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  **         **      **       ***               POLICY POST
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  **         **      **       ***               August 4, 1995
  **         **      **       ***               Number 23
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  CENTER FOR DEMOCRACY AND TECHNOLOGY
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  A briefing on public policy issues affecting civil liberties online
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CDT POLICY POST Number 23                       August 4, 1995

CONTENTS: (1) House Approves Cox/Wyden 'Internet Freedom' Bill 420 to 4
              Major Victory for Cyberspace -- Indecency Statues Remain 
              A Serious Issue
          (2) Subcribe To The CDT Policy Post Distribution List
          (3) About CDT, Contacting US

This document may be re-distributed freely provided it remains in its
entirety.
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(1) HOUSE PASSES COX/WYDEN 'INTERNET FREEDOM' AMENDMENT 
    MAJOR VICTORY FOR CYBERSPACE -- INDECENCY STATUTES REMAIN A MAJOR 
    ISSUE

By a overwhelming vote of 420 to 4, the US House of Representatives 
today approved the 'Internet Freedom and Family Empowerment' amendment, 
sponsored by Reps. Chris Cox (R-CA) and Ron Wyden (D-OR), which would 
prohibit the federal government from regulating content on the Internet, 
commercial online services, and other interactive media.

Unlike the Senate-passed Exon/Coats Communications Decency Act (CDA), 
the Cox/Wyden amendment ensures that individuals and parents can decide 
for themselves what information they or their children receive. By 
contrast, the Exon/Coats CDA would grant the Federal Communications 
Commission (FCC) broad powers to regulate the expression of each and 
every one of the millions of users of the Internet. 

The Cox/Wyden amendment:

* Prohibits the FCC from imposing content regulations on the Internet or 
  other interactive media.

* Removes disincentives for online service providers to exercise 
  editorial control over their networks and to provide blocking and 
  screening technologies to their uses.

* Seeks to create a uniform national policy prohibiting content 
  regulations in interactive media.

CDT believes that the Cox/Wyden amendment is an enlightened approach to
addressing the issue of children's access to objectionable material 
online. Unlike the Senate-passed CDA, the Cox/Wyden approach recognizes 
that the Internet is a global, decentralized network, with abundant 
capacity for content and tremendous user control. 

House passage of the Cox/Wyden amendment sets the stage for a direct 
battle between the House and Senate on the issue of government content 
regulation in interactive media. CDT will work vigorously to ensure that 
the Cox/Wyden amendment replaces the Exon/Coats CDA in the final version 
of telecommunications Reform legislation.

NEW UNCONSTITUTIONAL INDECENCY RESTRICTIONS ALSO APPROVED

Although the House vote today significantly advanced freedom of speech 
on the Internet, the threat of unconstitutional indecency restrictions
remains.

In a vote unrelated to the Cox/Wyden amendment, the House also approved
changes to federal obscenity laws which would criminalize the 
transmission of constitutionally protected speech online. These 
amendments were approved as part of the "Managers Amendment" to the 
Telecommunications reform bill (HR 1555). Although these amendments are 
more narrowly drawn than the Exon/Coats CDA or the Grassley/Dole 
"Protection of Children from Computer Pornography Act (S. 892), they 
clearly violate the First Amendment and remain an issue of serious 
concern to CDT. 

The new criminal law amendments are opposed by several prominent members 
of both the House and Senate, including Cox and Wyden. As the bill makes 
its way through the House/Senate conference committee, CDT will work 
with Reps. Cox and Wyden, Senator Leahy, and others to:

* Remove the unconstitutional indecency restrictions added as part of
  the "Managers amendment"

* Ensure that the Cox/Wyden amendment replaces the Exon/Coats CDA in the 
  final telecommunications reform bill

* Clarify that the Cox/Wyden amendment does not affect privacy 
  protections under the Electronic Communications Privacy Act (ECPA)

* Strengthen provisions that pre-emption state online censorship laws.

COX/WYDEN AMENDMENT PROTECTS CYBERSPACE FROM GOVERNMENT INTRUSION,
RECOGNIZES PARENTAL CONTROL POSSIBILITIES

The Cox/Wyden bill seeks to accomplish four principal objectives:

* PROHIBIT FCC CONTENT REGULATION OF THE INTERNET AND INTERACTIVE
  COMMUNICATIONS SERVICES. 

  The bill explicitly prohibits the Federal Communications Commission 
  from imposing or content or other regulations on the Internet or other 
  interactive communications services (Sec 2 (d)).

  This provision recognizes that Interactive media is different from 
  traditional mass media (such as broadcast radio and television), and 
  will enshrine in statue strong protections for all content carried on 
  the Internet and other interactive communications services. Instead of  
  relying on government censors to determine what is or is not
  appropriate for audiences, this provision recognizes that individuals 
  and parents are uniquely qualified to make those judgments.

* REMOVE DISINCENTIVES FOR ONLINE SERVICE PROVIDERS TO EXERCISE 
  EDITORIAL CONTROL OVER THEIR NETWORKS AND TO DEPLOY BLOCKING AND
  SCREENING TECHNOLOGIES FOR THEIR SUBSCRIBERS. 
 
