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EFFector - Volume 8, Issue 10 - EFF Analysis of Communications Decency Act as Passed by Senate; Next Steps

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EFFector Online Volume 08 No. 10      June 16, 1995       editors@eff.org
A Publication of the Electronic Frontier Foundation        ISSN 1062-9424

IN THIS ISSUE:

EFF Analysis of Communications Decency Act as Passed by Senate
Next Steps in Opposing the Communications Decency Act
  Background
  The Latest News
  What You Can Do Now
  For More Information
  List Of Participating Organizations
Calendar of Events
Quote of the Day
What YOU Can Do
Administrivia

* See http://www.eff.org/Alerts/ or ftp.eff.org, /pub/Alerts/ for more
information on current EFF activities and online activism alerts! *

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Subject: EFF Analysis of Communications Decency Act as Passed by Senate
-----------------------------------------------------------------------

CONSTITUTIONAL PROBLEMS WITH THE COMMUNICATIONS DECENCY AMENDMENT: 
A LEGISLATIVE ANALYSIS BY THE ELECTRONIC FRONTIER FOUNDATION


INTRODUCTION

On June 14, 1995, the United States Senate approved by a vote of 84-16 an
amendment to the Senate's omnibus telecommunications-deregulation bill
that raises grave Constitutional questions and poses great risks for the
future of freedom of speech on the nation's computer-communications
forums.

Sponsored by Sen. Jim Exon (D-Nebraska), the amendment originated as an
independent bill titled Communications Decency Act of 1995 (CDA), and is
intended, according to its sponsor, both to prohibit "the [computer]
equivalent of obscene telephone calls" and to prohibit the distribution to
children of materials with sexual content.

As drafted, however, the legislation not only fails to solve the problems
it is intended to address, but it also imposes content restrictions on
computer communications that would chill First-Amendment-protected speech
and, in effect, restrict adults in the public forums of computer networks
to writing and reading only such content as is suitable for children.


SPECIFIC PROVISIONS OF THE CDA

The Communications Decency Act would change the language of Title 47,
United States Code, Section 223, a section that primarily does two things:

1) it prohibits "obscene or harassing" phone calls and other, similar,
abusive uses of the telephone, and 

2) it imposes regulation (promulgated and administered by the Federal
Communications Commission) on telephone services that provide so-called
"indecent" content and prohibits those services from providing legally
obscene content.

The amending language drafted by Sen. Exon and passed by the Senate
substantially restructures and alters the provisions of this section in an
effort to bring computer communications under the statute. If the
Senate-approved language becomes law, provisions in the amended statute
will:

(a) Expand the scope of the statute from telephones to "telecommunications
devices" (such as computers, modems, and the data servers and conferencing
systems used by Internet sites and by commercial providers like America
Online and CompuServe);

(b) Define as a criminal offense any communication that is legally obscene
or indecent if that communication is sent over a telecommunications device
"with intent to annoy, abuse, threaten, or harass another person";

(c) Penalize any person or entity who, by use of a telecommunication
device, "knowingly ... makes or makes available" any content or material
that is legally obscene; and

(d) Penalize any person or entity who "knowingly ... makes or makes
available" to a person under the age of 18 any content or material that is
"indecent."

The CDA outlines affirmative defenses for persons or entities who might
otherwise be liable under the statute's criminal provisions.

In spite of the efforts of Sen. Exon to address in this revision of his
legislation those criticisms and constitutional issues raised by earlier
drafts of it, the language of the CDA as passed by the Senate is riddled
with flaws that threaten the First Amendment rights both of online service
providers and of individual citizens.

THE CDA WOULD CRIMINALIZE CONSTITUTIONALLY PROTECTED SPEECH.

None of the CDA's prohibitions of "obscene" communications raise any
constitutional issues; it is well-settled law that obscene content is not
protected under the Constitution. In contrast, CDA's restrictions on
"indecent" speech are deeply problematic. 

What is "indecent" speech and what is its significance? In general,
"indecent" speech includes nonobscene material that deals explicitly with 
sex or that uses profane language. The Supreme Court has repeatedly 
stated that such "indecency", since it is not obscene, is Constitutionally 
protected. Further, the Court has stated that indecent communications 
cannot be banned altogether from the view of the general public -- not 
even in broadcasting, the single communications medium in which the federal
government Constitutionally holds broad powers of content control.

The section of the CDA dealing with "obscene or harassing" communications
penalizes not only the sending of "obscene" communications, but also those
that are "indecent." This prohibition of indecent content, even though
limited somewhat in application by the section's intent requirement, is
unconstitutional on its face.

In _Sable_Communications_v._FCC_ (1989), a case involving dial-in phone-sex
services, the U.S. Supreme Court held that, even though a ban on *obscenity* in
"dial-a-porn" services is constitutional, a ban on *indecency* is not.
Citing earlier holdings, the Court said that "[t]he government may not
reduce the adult population to only what is fit for children." 

What are some examples of "indecent" content? The most famous example
probably is the George Carlin comedy monologue that was the basis of the
Supreme Court case _FCC_v._Pacifica_Foundation_ (1978). In that
monologue, Carlin discusses the "Seven Dirty Words" (i.e., certain profane
language) that cannot be uttered in broadcast media. Other examples of 
"indecency" could include passages from John Updike or Erica Jong novels, 
certain rock lyrics, and Dr. Ruth Westheimer's sexual-advice column. 
Under the CDA, it would be criminal to "knowingly" publish such material 
on the Internet unless children were affirmatively denied access to it. 
It's as if the manager of a Barnes & Noble bookstore could be sent to 
jail simply because children were able to wander the store's aisles and 
search for the racy passages in a Judith Krantz or Harold Robbins novel.

The Supreme Court has consistently held, both before and after its
landmark obscenity decision in _Miller_v._California_ (1973), that while
sexual material and profane language can be regulated in some specifically
defined contexts (e.g., the FCC can require that "indecent" content in
broadcasting be limited to certain hours of the broadcasting schedule when
children are somewhat less likely to be exposed), in general indecency is 
fully protected by the First Amendment. The Court has even recognized 
that profane language may be essential to political speech, since the 
emotional power of particular words may be as important as their 
intellectual content. As  Justice Harlan commented in _Cohen_v._California_ 
(1971), a case in which a young man was prosecuted for wearing a profane 
anti-draft slogan on his jacket, "One man's vulgarity is another's lyric."

