"This is not about politics... it's to protect the innocence of children."
--- Senator Bob Dole, Majority Leader, Kansas, Republican
Our consideration of the legislation will specifically look at the Protection of Children from Computer Pornography Act of 1995 and Communications Decency Act. For each piece of legislation, we should consider the intent of the legislation and the potential implications-- both for society and the Internet.
The intent of this legislation, as stated by Senator Grassley (R-IA) in his introductory remarks, would provide effective deterrents to "potential child molesters and sexual predators" who "use computer networks to locate children and try to entice them into illicit sexual relationships". The basic premise of his legislation was to fill the gap in the law that does not make the access provider criminally liable for the transmission of indecent material to minors. He wrote the legislation with the intent such that "it will withstand the inevitable court challenge" because it would not tell adults what materials they could view or obtain yet protect children.
Interestingly, the sponsors of this legislation spent extensive time on this very aspect: insuring the legislation met the Supreme Court's indecency rulings. Cathleen A. Cleaver, Director of Legal Policy at the Family Research Council, reviewed the legislation and found "the Act is fully consistent with the Supreme Court's indecency precedents". Not only did Senator Grassley include Ms. Cleaver's letter into the Congressional Record, he also did a review of the Court's ruling concerning the constitutionality of Congress regulating material containing depiction of sexual activity or sexual organs.
This intensive consideration of the constitutional issue raises concerns about the implications of this legislation upon how the Internet and society develop. A legislator needs to seriously consider the technological and social aspects of their attempt to provide reasonable boundaries to cyberspace. While not disputing the importance of protecting children from harmful material, the sponsors of S.892 seemed to disregard these aspects.
As a deterrent upon society, the bill may work too well. The legislation establishes a standard referred to as willfulness. This standard means that the federal government must establish a willfulness by the access provider to allow the transmission of indecent or pornographic material. In order for the access provider to succeed in avoiding criminal liability for their server, the access provider would either have to carefully regulate all material or rarely (almost never) regulate material so they can that they were not willfully permitting adults to transmit.
The first scenario is not possible because the access provider would face criminal prosecution for privacy issues. In addition, the current technological methods for effective enforcement of the willfulness standard can not be done. Let us consider why one would not be able to provide sufficient review without invading privacy or failing to catch the one's who provide the material. First, it would very difficult (technically) to set up a system where all information is reviewed electronically to determine if it is indecent or not. In addition, under current law, an individual's files and mail are considered private thus requiring a search warrant by a judge. Thus, an access provider would need well-defined permission and/or a Court ruling that supported the review/searching of files within an individual's control. So even though the access provider owns the computer and software, the individual who uses the space has the right to privacy in that space. If you can not reasonably search most files, then the access provider can never determine if the material transmitted is illegally going to minors.
The second scenario would not be sufficient to escape the criminal codes because the bill also includes reckless transmission. Any access provider who failed to maintain some level of regulation would be considered reckless and thus still criminally liable. While not specifically preventing the legal usage by adults, a risk-averse access provider would remove their boards/sites from cyberspace in order to avoid potential incarceration or fines.
In addition, the access provider would also have to extensively regulate who could have access to their site. Current technology makes it relatively easy for individuals (no matter the age) to pull material off the computer. With magazines, a minor coming into a store can easily be recognized as being of an inappropriate age. Even with limited access/subscriptions, an observant minor can access indecent material and the access provider would be none the wiser. Thus the legislation would fail to successfully protect our children from indecent material unless some special age identification system was devised.
All three scenarios provide little incentive for access providers to insist upon technology that would expand the territory of the Internet or encourage society to openly embrace the technological advantages the Internet would provide-- open communications, instantaneous access to volumes of data and information and potential savings in time and resources.
The Communications Decency Act is an amendment to S. 652, the Telecommunications Competition and Deregulation Act of 1995. Introduced by Senators Jim Exon (D-Neb.) and Daniel Coats, this amendment would make criminal any person who, by telecommunications device, knowingly makes, creates, solicits or initiates the transmission of:
"... any comment, request, suggestion, proposal, image or other communications which is obscene, lewd, lascivious, filthy, or indecent, with intent to annoy, abuse, threaten, or harass another person..."With such a broad definition, the amendment continues to enumerate cases where this type of behavior would be considered illegal. The list of cases is long and, by some standards, the fines are too extreme for such broad definitions and "areas of responsibility". The fines and penalties for such illegal activities were typically up to $100,000 or two years in prison or both.
Senator Exon provided this amendment to try to improve the "quality of life" which Americans would experience when "exploring the Information Superhighway". He wanted to provide cyberspace with a set of norms that discouraged obscene or indecent material from ever being available to minors. In addition, it attempted to reduce (if not stop) the gradual decline of cyberspace to society's lowest possible denominator. Let us touch upon this last point for a while.
