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EFFector - Volume 8, Issue 4 - Dept. of Justice Opposes Exon Bill - But Calls for Replacement


EFFector - Volume 8, Issue 4 - Dept. of Justice Opposes Exon Bill - But Calls for Replacement

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EFFector Online  Volume 08 No. 04       May 6, 1995
A Publication of the Electronic Frontier Foundation        ISSN 1062-9424

In This Issue:
Dept. of Justice Opposes Exon Bill - But Calls for Replacement
A Note About This Newsletter
Calendar of Events
What YOU Can Do

* See or, /pub/Alerts/ for more
information on current EFF activities and online activism alerts! *


Subject: Dept. of Justice Opposes Exon Bill - But Calls for Replacement

Below is a letter from the Justice Department in response to (D-VT) Sen. Pat 
Leahy's recent enquiry regarding the DoJ's position on the Exon/Gorton 
Communications Decency Act.  The CDA was recently folded into larger 
Senate telecom deregulation bill S. 652, after significant but 
insufficient amendment to reduce system operator liability.  The House 
version of the bill, still in its original form, remains a separate bill,
H.R.1004, whose sponsor appears to have had second thoughts and has 
called for slowing the bill down.

As grassroots, and especially online, activists and concerned citizens 
continue to raise serious doubts about this bill, and as organizations 
like EFF, Voters' Telecommunications Watch, the Center for Democracy and 
Technology, and dozens of others, work to derail it, the following letter 
comes as a pleasant surprise for the most part.

The Department of Justice maintains first and foremost that the bill will
greatly harm law enforcement's efforts against obscenity and sexual abuse 
of minors, in a number of ways.  Most of these flaws in the bill are due 
to imprecise application of terms like "digital" and insufficient 
consideration of the effects that supposedly minor changes to one section of 
the telecommunications regulations have on other sections, their enforcement
and their interpretation by the courts.

However, and to their credit, the DoJ has also identified four distinct 
and serious threats to privacy posed by the CDA.  Besides making it 
easier for system crackers to evade detection, Sen. Exon's legislation 
would also negate the "exclusionary rule" of 18 USC section 2515, 
reducing the privacy protections of phone calls in one way, and 
additionally weaken this privacy by introducing a loophole into the 
wiretap statute that would broadly allow monitoring by anyone of private 
voice communications.  The Department further warns that one section of the 
bill  "would encourage intrusion by on-line service providers into the 
private electronic mail communications of individual users. [The section]
actually promotes intrusions into private electronic mail by making it 
'safer' to monitor private communications than to risk liability. At the 
same time, [the section] would defeat efforts by the government to 
enforce federal privacy protections against illegal eavesdropping."

Not all is sunshine however, and those concerned about civil liberties online
should keep one eye open for a replacement bill in the not too distant 
future.  The Acting Assistant Attorney General notes that "While we agree 
with the goal of various legislative proposals designed to keep obscenity 
and child pornography off of the information superhighway, we are 
currently developing a legislative proposal that will best meet these 
challenges and provide additional prosecutorial tools. This legislative 
package is being developed while taking into consideration the need to 
protect fundamental rights guaranteed by the First Amendment."

Needless to say, many of us will remain skeptical.


Department of Justice Letter to Sen. Leahy

May 3, 1995

Honorable Patrick J. Leahy
United States Senate
Washington, DC  20510

I write to respond to your letter of March l, 1995 concerning our 
prosecution of violations of federal child pornography and obscenity laws 
and your April 21, 1995 request for the views of the United States 
Department of Justice on the "Communications Decency Act," which has been 
incorporated as title IV of the proposed "Telecommunications Competition 
and Deregulation Act of 1995," S. 652. In accordance with your request, 
the analysis of the Communications Decency Act focuses on sections 402 
and 405 of the bill.

The Department's Criminal Division has, indeed, successfully prosecuted 
violations of federal child pornography and obscenity laws which were 
perpetrated with computer technology. In addition, we have applied
current law to this emerging problem while also discovering areas where 
the new technology may present challenges to successful prosecution. 
While we agree with the goal of various legislative proposals designed to 
keep obscenity and child pornography off of the information superhighway, 
we are currently developing a legislative proposal that will best meet 
these challenges and provide additional prosecutorial tools. This 
legislative package is being developed while taking into consideration 
the need to protect fundamental rights guaranteed by the First Amendment.