It's important to note that not every application of this part of the CDA
would be unconstitutional. If the "obscene or harassing" offense language
had been limited to instances in which the speaker intends to "threaten,"
for example, it
would have raised no constitutional problems. (A threat of blackmail or
physical violence, is not protected speech.)  But the CDA goes
beyond threats or harassment -- it criminalizes the use of "indecent" 
language even when the
speaker merely intends for his content to be "annoying," and this 
prohibition treads squarely on speakers' First Amendment rights. After
all, the First Amendment was drafted to protect offensive, annoying, and
disturbing speech -- there is little need for protection of pleasant and
uncontroversial speech, since few people feel impelled to ban it. As
Justice Douglas observed in _Terminiello_v._Chicago_ (1949), free speech
"may best serve its high purpose when it induces a condition of unrest,
creates dissatisfaction with conditions as they are, or even stirs people
to anger." For example, a citizen offended by the passage of the CDA who 
shouts an indecent comment at his U.S. Senator may very well intend to 
annoy the Senator -- nevertheless, such expression is protected under 
the First Amendment. It is constitutionally absurd that speech that would 
be protected if shouted on the street would turn the speaker into a felon 
if sent by e-mail.


BY GRANTING THE FCC REGULATORY CONTROL OVER THE CONTENT AND AVAILABILITY
OF COMPUTER COMMUNICATIONS, THE CDA VIOLATES THE FIRST AMENDMENT.

Is it constitutional for Congress to declare that computer communications
are a medium like broadcasting, where it is allowable for the FCC to
impose content-related regulations? Clearly not. Prior to Sen. Exon's
proposed changes to Section 223, the FCC has had content control over only
two specific types of communications media:

(1) broadcasting media like TV and radio (and broadcasting-related
technologies, such as cable TV), and

(2) the narrow class of telephone-based commercial services that requires
the assistance and support of government-regulated common carriers.

In all other communications media, the government has no constitutional 
authority to impose broad regulation of indecent content.

The justification for the federal government's special role in regulation
of broadcasting is twofold. The first rationale for such a broad
regulatory role was the "scarcity of frequencies" argument, which appears
in the Supreme Court's decision in _Red_Lion_Broadcasting_Co._v._FCC_
(1969). In that case, the Court held that there is a finite number of
useful broadcasting frequencies, and that the scarcity of this important
public resource entails that the airwaves be allocated and supervised by
the federal government in ways that best serve the public interest. The
second rationale for a special government role in broadcasting appears in
_FCC_v._Pacifica_Foundation_ (the "Seven Dirty Words" case discussed
above). In this case the Court argued that broadcasting is an especially
"pervasive" medium that intrudes into the privacy of the home, creating a
constant risk that adults will be exposed to offensive material, and
children to indecent material, without warning.

The justification for regulation of the telephone-based services is
grounded in the government's special role in supervising common carriers.
Since the telephone systems of this country, many of which amount to
monopolies, are common carriers, they are appropriately under the
jurisdiction of the FCC. It arguably makes sense for phone-sex services, 
which rely on the cooperation of common carriers, to fall under FCC 
jurisdiction as well.

*Neither the broadcasting rationales nor the common-carrier rationale
support government content control over computer communications.*

First, the new medium of computer-based communications -- which may
take place over everything from large-scale Internet access providers and
commercial conferencing systems to the PC-based bulletin-board system
running in a hobbyist's basement -- isn't afflicted with "scarcity."
Computing hardware itself is increasingly inexpensive, for example, and
one of the basic facts of modern computer communication is that whenever
you add a computer to the Internet, you *increase* the Internet's size and
capabilities.

Secondly, computer-based communications aren't "pervasive" as that term is
used in the Pacifica case. In the world of broadcasting, content is
"pushed" at audiences by TV and radio stations and broadcasting networks
-- audiences are primarily passive recipients of programming. In computer
communications, in contrast, content is *pulled* by users from various
locations and resources around the globe through the Internet or from the
huge data servers maintained by services like Prodigy and American Online.
Exposure to content is primarily *driven by user choice*. For users with
even minimal experience, there is little risk of unwitting exposure to
offensive or indecent material.

Finally, online service providers aren't common carriers and don't want to
be -- it is the nature of this kind of service that providers must reserve
the right to make certain basic choices about content. In contrast, a
common carrier like AT&T or BellSouth has to "take all comers." (If online
service providers were treated as common carriers, we might imagine a day
when the FCC requires that an NAACP-sponsored BBS carry racist messages
from members of the Ku Klux Klan.)

It is indisputable that the narrow constitutional justifications for 
content regulation of two specific types of media do not extend to the 
all media generally, even though all communications media -- including 
newspapers, magazines, books, films, and oral conversations -- create 
some risk that children will be exposed to indecent content. That general 
principle applies here as well:  There is no Constitutional rationale for 
extending intrusive content-regulatory control to online communications. 
This means that the CDA's "shoehorning" of online communications into the 
jurisdiction of the FCC is itself unconstitutional.

It is clear that Congress could not constitutionally grant the FCC the
power to tell The _New_Yorker_ not to print profane language -- even though
*children* might come across a copy of The _New_Yorker_. Surely it is
equally clear that Congress cannot grant the FCC the authority to dictate
how providers like Netcom and CompuServe handle content that contains such
language.


COMPUTER COMMUNICATIONS POSE DIFFERENT PROBLEMS, AND REQUIRE DIFFERENT
SOLUTIONS, FROM THOSE OF OTHER MEDIA.

Even if the federal government did have the constitutional authority to
regulate indecency in computer communications, it would be required by the
First Amendment to employ only the "least restrictive means" in doing so.
In the Sable case, the Court noted that there are less restrictive means than
a total ban for protecting children from indecent content on phone-sex
services. These include such measures as requiring various procedures to
verify customers' ages and to deny services to minors.

The Exon language creates an affirmative defense for online service
providers who implement the same types of procedures that the FCC now
requires of phone-sex services. But what works for phone-sex services
clearly would not work for computer-communications services. In this
fundamentally different medium, those FCC-enforced procedures are not a
"least restrictive means" -- in fact, they are potentially among the most
restrictive.

