October 16, 1995 The Honorable Thomas J. Bliley, Jr. Chairman Committee on Commerce United States House of Representatives Washington, DC 20515 The Honorable Larry Pressler, Chairman Committee on Commerce, Science, and Transportation United States Senate Washington, DC 20510 Re: Computer Pornography Provisions in Telecommunications Bill Dear Mr. Chairmen: We are writing to urge the conference committee seeking to reconcile the telecommunications bills passed by the House and Senate include in the final bill the strongest possible criminal law provisions to address the growing and immediate problem of computer pornography without any exemptions, defenses, or political favors of any kind accorded to those who knowingly participate in the distribution of obscenity to anyone or indecency to children. While there is no perfect solution to the problem of computer pornography, Congress could not hope to solve this problem by holding liable only some who are responsible for the problem. The recent Justice Department prosecution project targeting those who violated federal child pornography law using America On-Line is instructive in this regard. More than ninety individuals were targeted for prosecution although many others, perhaps as many as 3,000 according to one press report, were originally targeted by the Department of Justice as potential violators of child pornography laws. Apparently due to a shortage of investigative and prosecutorial resources, the project was limited. Since there are insufficient resources to investigate and prosecute but a fraction of those that are trafficking in child pornography by computer, then there will likely be even fewer resources available to investigate and prosecute those involved in obscenity and indecency. Thousands of individuals both in this country and abroad are regularly placing obscenity and indecency on the Internet. It is not possible to make anything more than a dent in the serious problem of computer pornography if Congress is willing to hold liable only those who place such material on the Internet while at the same time giving legal exemptions or defenses to service or access providers who profit from and are instrumental to the distribution of such material. The Justice Department normally targest the major offenders of laws. In obscenity cases prosecuted to date, it has targeted large companies which have been responsible for the nationwide distribution of obscenity and who have made large profits by violating federal laws. Prosecution of such companies has made a substantial impact in curbing the distribution of obscenity, with many such offenders going out of business altogether. So too will prosecution of access providers which _knowingly_ traffic in obscenity have a substantial impact, a far greater impact than just the prosecution of a person who places one or a few prohibited images on the Internet. Such a person could not traffic in pornography without the aid or facilitation of the service or access providers. Indeed, if Congress includes provisions protecting access or service providers in whatever bill is finally passed, it is likely that most in this country who are trafficking in indecency to children or obscenity would continue to do so since the threat of prosecution would be minuscule, given the numbers of those currently involved in this activity. It is also likely that those outside our country who are engaged in these activities would continue to do so since it would be nearly impossible to extradite them to the United States for prosecution. Thus, unless all who knowingly participate in such matters are subject to the law, the Internet will remain the same and Congress will have failed in its responsibilities to the children and families of America. Federal law has traditionally assigned equal liability both for those who commit a crime and those who aid and abet a crime. See Title 18 U.S.C. Code Section 2: "(a) whoever [sic] commits an offense against the United States or aids, abets, councils [sic], commands, induces, or procures its commission, is punishable as a principle [sic]." Service or access providers who knowingly participate in the distribution of indecency to children or in obscenity to anyone are aiders and abettors in the commission of those crimes and thus should have liability under any law Congress passes. Current federal law on child pornography provides no no exemption or defense for access providers. Thus, the child pornography law provides a strong deterrent against trafficking in child pornography for those who would otherwise knowingly participate in its distribution by computer whether pedophile or access provider. The changes in law which we support would not hold an access provider criminally liable for all illegal pornography on the Internet which their services may be used to obtain. Nor would it require that access providers check all communications to ensure that no violations of the law are occurring. They would simply be required to avoid knowing violations of the law. This is an obligation imposed on all citizens. Technology exists today for access providers, through a simple process, to target or flag and remove files containing objectionable material. We support the House-passed language insofar as it addresses obscenity by amendment Title 18, Sections 1462, 1465, and 1467 of the United States Code. The provision restricting transmission of indecency in the House-passed bill, an amendment to Section 1465, is inadequate, and we urge that it be substantially revised. Attached is the specific language we support which includes the House passed language on obscenity and includes revisions on both the House passed language on indecency, which would amend Title 18 and the Senate-passed language on indecency, which would amend Title 47. The combination of these provisions, we believe, would provide effective laws to curb obscenity and indecency on the Internet by establishing that all who knowingly participate in the distribution or facilitation of obscenity to anyone or indecency to children would be subject to the law. Thank you for your concern and attention to this matter. [signed] Edwin Meese III Ralph Reed Christian Coalition Donald E. Wildmon American Family Association Alan Sears, Former Executive Director Atty General's Commission on Pornography Phyllis Shafly Eagle Forum