Definitions and Decency John S. Quarterman Copyright 1996 by the author. From *Matrix News*, 6(2), February 1996 , http://www.mids.org +1-512-451-7602, fax: +1-512-452-0127 This article also appeared in *MicroTimes*. It is freely redistributable. An HTML version appears in . A New Word This column has been exonerated, to bring it in conformance with the Exon Law. Exonerate, n., to expurgate, to bowdlerize, to dumb down to the level of the most sensitive child in the most repressive state. Only a couple of months ago, this column reported ``Congress Close to Internet Censorship.'' Well, it's happened. On 1 February 1996 both the House and the Senate passed the so-called Telecommunications Reform Act of 1996 by overwhelming margins. This bill includes Internet censorship provisions even worse than those that appeared in the first version that was co-sponsored by Sen. James Exon (D-NE) one year to the day before. President Clinton signed the bill into law 8 February 1996. In anti-celebration, thousands of web pages turned black for 48 hours as the Internet reacted. See for more about that. In that previous column we noted that ``The proposed CDA and the Constitution are in conflict. If CDA becomes law, it will certainly be challenged in the courts on that basis, if not others.'' The ACLU filed suit immediately, as did various other organizations. Two columnists for this magazine (MicroTimes: Quarterman and Warren) are parties to one of those lawsuits. In commemoration of Sen. Exon's role in producing this law, this columnist will refer to it hereafter as the Exon Law. Abortion and Indecency It turns out Congress did provide another base for lawsuits, by adding a prohibition against dissemination of information about abortion. The ACLU suit is partially about that new issue. Ironically enough, Rep. Patricia Schroeder (D-CO), who insisted on putting the term ``indecent'' back in the Exon Law after it had briefly been removed in the House-Senate conference committee, objected to the introduction of the prohibition against discussion of abortion. This goes to show that one person's definition of indecency isn't the same as another's. She did succeed in getting verbal assurance from the sponsor of the abortion prohibition, Rep. Henry Hyde (R-IL), that simple discussion of abortion would not be prohibited, only commercial dissemination of information on how to actually perform abortions. He thus asks us to trust him that the letter of the language he used (the Comstock Act) does not mean what it says, or that previous judicial precedents have invalidated it (which seems to be debatable). President Clinton, after signing the Telecommunications Act into law, said that the abortion provisions would not be enforced. Perhaps not under his administration, but what about president Dole or president Buchanan? Is this the way the rule of law is supposed to work? Abortion, the Exon Law, and The Comstock Act The abortion provision is based on the Comstock Act, which is a nineteenth century law aimed at taming the Wild West by prohibiting the use of the U.S. mail for such ``indecent'' practices as mail-order brides and abortion discussions. The Comstock Act is supposedly no longer valid because of court decisions against it. However, in the case of the abortion provision, the court decision in question is *Roe v. Wade*, which many people are actively working to overturn. Note well that this law would prohibit not just actual abortions, or literature on how to perform abortions, but also *discussion* of the pros and cons of abortion. If you want to argue on the Internet that abortion is evil because the Old Testament says so, you'd better hope this law is repealed, unless you want to land in jail. The relevant text is in Title 18, Section 1462 of the U.S. Code. Here is the text of that section, with amendments to it by the Exon Law marked in _boldface_. Section 1462. *Importation or transportation of obscene matters* Whoever brings into the United States, or any place subject to the jurisdiction thereof, or knowingly uses any express company or other common carrier _or interactive computer service (as defined in section 230(e)(2) of the Communications Act of 1934)_, for carriage in interstate or foreign commerce - [...] any drug, medicine, article, or thing designed, adapted, or intended for producing abortion, or for any indecent or immoral use; or any written or printed card, letter, circular, book, pamphlet, advertisement, or notice of any kind giving information, directly or indirectly, where, how, or of whom, or by what means any of such mentioned articles, matters, or things may be obtained or made; or Whoever knowingly takes _or receives_, from such express company or other common carrier _or interactive computer service (as defined in section 230(e)(2) of the Communications Act of 1934)_ any matter or thing the carriage _or importation_ of which is herein made unlawful - Shall be fined not more than $5,000 or imprisoned not more than five years, or both, for the first such offense and shall be fined not more than $10,000 or imprisoned not more than ten years, or both, for each such offense thereafter. Numbers 5:11-27 contains direct references to sexual intercourse, menstruation, adultery, and indirect mention (by function, rather than by name) of an herbal abortifacient. Put the Bible on the Internet; go to jail. The Bill of Rights Let us repeat here the more basic issue: Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. That is the First Amendment to the U.S. Constitution. It is part of the Bill of Rights, which was appended to the Constitution because many states