Date: Mon, 24 Jul 1995 13:24:25 -0400
From: Jonah Seiger <jseiger@cdt.org>

Below is CDT Executive Director Jerry Berman's testimony for today's
hearing on the Dole/Grassley bill.

We will post a review of the hearing later tonight and will make the
testimony of other witnesses available as soon as we get it.

Jonah

--

                               Testimony of

                     Jerry Berman, Executive Director
                    Center for Democracy and Technology

                                Regarding

The "Protection of Children from Computer Pornography Act of 1995" (S. 892)

                                 before

                       the Senate Judiciary Committee


                              July 24, 1995

Mr. Chairman and Member of the Subcommittee:

My name is Jerry Berman, Executive Director of the Center for Democracy and
Technology.  The Center is pleased to have opportunity to address the
subcommittee on one of the critical civil liberties issues of our day: the
question of the most effective and constitutional means of protecting
children from inappropriate material on the Internet.  We are pleased,
therefore, the have the opportunity to offer our views on the proposed
"Protection of Children from Computer Pornography Act of 1995." (S. 892) 


The Center for Democracy and Technology (CDT) is an independent, non-profit
public interest policy organization in Washington, DC.  The Center's
mission is to develop and implement public policies to protect and advance
individual liberty and democratic values in new digital media. The Center
achieves its goals through policy development, public education, and
coalition building.

The Center is also the coordinator of the Interactive Working Group (IWG),
an ad hoc working group of over 85 organizations from the computer and
communications industries, and the public interest community.  Since
January 1995, the IWG has been working to address the question of how to
protect children from inappropriate material online in a manner which is
consistent with Constitutional values and continued innovation in
interactive media.

I.      Broad reach and sweeping impact of the "Protection of Children from
        Computer Pornography Act of 1995."

The "Protection of Children from Computer Pornography Act of 1995" (S.892)
has been presented as a narrowly drawn statute, designed to target the "bad
actors."  Unfortunately, based on CDT's analysis, the proposed statute is
in fact strickingly broad.  In some senses, it is even more sweeping than
the Communications Decency Act.

A.      The Grassley bill creates broad criminal liability for online services
        providers, video dialtone network operators, full service network
        providers, schools, libraries, private businesses, and many content
        providers

Notwithstanding the intent of the drafters, the Grassley bill sweeps a
number of commercial and noncommercial entities into its ambit.  Covered
entities include:

*  commercial online service providers,
*  schools,
*  libraries,
*  universities which offer access to the Internet,
*  other public information resources,
*  small and large businesses which provide their employees with access to
   the Internet.

In addition, since the bill covers all "electronic communications service"
providers (see =A72(b)(1(B)), S. 892 also threatens criminal liability for:

*  video dialtone networks operated by local telephone companies, and
*  full service networks operated by cable television companies.

Included as well would be any commercial or noncommercial provider of
content which operates its own computer to distribute that content.  As a
result, all of the individuals and institutions which publish through the
World Wide Web and operate their own computers attached to the Internet
would face liability under this bill.  To the extent that a content
provider -- whether an individual or a large publishing company -- operates
a computer which makes information available to others, that publisher
would be subject to the provisions of S. 892.

B.      Broad scienter requirements in S. 892 would force the segration of the
        Internet into a children's network and a separate adult network

The scienter requirements in the proposed statute appear to have been
designed in order to limit the scope of the statute.  However, as drafted,
the statute is subject to broad, sweeping interpretation when applied by
criminal courts.  These overly broad scienter requirements would force all
who provide access to the Internet or other online services to create, in
effect, separate networks for children and for adults.  Such a stark
separation would likely be the only way to for online service providers and
system operators to avoid liability under S. 892.

The new proposed S.(b)(2) of 18 U.S.C. S.1464 would criminalize the "knowing"
transmission of indecent material to minors by any electronic communication
service provider.  According to one interpretation, the application of this
knowledge requirement could apply to any provider who knows that a specific
individual is a minor, and then transmits indecent material to that
individual.  Or, another interpretation could hold that service providers
know that minors are on their service and that there is indecent material
on the Internet.  Thus, service providers -- including schools, libraries
and private businesses -- would be criminally liable for merely providing
minors with access to the Internet.  Nothing in the statute or relevant
case law suggests that courts applying this law would be compelled to adopt
the former, more narrow, interpretation.  Rather, it is perfectly plausible
to read the proposed S.(b)(2) as a punishment for any service provider or
system operator who makes indecent material publicly available to an
audience that may include minors.

