questioned whether government content restrictions would be an effective solution to protecting children online. "I hear a lot of rhetoric (from Congress) about getting government out of our lives, but here it seems as if the rhetoric is a little off of reality. Parents, not the government, should make the choices" about what their children should be permitted to access. Both Dr. Elliot and Ms. Shao testified that their children had stumbled across material while surfing the Internet that they, as parents, felt should not be accessible to children. Both described how their children had accessed "pornographic" images, and had been propositioned for "cybersex" while visiting a chat room on a commercial online service. In addition, Dr. Elliot described some of the images as representing 'bestiality and sodomy'. Barry Crimmins, a child protection advocate, testified that he has found numerous images of child pornography on America Online. Crimmins accused AOL of neglecting to adequately police its network. When questioned by Senator Leahy, Crimmins acknowledged that the distribution of child pornography and stalking or solicitation of minors is prohibited under current law. Crimmins added that while he thought the commercial online service should do more to remove such material, he believes that more vigorous enforcement of existing law would help to address his concerns. WHAT IS THE SCOPE OF THE ISSUE -- IS CURRENT LAW SUFFICIENT? Often in the course of the debate on this issue, the term "pornographic" is assumed to be interchangeable with both "indecency" and "obscenity". However as Senator Feingold (D-WI) noted, "pornography" has no legal standing, and when legislating in this area Congress must be careful to avoid confusing these legal distinctions. In determining what material would be considered illegal under current law, the distinction between "obscene" and "indecent" material must be made completely clear. When pressed by Senator Feingold, Dr. Elliot agreed that precise definitions are important, but argued that the files that her child downloaded from the Internet that depicted bestiality and sodomy that would be, "obscene by any standard". Images of bestiality and sodomy, as Dr. Elliot described, would be considered obscene in virtually every community in the United States, and hence are illegal under current law. Though it raises difficult jurisdictional questions, obscenity has been clearly defined by the Courts. Moreover, current law already prohibits trafficking in obscenity (18 USC Sec 1462, 1464, 1466) as well as child pornography (18 USC Sec 2252) have been successfully applied to punish conduct on computer networks. As Senator Leahy pointed out in his statement, the Justice Department is currently prosecuting cases involving material similar to that described by Dr. Elliot. Indecent material, on the other hand, is constitutionally protected and is much more difficult to define. The most common understanding of what constitutes indecent material includes the 7 dirty words, images of nudity, and other suggestive material. Moreover, the Supreme Court has ruled that any attempts by government to restrict access to indecent material must be accomplished in the "least restrictive means", and the determination of this standard is entirely dependent on the medium (see Sable Communications v. FCC, 492 US 115; 109 S.Ct. 2829; 106 L.Ed. 2d 93 (1989). Some of the material described by the witnesses would be considered obscene, and hence is already prohibited under current law. Other examples, including Ms. Shao's description of her daughter being propositioned for "cybersex", would likely not be considered obscene. Senator Russ Feingold (D-WI) urged the committee to carefully consider the distinctions between "obscene" and "indecent" speech, and urged his colleagues to "exercise caution and restraint." How broadly should we define indecency, Feingold asked Dr. Elliot, "Where should we draw the line? Should we prohibit playboy? swearing? The Catcher In The Rye? What about a discussion forum about how to avoid getting AIDS?". Because technologies currently exist to screen out messages such as those described by Ms. Shao, it is unlikely that a broad prohibition on such messages would pass constitutional muster. In this case, Congress must look to other, less restrictive methods of preventing children from having access to such materials -- including promoting the development and availability of user control technologies. CONSTITUTIONAL ISSUES Throughout the hearing, Senator Grassley stated that his legislation is carefully crafted and narrowly drawn in order to preserve the first amendment rights of adults while protecting children from inappropriate material. Grassley stated that his bill would hold an online service provider liable only in cases where they "knowingly" allow their network to be used to transmit indecent material to a minor or "willfully" allow an individual to use their network to do so. However, as CDT's Jerry Berman and America Online's Bill Burrington argued the wording of the statute and the variety of possible interpretations could lead to severe chilling effect on the free flow of legitimate information in cyberspace and force online service providers to limit or remove certain areas of their service. BROAD KNOWLEDGE REQUIREMENT The scope of the "knowing" standard in the Grassley bill is an issue of some dispute. Senator Grassley and his staff maintain that it is intended to apply narrowly, but no evidence was presented that demonstrated why a court would apply a narrow interpretation. Instead, a court is likely to interpret the "knowing" requirement broadly. Berman cautioned that because of this uncertainty, online service providers would be forced to rely on the broadest possible interpretation of the statute in