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Re: FWD>Big Brother on the'n



                   Subject:   RE>FWD>Big Brother on the'net...
This legislation has undergone several revisions since this version.  It
has now been attached to another bill.  See news and analyses below:

1)           SENATE COMMITTEE MARKS UP NEW TELECOMMUNICATIONS BILL
                                 ACTION NEEDED
 
The Senate Commerce, Science and Transportation Committee conducted a mark
up session on a new telecommunications bill on March 23 demonstrating bi-
partisan support for this latest effort to update the Communications Act of
1934.  Committee Chair Sen. Larry Pressler (R-SD) conducted the mark up,
even though the bill had not been officially filed or even completed, until
the early morning hours of the 23rd.
 
Pressler and other senators, including Sen. Ernest Hollings (D-SC),
acknowledged the various staff members who had worked long hours into the
middle of the previous night.  Their staff and others had been constantly
working on "negotiating" the language of the bill recently, amidst heavy
pressure from the many parts of the telecommunications industry.  Since
Pressler scheduled the mark up session a few weeks ago, staff had been
working on two discussion drafts, one authored by Pressler and the other by
Hollings in the hopes of developing a bi-partisan bill.
 
At this writing, we have seen only the interim "discussion draft" from
March 21, which was still not the final version given to the committee for
mark up.  There is still no bill number and the official publication of the
bill was not yet available.  This report is based on the proceedings at the
mark up where there were no draft copies or other materials available for
the public.
 
The bill discussed was substantially the Pressler discussion draft with
some elements that grew from the bi-partisan discussions.  The legislation
follows through on Pressler's commitment to provide for major deregulation
and promote competition in all areas of telecommunications.  In the days
before the mark up there were frequent changes in many parts of the
legislation as negotiations went on to the last minute.  Public access
clauses, including the parts related to libraries and schools, were rumored
to be changed several times this week alone.
 
Pending review of the actual language in the bill voted out of the
committee, it appears that some public access provisions were included
though weaker than last year's version of S. 1822.  Senators Olympia Snowe
(R-ME) and Jay Rockefeller (D-WV) cosponsored one amendment addressing
universal service for rural public schools and libraries.  Part of the
discussion of their amendment was about the definition of "rural" as well
as what entities would be covered under their amendment.  The Snowe-
Rockefeller amendment narrowly passed in a roll call vote.
 
Senator John Kerry (D-MA) discussed an anti-redlining amendment to ensure
that telecommunications providers could not gerrymander around seemingly
less popular communities in developing and providing telecommunications
services.  This and other amendments may be added on the Senate floor.
 
Senator Slade Gorton (R-WA), for himself and Senator James Exon (D-NE),
added an amended version of S. 314, the Exon "Communications Decency Act of
1995", to the telecommunications legislation.  The committee accepted their
amendment.  Once ALAWON has obtained the final language and a bill number a
more complete report will be published.
 
ACTION NEEDED:  The bill will now go to the Senate floor.  All senators
should be contacted and asked to support the public access provisions.
Senators should also be asked if they could strengthen public access
provisions such as incremental cost-based rates for schools and libraries,
and universal service and anti-redlining clauses.  Watch for more details
as they become available.  ALAWON appreciates the many library supporters
who called their senators on this committee.

2)  RE-WRITE OF THE EXON DECENCY BILL APPROVED AS AMENDMENT TO TELECOM BILL

The much maligned Exon Decency Bill (S.314) was offered as an amendment by
Sens. Exon and Gorton.  It was approved by unanimous vote.  The
bill/amendment has had a major rewrite after a number of organizations
objected to the liability it placed on intermediate carriers of electronic
messages.  Specifically, the rewrite says that whoever "knowingly makes,
creates, or solicits, and initiates the transmission of, any comment,
request, suggestion...."  This replaces contentious language which said,
whoever "makes, transmits, or otherwise makes available any comment,
request, suggestion, proposal, image or other communication" would be
punishable.

In addition, there have been a number of paragraphs changed which list
"additional defenses," i.e. cases in which persons can not be held liable
under the Act. For example:  "No person shall be held to have violated this
section...with respect to...the provision of access, including
transmission, downloading, intermediate storage, navigational tools, and
related capabilities not involving the creation or alteration of the
content of the communications, for other persons' communications to or from
a service, facility, system or network not under that person's control."