The threat of a broad interpretation of this new statute would compel all
who provide access to the Internet to restrict all public discussion areas
and public information sources from subscribers, unless they prove that
they are over the age of eighteen.  Under this statute, a service provider
could not even provide Internet access to a minor with the approval of the
child's parent.  Since every online service provider would have to
similarly restrict access to minors, this proposed statute would create two
separate Internets, one for children and one for adults.  Access by a child
to the adult network would create criminal liability for the service
provider.

II.     The vagueness of the "Protection of Children from Computer Pornography
        Act of 1995" will create a chilling effect on all forms of speech on
        the Internet and great confusion among schools, libraries, businesses,
        and online service providers who offer access to the Internet.

A.      Application of "willful" standard is unclear in the bill as drafted and
        will lead to confusion among service providers and users

The 'willful' standard also creates the possibility for significant
confusion, given the widely divergent readings of the 'willful'
requirement.  In some instances, 'willful' is read as a so-called "tax
standard," implying that to be convicted one must manifest a voluntary and
intentional act which is violation of a known legal duty.  Cheek v. United
States, 111 S.Ct 604 (1991).  However, courts have also found that
willfulness means nothing more than a person acted knowingly and
deliberately.  United States v. Peltz, 433 F.2d 48, 54-055 (2d Cir.1970),
cert. denied, 401 U.S. 955 (1971).  The drafters of the Model Penal Code
define willful as merely knowing action,  and do not require specific
intent to violate a known legal duty.   Recent Supreme Court jurisprudence
in the area of money laundering, on the other hand, has required that the
defendant's actions demonstrate knowledge that his or her conduct is, in
fact, a violation of the law.  United States v. Ratzlaf, 114 S.Ct 655
(1994).

A broad reading of "willful," requiring primarily purposive action leading
to a minor's access to indecency, but not knowledge of the fact that such
actions constituted violations of the law, would subject many service
providers to liability under =A7 1464.  A more narrow reading of this
requirement, could diminish the overreaching impact of the statute,
however, such an interpretation is by no means guaranteed.  While Ratzlaf
may offer some support in this regard, the Court also noted that "
'Willful,' ... is a 'word of many meanings,' and 'its construction' [is]
often ... influenced by its content.' " Id. at 659 (citations omitted).
The context was supplied, in part, by the statute in question, which had
previously construed "willful" as knowing violation of a known legal duty.
Id.  No such context is available in 18 U.S.C. S. 1464 to aid a court in
intepretation.

Confusion as to providers legal duty will create a tremendous chilling
effect on all online communications.  In order to minimize their risk,
service providers will be forced to adopt rules governing their users
behavior that are likely to be highly restrictive.


B.      Heavy-handed content regulation will squander the democratic potential
        of interactive media

As the popularity and accessibility of the Internet and commercial online
services grows, and as the medium becomes easier to use, the political uses
of the net have flourished.  Political discourse is facilitated by a
variety of different communications techniques possible online, including
newsgroups, mailing list discussion groups, chat sessions, and a host of
electronic publishing capabilities.  Any regulation creating criminal
penalties for communication of indecent material would have a substantial
chilling effect on all who use interactive media.  Such a chilling effect
would severely inhibit the growth of the Internet as a political forum.

Political groups left,  right,  and center are using the Internet to
communicate, to organize, and to advocate their own views.  Advocacy
organizations have found World Wide Web services are critical to political
education activities, and an increasing number of grass roots and community
groups are coming to rely on the Internet to keep in touch with members and
constituents.  In fact, even some Senators offices are using the World Wide
Web to communicate with and solicit feedback from constituents.   As a
nation we should be encouraging political discourse in this new medium,
because of its potential to raise the level of political discussion beyond
the sound bite and to involve more citizens in the political process.  One
aspect of encouraging political discourse in interactive media is to assure
all users that their First Amendment and privacy rights will be respected
fully.