To take only one example: The language that penalizes anyone who "makes 
or makes available" indecent content to a minor would require an Internet
access provider like Netcom to cease carrying the virtually all of the 
"alt.sex.*" discussions forums of the distributed global conferencing system
known as Usenet. This would be true even though the great majority
of the content in those forums is First-Amendment-protected speech.

Netcom would be compelled to take such action because the affirmative
defenses proposed by the CDA would in practice function as little or no
defense at all. Suppose for example that Netcom tried to avail itself of
legal immunity for transmitting indecency by, say, limiting subscriber
access to the "indecent" Usenet newsgroups to Netcom subscribers age 18 or
over. Since Netcom, as a typical Internet access provider, is also a
Usenet distribution node, *the company would still face criminal
liability.* You see, Usenet nodes like Netcom don't just provide Usenet
content to subscribers; they also forward that content to other parts of
the Internet, and their doing so is necessary for Usenet to function. Even
if Netcom had minor-screening procedures in place for its own
subscribers, if it continued to operate as a typical Usenet distribution
node by passing "indecent" Usenet traffic through to the rest of the Net,
it would "knowingly ... make available" that indecent content to minors
elsewhere on the Net who aren't Netcom customers.

Note: this analysis is not meant to imply that *no* government
regulation of computer communications would meet the "least restrictive
means" requirement. As a practical matter, this medium is *uniquely suited*
to measures that simultaneously protect sensitive users and children from
offensive content and allow the full range of constitutionally protected
speech on the Net. Since both the computers that users employ to read the
Net and those that providers use to administer the Net are highly
intelligent and programmable devices, it is relatively easy to design
tools that individuals can use to filter offensive content and that
parents can use to screen content for their children. The government's
promotion of the development and implementation of such tools, if done in
a way consistent with First Amendment guarantees, would likely qualify as
a "least restrictive means."

Furthermore, there are constitutional reasons for favoring policies that
empower individuals and families to make their own content choices. In
_Wisconsin_v._Yoder_ (1972), the Supreme Court acknowledged that the 
right of parents to determine what is appropriate for their children is
constitutionally protected. "Filtering" software tools could be the 
fundamental means for parents to preserve family values while allowing 
their children exploring global computer networks.


ADULTS CANNOT CONSTITUTIONALLY BE LIMITED IN PUBLIC FORUMS TO READING AND 
WRITING ONLY SUCH CONTENT AS IS "SAFE" FOR CHILDREN.

The effect of the CDA's provisions regarding indecent content and minors
would be both dramatic and disastrous. If enacted, the CDA would
effectively turn all the public areas of the Net -- and all of the distributed
global conferencing system known as Usenet -- into the equivalent of the
Children's Room at the public library. Traditionally, every large public
library has a Children's Room -- a confined area of the library with
content deemed safe for children. Outside of the Children's Room, the rest
of the library is geared toward, and available to, adults.

The Exon language would turn the Net as a whole into the *inverse* of the
public library -- the Global public spaces, including Usenet, would be 
limited to Children's-Room-standard content in order to be safe for 
children. Adult users would have limit their talk about adult subjects 
(detailed discussions of sexual content in the work of James Joyce, 
explanations of Shakespeare's bawdy puns, or descriptions of proper 
techniques for safe sex, to name some examples) in confined, nonpublic
(and probably non-global) subforums or "rooms." There would be no more
wide-ranging debates with the full set of potential international
participants about the significance of _The_Satanic_Verses_ -- after all, 
that book has indecent content. We'd have to be satisfied with the narrower 
range of participants we could lure to an "adult" room on CompuServe or 
AOL -- a small group of paying subscribers rather than a large population of
discussants from commercial and noncommercial systems alike. The CDA would
diminish and perhaps destroy the intellectual diversity and vibrancy of
the Net.


CONCLUSION

The CDA represents the kind of "top-down," government-centered attempt to
regulate online content that demonstrates a lack of understanding of the
nature of this new medium. Legislative efforts like the CDA --
particularly when based on regulatory approaches designed for wholly
different media -- are certain to create more practical and constitutional
problems than they solve. It is especially ironic that the Exon amendment,
which would chill the development of online services and communities and
"dumb down" the content of the Net's public spaces to a grade-school
level, has been attached to a bill deregulating our communications
industry and infrastructure. This deregulation has been presented as a
boost to the pace of development of the very technology that supports the
current broad range of content, services, and and communities that
populate the Net -- the CDA's practical effect would be to greatly
diminish that diversity of resources that is supposed to be the principal
benefit of deregulation.

EFF believes that parents, not Congress or the FCC, have the primary 
responsibility and constitutionally protected prerogative to determine 
what is appropriate for their children to see. Furthermore, it has long been
understood that government has no general authority to make outlaws out of
adults for engaging in constitutionally protected public speech merely
because minors in public spaces might be exposed to inappropriate content.
As Supreme Court Justice Felix Frankfurter ruled in _Butler_v._Michigan_ 
(1957): "The State insists that, by thus quarantining the general reading 
public against books not too rugged for grown men and women in order to 
shield juvenile innocence, it is exercising its power to promote the general
welfare. Surely this is to burn the house to roast the pig. The incidence
of this enactment is to reduce the adult population of Michigan to
reading only what is fit for children."

And a legislative approach that was bad for the adult population of
Michigan nearly 40 years ago is surely just as bad for the adult
population of the Net today.



For More Information Contact: 

Electronic Frontier Foundation 

Mike Godwin  
Shari Steele  
+1.202.861.7700 (voice)


 ******************************************************************

COMMUNICATIONS DECENCY AMENDMENT -- FULL TEXT OF FINAL LANGUAGE PASSED BY
THE U.S. SENATE ON JUNE 14, 1995

The text of the Communications Decency Amendment, sponsored by Sen. Jim
Exon (D-Nebraska).

This language was passed by the US Senate on June 14th.