Cyberspace has been mentioned as being only limited to man's imagination and technological ability. Imagination can work both ways. It can improve society and aspire for decent, respectable goals-- a global community able to communicate and transact over boundaries. It can also generate ideas/images/concepts that encourage the decline of society-- barbarism and other "uncivilized" aspects.
Integral to this argument is a recognition of how society intertwines with technology. As long as society has a "down side" then technology, as a tool, can also expand that down side. When science created the atom bomb, it discovered a mean to control massive energy. The decision to use this technology/science to reduce a city to ashes was a weighty decision that had to be made. In a similar way, our legislators currently have to consider whether cyberspace and its related technologies will be used to control the massive energies of human interaction. Pulling the analogy a little further, if creation and usage of the bomb were considered necessary, then the creation and usage of cyberspace are also necessary. The question that then arises is whether nuclear power with its potential positive upside should have been blocked because nuclear power (in the form of a bomb) has a potential downside?
The language in Senator Exon's amendment attempted to answer this question for cyberspace. With the broad paint strokes, the amendment would set up restrictions upon cyberspace that would control for the lowest possible denominator. Unfortunately, Senator Exon's ideal of a "decent" society (assuming we could agree on decent) can not be obtained through his methods. Just go back to the discussions about how well Senator Grassley's bill would work.
In addition to all the problems mentioned for the Protection Of Children From Computer Pornography Act Of 1995, Senator Exon and Coats provide measures that would violate the First Amendment rights. Senator Russell Feingold argued that indecent speech (which is different from obscene) is protected by the First Amendment of the Constitution. This case can be made because the Supreme Court has encouraged laws that use the least restrictive means available. The prohibitive measures in the amendment clearly do not fit within the least restrictive means and thus unconstitutional.
The Communications Decency Act also severely restricts the development of cyberspace and related technologies. The Online Policy Committee of the Interactive Services Association believes that S.652 with the Communications Decency Act would "create a potentially crippling liability for on-line services and reduce the content of all on-line services for consumers." This returns to points raised in the discussion about the Protection Of Children Act yet the factor is multiplied significantly. Due to the relative scant defenses made available, the very behavior that the senators wanted to encourage (assuming they did not want to shut cyberspace down) would not be acceptable. Thus, if the defenses do not cover the behavior that could generate a more decent cyberspace, then the access providers would find the business so untenable that they would remove themselves from the Internet. With a massive reduction in servers, users would find the limited resources left to be unsatisfactory or also limited in content.
Senator Leahy provided an amendment to Senator Exon's amendment that encourages a quick study by the Justice Department to determine what measure can be brought to cyberspace to increase or promote decency. Senator Exon opposes the study measure because "We've had enough studies". Yet, Senator Feingold pointed out, in his September 26th letter to members of the Congress, that "the Senate Judiciary Committee held the first-ever Congressional hearing on the issue of cyberporn". Thus, a strong argument exists for more consideration by Congress before passing any piece of legislation. Considering the massive hand with which society can throttle or push this emerging technology, those who advise urgent legislation has no regard and possibly no understanding of the technology.
Senator Hatch's intent is not to affect the telecommunications bill such as Exon nor try to restrict, through regulation, the Information Superhighway. Instead, he is simply removing "something that no civilized society can or should tolerate." In looking at the language, one can see a "good faith attempt" to avoid a broad paint stroke and instead finely define criminal statutes for child pornography on cyberspace.
Unfortunately, the legislation, which avoids some of the adverse access provider liability issues, fails to involve the parts of society that this law would affect most-- the Internet industry and users. As in the case of the previous pieces of legislation, Senator Hatch and others have been working in a virtual vacuum. The majority of those in Congress have little to no access to cyberspace in their office. If they do have it, it is relatively simplistic (i.e. email) and very rarely used by senators or their senior advisors. The background most senators bring to the legislation is one of a legislator who knows how to create criminal code but can not possibly create reasonable legislation that considers the potential loopholes because they do not understand nor use the technology at any level of proficiency.
While senators will gladly refer to institutions such as Family Research Council and the National Law Center for Families and Children, they rarely refer to institutions with the Internet community who have attempted to provide direction for cyberspace. The WWW Consortium, Interactive Services Association and many other organizations have expressed a strong desire to advise and discuss the technological implications of cyberspace.
This aspect is key to why current legislation is "three years behind the technology"... nor will it be able to catch up. The technology is changing faster than our Congress can pass specific statutes that responds to specific changes in technology. The individuals, who can look out and more accurately predict the directions the technology will take, are those within the industry who are creating the future. With these individuals involved in creating legislation, a more comprehensive view will be applied to cyberspace. With a comprehensive view of cyberspace, senators can then write legislation that goes attempts to meet society's obligation to create order for this new and potentially beneficial technology.
As the advances of science provided us with technology to transmit extensive amounts of data across any distance, our society has been spurred to change its culture and outlook on life. Every half-year, technology significantly changes to make the previous six months obsolete. This dynamic turn in technology has provided an avenue for new and growing culture to develop-- cyberspace. Unlike other cultures that are currently limited by physical limitations, cyberspace is a frontier currently without boundaries because it is a virtual world created by man and limited only by man's imagination and ever expanding technological ability.