Indeed, the Internet and other online services are fast becoming a new
public forum for political discourse for American citizens.  In order to
preserve the freedom and openness of this new political arena, it is
critical to avoid creating a chilling effect on individual expression.

III.    The "Protection of Children from Computer Pornography Act of 1995" is
        unconstitutional under the First Amendment for failure to adopt the
        least restrictive means


The proposed statute extends indecency restrictions enacted to apply to the
broadcast radio and television media to new interactive communications
media such as the Internet, commercial online services, and electronic
bulletin board systems.  Though indecency restrictions have been applied to
broadcasting for some time, reflexive extension of the same restrictions to
new interactive communications media is simply unconstitutional.  The
Supreme Court has long held that "each medium of expression presents
special First Amendment problems."  In light of the substantial control
that users and parents have over content that enters their homes via
interactive media, government restrictions on indecency as proposed by the
Grassley bill are unconstitutional.

A.      Censorship of indecent, but not obscene, communications for the purpose
        of protecting minors must employ the least restrictive means available
        to accomplish their goal

Indecent communications are protected by the First Amendment, unlike
obscenity which is altogether unprotected.  Sable Communications of
California v. FCC, 492 US 115; 109 S.Ct. 2829; 106 L.Ed. 2d 93 (1989).
Indecent communications, which do not rise to the level of obscenity,  can
only be limited in order to serve a compelling state purpose and must be
done using the least restrictive means possible.  Id. at 125.  The Sable
court found that the protection of minors from access to indecent material
is a compelling state purpose, but that "it is not enough that the
Government's ends are compelling; the means must be carefully tailored to
achieve those ends." Id.

As a threshold matter, the Sable court found that the constitutional basis
for upholding indecency regulations in broadcast media articulated in
Pacifica Foundation v. FCC, 438 US 726, 98 S.Ct. 3026, 57 L.Ed. 2d 1073
(1978), were inapplicable in any other media besides over-the-air
broadcasting.   492 U.S. at 127.  Pacifica accepted that the FCC had
authority to enforce content regulation based on the dual finding that 1)
radio was a "uniquely pervasive medium"  that intruded (dirty words and
all) into peoples homes, and 2) the only way to protect children from
exposure to objectionable content was to keep it off the air altogether. 
Sable rejects this finding of "pervasiveness" as "emphatically narrow" and
irrelevant to other media such as telephone audiotext services. 492 U.S. at
127

Thus, the Sable "least restrictive means" standard became the test by which
all regulations on access to constitutionally protected indecent material
were judged.  Nearly ten years of litigation along with adjustment of the
statute and regulation were required before the current statute was found
constitutional under this standard.  See Dial Information Services v.
Thornburg, 938 F.2d 1535 (2d Cir., 1991) (finding FCC regulations
implementing S. 223(b) constitutional).  During the course of the dispute
over the application of S. 223 to audiotext services, courts considered and
rejected a number of means by which carriers were required to shield minors
from access to indecent information.  First, time channeling rules,
requiring that services only be accessible during hours when children were
asleep, were found to violate the First Amendment because they had the
effect of denying access to adults as well as children.  Carlin
Communications v. FCC, 749 F.2d 113, 121 (2d Cir. 1984) (Carlin I).  Next,
the courts rejected a requirement that carriers provide access to indecent
services only once customers entered access codes or passwords, which were
to be issued after verification that the customer was over 18.  Carlin
Communications v. FCC, 787 F.2d 846 (2d Cir. 1986)(Carlin II).

The finding of the Dial court, approving the constitutionality of S. 223 and
associated regulations depended on the legislative determination that the
telephone company blocking of service pending age verification or use of a
credit card are the only means to enable parents to restrict their children
from access to indecent audiotext services.