refused to ratify the Constitution without safeguards against just such heavy-handed government intervention as this law. The Bill of Rights and the First Amendment in particular were worked out in painstaking compromise among multiple competing political traditions in this country. They were worded to accommodate diverse traditions without letting any one of them repress the others. In the world then and now, this is not a small thing. This country has for the most part managed to honor the commitment made in at least the First Amendment through almost two hundred years and such diverse administrations as those of John Adams (proponent of the ordered liberties of New England), Thomas Jefferson (protector of the reasoned liberties of Virginia), Andy Jackson (advocate of the natural liberties of the backcountry, and considered so radical in his day that his predecessor John Quincy Adams left the Capital in disgust before his inauguration), Franklin Roosevelt (of the New Deal), and Ronald Reagan (who tried to dismantle the New Deal). The Bill of Rights is under attack from all sides. The Fourth Amendment, for example, says: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. That Amendment deserves at least a decent funeral, since it has been killed by the so-called War on Drugs. Nobody cares as long as it is some drug dealer's house that is being broken into by the SWAT team. And if it's the wrong house, well, they should have known better than to live in that neighborhood! Similarly, who cares if the First Amendment is violated on the Internet. Everyone knows it's just a pornographic nest of child molesters! Evidently the U.S. Congress doesn't care. Of course, when the main proponent of this legislation, Sen. Exon, says on the floor of the Senate that he doesn't even know how to program a VCR, and in a letter to the editor of the *New York Times* equates the Internet with the telephone, it perhaps shouldn't be surprising that they don't care. Ignorance is certainly part of the problem. What is the Internet? Is AOL part of the Internet? Are telephones? And what does this have to do with a bad law? Well, most AOL users are not part of the Internet, because they do not use characteristic interactive Internet services such as TELNET, FTP, or WWW. Sure, many of them use electronic mail, but it's not electronic mail that's attracting so many people to the Internet that it's growing faster longer than any other technological phenomenon in history, and it's not electronic mail that's causing people to abandon most other types of networking in favor of the Internet. Most users of CompuServe and Prodigy are not part of the Internet, either, for the same reason. They will be pretty soon, but they aren't yet. Yet 100 percent annual growth apparently isn't good enough for some people, and the name ``the Internet'' has often been loosely used to include people who only have electronic mail access. Why does this matter? Well, every actual case of child pornography I've ever heard of involving any kind of computer network involved AOL, not the Internet. Why AOL? Because it has a very inexpensive and relatively anonymous trial user policy that lets basically anybody on with little or no accountability, financial or otherwise. So what? Well, many people think that all of AOL is part of, if not synonymous with, the Internet. Sloppy definitions have given an easy target to those who don't like the traditional freedom of content of the Internet. The Internet in many people's minds is now ``that sewer of child pornographers.'' What is Indecent? If you don't want to spend two years in jail and pay $500,000 in fines, don't ``make available'' any pictures or descriptions of any sexual activity, discussion of abortion, gay rights, literary criticism or actual text of Chaucer, Boccaccio, James Joyce, Mark Twain, or J.D. Salinger, The first two dealt with all manner of sexual and religious topics that are sure to be considered ``indecent'' by somebody somewhere; Twain dealt with race and politics; and Salinger dared to say that people masturbate and use curse words. We're not even talking ``obscenity'' here. The law says ``indecent,'' which is a much more broad and vague term. How is it defined in the law? It isn't. Definition is left to local jurisdictions and vague legal precedents. What does ``make available'' mean? Anything that might lead to a child seeing it through a computer network, including posting it on USENET, putting in a web page, or even sending it by personal electronic mail (it's no excuse that somebody stole it and showed it to the child). Also remember not to post transcripts of any exon that Richard Nixon said in the White House. Don't name Deep Exon, the principal snitch against him. Don't refer to ``Give 'em Exon Harry'' Truman by his popular epithet. Don't mention that John Kennedy was given to exoning starlets. See how easily a prohibition on ``indecency'' slides into a prohibition on political free speech? Euphemisms don't give the true character of the original language. For that matter, discussion of the Exon Law itself on the Internet is apparently prohibited by that same law, because it involves discussion of means of abortion. Recently I was in France and was reading *Paris Match,* a national magazine. On the cover was a picture of Gerard Depardieu, the movie actor, holding his small son on his arm. Something seemed strange, and it took me a while to figure it out. The child was naked, and his genitals were clearly visible. If that picture had been published in the United States, Depardieu would have been arrested as a child molester, and the