Beverly LaHaye Concerned Women for America Reverend Louis P. Sheldon Traditional Values Coalition Jay Sekulow American Center for Law and Justice Paul Weyrich Free Congress Foundation Paul McGeady Morality in Media Len Munsil National Family Legal Foundation Robert Peters Morality in Media Kenneth Sukhia Former United States Attorney, N.D., FL Former Chairman, Atty General's Advisory Committee Subcommittee on Child Exploitation and Obscenity -------------------------- Section 1465 of Title 18, United States Code, is amended to punish distribution by computer of indecent material to minors by adding at the end the following: Whoever knowingly communicates, transmits, or makes available for communication or transmission, in or effecting interstate or foreign commerce an indecent communication by computer to any person the communicator or transmitter believes has not attained the age of 18 years of age, knowing that such communication will be obtained by a person believed to be under 18 years of age, shall be fined under this title or imprisoned not more than five years, or both. TITLE IV -- OBSCENE, HARASSING, AND WRONGFUL UTILIZATION OF TELECOMMUNICATIONS FACILITY SEC. 401. SHORT TITLE This title may be cited as the "Communications Decency Act of 1995". Sec. 402. OBSCENE OR HARASSING USE OF TELECOMMUNICATIONS FACILITIES UNDER THE COMMUNICATIONS ACT OF 1934 Section 223 (47 U.S.C. 223) is amended -- (1) by striking subsection (a) and inserting in lieu of [sic]: ``(a) Whoever-- ``(1) in the District of Columbia or in interstate or foreign communications -- ``(A) by means of telecommunications device knowingly-- ``(i) makes, creates, or solicits, and ``(ii) initiates the transmission of, any comment, request, suggestion, proposal, image, or other communication which is obscene, lewd, lascivious, filthy, or indecent, with intent to annoy, abuse, threaten, or harass another person; ``(B) makes a telephone call or utilizes a telecommunications device, whether or not conversation or communication ensues, without disclosing his identity and with intent to annoy, abuse, threaten, or harass any person at the called number or who receives the communication; ``(C) makes or causes the telephone of another repeatedly or continuously to ring, with intent to harass any person at the called number; or ``(D) makes repeated telephone calls or repeatedly initiates communication with a telecommunications device, during which conversation or communication ensues, solely to harass any person at the called number or who receives the communication; ``(2) knowingly permits any telecommunications facility under his control to be used for any activity prohibited by paragraph (1) with the intent that it be used for such activity, shall be fined not more than $100,000 or imprisoned not more than two years, or both.''; and (2) by adding at the end the following new subsections: ``(d) Whoever-- ``(1) knowingly within the United States or in foreign communications with the United States by means of telecommunications device makes or makes available any indecent communication in any form including any comment, request, suggestion, proposal, or image, to any person under 18 years of age regardless of whether the maker of such communication placed the call or initiated the communication; or ``(2) knowingly permits any telecommunications facility under such person's control to be used for an activity prohibited by paragraph (1) with the intent that it be used for such activity, shall be fined not more than $100,000 or imprisoned not more than two years or both. ``(e) Defenses to subsections (a) and (d), restrictions on access, judicial remedies respecting restrictions for persons providing information services and access to information services-- "(1) It is a defense to prosecution that a person has complied with regulations designed to restrict access to indecent communications to those 18 years old or older as enacted by the Federal Communications Commission which shall prepare final regulations within 120 days of the passage of this bill. Until such regulations become effective, it is a defense to prosecution that the person has blocked or restricted access to indecent communications to any person under 18 years of age through the use of verified credit card, adult access code, or adult personal identification number (PIN). Nothing in this subsection shall be construed to treat enhanced information services as common carriage." "(2) No cause of action may be brought in any court or any administrative agency against any person on account of any activity which is not in violation of any law punishable by criminal or civil penalty, which activity the person has taken in good faith to implement a defense authorized under this section or otherwise to restrict or prevent the transmission of, or access to, a communication specified in this section. (f) Nothing in this subsection shall preclude any State or local government from enacting and enforcing laws and regulations which do not result in the imposition of inconsistent obligations on the provision of interstate services. Nothing in this subsection shall preclude any State or local government from governing conduct not covered by subsection (d)(2)." (g) Nothing in subsection (a), (d), or (e) or in the defenses to prosecution under (e) shall be construed to affect or limit the application or enforcement of any other Federal law. (h) The use of the term 'telecommunications device' in this section shall not impose new obligations on (one-way) broadcast radio or (one-way) broadcast television operators licensed by the Commission or (one-way) cable services registered with the Federal Communications Commission and covered by obscenity and indecency provisions elsewhere in this Act. Sec. 403. OBSCENE PROGRAMMING ON CABLE TELEVISION. Section 639 (47 U.S.C. 559) is amended by striking "10,000" and inserting "$100,000" Sec. 404. BROADCASTING OBSCENE LANGUAGE ON THE RADIO. Section 1466 of Title 18, United States Code, is amended by striking out "$10,000" and inserting "$100,000". Sec. 405 SEPARABILITY "(a) If any provision of this Title, including amendments to this Title of [sic] the application thereof to any person or circumstance is held invalid, the remainder of this Title and the application of such provision to other persons or circumstances shall not be affected thereby."