  The bill would remove liability for providers of interactive   
  communications services who take good faith steps to restrict access 
  to obscene or indecent materials to minors or provide software or 
  hardware to enable their users to block objectionable material.(Sec 2
  (c))  In addition, the bill would overturn the recent court  decision  
  (Stratton Oakmont, Inc. v. Prodigy Services Co., N.Y. Sup. Ct. May 24, 
  1995) which held Prodigy liable for content on its network 
  because the service screens for sexually explicit material and 
  language.  Prodigy now faces a $200 million lawsuit. 

  The bill does not intend to create an obligation for providers to 
  monitor or screen content or to allow violation of Federal privacy 
  statutes (such as the Electronic Communications Privacy Act), although 
  some concerns remain on these points. CDT remains committed to 
  addressing these concerns as the legislation moves to conference, and 
  has been assured by Rep. Cox and Wyden that these issues will be 
  addressed.

* PRE-EMPT INCONSISTENT STATE LAWS REGULATING CONTENT ON INTERACTIVE 
  COMMUNICATIONS SERVICES. 

  The bill seeks to pre-empt States from enforcing inconsistent laws, 
  including restrictions on content available on interactive 
  communications services.  (Sec 2 (e)(2))

  The actual scope of this preemption remains an issue of some 
  discussion. CDT believes that any legislation in this area MUST 
  contain a strong pre-emption of inconsistent state laws. A patchwork 
  of state laws which impose varying, and in some cases contradictory, 
  obligations on service providers and content providers must be 
  avoided. CDT will work to ensure that the Cox/Wyden bill creates a 
  uniform national policy which prohibits states from imposing content 
  regulations on interactive media.

* NO EFFECT ON CRIMINAL LAW. 

  The bill is not intended to prevent the enforcement of the current 
  dial-a-porn statute or other Federal criminal statutes such as 
  obscenity, child pornography, harassment, etc. (Sec 2 (e)(1))

NET ACTIVISM A CRITICAL FACTOR

When Senator Exon (D-NE) first proposed the CDA in February 1995, the
net.community reacted with strong opposition. A coalition of online
activist organizations, including CDT, EFF, People for the American Way,
EPIC, the ACLU and organized with the Voters Telecommunications Watch
(VTW), worked tirelessly over the last six months to mobilize grass 
roots opposition to the CDA. Through our efforts of generating thousands 
of phone calls to Congressional offices and an online petition which 
generated over 100,000 signatures in support of an alternative to the 
CDA, the net.community was able to demonstrate that we are a political 
force to be reckoned with.

The net.campaign and public education efforts helped to encourage House
Speaker Newt Gingrich (R-GA) to come out against the CDA, and was an
important factor in Reps. Cox and Wyden's decision to propose their
alternative. As the legislation moves to the conference committee and 
then on to final passage, the net.community must be prepared to continue 
to fight to ensure that the new criminal provisions are removed and that 
the Cox/Wyden amendment is not weakened.

GENESIS OF THE COX/WYDEN AMENDMENT

After the Senate passed the CDA by a vote of 84-16 on June 14, CDT 
stepped up our efforts to find an alternative which protected the First 
Amendment and recognized the unique nature of interactive media. Both on 
our own and through the Interactive Working Group (a group of over 80 
public interest organizations and leading computer and communications 
companies, content providers, and others, coordinated by CDT. The IWG 
includes the ACLU, People for the American Way, the Progress and Freedom 
Foundation, America Online, MCI, Compuserve and Prodigy, and many other 
organizations and corporations), worked directly with Reps. Cox and 
Wyden to bolster the case that parental control technologies offered an 
effective alternative to government content regulations. 

To this end, the IWG held a demonstration for members of Congress and 
the press in mid-July to demonstrate parental control feature of 
products offered by Netscape, SurfWatch, WebTrack, America Online, and 
Prodigy.

In addition, the IWG issued a comprehensive report reviewing current
technology and the state of current laws prohibiting trafficking in
obscenity, child pornography, stalking, threats, and other criminal 
conduct online (this report can be viewed on CDT's web site
URL:http://www.cdt.org/iwg/IWGrept.html).

Through these efforts and the efforts of VTW's online coalition, to 
educate members of the House about the problems with the Exon/CDA and 
the promise of interactive media, the House today has enacted an 
enlightened approach to dealing with children's access to inappropriate 
material online. Today's vote represents a tremendous victory for the 
first amendment and the promise of cyberspace.

NEXT STEPS

The House Telecommunications legislation (HR 1555) is expected to pass
later today (8/4). The Senate approved similar legislation (S. 652) in
June. Both bills now move to a House/Senate Conference Committee where
differences will be worked out. The Conference Committee is expected to
begin deliberation in early September. Once the Conference Committee 
agrees on a version of the bill, it will be sent back to both the House 
and Senate for final approval. This vote is expected to occur before the 
end of October.

The Internet-censorship provisions of the Senate bill are among the key
difference between the House and Senate proposals. However, several key
members of the Senate, including Senator Patrick Leahy (D-VT) and Russ
Feingold (D-WI) have expressed opposition to the Exon/Coats approach.  

CDT will fight vigorously throughout the remainder of this Congress to
ensure that the Exon/Coats CDA does not become law. We will also work to
remove the new unconstitutional criminal law amendments passed by the 
House today.

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