roundtable: Cyberporn Article in The American Reporter
roundtable: Cyberporn Article in The American Reporter
Cyberporn Article in The American Reporter
Craig A. Johnson (caj@tdrs.com)
Fri, 8 Dec 1995 18:44:37 +0000
Message-Id: <199512082348.SAA01089@clark.net>
From: "Craig A. Johnson" <caj@tdrs.com>
To: telecomreg@relay.doit.wisc.edu
Date: Fri, 8 Dec 1995 18:44:37 +0000
Subject: Cyberporn Article in The American Reporter
Below is my article published yesterday in The American Reporter on
the White censorship proposal, as amended, and voted out of committee
on a 17-16 margin.
Craig A. Johnson
Transnational Data Reporting Service, Inc.
Washington, D.C.
~~~caj@tdrs.com~~~
* * *
NEWS ANALYSIS
+
by Craig A. Johnson
American Reporter Correspondent
Washington, D.C.
12/7/95
cyberporn
CONGRESSIONAL DEAL ON PORN MUZZLES THE INTERNET
by Craig A. Johnson
American Reporter Correspondent
WASHINGTON -- In a special "cyberporn" caucus this morning,
House
telecom conferees careened onto the shoulders and over the precipice
of the Information Superhighway. On a vote of 17 to 16, the conferees
approved wide-ranging "indecency" standards bringing the House
language in line with Sen. James Exon's (D-NE) communications decency
provisions in the Senate telecom overhaul bill.
In an effort to distill a uniform approach from the pot
pourri of
anti-porn measures facing the general House-Senate conference
committee, the House conferees beat a hasty retreat from their earlier
Cox-Wyden parental empowerment approach, and rushed into the arms of
the Christian Coalition and its bedfellows.
The upshot: Internet users and providers, instead of finding
gifts
in their holiday stockings this season, may well discover the decaying
corpse of their First Amendment rights. Faced with a choice between
House Judiciary Chair Henry Hyde's amendment, which would have reduced
speech on the Net to the babble of a children's nursery, and
Representative Rick White's (R-WA) "compromise" deal, announced with
great fanfare on Monday, based on a "harmful to minors" standard, the
legislators took neither.
Instead, they plunged the Internet into a virtual vat of
sulfuric
acid. White's approach was meant to pave the way for large corporate
users and providers, such as Microsoft, headquartered in White's own
district, to carry out their online business with minimal uncertainty
and to remove the regulatory monkey from corporate backs.
But White, trying to navigate a very narrow passage between
the
Exon/Hyde minefield and the open seas of free speech, ran aground in
the nearly invisible political shoals of Congress as the 1996
elections loomed ahead.
Repesentative Bob Goodlatte (R-VA) did the dirty work,
offering an
amendment which, like Exon's bill, used the standard of "indecency" in
place of White's "harmful to minors" provision. Disappointingly, three
liberal Democrats threw in with the Net killers who voted for the
"indecency" ban -- retiring Congresswoman Pat Schroeder of Colorado,
John Conyers of Michigan, and Sheila Jackson-Lee of Texas.
A reporter could get no reaction from Schroeder's office late
today. But the Center for Democracy and Technology (CDT) here
asserted, "Had either of these members [Schroeder or Conyers] voted
the other way, libraries, schools, and even parents who allow children
to access the text of 'The Catcher In The Rye' online would not now
face $100,000 fines and prison sentences."
But the name of the game was political expediency. Despite
heavy
lobbying, conference committees by definition are primarily concerned
with resolving differences in bills passed by both Houses. Under
orders from Speaker Gingrich -- he who said the Exon amendment was
"clearly a violation of free speech and ... a violation of the right
of adults to communicate with each other" -- the House conferees
mimicked the Senate "communications decency" proposal, and headed for
an early lunch.
This lurch to the right removed one of the obstacles from the
path
for the joint House-Senate conference committee which, eager to finish
its work, hopes to report the bill out of conference by next week,
after which it would go to both chambers for a final floor vote.
Although the conference committee must now approve the final language,
both Democratic and Republican staffers were optimistic that the
remaining differences, concerning "defenses to prosecution" for
providers, could be papered over in short order.
The Net community earlier this week was abuzz over the White
"compromise," which would have retained "criminal sanctions" present
in both the Hyde and Exon measures, but which was advertised as
"encouraging responsible action from employers and the
telecommunications industry to screen undesirable material."
But the White proposal was not all glitter and good cheer.
White's
amendment would have included prison sentences and fines for sending
or displaying material that is "harmful to minors," a standard in use
in many states, but which, according to the American Civil Liberties
Union (ACLU), has never been tested at the federal level, and "would
still violate the free speech and privacy rights of those who
communicate online." The White proposal, like Hyde and Exon before
it, would "effectively subject all communications to the community
standards of the most conservative location," the ACLU said.