With respect to the communications Decency Act, while we understand that 
section 402 is intended to provide users of online services the same 
protection against obscene and harassing communications afforded to 
telephone subscribers, this provision would not accomplish that goal. 
Instead, it would significantly thwart enforcement of existing laws 
regarding obscenity and child pornography, create several ways for 
distributors and packagers of obscenity and child pornography to avoid 
criminal liability, and threaten important First Amendment and privacy 

Similarly, while we understand that section 405 of this bill is intended 
to expand privacy protections to "digital" communications, such 
communications are already protected under existing law. Moreover, this 
provision would have the unintended consequences of jeopardizing law 
enforcement's authority to conduct lawful, court-ordered wiretaps and 
would prevent system administrators from protecting their systems when 
they are under attack by computer hackers.

Despite the flaws in these provisions, the Administration applauds the 
primary goal of this legislation: prevent obscenity from being widely 
transmitted over telecommunications networks to which minors have access. 
However, the legislation raises complex policy issues that merit close 
examination prior to Congressional action. We recommend that a 
comprehensive review be undertaken of current laws and law enforcement 
resources for prosecuting online obscenity and child pornography, and the 
technical means available to enable parents and users to control the 
commercial and non commercial communications they receive over 
interactive telecommunications systems.

The following are the Department's primary objections to sections 402 and 
405 of the pending telecommunication bill:

First, Section 402 of the bill would impose criminal sanctions on the
transmission of constitutionally protected speech. Specifically, 
subsections 402(a)(1) and (b)(2) of the bill would criminalize the 
transmission of indecent communications, which are protected by the First 
Amendment. In _Sable Communications of Cal. v. FCC_, 492 U.S. 115 (1989), 
the Supreme Court ruled that any restrictions on the content of protected 
speech in media other than broadcast media must advance a compelling 
state interest and be accomplished by the "least restrictive means." 8y 
relying on technology relevant only to 900 number services, section 402 
fails to take into account less restrictive alternatives utilizing 
existing and emerging technologies which enable parents and other adult 
users to control access to content.

Nearly ten years of litigation, along with modifications of the 
regulations, were necessary before the current statute as applied to 
audiotext services, or "dial-a-porn" calling numbers, was upheld as 
constitutional. See _Dial Information Services v. Thornburg_, 938 F. 2d 
1535 (2d Cir. 1991). The proposed amendment in section 40-2 of the bill 
would jeopardize the enforcement of the existing dial-a-porn statute by 
inviting additional constitutional challenges, with the concomitant 
diversion of law enforcement resources.

Second, the definition of "knowingly" in section 402 of the bill would 
cripple obscenity prosecutions. Under subsection 402(e), only those 
persons with "actual knowledge" of the "specific content of the 
communication" could be held criminally liable. This definiition would, 
make it difficult, if not impossible, to prove guilt, and the standard is 
higher than the prevailing knowledge requirements under existing 
obscenity and child sexual exploitation statutes. Under _Miller v. 
California_, 413 U.S. 629 (1973j, the government must only prove that a 
person being prosecuted under an obscenity statute had knowledge of the 
general nature of the material being distributed. Large-scale 
distributors of child pornography and other obscene materials--among the 
most egregious violators -- do not read or view each obscene item they 
distribute. the proposed definition in subsection 402(e) would make it 
nearly impossible for the government to establish the necessary knowledge 
requirement and would thereby severely handicap enforcement of existing 

Third, section 402 would add new terms and defenses that would thwart 
ongoing enforcement of the dial-a-porn statute. Currently, the government 
is vigorously enforcing the existing dial-a-porn statute. It took more 
than ten years for the government to be able to do so, due to 
constitutional challenges. The proposed amendment to this statute 
fundamentally changes its provisions and subjects it to renewed 
constitutional attack which would hinder current enforcement efforts.