 -------------------------------------------------------

This strikes all of Title IV of S. 652 and replaces it with the following:

Sec.___ OBSCENE OR HARASSING USE OF TELECOMMUNICATIONS FACILITIES UNDER
THE COMMUNICATIONS ACT OF 1934

Section 223 (47 U.S.C. 223) is amended --

   (1) by striking subsection (a) and inserting in lieu thereof:

 ``(a) Whoever--
        ``(1) in the District of Columbia or in interstate or foreign
communications

        ``(A) by means of telecommunications device knowingly--

          ``(i) makes, creates, or solicits, and
          ``(ii) initiates the transmission of,

     any comment, request, suggestion, proposal, image, or other
communication which is obscene, lewd, lascivious, filthy, or indecent,
with intent to annoy, abuse, threaten, or harass another person;

         ``(B) makes a telephone call or utilizes a telecommunications
device, whether or not conversation or      communication ensues, without
disclosing his identity and      with intent to annoy, abuse, threaten, or
harass any person      at the called number or who receives the
communication;

          ``(C) makes or causes the telephone of another repeatedly or
continuously to ring, with intent to harass any person at the called
number; or

         ``(D) makes repeated telephone calls or repeatedly initiates
communication with a telecommunications device, during which conversation
or communication ensues, solely to harass any person at the called number
or who receives the communication; or

         ``(2) knowingly permits any telecommunications facility under his
control to be used for any activity prohibited by paragraph (1) with the
intent that it be used for such activity,

     shall be fined not more than $100,000 or imprisoned not more than two
years, or both.''; and

   (2) by adding at the end the following new subsections:

      ``(d) Whoever--

       ``(1) knowingly within the United States or in foreign
communications with the United States by means of      telecommunications
device makes or makes available any      obscene communication in any form
including any comment,      request, suggestion, proposal, image,
regardless of whether the      maker of such communication placed the call
or initiated the      communications; or

       ``(2) knowingly permits any telecommunications facility under such
person's control to be used for an activity prohibited by subsection
(d)(1) with the intent that it be used for such activity;

     shall be fined not more than $100,000 or imprisoned not more than two
years or both.

        ``(e) Whoever--

       ``(1) knowingly within the United States or in foreign
communications with the United States by means of      telecommunications
device makes or makes available      any indecent comment, request,
suggestion, proposal, image      to any person under 18 years of age
regardless of whether the maker of such communication placed      the call
or initiated the communication; or

       ``(2) knowingly permits any telecommunications facility under such
person's control to be used for an activity prohibited by paragraph (1)
with the intent that it be used for such activity,

     shall be fined not more than $100,000 or imprisoned not more than two
years or both.

        ``(f) Defenses to the subsections (a), (d), and (e),
restrictions on access, judicial remedies respecting      restrictions for
persons providing information services and      access to information
services--

        (1) No person shall be held to have violated subsections (a), (d),
or (e) solely for providing access or connection to or from a facility,
system, or network over which that person has no control, including
related capabilities which are incidental to providing access or
connection.  This subsection shall not be applicatable to an individual
controlled by, or a conspirator with, an entity actively involved in the
creation, editing or knowing distribution of communications which violate
this section.

        (2) No employer shall be held liable under this section for the
actions of an employee or agent unless the employee's or agent's conduct
is within the scope of his employment or agency and the employer has
knowledge of, authorizes, or ratifies the employee's or agent's conduct.

        (3) It is a defense to prosecution under subsection (a), (d)(2),
or (e) that a person has taken reasonable, effective and appropriate
actions in good faith to restrict or prevent the transmission of or access
to a communication specified in such subsections, or complied with
procedures as the Commission may prescribe in furtherance of this section.
Until such regulations become effective, it is a defense to prosecution
that the person has complied with the procedures prescribed by regulation
pursuant to subsection (b)(3).  Nothing in this subsection shall be
construed to treat enhanced information services as common carriage.

        (4) No cause of action may be brought in any court or any
administrative agency against any person on account of any action which in
not in violation of any law punishable by criminal penalty, which activity
the person has taken in good faith to implement a defense authorized under
this section or otherwise to restrict or prevent the transmission of, or
access to, a communication specified in this section.

         (g) no state or local government may impose any liability for
commercial activities or actions by commercial entities in connection with
an activity or action which constitutes a violation described in
subsection (a)(2), (d)(2), or (e)(2) that is inconsistent with the
treatment of those activities or actions under this section provided,
however, that nothin herein shall preclude any State or local government
from enacting and enforcing complementary oversight, liability, and
regulatory systems, procedures, and requirements so long as such
systems, procedures, and requirements govern only intrastate services and
do not result in the imposition of inconsistent rights, duties or
obligations on the provision of interstate services.  Nothing in this
subsection shall preclude any State or local government from governing
conduct not covered by this section.

         (h) Nothing in subsection (a), (d), (e), or (f) or in the
defenses to prosecution under (a), (d), or (e) shall be construed to
affect or limit the application or enforcement of any other Federal law.

         (i) The use of the term 'telecommunications device' in this
section shall not impose new obligations on (one-way) broadcast radio or
(one-way) broadcast television operators licensed by the Commission or
(one-way) cable services registered with the Federal Communications
Commission and covered by obscenity and indecency provisions elsewhere in
this Act.

         (j) Within two years from the date of enactment and every two
years thereafter, the Commission shall report on the effectiveness of this
section.

Sec. ____ OBSCENE PROGRAMMING ON CABLE TELEVISION.

        Section 639 (47 U.S.C> 559) is amended by striking "10,000" and
inserting "$100,000"

Sec. ___ BROADCASTING OBSCENE LANGUAGE ON THE RADIO.

        Section 1466 of Title 18, United States Code, is amended by
striking out "$10,00" and inserting "$100,000".

Sec. ___ SEPARABILITY

        "(a) If any provision of this Title, including amendments to this
Title or the application thereof to any person or circumstance is held
invalid, the remainder of this Title and the application of such provision
to other persons or circumstances shall not be affected thereby."