photographer, reporter, editor would have been out of a job. If you don't think it could happen, consider the case of Toni Marie Angeli, who was choked, beaten, and arrested on 2 November 1995 at a photographic laboratory in Cambridge, Mass. for taking ``pornographic'' pictures of her son. The pictures actually contained nothing of a sexual nature and she had taken them for a class in photography at Harvard. Meanwhile, in the France that once sheltered Khomeini, Moslem girls are prohibited from wearing head scarfs to school. And in the Iran that Khomeini fathered, girls and women can still be harassed on the streets for letting one hair of their head show. The same Iran that condemned Salman Rushdie to death for writing a fantasy that by some Moslem interpretations defames the Prophet, yet by the western literary tradition represents freedom of the press. The United States, being a nation of immigrants, as one of its most loved and hated presidents (Franklin Roosevelt) remarked, contains people who would defend Toni Angeli, and others who would defend the police who choked her, and Khomeini, and Salman Rushdie. Decency, sex, politics, and religion are very hard to define or to separate. If there was a national consensus on what these things were, the Exon Law might not be a problem. But the United States has always been a collection of disparate communities, cultures, and traditions. That is why the Founders tried to keep the federal government out of these issues entirely. The present Congress chose to forget that, and apparently never knew or cared that the Internet is not a U.S. phenomenon, extending as it does to more than 100 countries throughout the world. Who Are They Protecting? Only about 3 percent of the current Internet population is children at all . The backers of this law claim they are trying to make the Internet safe for children to get on it. But filtering software is already available, as are access providers that provide carefully prepared subsets of online materials for children. As for child pornography, there is very little of it in the first place, what there is of it is mostly not on the Internet, and there are plenty of laws already in place to handle it. Example filtering packages include: Cyber Patrol , Surf Watch , and Net Nanny . I haven't tried any of these, so you'll have to form your own opinions as to their methods and effectiveness. It's a safe bet that none of them can keep a clever child from rolling a local copy of TELNET or, for that matter, from getting somebody to buy a copy of *Hustler* at the corner store, but they have all been mentioned as providing at least some degree of filtering. Internet filtering mechanisms are not perfect. But you don't board up all the windows in your house because your child might see a dog exon on the sidewalk. Congress shouldn't attempt to shut down the Internet as we know it because a child might encounter something ``indecent'' on it. What they have really accomplished with this law is to hinder the development of the Internet as the astonishingly useful resource it is for children and adults alike, to stunt the commercial advantage of the U.S. in a field where it currently leads the world, and to inflict costly damage on one of the cornerstones of the U.S. political system. The Internet and the Traditional Press In these times when radio, television, and print media are increasingly publishing part or all of their materials online, if any of them think this law will not affect them, they are in for a surprise. What would be perfectly acceptable in a medical textbook can land you in jail if the same words are distributed on the Internet. The press is often irresponsible, hasty, short-sighted, selective, opinionated, outright bigoted or just plain wrong. Part of it even apparently has a death wish, since the Cyberporn scare of 1995, led by *Time Magazine* and its 3 July 1995 story based on incorrect arithmetic and apparently fraudulent research, helped drum up the current legislation . But Congress has demonstrated with the Exon Law that even a bad press is still better than a legislature that attempts to censor it. Some traditional media barons may well be thinking that it is a good thing to handicap the Internet and bring it down to traditional media levels, thus making it easier for them to compete in this new frontier. If so, they got more than they wanted, and they will be bitten by their own creature. The Historical Precedent Somebody said that Sen. Exon is a barbarian, and he took offense at that. Well, I think that was a poor choice of words. Barbarians historically were unsettled tribes who were motivated in their attacks on civilized nations by straightforward personal motives: plunder, land, power. They had little to lose because they had little history behind them. Sen. Exon and the other Congress members who voted for the Exon Law, and the president who signed it, are actually following up a fine old American tradition. Here's a sample: 1692 Salem Witch Trials. 1798 Alien and Sedition Acts; Pres. Jefferson refuses to enforce them. 1864 Early photography used in mailing pornography to troops. 1865 Congress outlaws sending any ``obscene book, pamphlet, picture, print, or other publication of vulgar and indecent character'' through the U.S. mail. 1873-1932? Comstock Law outlaws using the U.S. mail to send any ``obscene, lewd, or lascivious book, pamphlet, picture, paper, print, or other publication of an indecent character....'' 1919-1933 Prohibition. 1950-1954 Sen. Joseph McCarthy's anti-communist ``crusade.'' 1986? ``Indecent'' pictures on USENET and the Internet. 