As mentioned, science spurs society to change. Hence, our society and institutions have been forced to provide order for a very chaotic and dynamic environment. Assuming for a moment that current institutions (i.e. Congress) are representative of society, then our institutions have a monumental task to create rules and regulations that account for the current boundaries of cyberspace. In addition, our institutions need to consider the cultural and social implications of proposed regulations. Another concern is that cyberspace has global reach and thus clashes between a nation's culture and those of other nations will occur. Finally, society and institutions will be primary in spurring further development of scientific and technological development. So our institutions should also create rules or legislation that help positively shape this nascent technology. Thus, we can see that any legislator would have to carefully consider any piece of legislation touching upon sciences and technology.
Cyberspace is a frontier currently without boundaries because it is a virtual world created by man and limited only by man's imagination and ever expanding technological ability. If science spurs society and vice versa, then the ability of man to consider and create in an open environment is vital. Any attempt by society to provide order or rules to cyberspace must be tempered by this need. Legislator should therefore carefully consider any piece of legislation touching upon sciences and technology as it relates to meeting social norms.
Current legislation only appears to deal with setting and meeting social norms for cyberspace. The intent of Senator Grassley's legislation was to fill the gap in the law that does not make the access provider criminally liable for the transmission of indecent material to minors. Senator Exon wanted to provide cyberspace with a set of norms that discouraged obscene or indecent material from ever being available to minors. Senator Hatch's Child Pornography Prevention Act takes into account the current changes in technology that allows for "morphing" or computer added altering of photos or other media into child pornography. Unfortunately, all three pieces of legislation provide little incentive for access providers to insist upon technology that would expand the territory of the Internet or encourage society to openly embrace the technological advantages the Internet would provide-- open communications, instantaneous access to volumes of data and information and potential savings in time and resources.
It is easy to see how they fail to meet the need to carefully consider. They have consistently looked at the U.S. Constitution as being the only aspect for which the technology has protection. If those in Congress had a certain level of knowledge related to the technology, they would see that the technology creates some of the Constitutional issues. Thus if taken out of the virtual vacuum-- no knowledge of the potential within the technology-- senators would be able to better write legislation that protects civil rights and liberties while also controlling transmission of indecent material to children and even other groups within society who do not want this material.
In addition to failing to look at the relationship between the technology and the Constitution, they have also failed to access the industry itself as a resource. Legal experts are appropriate for the legal issues but science/technology have its own issues which impact upon all facets of society. Thus, if effective senators would pull in other institutions that create rules for the industry and work with them to write effective legislation and self-regulatory proposals. Then, we will see better legislation that protects civil rights, promote the new technology and ultimately prevent our children from being harmed. And as Senator Dole said, "This is not about politics... it's to protect the innocence of children."
Let us return to the imagery of cyberspace as being a new, fertile territory. As technology advances, new opportunities exist for man to provide reasonable rules for all to play in this field. Child pornography and the technological capabilities related to imaging are the weeds in this field. The technology and its impact upon constitutional issue are the mines within the field. As the farmer, our Congress (specifically senators) must find the right herbicide and method to insure that our society does not trigger the mines while also removing the weed. The current legislation, the herbicide, requires a farmer to go from one weed to another and thus fails to rid the field of weeds because he/she can not do it alone. With the assistance of industry, Congress will have a group of individuals who can suggest the plausible means to remove the weeds from cyberspace without triggering the mines and thus a fertile territory can provide for the nation and the world many benefits.
Gillogly, Jim, S.974- Beyond Clipper and Digital Wiretap, Internet Message, July 19, 1995: STS905 WWW Site Page
U.S. House of Representatives, Communications Act of 1995, Congressional Record: STS905 WWW Site Page
Senator Grassley, Congressional Record, Statement on S.892; June 7, 1995: STS905 WWW Site Page
U.S. Senate, Protection of Children From Computer Pornography Act of 1995, Congressional Record: STS905 WWW Site Page
Senator Russ Feingold, Letter to Members of Congress- Re: H.R. 1555 and S.652, Voters Telecommunications Watch Email, October 1 1995: STS905 WWW Site Page
Senator Hatch, Congressional Record, Statement on S.1237; September 13, 1995: STS905 WWW Site Page
Interactive Services Association, The ISA's Statement on Exon Amendment; June 6 1995: STS905 WWW Site Page
Electronic Privacy Information Center, EPIC Statement on Communications Decency Act; March 24, 1995: STS905 WWW Site Page
Senator Exon -- Taylor, Bruce, Lies that Pornographers Tell, National Law Center for Families and Children ; Congressional Record, Statement on Amendment 1288 of S.652; July 12, 1995: STS905 WWW Site Page
Senator Exon, Congressional Record, Amendment 1288 to Title IV of S.652: STS905 WWW Site Page