Lawmakers seek to ban online "indecency"

By Juan Antonio Osuna
CRA Staff

Goodbye, alt.sex.bondage. Hello, rec.kids.romper.room.

The ever-proliferating sex groups on the Internet and the increasing boldness of posters have finally raised eyebrows in Washington. And, if certain lawmakers have their way, the heyday of unrestrained expression on the Internet may soon subside.

On March 30, the Senate Commerce Committee voted unanimously in favor of the Communications Decency Act of 1995, legislation that would criminalize any news postings or even private E-mail judged "obscene, lewd, lascivious, filthy or indecent."

The full committee reported the legislation as part of Sen. Larry Pressler's (R-SD) sweeping telecommunications reform bill, S 652. Any person found guilty of originating an "indecent" communication, whether public or private, could face up to two years in jail and a $100,000 fine. This bill would apply to telephone, cable, television broadcast or computer transmissions.

"I want to make the information superhighway safe to travel for children and families," said Sen. James Exon (D-NE), author of the bill.

But civil libertarians argue that making the Internet safe for children should not be done at the expense of everyone else's free speech.

The legislation "may fail to distinguish between consensual and non-consensual activities and between private and public communications," an Electronic Frontier Foundation (EFF) statement said. "A steamy love note sent privately between spouses could be a criminal violation of this statute."

Exon sees his legislation as nothing more than an attempt to extend current law to the digital world. "My amendment [to the Pressler bill] would simply apply the same laws that protect against obscene, indecent or harassing telephone calls to computers."

Modernize versus modify

A Senate committee report repeatedly refers to the act as simply "modernizing" existing law.

However, civil liberties groups worry that the bill does more than modernize. "I think it would be a mistake to try to regulate Internet communications as we currently regulate the telephone network," said Marc Rotenberg, director of the Electronic Privacy Information Center (EPIC). "It's clear that this is a very different type of communications environment, and I think the proposal will raise a whole host of problems."

On its face, the bill seems to do nothing more than swap the word "telephone," found in current law, with "telecommunications device." However, within the historical context of judiciary interpretations, some say the bill raises new complexities and threats to civil liberties.

"The bill attempts to apply to online media many restrictions that do not apply to printed or verbal expression," the EFF statement said. "Transmitting an online version of a 'lascivious' book could subject the sender to unreasonable fines and imprisonment, while mailing the book in hard copy or reading aloud from the book would be protected under the First Amendment."

All laws depend upon interpretation by the judiciary system, especially laws that tiptoe around the Constitution. The Exon bill, if passed, would most likely force the Supreme Court to revisit the obscenity-versus-free-speech question, as the bill would throw into the federal judiciary spotlight vast areas of human communication that have traditionally gone unnoticed.

Civil libertarians said they only hope that the outcome of this revisiting would at least be consistent with past court decisions.

For instance, the courts have reserved more stringent interpretations of laws governing telephone use for situations in which a person gets an unwanted, harassing phone call. However, consenting adults retain the right to dial sexually oriented 900 numbers, as long as telephone companies also provide parents with 900 number blocking capability.

In other arenas such as video or print media, a multitude of city, county, state and federal laws have evolved within constitutional boundaries set forth by the Supreme Court over the years. The boundaries between free expression and obscenity are usually defined by local community standards.

Some legal experts say transposing telephone law into the frenzied world of digital communications would throw the courts into a constitutional quagmire.

How do we apply geographically based obscenity standards to global networks? Should we allow a prosecutor in a rural, conservative county to restrict the free flow of information on bulletin board systems in an urban area, where people may have different attitudes toward such topics as homosexuality?

Should a particular newsgroup or online service constitute a virtual community and be allowed to set its own standards? How do we codify standards belonging to a virtual community? How do we spot violations of these standards? Do we trust a computer program to police the network? How do we catch the "indecent" message senders when they can remain anonymous or use encryption?

The bill's greatest weakness lies in the many unanswered questions it raises. To some extent, Exon recognizes that there is room for debate and has urged his opponents to come to the negotiating table.

During a CNN debate with EPIC's Rotenberg, Exon said: "I agree with you, Marc. [New technology] poses new opportunities, new challenges and also new dangers. That's the part that I'm trying to address. I certainly like your attitude. I say come together. Let's talk. And maybe we can work out something that is agreeable to all and stop smut and pornography from overpowering this new system."

As it stands, the bill may run into some trouble, especially with both House Speaker Newt Gingrich (R-GA) and Sen. Patrick Leahy (D-VT) joining the chorus of voices opposing the bill, including more than 100,000 signers of an Internet petition.

Although the bill faces substantial opposition, the full committee's unanimous support to attach the legislation to the sweeping telecommunications package suggests lawmakers are eager to attack the problem. A bit of fine-tuning could bring many opponents around.