B.      Background on dial-a-porn rules: lack of user control leads to indecency
        restrictions

As was the case for broadcast indecency restrictions considered in
Pacifica, the dial-a-porn restrictions were only found constitutional
because of the uniquely intrusive and uncontrollable nature of the
audiotext services.  A key legislative motivation for imposing these rules
during the 1980s was that indecent information available through audiotext
services in the telephone system were openly available to children in such
a way that it was difficult for parents to control access by their
children.  The views of Congressman Bliley recounts the prevailing view of
the need for the legislation: "It constitutes an attractive nuisance in
every home in America where children are present. There is no completely
effective way to prevent children from being exposed to "indecent" or
"obscene" dial-a-porn so long as it is lawfully and commercially marketed.
. . ."  Bliley continues:

"Telephones are precisely like radio and television because of their easy
accessibility to children and the virtual impossibility for parents to
monitor their use . . . . [D]ial-a-porn is presently in the home whether
the homeowner wants it or not.  Today one cannot have telephone service in
the privacy of one's family environment without being required to [have]
dial-a-porn with it. Families with children must give up telephone service
to be "left alone" from exposure of their children to this intruder."

The current statute and Federal Communications Commission regulations
promulgated thereunder were found constitutional only after nearly ten
years of litigation and efforts by Congress and the Commission to bring the
statute within constitutionally acceptable bounds. Indecency restrictions
applied to interactive media would require a wholesale review of the
constitutionality as applied to new media such as online services and the
Internet.  Interactive media operates in such a different manner that the
constitutional issues must be considered afresh given the new factual
backdrop.

C.      Reliance on government censorship to restrict access to indecency
fails
        to take into account the fact that interactive media offers parents a
        much greater degree of control then broadcast services or 900 number
        services.

Indecency restrictions in interactive media would presumably be motivated
by the same goal of protecting minors as the existing statute.   However,
the means adopted for achieving the goal are impermissible under the First
Amendment because they are not the least restrictive means of accomplishing
the legitimate government purpose.  Interactive media is materially
different than analog telephone and audiotext technology in that it offers
users the ability to exercise control over precisely what information one
accesses.  Given the dramatic difference between telephone technology and
interactive services such as the Internet and other interactive media, we
believe that blocking by the carrier as demanded by S. 223 would not meet
the "least restrictive means" test.

Just as the Sable court found broadcast indecency regulations inapplicable
to the telephone system because of differences in the medium, regulations
designed for audiotext services in the telephone system are
constitutionally inapplicable to new interactive media.  Indeed, indecency
restrictions on material transport by US Mail have also been struck down by
the Supreme Court precisely because "the receipt of mail is far less
intrusive and uncontrollable"  than broadcast information that was the
subject of the Pacifica case.

Technologies already exist that enable users to access certain information
based on a variety of characteristics, or, to exclude certain types of
information from access.   With such filtering technology, users, instead
of the government or network operators, can exercise control over the
information content that they receive in an interactive network
environment.  User control could be exercised in two ways.  First, one
could screen out all messages or programs based on information in the
header.  If a parent wanted to prevent a child from seeing a particular
movie or from participating in a particular online discussion group, then
the computer or other information appliance used by the child could be set
by the parent to screen out the objectionable content.  Such features can
often be protected with passwords which would be assigned, for example, by
the responsible adults in the house.  Second, the same systems can be used
to enable blocking of content based on third-party rating systems.

Given the flexibility of interactive technology, we need not rely on just
one rating system.  In fact, a single rating system or a single set of
filters would merely replace a single government censor with a single
private censor, with no real gain for the free flow of information.
Properly implemented, interactive media can accommodate multiple filtering
systems, giving users and parents the opportunity to select and block
information based on a true diversity of criteria.  The national Parent
Teachers Association or different religious organizations could set up
rating systems which would be available on the network to those who desired
them.  Rather than relying on the judgment of the government, or of the
service provider, viewers can limit access to content based on the judgment
of a group whose values they share.

Interactive media can enable individuals and parents to prevent themselves
or their children from using their PCs or TVs to access certain kinds of
content.  With such control mechanisms within the practical reach of
parents, the governmental purpose generally cited for indecency regulations
-- the protection of children -- could be accomplished without government
content restrictions.  In particular, the reasoning of Pacifica (intrusion
of the indecent message into homes) and Sable (inability of parents to
exercise control) would no longer justify most content regulation.

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