April 26, 1995

The Honorable Larry Pressler
United States Senate
243 Russell Senate Office Building
Washington, DC 20510

Dear Senator Pressler:

In response to a request from your staff I am writing this letter to set
forth my concerns regarding the Exon Amendment, titled the "Communications
Decency Act of 1995," which has been attached to the telecommunications bill.
While I believe that Senator Exon had the best of intentions in proposing this
legislation which was intended to protect children from pornographic images
available on the Internet, the bill has been perverted in an attempt to
placate online service companies and others. I am confident that in its
current form the bill is opposed by substantially all pro-family groups in
America.

Prior to my current position, I served as section chief of the Child
Exploitation and Obscenity Section in the Criminal Division in the US
Department of Justice, the office responsible for prosecuting violators
of obscenity and child pornography laws. I am familiar with the current
state of law regarding prohibitions on computer pornography. I my opinion
the current federal dial-a-porn law (which the Exon bill amends) already
prohibits commercial distribution of obscenity via computers. It is
also my opinion (although this point is not as clear in the law as the
first) that federal criminal, specifically Title 18, sections 1462 and
1465 prohibit distribution of obscenity via computer whether or not for
commercial purpose. The only purpose of additional legislation in this
area, therefore, should be to clarify current law and perhaps strengthen
penalties. It was my understanding that this was the original intention
of Senator Exon. Now, however, the Exon bill weakens the federal
dial-a-porn law. The following represents my particular objections to
the most egregious parts of the bill:

1. The bill provides numerous defenses to prosecution to those companies
   which provide access to the Internet which are necessary because such
   companies are not liable unless they knowingly aid in the commission of
   a violation. If they are knowingly participating in a violation, then
   they _should_ be subject to the law, and congress should not provide a
   defense to protect them.

2. The bill provides an additional defense for those who knowingly transmit
   obscenity of indecency but are not engaged in a commercial activity, the
   predominant purpose of which is the transmission of obscenity or indecency.
   Under this provision, the burden would be on the prosecutor to demonstrate
   that the predominant commercial activity of the defendant is the 
   transmission of obscenity and indecency. This is too great a burden 
   for the prosecutor and is entirely unique in law.

3. The bill includes a pre-emption clause which may limit states from
   providing greater protections to children than the Exon bill.

4. The scienter or knowledge requirement contained in the bill is entirely
   unreasonable. The bill requires that the defendant had "actual knowledge of
   the specific content" of the material. It would be impossible for a 
   prosecutor to demonstrate that the defendant had the requisite 
   knowledge in most every case.  The current knowledge requirement in 
   obscenity cases is that the prosecutor must show that the defendant 
   knew or had reason to know of the _general nature and character of the 
   work_.

While I have other objections to the bill, the above states my objections to
provisions which would weaken current federal law regarding the prosecution of
illegal pornography.

I have met with Senator Exon and several members of his staff who are working
on this bill. I am certain that the Senator is genuinely trying to provide
effective legislation in this important area.  Perhaps before the
telecommunications legislation reaches the floor he will propose amendments
which will remove objectionable portions of the bill. If not, I hope you will
do what you can to amend the telecommunications bill to remove the Exon
provisions.

Most Sincerely,
{sig}
Patrick A. Trueman
Director of Governmental Affairs