------------------------------


Subject: Next Steps in Opposing the Communications Decency Act
--------------------------------------------------------------


       CAMPAIGN TO STOP THE EXON/GORTON COMMUNICATIONS DECENCY ACT
        (SEE THE LIST OF CAMPAIGN COALITION MEMBERS AT THE END)

        Update: -The Latest News: The Senate voted to attach the
                 Communications Decency Act to the Telecom Reform bill.
                 Leahy's alternative was not attached to the Telecom
                 Reform bill.
                -What You Can Do Now


        CAMPAIGN TO STOP THE UNCONSTITUTIONAL COMMUNICATIONS DECENCY ACT
                           June 14, 1995

      PLEASE WIDELY REDISTRIBUTE THIS DOCUMENT WITH THIS BANNER INTACT
                 REDISTRIBUTE ONLY UNTIL June 25, 1995
             REPRODUCE THIS ALERT ONLY IN RELEVANT FORUMS

      Distributed by the Voters Telecommunications Watch (vtw@vtw.org)

________________________________________________________________________

CONTENTS
        Background
        The Latest News
        What You Can Do Now
        For More Information
        List Of Participating Organizations

________________________________________________________________________

BACKGROUND

The Communications Decency Act (sponsored by Sen. Exon and Gorton) would
criminalize many forms of expression on online systems.  Many believe
it to be unconstitutional, and a fight to oppose it has been waged
since its introduction.  It was recently attached to the fast-tracked
Telecommunications Deregulation bill, which is moving quickly through
Congress.

[EFF Note: The telecom "deregulation" bill passed the Senate on the 15th.]

________________________________________________________________________

THE LATEST NEWS

Right up until the last minute, callers reported weary Senatorial
staffers continued to report a deluge of incoming calls, almost all
against the Exon/Coats bill and supporting the Leahy alternative.  The
Senate debated the Exon/Coats/Gorton Communications Decency Act and the
Leahy alternative today (June 14, 1995) starting at about 3:30pm EST
for 90 minutes.

The debate was opened by Senator Exon who read a prayer to protect
against computer pornography.  Senators Exon (D-NE) and Coats (R-IN)
spoke in favor of their position.  Senator Gorton (R-WA) was
mysteriously absent from the debate.

Exon referred those that signed the petition to prevent his censorship
bill as "selfish".  Exon presented letters from many groups in support
of his bill, including the Christian Coalition, the Family Research
Council, the National Law Center for Families.  He also stated that
75% of computer owners have refused the join the Internet because the
obscene material they feared on the Internet.

Senators Byrd (D-WV) and Heflin (D-AL) cosponsored the Exon bill at
the last minute.

Senators Leahy (D-VT) and Feingold (D-WI) spoke passionately about the
First Amendment and the Internet.  Feingold warned against the dangers
of chilling free speech.  Leahy brought out the monster petition in
support of his alternative (it looks pretty impressive on television)
and proceeded to try to debunk the myths Exon promulgated about the
Internet.  He also trumpeted the success of the Internet, and pointed
out it wouldn't have been nearly as successful if the US government had
tried to micro-manage it.

Both Exon and Leahy then gave back extra debating time and went to a vote
on the bill.  The Exon bill was successfully attached to the Telecomm
Reform bill (84-16).  The Leahy alternative was not attached to the
Telecom Reform bill.

Questions and answers:

Q: What does this mean?
A: It means we lost this round.  The unconstitutional Exon Communications
   Decency Act was attached to the Telecomm Reform bill.

Q: What's the next step?
A: Next, we need to ensure that a House equivalent to the Exon
   Communications Decency Act is not attached to the House Telecomm Reform
   bill.

Q: Where can I find more information about the bill?
A: Check below.

________________________________________________________________________

WHAT YOU CAN DO NOW -- U.S. and non-U.S. citizens

1. Familiarize yourself with the version of the bill that passed,
   and the transcript of the Senate debate. (directions to obtain
   these are below)

2. Check the voting list below.  It wouldn't hurt to send a nice
   letter, email, or fax to the Senators that voted to defeat the
   Communications Decency Act.  Hateful mail to Senators who did
   not vote your way is not only *bad form*, but likely to become illegal
   soon anyway, under the Communications Decency Act.

   In other words, take some time to cool off.

3. If you don't receive Coalition alerts reliably through mail or news,
   join the mailing list by sending mail to listproc@vtw.org with
   "subscribe vtw-announce Firstname Lastname".  We'll have to fight
   this battle in the House soon and you should be informed.

4. Relax, it's not the end of the world.  We still have this battle to
   fight in the House of Representatives and then in the conference
   committee.  This is a setback, but we haven't lost yet.

________________________________________________________________________

RESULTS OF THE SENATE VOTE

Senators who voted to defeat the Communications Decency Act
(A polite letter to congratulate them for defending your free speech
 rights would be appropriate.)

      D ST Name (Party)               Phone           Fax
      = == ==================         ==============  ==============
      D CT Lieberman, Joseph I.       1-202-224-4041  1-202-224-9750
      D DE Biden Jr., Joseph R.       1-202-224-5042  1-202-224-0139
      D IL Simon, Paul                1-202-224-2152  1-202-224-0868
                                        senator@simon.senate.gov
      D IL Moseley-Braun, Carol       1-202-224-2854  1-202-224-2626
      D MA Kennedy, Edward M.         1-202-224-4543  1-202-224-2417
                                        senator@kennedy.senate.gov
      D MI Levin, Carl                1-202-224-6221  na
      D MN Wellstone, Paul            1-202-224-5641  1-202-224-8438
      D NM Bingaman, Jeff             1-202-224-5521  na
                                        Senator_Bingaman@bingaman.senate.gov
      D NY Moynihan, Daniel P.        1-202-224-4451  na
      D OH Glenn, John                1-202-224-3353  1-202-224-7983
      R RI Chafee, John H.            1-202-224-2921  na
      D VA Robb, Charles S.           1-202-224-4024  1-202-224-8689
                                        Senator_Robb@robb.senate.gov
                                        vascr@CapAccess.org
      D VT Leahy, Patrick J.          1-202-224-4242  1-202-224-3595
                                        senator_leahy@leahy.senate.gov
      R VT Jeffords, James M.         1-202-224-5141  na
      D WA Murray, Patty              1-202-224-2621  1-202-224-0238
      D WI Feingold, Russell          1-202-224-5323  na
                                        russell_feingold@feingold.senate.gov


Senators who voted to support the (CDA) Communications Decency Act
(They voted for the CDA and to curtail your free speech rights.
 Writing them an impolite and nasty letter would be a bad idea, and
 may soon be illegal under the CDA anyway.  Take some time to cool down.)