1996-2045? Exon Law of Internet Censorship, reviving the Comstock Law. Large segments of the U.S. population have often wanted to suppress entire categories of behavior or knowledge for the populace as a whole, and governmental authorities have periodically gone along with them. The Comstock Law had teeth in its day, and with a different Supreme Court could again. See the Cato Institute writeup on it , which says in part: Near the end of his life, Comstock wrote that he had convicted ``enough people to fill a passenger train of sixty-one coaches, with sixty of the coaches containing sixty people each and the last one almost full.'' He said that he had destroyed almost 160 tons of obscene literature and 3,984,063 obscene pictures.(11) Comstock also zealously pursued early feminists, such as Margaret Sanger, since his law banned the mailing of information on contraception and abortion. This is also the law that was used to ban works such as James Joyce's *Ulysses*, which book ended up being the test case that partially defanged the law. Those who view the Internet as an electronic frontier and have called for it to be ``civilized'' have gotten exactly what they asked for: the very same law that was used to ``clean up'' the Old West, worded in such a vague manner that its application will be at the discretion of every federal marshall in the land. This tradition goes back before the United States existed. Every new technology and every new frontier has its ``indecent'' materials and its legal reactions. Two of the most popular uses of the early printing press were pornography, such as Boccaccio's *Decameron* and numerous less literary works, and vernacular editions of the Bible. The pornographic works were considered indecent for reasons that are still in vogue today on this side of the Atlantic. The Bible editions were considered indecent because they intervened in the practices and teachings of Mother Church. I haven't run across many examples where legislatures overturned such legal reactions; seems it's almost always the executive or the judiciary that has to do it, and the latter only happens after people challenge the law. Do note that Sen. Patrick Leahy (D-VT) has introduced a bill in the Senate to do just that, and do please support him , but don't hold your breath until the Senate passes it. Those who think the Exon Law is really about suppressing pornography would do well to read Sen. Leahy's speech proposing his new bill, which makes it clear that the victims of the Exon Law will mostly be you and me. What Is To Be Done? One can only hope that the authors of the Constitution wrought well when they deliberately produced three branches of government, and that the third branch will stop this law. Many people, me among them, have already joined in lawsuits against this law. The press helped cause this problem, and the press can help solve it. On the day of the signing of the Telecommunications Act, almost no national news media mentioned the Internet censorship provisions, except in passing. Such an all-out assault on the First Amendment is not a minor issue, and it should be reported. The press did start mentioning the issue after thousands of web pages on the Internet turned black for 48 hours starting with the signing. Users of the Internet have started speaking out, and they need to continue to do so. Members of Congress got there because we elected them. It would be well to remember that in November. Maybe next time we can get a Congress that knows what the Internet is. For who voted which way, see Meanwhile, there are three more basic reasons to hope that Congress has just shot itself in some exonerated part of its collective body. 1) The Internet is not a U.S. national service. It connects more than 100 countries worldwide. It's true that more than half of just about everything on the Internet (hosts, users, web servers, etc.) is in the U.S. But the rest is in places with a wide array of different governments, societies, and traditions. Not even the U.S. Congress can exonerate the whole world. Expect data havens to open up outside the territorial jurisdiction of the United States, just as Finland (privacy) and the Netherlands (encryption) have already served that function for years. 2) The Internet is not a single entity. It is a collection of tens of thousands of networks, millions of computers, and tens of millions of people, and is run by some 50,000 different organizations. Not even the United States, with more prisoners and prisons than any other country in the world, has the facilities to lock up all of them. If it makes a serious attempt to try, the true diversity and depth of the Internet will become sufficiently evident that it will become clear that the government is attacking a broad spectrum of its own people. Not even NSA can monitor all the traffic on the Internet, and if the U.S. government tries to embargo incoming traffic, it will find it has a hard row to hoe, especially when normally mild-mannered trading partners in places like Japan and Europe start complaining. 3) If this year perhaps 7 percent of the U.S. population is on the Internet, next year there will be 14 percent, and the next year 28 percent, and so forth. The more people who join the Internet, the more who will see what it really is, and the less they will tolerate this sort of destructive behavior by their elected officials. Many of those who are concerned about their children will want them to have such a powerful instrument of information as the Internet, and will teach their children to make choices for themselves. The state is not our brother's keeper. We are. ....John S. Quarterman