order to avoid liability, resulting in a severe chilling effect on all online communications: "The threat of a broad interpretation of this new statute would compel all who provide access to the Internet to restrict *all* public discussion areas and public information sources from subscribers, unless they prove that they are over the age of eighteen. Under this statute, a service provider could note even provide Internet access to a minor *with the approval* of the child's parent. Since every online service provider would have to similarly restrict access to minors, this proposed statute would create two separate Internets, one for children and one for adults." America Online's Bill Burrington agreed, stating that the potential for a broad interpretation of the statute would compel AOL and other online service providers to adhere to the broadest possible reading in order to avoid potential liability. Burrington argued that would force AOL to shut down many parts of their service and place providers in the unenviable position of national censor. "Constitutional guarantees of free speech and press should be cautiously guarded," Burrington stated, "The online service provider industry should be encouraged to provide *voluntary* editorial control over its service and to continue its research and development of parental empowerment technology tools. This industry should not be cast in the role of national censor, determining which information may be fit for children, but nonetheless subject to criminal liability if it guesses incorrectly in any given instance." Senator Dewine (R-OH) asked several questions of many of the witnesses, and expressed concerned about the potential for an overly board interpretation of the knowledge standard. BROAD INTERPRETATION OF 'INDECENCY' As addressed earlier, a precise definition of 'indecent' speech has never been firmly established, and whether material would be considered indecent depends largely on the nature of the medium it is communicated through. Because of this, and because under the Grassley bill carriers would be liable for transmitting indecent speech, carriers would be forced to adhere to the broadest, most inclusive definition of indecency. This would include, among other things, the 7 dirty words, description of genitalia, nudity, and other material which is protected in other media. This issue was raised by Michael Hart, Executive Director of Project Gutteberg, who stressed that broad restrictions on indecency would prevent people from enjoying serious works of fiction on the Internet. Project Gutteberg makes electronic texts of books available on the Internet. Hart stated, with great emotion, that the proposed indecency restrictions contemplated by the Grassley bill would force him to remove some of Shakespeare's plays, The Catcher In The Rye, Lady Chattily's Lover, Alice in Wonderland, and other books which have been classified as indecent in some parts of the United States. Although such an effect may not be intended by the drafters of the Grassley legislation, no evidence was offered at the hearing to counter Mr. Hart's concerns. EXON vs. BERMAN CDT's Jerry Berman urged the Committee to act cautiously before voting to further restrict First Amendment guarantees of freedom of speech. Berman urged the Senate to fulfill its traditional role as the "deliberative body", and to carefully consider the implications before enacting broad new statutes to cover new media. Referring to both the Exon CDA and the Grassley bill, Berman stressed that the country would be better served if the Senate did not enact legislation simply to "provide the illusion that the United States Senate could do something in this area". This remark drew a sharp rebuttal from Senator Exon, who, though not a member of the Judiciary Committee, sat in on the hearing on the invitation of Senator Grassley. Exon defended his bill and accused CDT and others of launching "viscous attacks" against him and his legislation. Berman was not given a chance to respond. "We are concerned about the situation", Exon argued, yet "we are viscously attacked for trying to have a rational discussion. We don't want to create a false sense of security [but] we have a responsibility to protect children". In addition, Exon dismissed parental control technologies as too little too late, arguing that "for every block there is a way around that block", and that such technologies may not be available in every home, allowing children to access inappropriate material at the homes of neighbors who may not employ such tools. WHAT WAS LEARNED? Although the hearing did illustrate that sexually explicit material can be found on the Internet, no substantial evidence was presented to indicate that law enforcement is currently unable to prosecute violations of obscenity, child pornography, stalking, or child solicitation laws. Moreover, although Senator Grassley intends his legislation to be narrow, serious questions were raised about whether other, more board interpretations are possible. In our opinion, the hearing illustrated that current law is sufficient to prosecute those who stalk or solicit children online, and that complex constitutional issues are raised by congressional attempts to restrict indecent material on the Internet. PATHS TO RELEVANT DOCUMENTS Testimony is available for most of the witnesses from CDT's Communications Decency Act Issues page*: URL:http://www.cdt.org/cda.html or from our ftp archive*: URL:ftp://ftp.cdt.org/pub/cdt/policy/freespeech *Due to the volume, these materials may take several days to appear on our site. --------------------------------------------------------------------------- (2) HOUSE SCIENCE SUBCOMMITTEE HOLDS 'PARENTAL CONTROL TECHNOLOGY' HEARING Two subcommittees of the House Science Committee held a joint hearing today (July 26, 1995) on the availability of parental control technologies to prevent children from accessing inappropriate material on the Internet. The hearing, held by the Subcommittee on Basic Research, Chaired by Rep. Schiff (R-NM) and the Subcommittee on Technology, Chaired by Rep. Constance Morella (R-FL) provided an important counter-balance to Monday's Senate Judiciary Committee Hearing. Witnesses testifying before the committee included: Witnesses Demonstrating Technology Solutions * Tony Rutkowski, Executive Director of the Internet Society * Ann Duvall, President of SurfWatch Software * Steve Heaton, General Counsel and Secretary, Compuserve Law Enforcement Witnesses * Kevin Manson, Federal Law Enforcement Training Center * Mike Geraghty, Trooper, New Jersey State Police * Lee Hollander, Assistant States Attorney, Naples Florida LAW ENFORCEMENT OFFICIALS SAY CURRENT LAW SUFFICIENT, EXON BILL FLAWED Today's hearing marked the first time law enforcement officials have testified on the issue of children's access to inappropriate material on the Internet. All three law enforcement witnesses agreed that, in their experience, current law is sufficient to prosecute online stalking, solicitation of minors, and the distribution of pornography and child pornography. All three said that they are vigorously prosecuting such cases. Instead of enacting new law, New Jersey State Trooper Mike Geraghty said that protecting children is "a matter of training law enforcement officers, prosecutors, lawyers and judges about how to enforce existing laws [with respect to computer networks]. The laws are good, we have to learn how to enforce them". The three law enforcement witnesses further argued that the Senate-passed Exon/Coats Communications Decency Act is the wrong approach to addressing an issue that is already covered under existing law. "I have several problems with the Exon bill as a prosecutor, both in terms of its practical enforcement and its constitutionality" said Florida Assistant States Attorney Hollander said. TRANSACTIONAL PRIVACY PROTECTIONS CRITICIZED In an slightly unrelated asside, Florida Assistant States Attorney Lee Hollander criticized privacy protections for online transactional information privacy protections as a hindrance to law enforcement. As part of last years Digital Telephony legislation, the standard for law enforcemetn access to online transactional records (logs that indicate what files an individual accessed from online archives and electronic mail transactions) was raised from a requirement of a mere subpoena to a court order from a judge based on the showing of "specific and articulable facts" that such records are "relevant and material to an ongoing criminal investigation". The higher standard was widely seen as a victory for online privacy. In response to a question of what Congress could do to help aid enforcement of existing law, Hollander noted that the higher standard for online transactional records adds an additional burden to law enforcement investigations. Calling it part of a "ballance between privacy and law enforcement", Hollander did not suggest that Congress should repeal the court order requirement, only that it made prosecutions more difficult (*NOTE: Members of CDT staff worked closely on this issue, and consider the court order standard to be a tremendous victory for online privacy). EXON CDA CONDEMNED BY ALL Condemnation of the Senate-passed CDA was not limited to the law enforcement witnesses. Not a single member of the Subcommittee stated support for the CDA, and all expressed concern that the issue had not received sufficient public consideration by Congress. Chairwoman Morella stressed that Congress should consider technological options to empower parents to exercise control over what their children access online before rushing to enact new laws. Rep. Geren (D-TX) expressed concern about the First Amendment implications of the CDA. Rep. Vern Elhers (R-MI) stated that he would "oppose bills that make network access providers (legally) responsible for the content they carry". In what was perhaps the strongest condemnation of the Senate-passed Communications Decency Act, Rep. Zoe Loefgren (D-CA) said, "While well intentioned, the Exon bill a totally wrong approach and a complete misunderstanding of the Technology." PARENTAL CONTROL TECHNOLOGY IS THE ONLY EFFECTIVE SOLUTION Internet Society Executive Director Tony Rutkowski provided Committee members with a basic overview of the Internet and described Internet Society (ISOC) and Internet Engineering Task Force (IETF) are currently looking at content tagging and other voluntary rating systems for future Internet protocols. Rutkowski stressed that centralized, command and control style content restrictions would be ineffective in the global, distributed network environment of the Internet. Rutkowski further noted that objectionable material constitutes a minuscule amount (less than .05%) of the total traffic on the network. Because of the global reach of the Internet and the millions of potential content providers, Rutkowski argued, the only effective means of addressing the availability of inappropriate material is to provide user control applications to empower parents to block and filter what the and their children access. SurfWatch President Ann Duvall, demonstrated SurfWatch, and described the product as "just one example of the computer industry responding to needs created by the explosive growth of technology". Duvall stressed that the industry is developing solutions which are simple to use, inexpensive, and empower parents to make their own choices about what they or their children should see. Expressing concern about legislative efforts to control content online, Duvall noted that 30% of the sites blocked by SurfWatch reside outside the