      D ST Name (Party)               Phone           Fax
      = == ==================         ==============  ==============
      R AK Murkowski, Frank H.        1-202-224-6665  1-202-224-5301
      R AK Stevens, Ted               1-202-224-3004  1-202-224-1044
      D AL Heflin, Howell T.          1-202-224-4124  1-202-224-3149
      R AL Shelby, Richard C.         1-202-224-5744  1-202-224-3416
      D AR Bumpers, Dale              1-202-224-4843  1-202-224-6435
      D AR Pryor, David               1-202-224-2353  1-202-224-8261
      R AZ Kyl, Jon                   1-202-224-4521  1-202-228-1239
      R AZ McCain, John               1-202-224-2235  1-602-952-8702
      D CA Boxer, Barbara             1-202-224-3553  na
      D CA Feinstein, Dianne          1-202-224-3841  1-202-228-3954
      R CO Campbell, Ben N.           1-202-224-5852  1-202-225-0228
      R CO Brown, Henry               1-202-224-5941  1-202-224-6471
      D CT Dodd, Christopher J.       1-202-224-2823  na
      R DE Roth Jr.  William V.       1-202-224-2441  1-202-224-2805
      D FL Graham, Robert             1-202-224-3041  1-202-224-2237
      R FL Mack, Connie               1-202-224-5274  1-202-224-8022
      D GA Nunn, Samuel               1-202-224-3521  1-202-224-0072
      R GA Coverdell, Paul            1-202-224-3643  1-202-228-3783
      D HI Akaka, Daniel K.           1-202-224-6361  1-202-224-2126
      D HI Inouye, Daniel K.          1-202-224-3934  1-202-224-6747
      D IA Harkin, Thomas             1-202-224-3254  1-202-224-7431
      R IA Grassley, Charles E.       1-202-224-3744  1-202-224-6020
      R ID Craig, Larry E.            1-202-224-2752  1-202-224-2573
      R ID Kempthorne, Dirk           1-202-224-6142  1-202-224-5893
      R IN Coats, Daniel R.           1-202-224-5623  1-202-224-8964
      R IN Lugar, Richard G.          1-202-224-4814  1-202-224-7877
      R KS Dole, Robert               1-202-224-6521  1-202-224-8952
      R KS Kassebaum, Nancy L.        1-202-224-4774  1-202-224-3514
      D KY Ford, Wendell H.           1-202-224-4343  1-202-224-0046
      R KY McConnell, Mitch           1-202-224-2541  1-202-224-2499
      D LA Breaux, John B.            1-202-224-4623  na
      D LA Johnston, J. Bennett       1-202-224-5824  1-202-224-2952
      D MA Kerry, John F.             1-202-224-2742  1-202-224-8525
      D MD Mikulski, Barbara A.       1-202-224-4654  1-202-224-8858
      D MD Sarbanes, Paul S.          1-202-224-4524  1-202-224-1651
      R ME Snowe, Olympia             1-202-224-5344  1-202-224-6853
      R ME Cohen, William S.          1-202-224-2523  1-202-224-2693
      R MI Abraham, Spencer           1-202-224-4822  1-202-224-8834
      R MN Grams, Rod                 1-202-224-3244  na
      R MO Bond, Christopher S.       1-202-224-5721  1-202-224-8149
      R MO Ashcroft, John             1-202-224-6154  na
      R MS Cochran, Thad              1-202-224-5054  1-202-224-3576
      R MS Lott, Trent                1-202-224-6253  1-202-224-2262
      D MT Baucus, Max                1-202-224-2651  na
      R MT Burns, Conrad R.           1-202-224-2644  1-202-224-8594
      R NC Faircloth, D. M.           1-202-224-3154  1-202-224-7406
      R NC Helms, Jesse               1-202-224-6342  1-202-224-7588
      D ND Conrad, Kent               1-202-224-2043  1-202-224-7776
      D ND Dorgan, Byron L.           1-202-224-2551  1-202-224-1193
      D NE Kerrey, Bob                1-202-224-6551  1-202-224-7645
      D NE Exon, J. J.                1-202-224-4224  1-202-224-5213
      R NH Gregg, Judd                1-202-224-3324  1-202-224-4952
      R NH Smith, Robert              1-202-224-2841  1-202-224-1353
      D NJ Bradley, William           1-202-224-3224  1-202-224-8567
      D NJ Lautenberg, Frank R.       1-202-224-4744  1-202-224-9707
      R NM Domenici, Pete V.          1-202-224-6621  1-202-224-7371
      D NV Bryan, Richard H.          1-202-224-6244  1-202-224-1867
      D NV Reid, Harry                1-202-224-3542  1-202-224-7327
      R NY D'Amato, Alfonse M.        1-202-224-6542  1-202-224-5871
      R OH Dewine, Michael            1-202-224-2315  1-202-224-6519
      R OK Inhofe, James              1-202-224-4721
      R OK Nickles, Donald            1-202-224-5754  1-202-224-6008
      R OR Hatfield, Mark O.          1-202-224-3753  1-202-224-0276
      R OR Packwood, Robert           1-202-224-5244  1-202-228-3576
      R PA Santorum, Rick             1-202-224-6324  na
      R PA Specter, Arlen             1-202-224-4254  1-717-782-4920
      D RI Pell, Claiborne            1-202-224-4642  1-202-224-4680
      D SC Hollings, Ernest F.        1-202-224-6121  1-202-224-4293
      R SC Thurmond, Strom            1-202-224-5972  1-202-224-1300
      D SD Daschle, Thomas A.         1-202-224-2321  1-202-224-2047
      R SD Pressler, Larry            1-202-224-5842  1-202-224-1259*
      R TN Thompson, Fred             1-202-224-4944  1-202-228-3679
      R TN Frist, Bill                1-202-224-3344  1-202-224-8062
      R TX Hutchison, Kay Bailey      1-202-224-5922  1-202-224-0776
      R TX Gramm, Phil                1-202-224-2934  1-202-228-2856
      R UT Bennett, Robert            1-202-224-5444  1-202-224-6717
      R UT Hatch, Orrin G.            1-202-224-5251  1-202-224-6331
      R VA Warner, John W.            1-202-224-2023  1-202-224-6295
      R WA Gorton, Slade              1-202-224-3441  1-202-224-9393
      D WI Kohl, Herbert H.           1-202-224-5653  1-202-224-9787
      D WV Byrd, Robert C.            1-202-224-3954  1-202-224-4025
      D WV Rockefeller, John D.       1-202-224-6472  na
      R WY Simpson, Alan K.           1-202-224-3424  1-202-224-1315
      R WY Thomas, Craig              1-202-224-6441  1-202-224-3230

________________________________________________________________________

FOR MORE INFORMATION

We will be archiving the version of the Communications Decency Act
that passed, the roll call vote that went with it, and the transcript
of the Senate debate.