However, the bill does go on to name good faith efforts a defendant must
have made as a defense to prosecution, including:  "provide users with the
means to restrict access...provide users with warning concerning the
potential for access to such communications...provide mechanisms to enforce
a provider's terms of service governing such communications..."  and
perhaps _most troublesome_, "... such other measures as the *Commission*
may prescribe..."  This means the FCC, and it at least from my perspective
gives the FCC new room to make decisions about what measures carriers must
take to protect themselves.

In the final analysis:  The language has been rewritten to focus on the
originator of the offending material instead of the carrier.  However,
there may still be some vagaries that could put restrictions on what
providers can and can not do.  Certainly a good faith effort from Exon's
office, but does it go far enough?

Although the amendment was approved unanimously in committee there is still
a chance of having it stricken in floor debate.

--------------------------------------
 Sun Dec  7 12:26:38 PST 1997
Date: 3/28/95 1:53 PM
To: Robert Lutz
From: Todd Evans
FYI,  very interesting and evolving...
Todd




=======================  S.314 Analysis Starts =====================

ANALYSIS

S.314, The Communications Decency Act of 1995
Introduced by Sen. Jim Exon (D.-NE)

Prepared for the
ELECTRONIC MESSAGING ASSOCIATION
by
James T. Bruce and Richard T. Pfohl
Wiley, Rein & Fielding

February 7, 1995

I.     Summary

     On February 2, Sen. Jim Exon (D-NE) introduced S. 314, The
Communications Decency Act of 1995.  Sen. Exon's bill, which contains
provisions intended to curtail transmission of obscene, indecent, or
harassing telecommunications, is identical to an amendment to the Senate
telecommunications deregulation legislation which died last fall with the
conclusion of the 103rd Congress.  Although ostensibly extending existing
federal prohibitions on obscene or harassing telephone calls to other
telecommunications devices, these provisions could greatly expand
prohibited
conduct and would potentially make employers, service providers, and
carriers
liable for transmission of restricted communications.  The likelihood of
passage of the telecommunications deregulation legislation in the current
Congress and the likelihood that Sen. Exon will attempt to again attach his
language to such a vehicle makes the potential passage of the Exon language
quite plausible.

II.     Analysis

     Sen. Exon's interest in the issues addressed in S. 314 was reportedly
spurred by reports of electronic stalking on the Internet.  Sen. Exon
stated
upon introduction of the legislation on February 2, "I want to keep the
Information Superhighway from resembling a red light district.  This
legislation will help stop those who electronically cruise the digital
universe to engage children in inappropriate communications . . . or
electronically stalk users of computer networks."  The Exon bill would
address obscenity on radio and cable television, but of particular interest
to EMA members are Section 2, on obscene or harassing use of
telecommunications facilities, and Section 5, which extends the Electronic
Communications Privacy Act (ECPA) to include digital communications.

     According to Sen. Exon's introductory statement, his legislation is
intended to "extend and strengthen" the anti-harassment, decency, and
anti-obscenity restrictions on telephone calls in current law to all
telecommunications devices.  The Exon bill would not, however, simply apply
existing law to new telecommunications devices.

     Because of differences between existing telephone technology and
telecommunications technology such as electronic messaging, the Exon bill
would potentially prohibit a wide array of currently allowed electronic
communications.  Furthermore, the Exon bill would broaden existing law by
subjecting transmitters, as well as the individuals who send obscene or
harassing communications, to criminal liability.

     A. Restrictions on Nonconsensual Indecency and
       Harassment

     Current law, as codified in Sec. 223(a) of the Communications Act of
1934, prohibits any "obscene, lewd, lascivious, filthy, or indecent"
communications by telephone.0  (Communications Act of 1934, Sec. 223(a) (47
U.S.C. 223(a))).  Sec. 223(a) also prohibits intentional harassment by
telephone, including by anonymous calls, repeated hang-ups, or repeated
harassing calls.  (47 U.S.C. 223(a)(1)(A - D)).  Finally, Sec. 223(a)(2)
prohibits knowingly permitting a telephone facility under one's control to
be
used for such purposes.  The courts have interpreted Sec. 223(a) narrowly
to
apply only to non-consensual or unsolicited telephone calls.

     The Exon bill would make two fundamental changes in existing Sec.
223(a), with potentially wide-ranging, and possibly unintended,
consequences.
 First, the Exon bill expands the prohibitions on obscene or indecent or
harassing telephone calls to communication by all telecommunications
devices.
 Second, the Exon bill extends the prohibition against making obscene or
indecent communications to "transmit[ting] or otherwise mak[ing] available"
any such communication.  (S. 314 Sec. 2(a) (emphasis added)).  In addition,
the Exon bill would raise the penalty for such violations from the current
up
to $50,000 or six months in prison, to up to $100,000 or two years in
prison.
 (S. 314 Sec. 2(b)).

