Computer underground Digest    Wed  Feb 15, 1995   Volume 7 : Issue 13
                           ISSN  1004-042X
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Date: 14 Feb 95 13:11:18 EST
From: Lance Rose <72230.2044@COMPUSERVE.COM>


As widely reported, the "Exon amendment" has been reintroduced in
this year's Congress.  It would expressly extend existing FCC phone
sex regulation to online services of all sorts, and add a new
provision that apparently would make it illegal for an online system
or BBS to connect to the Internet, or at least any part of the
Internet that contains stuff that might be coonsidered obscene.

The Exon Amendment has been widely denounced by online veterans,
while at the same time gaining a lot of support from parents of kids
who go online.  I agree that at least part of it -- making illegal any
giving of access to obscene materials -- has got to go.  However, we
need to recognize the political reality that when the moralists and
family value types, represented in this case by Senator Exon, slam
their fists down against online pornography, then online pornography
has to give some ground.

But let's leave this mainstream discussion aside for a moment.  How
many of us are pausing, for even a second, to appreciate the
stabilizing effects of a law like the Exon Amendment?  With certain
adjustments, it can set up a nice safe harbor, giving onliners
nationwide far clearer guidance on how to stay within legal bounds.

With a few changes, the Exon Amendment can be a big winner, instead
of the latest chapter in the oppression of the online world.  With the
general subject of regulating sexual content of online systems on the
table, let's use the opportunity to get online systems the help and
protections they've needed for years.

Here are the changes that would make the Exon amendment come up a
winner:

1.  Get rid of the proposed change to the existing voice phone
harassment provision, Section 223(a), which would make it illegal to
"make available" obscene, etc. messages to others.  This would make
all Internet-connected systems liable.  Voice phone harassment should
remain voice phone harassment, and there's no good reason for skewing
the law this way.

2.  Have this national law preempt *all* state laws on obscenity and
indecency over phone lines, period.  This would be a BIG bonus.
Geographic localities couldn't set up "obscenity speed traps" for
unwary out-of-state BBS'.

3.  Similarly, have the law prescribe that all prosecutions MUST be
held in the county where the defendant is located.  No more
prosecutions where half the battle is won simply forcing defendants to
defend in out of state courts.  It would also help restore some sense
that the local community's values will control, though not formally or
strictly in this case.

4.  The law should also specify the "community" whose standards will
be used for obscenity prosecutions under the law, in a step by step
procedure.  First, the court should determine if there is a relevant
online community whose standards can be used.  Feeding into such a
determination might be, for instance, whether an identifiable
community defines its borders adequately with age verification
procedures.  If there is no such viable community, then the court must
look to the local geographic community where the defendant based his
or her operations.  If there is no such base of operations, only then
will the "offended" community's values be used for obscenity purposes.

5.  If the defendant is prosecuted in his or her role as operator of
an online system or service claimed to be illegal, then the prosecutor
must show that the service is  "generally and obviously illegal" to
impose liability on the sysop based simply on system contents.
Otherwise, the sysop can only be prosecuted for messages or materials
to the extent to which he or she was actually familiar with them, and
which he or she knew or should have known were illegal or likely to be
illegal.

With these changes, the Exon Amendment could be converted into a nice
statute setting out clear standards for a reasonable, national law of
cyberspace indecency and obscenity.

Anybody up for pushing for this approach?  It's a heck of a lot more
realistic than thinking we can win a war about online sex against the
moralists.  Confusin' 'em with reasonableness might work.

    - Lance Rose
  Author, "NetLaw"

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