We will make these available through the methods below as soon as
they are available through the Government Printing Office (this usually
takes about 24 hours).  Please try to use the Web or Gopher sites first
before using our email server.

Web Sites
        URL:http://www.panix.com/vtw/exon/
        URL:http://epic.org/
        URL:http://www.eff.org/pub/Alerts/
        URL:http://www.cdt.org/cda.html

FTP Archives
        URL:ftp://ftp.cdt.org/pub/cdt/policy/freespeech/00-INDEX.FREESPEECH
        URL:ftp://ftp.eff.org/pub/Alerts/

Gopher Archives:
        URL:gopher://gopher.panix.com/11/vtw/exon
        URL:gopher://gopher.eff.org/11/Alerts

Email:
        vtw@vtw.org (put "send help" in the subject line)
        cda-info@cdt.org (General CDA information)
        cda-stat@cdt.org (Current status of the CDA)

________________________________________________________________________

LIST OF PARTICIPATING ORGANIZATIONS

In order to use the net more effectively, several organizations have
joined forces on a single Congressional net campaign to stop the
Communications Decency Act.


American Civil Liberties Union * American Communication Association *
American Council for the Arts * Arts & Technology Society * Association
of Alternative Newsweeklies * biancaTroll productions * Californians
Against Censorship Together * Center For Democracy And Technology *
Centre for Democratic Communications * Center for Public Representation
* Citizen's Voice - New Zealand * Computer Communicators Association *
Computer Professionals for Social Responsibility * Cross Connection *
Cyber-Rights Campaign * CyberQueer Lounge * Dutch Digital Citizens'
Movement * Electronic Frontier Canada * Electronic Frontier Foundation
* Electronic Frontier Foundation - Austin * Electronic Frontiers
Australia * Electronic Frontiers Houston * Electronic Frontiers New
Hampshire * Electronic Privacy Information Center * Feminists For Free
Expression * First Amendment Teach-In * Florida Coalition Against
Censorship * Friendly Anti-Censorship Taskforce for Students * Hands
Off! The Net * Human Rights Watch * Inland Book Company * Inner Circle
Technologies, Inc. * Inst. for Global Communications * Internet
On-Ramp, Inc. * The Libertarian Party * Marijuana Policy Project *
Metropolitan Data Networks Ltd. * MindVox * National Bicycle Greenway *
National Coalition Against Censorship * National Public Telecomputing
Network * National Writers Union * Oregon Coast RISC * Panix Public
Access Internet * People for the American Way * Rock Out Censorship *
Society for Electronic Access * The Thing International BBS Network *
The WELL * Voters Telecommunications Watch

(Note: All 'Electronic Frontier' organizations are independent entities,
 not EFF chapters or divisions.)

________________________________________________________________________

        End Alert

------------------------------


Subject: Calendar of Events
---------------------------

This schedule lists EFF events, and those we feel might be of interest to
our members.  EFF events (those sponsored by us or featuring an EFF speaker)
are marked with a "*" instead of a "-" after the date.  Simlarly, government
events, such as deadlines for comments on reports or testimony submission, are
marked with "!" in place of the "-" after the date.

If you know of an event of some sort that should be listed here, please
send info about it to Stanton McCandlish (mech@eff.org)

The latest full version of this calendar, which includes material for
later in the year as well as the next couple of months, is available from:

ftp: ftp.eff.org, /pub/EFF/calendar.eff
gopher: gopher.eff.org, 1/EFF, calendar.eff
http://www.eff.org/pub/EFF/calendar.eff


Updated: Jun. 13, 1995


1995
----


June 17-
     19 - NECC'95: Emerging Technologies and Lifelong Learning: 16th Annual
          National Educational Computing Conf., sponsored by International
          Society for Technology in Education; Baltimore, Maryland.
          VP Gore and Sec'y. of Labor Robert Reich invited as keynote
          speakers. Other speakers include: John Phillipo (CELT), Frank
          Knott (MGITB)
          Contact: +1 503 346 2834 (voice), +1 503 346 5890 (fax)
          Email: necc95@ccmail.uoregon.edu

June 18-
     21 - ED-MEDIA'95; Graz, Austria. A world conference on educational
          multimedia and hypermedia. Sponsor: The Association for the
          Advancement of Computing.
          Contact: +1 804 973 3987 (voice)
          Email: aace@virginia.edu.

June 24-
     28 - Workshop on Ethical & Professional Issues in Computing;
          Rensselaer Polytechnic Inst., Troy, NY. Deadline for submissions:
          Apr. 15.
          Contact: +1 518 276 8503 (voice), +1 518 276 2659 (fax)
          Email: cherkt@rpi.edu

June 27-
     29 - Women in Technology Conference: Channels for Change; Santa Clara
          Conv. Ctr., Santa Clara, Calif.  Speakers include: Gloria Steinem.
          Sponsored by Int'l. Network of Women in Technology (WITI).
          Contact: +1 818 990 1987 (voice), +1 818 906 3299 (fax)
          Email: witi@crl.com

June 28-
     30 - INET '95 Internet Society 5th Ann. International Networking
          Conf.; Honolulu, Hawaii.  Sponsored by Internet Society (ISoc).
          See Jan. 13 for proposal deadline
          Contact: +1 703 648 9888 (voice)
          FTP: ftp.isoc.org, /isoc/inet95/
          Gopher: gopher.isoc.org, 1/isoc/inet95
          WWW: http://www.isoc.org/inet95.html
          Email: inet95@isoc.org

July 5-
     7  - Key Players in the Introduction of Information Technology: Their
          Social Responsibility & Professional Training; Namur, Belgium.
          Sponsored by CREIS.
          Email: nolod@ccr.jussieu.fr, clobet@info.fundp.ac.be

July 5-
     8  - Alliance for Community Media International Conference and Trade
          Show. [See Jan. 31 for proposal submission deadline info].
          Contact: Alliance c/o MATV, 145 Pleasant St., Malden, MA 02148
          Fax: (617) 321-7121; Voice: Rika Welsh (617) 321-6400
          Email: matv@world.std.com