     The Exon bill provisions would have a number of consequences for
electronic messaging.  First, unless the court-created limitation on the
scope of the Sec. 223(a) anti-obscenity and indecency provisions to
nonconsensual telephone calls is applied as well to all telecommunications,
the provision would prohibit all "obscene, lewd, lascivious, filthy, or
indecent" telecommunications, whether or not consensual.  Services or
carriers that transmit "or otherwise make[] available" such communications
would be liable.  Thus, the amended Communications Act would, on its face,
prohibit indecent communications between consenting adults.  This
provision,
unless limited to nonconsensual communications as the courts have done with
regard to the existing prohibition on such telephone calls, is most likely
unconstitutional. Nevertheless, the legislative history of this provision
should clarify that the amended language is intended to apply only to
nonconsensual communications.1

     Second, the Exon bill restricts anyone from transmitting, "or
otherwise
mak[ing] available," "obscene, lewd, lascivious, filthy, or indecent"
communications. (S. 314 Sec. 2(a)(1)(B)).  This goes beyond and is in
addition to the existing prohibition on knowingly permitting a telephone
facility under one's control to be used for purposes prohibited by Sec.
223(a).  The Exon bill expands the prohibition on knowing use of telephone
facilities to knowing use of telecommunications facilities.  (S. 314 Sec.
2(a)(2)).  The latter provision may prove troublesome if service providers
are deemed to "know" about the use of Bulletin Boards for or Electronic
Mail
for harassment or indecent remarks.

     These provisions could have a chilling effect on electronic message
services, providers, carriers, or anyone else who could be deemed to
"transmit[] or otherwise make[] available" prohibited electronic
communications.  Thus, for example, if someone sent an indecent electronic
comment from a workstation, the employer, the e-mail service provider, and
the carrier could all potentially be held liable, and subject to up to
$100,000 in fines or up to 2 years in prison.  This provision also has
potentially chilling effects on electronic bulletin boards, discussion
groups, and basic electronic mail communications.  Although some service
providers regularly screen bulletin boards to ensure that no obscene or
indecent remarks appear upon them, the incredible proliferation of such
bulletin boards makes comprehensive screening practically impossible.2
Bulletin Boards on the Internet, and, potentially, electronic messages,
include numerous postings making racist remarks, arguing that the Holocaust
never occurred, etc.  All of these could conceivably be considered
"indecent," or annoying, abusive or harassing, any of which could subject
employers, services, and carriers to liability.

     It is questionable whether the prohibition on obscene or indecent
communications, even if limited to nonconsensual communications, can be
accomplished in electronic communications without chilling the First
Amendment. Electronic bulletin boards and discussion groups blur the
concept
of intent:  anyone perusing bulletin boards or discussion groups on the
Internet has the potential to stumble, as if accidently stumbling into an
X-rated movie theater, upon indecent material.3  Such an encounter may not
be
"consensual."  The Internet practice of "flaming" fellow users very
frequently involves use of indecency.  Any such flame, which is by
definition
nonconsensual,4 would subject anyone who "makes available" the
communication
(again, potentially including an employer, service provider, common
carrier,
etc.) to full liability under this section.


     B. Restrictions on Commercial Obscenity

     The Exon bill would amend current law which is intended to restrict
consensual obscene or indecent telephone calls, such as dial-a-porn. 
Current
law prohibits use of the telephone to make obscene communications for
commercial purposes, regardless of whether the maker of such communications
placed the call (i.e., regardless of consent). (47 U.S.C. 223(b)(1)).
Current law also prohibits making indecent communications available to
persons under age 18. (47 U.S.C. 223(b)(2)).  Current law allows common
carriers to avoid liability under the provision limiting indecent material
to
persons over 18 by complying with F.C.C. rules5and by offering subscribers
the right to block access to indecent material.  The Exon bill would extend
these prohibitions to all telecommunications.  (S. 314 Sec. 2(a)(3)).