Nevertheless, the early part of this week saw great optimism
that
the deal could proceed apace. The world was to be set right --
post-Exon, post-Hyde. That, however, was not to be. The Goodlatte
sucker punch soured the White deal and Exon's legions could barely
contain their glee.
How does this endgame stack up for the Net? "Given the
inadequacy
of the defenses," both the modifed White amendment and the kindred
Exon measure would force "content and access providers to infantalize
their programming so that they could be sure they were not displaying
something deemed harmful to minors," the ACLU stated, as it reasserted
its pledge to take the issue to the courts.
The CDT, part of the coalition behind the original White
proposal,
said the new measure "threatens the very existence of the Internet as
a means for free expression, education, and political discourse... and
is an unwarranted, unconstitutional intrusion by the Federal
government into the private lives of all Americans."
Literary works such as J.D. Salinger's classic "The Catcher In
The
Rye," James Joyce's "Ulysses, and Chaucer's "Canterbury Tales" would
be electronically burned; nude images, of course, are a big no-no; and
rap lyrics? Forget it.
As for Net providers, Bob Collett, the President of the
Commercial
Internet Exchange (CIX), whose members carry 75 percent of U.S.
Internet traffic, said, at a press conference on Monday, "Our members
carry nearly half a billion messages per day. They cannot control the
content of these communications and would be driven out of business by
the Hyde approach."
But after today's vote, CIX faces the threatening spectacle of
thousands of Internet service providers at risk of being brought up on
charges for providing access to Web sites, lists and e-mail traffic
deemed "indecent" by some community in the U.S., whose standards for
"indecency" may harken back to the days of Hester Prynne and are
completely out of sync with the rest of the country, not to mention
the world.
While corporations with well-oiled legal departments may be
able
to work the baroque mechanisms of the "defenses to prosecution," in
both the revised White and the Exon measure, small to medium sized
ISPs may find it's not worth the candle.
Joining in the chorus supporting White earlier this week, the
American Council on Education said, "If Congress feels it is necessary
to legislate further in this area, it should at a minimum: (1) reject
criminal liability based on the transmission of 'indecent material,'
and (2) limit libraries and eductional institutions' exposure to
criminal liability under disparate state laws so that librarians and
educators may continue to develop the educational benefits of
electronic communication." These hopes have been shattered, and it
remains to be seen how severely libraries, educational institutions,
research institutes, and nonprofits will be impacted by the
legislation.
For the most part, public interest organizations here were
confused, divided, and much in the dark about the machinations leading
up to the original White proposal. Lining up behind White was a
veritable cavalcade of online users and associations. The Interactive
Services Association (ISA), representing big online and Internet
users, strongly supported White. ISA president Bob Smith said the
plan accomplished the goals of "protecting children and free speech
online." Companies such as American Express, AT&T, EDS, Microsoft,
MCI, USA Today, Nynex, America Online, and Chase Manhattan Bank are
members of ISA.
The optimism on the part of the coalition supporting White
tended
to downplay the exorbitantly high price of doing business with
Congress for consumers and small to medium-sized Internet providers.
Elevating the constitutionally questionable "harmful to minors"
standard to a federal level, the ACLU argued, would have created "an
entirely new federal category of speech crimes" and "would have gone
even further to prohibit not merely direct communications but the
online 'display' of such materials," creating a category of law that
the Supreme Court has said 'raise substantial constitutional
questions.'" [American Booksellers Association v. Va., 484 U.S. 383,
394 (1988)]
White relies on "authentication" procedures to certify that
users
are not minors. Thus, the ISP or the Webmaster is under an obligation
to "deploy family empowerment blocking software" and "to seek out and
eliminate objectionable content," according to the fact sheet handed
out by White earlier this week. This "search-and-destroy" aspect of
White was not widely commented upon.
Both Exon and White would clearly limit the freedom of adults
to
view Playboy pictures or nude pictures on Usenet or chat using
"indecent" language, such as the "seven dirty words" in a public
online forum. But, they will also invoke the more frightful specter
of provider-censoring of everyday words that are used in a medical,
educational, literary, or cultural context, such as recently happened
when America Online banned the word "breast" in its public bulletin
boards and chat groups, only to relent after angry protests by irate
members of an Internet breast cancer discussion list.
These portents may well extend to AIDS discussion and
dialogue, and
sex education material in general, depending on the whim of the
provider and the standards of the community. One thing is clear: The
solutions being offered are plainly not the constitutionally-required
"least restrictive means" of prohibiting indecent or obscene speech.
But White and his supporters artfully label these types of
"search
and destroy," (or "good faith") actions "Incentives for Private Sector
Empowerment Solutions." Exon calls them "defenses to prosecution."
An old Chinese proverb calls it as it is: "Black cats, white cats,
what does it matter? As long as they catch mice, they're good cats!"
-30-
(Correspondent Craig Johnson writes for Wired magazine.)
* * *
The American Reporter
Copyright 1995 Joe Shea, The American Reporter
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