July 5-
     8  - 18th International Conf. on Research & Development in Information
          Retrieval; Sheraton Hotel, Seattle, Wash.
          Email: sigir95@u.washington.edu

July 6-
     7  ! Interoperability & the Economics of Information Infrastructure;
          Freedom Forum, Rosslyn, Virginia.  IITF/NSF/Harvard/FFMSC joint
          workshop to "analyze and evaluate economic incentives and
          impediments to achieving interoperability in the National
          Information Infrastructure.  The goal is to help agencies,
          associations, the Administration, and the Congress to develop
          sound policies for realizing the vision of a seamless,
          interoperating NII. Deadline for proposals: Mar. 17.  Deadline
          for submissions: June 15.
          Contact: +1 617 495 8903 (voice), +1 617 495 5776 (fax)
          Email: kahin@harvard.edu

July 11-
     15 - '95 Joint International Conference: Association for Computers and
          the Humanties, and Association for Literacy and Linguistic
          Computing; UCSB, Santa Barbara, Calif. Will highlight the
          development of new computing methodologies for research and
          teaching in the humanities
          Contact:  Eric Dahlin, +1 805 687 5003 (voice)
          Email: hcf1dahl@ucsbuxa.ucsb.edu

July 22-
     26 - Syllabus'95; Sonoma State U., Rohnert Park, Calif.
          "The premier conference covering the use of technology in the
          curriculum"
          Contact: 1-800-773-0670 (voice, US-only), +1 408 746 200 (voice,
          elsewhere)
          Email: syllabus@netcom.com

------------------------------


Subject: Quote of the Day
-------------------------

"This is nothing less than thought control."
  - Constitutional law scholar Lawrence Tribe, on the U.S. government's
    crusade against "indecency".

Find yourself wondering if your privacy and freedom of speech are safe 
when bills to censor the Internet are swimming about in a sea of of 
surveillance legislation and anti-terrorism hysteria?  Worried that in 
the rush to make us secure from ourselves that our government 
representatives may deprive us of our essential civil liberties? 

Join EFF!

Even if you don't live in the U.S., the anti-Internet hysteria will soon 
be visiting a legislative body near you.

------------------------------


Subject: What YOU Can Do
------------------------

* The Exon Bill (Communications Decency Act)

The Communications Decency Act poses serious threats to freedom of
expression online, and to the livelihoods of system operators.  

Business/industry persons concerned should alert their corporate govt.
affairs office and/or legal counsel.  Everyone should write to their own
Representatives and ask them to support the "Child Protection, User
Empowerment, and Free Expression in Interactive Media Study Act, sponsored
by Rep. Ron Klink (D-PA), currently attached to the House telecom reform 
bill, and to oppose any Internet censorship legislation, such as 
the Communications Decency Act (HR1004).  Explain, quickly, clearly and 
politely, why you feel the Klink/Leahy language is a good alternative to
censorship measure which threatend First Amendment rights.

S.652, the Senate telecom deregulation bill, now contains Sen. Exon's
"Communications Decency Act" (formerly S.314.), and was passed a few days 
ago in a landslide vote.

For more information on what you can do to help stop this and other 
dangerous legislation, see:

ftp.eff.org, /pub/Alerts/
gopher.eff.org, 1/Alerts
http://www.eff.org/pub/Alerts/

If you do not have full internet access, send your request
for information to ask@eff.org.


* Find Out Who Your Congresspersons Are

Writing letters to, faxing, and phoning your representatives in Congress
is one very important strategy of activism, and an essential way of
making sure YOUR voice is heard on vital issues.

EFF has lists of the Senate and House with contact information, as well
as lists of Congressional committees. These lists are available at:
ftp.eff.org, /pub/Activism/Congress_cmtes/
gopher.eff.org, 1/EFF/Issues/Activism/Congress_cmtes
http://www.eff.org/pub/Activism/Congress_cmtes/

The full Senate and House lists are senate.list and hr.list, respectively.
Those not in the U.S. should seek out similar information about their
own legislative bodies.  EFF will be happy to archive any such
information provided.  If you do not know who your Representatives are, 
you should contact you local League of Women Voters, who typically maintain
databases that can help you find out.


* Join EFF!

You *know* privacy, freedom of speech and ability to make your voice heard
in government are important. You have probably participated in our online
campaigns and forums.  Have you become a member of EFF yet?  The best way to
protect your online rights is to be fully informed and to make your
opinions heard.  EFF members are informed and are making a difference.  Join
EFF today!

For EFF membership info, send queries to membership@eff.org, or send any
message to info@eff.org for basic EFF info, and a membership form.

------------------------------


Administrivia
=============

EFFector Online is published by:

The Electronic Frontier Foundation
1667 K St. NW, Suite 801
Washington DC 20006-1605 USA
+1 202 861 7700 (voice)
+1 202 861 1258 (fax)
+1 202 861 1223 (BBS - 16.8k ZyXEL)
+1 202 861 1224 (BBS - 14.4k V.32bis)
Membership & donations: membership@eff.org
Legal services: ssteele@eff.org
Hardcopy publications: pubs@eff.org
General EFF, legal, policy or online resources queries: ask@eff.org

Editor: 
Stanton McCandlish, Online Services Mgr./Activist/Archivist (mech@eff.org)

This newsletter printed on 100% recycled electrons.

Reproduction of this publication in electronic media is encouraged.  Signed
articles do not necessarily represent the views of EFF.  To reproduce
signed articles individually, please contact the authors for their express
permission. Press releases and EFF announcements may be reproduced individ-
ually at will.

To subscribe to EFFector via email, send message body of "subscribe
effector-online" (without the "quotes") to listserv@eff.org, which will add
you to a subscription list for EFFector.

Back issues are available at:
ftp.eff.org, /pub/EFF/Newsletters/EFFector/
gopher.eff.org, 1/EFF/Newsletters/EFFector
http://www.eff.org/pub/EFF/Newsletters/EFFector/

To get the latest issue, send any message to effector-reflector@eff.org (or
er@eff.org), and it will be mailed to you automagically.  You can also get
the file "current" from the EFFector directory at the above sites at any 
time for a copy of the current issue.  HTML editions available at:
http://www.eff.org/pub/EFF/Newsletters/EFFector/HTML/ 
at EFFweb.

------------------------------





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