Congressional Deal to Muzzle the Internet

by Craig A. Johnson

House conferees rushed into the arms of the Christian Coalition and its bedfellows	(AR) WASHINGTON -- In a special "cyberporn" caucus on December 6th, 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 potpourri 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 December 4, 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."
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	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 month 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.
Elevating the constitutionally questionable "harmful to minors" standard to a federal level	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 earlier this month, "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 the December 7th 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 in December, 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 month. This "search-and-destroy" aspect of White was not widely commented upon.
Prohibitions may well extend to AIDS discussion and dialogue, and sex education material in general	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 spectre 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!"

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