     By simply applying existing telephone provisions to
telecommunications,
the Exon bill would again create problems due to the unique nature of
non-telephone telecommunications. For example, may a service or provider be
liable if it does not check the ages of all members of a household, and
allow
a family to block access to members under the age of 18? Numerous
electronic
bulletin boards on line contain indecent material,6 and indecent material
may
spring up in any discussion group, or even when a rap artist discusses his
lyrics, or a record company puts a new release on line, as has been done in
recent months.  Because subscribers are required to pay a commercial fee
(beyond their basic subscription fee, which would presumably be analogous
to
a telephone common carrier fee) to access these services, indecent material
on these services may subject providers to liability.7

     C. Expansion of ECPA

     The Electronic Communications Privacy Act (ECPA), codified in the U.S.
Code at Title 18, generally prohibits unauthorized electronic surveillance,
such as wiretapping of employees.  (18 U.S.C. 2511.  See Alderman v. U.S.,
394 U.S. 165 (1969)).  The Exon bill would add conforming language which
amends the prohibition on surveillance to ensure that it covers all
electronic communications, including digital communications.  (S. 314 Sec.
5).

     ECPA has been amended before to account for the evolution of
technology.
 When passed in 1968, ECPA prohibited surveillance only of wire or oral
communications. ECPA was amended in 1986 to prohibit as well surveillance
of
electronic communications.  Sec. 5 of S. 314 would ensure that all
electronic
communications, including digital communications, are covered.

III.     Status

     The Exon language is substantively identical to the amendment to S.
1822, Senate telecommunications deregulation legislation in the last
congress.  It is anticipated that Sen. Exon will again offer his language
as
an amendment to telecommunications deregulation legislation which is
expected
to be introduced by mid-February.  Sen. Pressler, Chairman of the Senate
Commerce Committee, has indicated his eagerness to address the legislation.
Sen. Exon is a member of the Senate Commerce Committee.

IV.     Prognosis

     Last year, Sen. Exon's language was adopted as an amendment to the
telecommunications deregulation legislation even though many thought it
hastily drafted and poorly thought out.  Nevertheless, this language could
be
adopted as part of the telecommunications bill in a matter of weeks or
potentially added to any legislation pending on the Senate floor.

     A coalition of groups assembled last fall to address the threat to
online services created by the Exon provisions. The coalition included
representatives of the ACLU, the Electronic Frontier Foundation (EFF),
America Online, Prodigy, ANS, CompuServe, and the Interactive Services
Association.

     The will of Senators to oppose such "morality" legislation, regardless
of how technically flawed, is always in short supply; in the more
conservative atmosphere of the 104th Congress, such legislation stands an
even greater chance of passage.


ENDNOTES

0     Courts have not defined precisely what constitutes indecency,
although
they have held that mere offensiveness is insufficient.
1     Sec. 7 of Sen. Exon's bill, which requires that cable channels
"unsuitable for children" be fully scrambled for nonsubscribers, suggests
that he does not intend to prohibit indecent, non-obscene, consensual
communications. Sec. 7 does not prohibit such "indecent" programming as the
Playboy Channel, but merely ensures that it will be limited to consenting
adults.
2     This problem is compounded by the indefiniteness of the definition of
indecency.
3     The proliferation of such material on the Internet is evident in the
proliferation of bulletin boards devoted solely to sexual topics. 
According
to a newsgroup list compiled by Digital Equipment Corp., the most popular
bulletin board on the Internet, after a bulletin board providing rules for
new users, is alt.sex.stories, which half a million Internet users log on
to
each month.  The next most popular category is
alt.binaries.pictures.erotica,
followed by the alt.sex discussion group.
4     One could argue, however, that the practices of logging on to the
Internet or entering a discussion group or bulletin board, constitutes
"consent," or waiver of the right to object, to whatever communications may
ensue.  The unresolved issue of consent demonstrates the difficulty of
simply
applying existing obscenity or anti-harassment law governing telephones to
all telecommunications.
5     For example, F.C.C. rules require that companies require a credit
card
for provision of services.
6     See supra note 4.
7     Although it might be argued that the basic subscription fee of
on-line
services is analogous to a telephone common carrier fee, in this case the
carrier (the service provider) is providing both the basic communications
and
the information services (i.e., the Bulletin Board). Thus the electronic
telecommunications carrier is analogous to both the telephone company and
the
dial-a-porn operator for enforcement purposes.

====================== S.314 Analysis Ends ===================

===================== What You Can Do ======================

There is a petition floating through the Internet against the above bill.
 Here
are instructions on signing the petition:

1. send an e-mail message to:  S314-petition@netcom.com

2. the message (NOT the subject heading) should read as follows:

   SIGNED <your online address> <your full name> <U.S.Citizen (y/n)>

   e.g.:  SIGNED jmrosen@aol.com  Joel M. Rosen  YES

It's that simple.  By the way, Senator Exon has just announced that he
plans
to retire after his term is up in 1996, so he may want to get this
legislation
through as his crowning achievement.  Let's deny him the pleasure!

--Joel M. Rosen
jmrosen@aol.com


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