Fourth, section 402 would do significant harm by inserting new and 
sweeping defenses that may be applied to nullify existing federal 
criminal statutes. The government currently enforces federal criminal 
laws preventing the distribution over computer networks of obscene and 
other pornographic material that is harmful to minors (under 18 U.S.C. 
section 1465, 2252 * 2423 (a)), the illegal solicitation of a minor by 
way of a computer network (under 18 U.S.C. section 2252), and illegal 
"luring" of a minor into sexual activity through computer conversations 
(under 18 U.S.C. section 2423(b)). These statutes apply to all methods of 
"distribution" including over computer networks. The new defenses 
proposed in subsection 402(d) would thwart ongoing government obscenity 
and child sexual exploitation prosecutions in several important ways:

* The first defense under subsection 402 (d)(1) would immunize from 
prosecution "any action" by a defendant who operates a computer bulletin 
board service as an outlet for the distribution of pornography and 
obscenity so long as he does not create or later the material [sic]. In 
fact, this defense would establish a system under which distributors of 
pornographic material by way of computer would be subject to fewer 
criminal sanctions than distributors of obscene videos, books, or magazines.

* The second defense provided in subsection 402(d)(2) would exculpate 
defendants who "lacked editorial control over the communications." Such a 
defense may significantly harm the goal of ensuring that obscene or 
pornographic material is not available on the Internet or other computer 
networks by creating a disincentive for operators of public bulletin 
board services to control postings on their boards.

Moreover, persons who provide critical links in the pornography and 
obscenity distribution chains by serving as "package fulfillment centers" 
filling orders for obscene materials, could assert the defense that they 
lack the requisite "editorial control." This proposed defense would 
complicate prosecutions of entire obscenity distribution chains.

* The third defense provided in subsection 402 (d)(3), containing five 
subparts, would be available to pornographic bulletin boards operators 
who take such innocuous steps as (A) directing users to their "on/off" 
switches on their computer as a "means to restrict access" to certain 
communications; (B) warning, or advertising to, users that they could 
receive obscene material; and (C) responding to complaints about such 
minimum, [sic] this proposed defense would lead to litigation over whether 
such actions constitute "good faith" steps to avoid prosecution for
violating the section 402, and could thwart existing child pornography 
and obscenity prosecutions.

* The fourth defense provided in subsection 402 (d)(4) would exculpate 
defendants whose pornography business does not have the "predominate 
purpose" of engaging in unlawful activity. This defense would severely 
undercut law enforcement's efforts to prosecute makers and distributors 
of noncommercial pornography and obscenity.

* The fifth defense provided in subsection 402 (d)(5) would preclude any 
cause of action from being brought against any person who has taken good 
faith steps to, _inter_alia_, "restrict or prevent the transmission of, 
or access to," a communication deemed unlawful under section 402. This 
defense would encourage intrusion by on-line service providers into the 
private electronic mail communications of individual users. The defense 
actually promotes intrusions into private electronic mail by making it 
"safer" to monitor private communications than to risk liability. At the 
same time, this defense would defeat efforts by the government to enforce 
federal privacy protections against illegal eavesdropping.

Finally, but no less significantly, section 405 amends the federal 
wiretap statute in several respects, each of which creates considerable 
problems. First, it amends the wiretap statute to add the term "digital" 
to 10 USC section 2511 (see footnote #1), without considering the effect 
of this amendment on other statutory provisions. For example, 10 USC 
section 2516 (1) provides that certain government officials may authorize 
an application for a wiretap order for wire or oral communications while 
18 USC section 2516 (3) provides that other government officials may 
authorize an application for a wiretap order for electronic 
communications. Since section 405 does not amend 10 USC section 2516, to 
include the term "digital," it would appear that _no_ government official 
has the authority to authorize an application for a wiretap order for 
digital communications. This is particularly problematic, since this 
investigative tool is reserved for the most serious cases, including 
those involving terrorists, organized crime, and narcotics.

Equally disconcerting, the amendment serves to protect computer hackers 
at the expense of all users of the National Information Infrastructure 
(NII), including businesses, government agencies and individuals. Prior 
to 1994, wiretap statute allowed electronic communication services 
providers to monitor _voice_ communications to protect their systems from 
abuse. 18 USC section 2511 (2)(a)(i) (1986 version). Thus, when hackers 
attacked computer systems and system administrators monitored these 
communications, they had no clear statutory authority to do so. In 
October 1994, Congress finally remedied this defect by amending 10 USC 
section 2511 (2)(a)(i) to permit the monitoring of electronic (i.e., 
digital, non-voice) communications. If section 405 is enacted and these 
hacker communications are deemed digital, system administrators will 
once again be denied the statutory authority to monitor hacker 
communications. It would be most unfortunate if, at the same time 
Congress is encouraging the widespread use of the NII, it passed a law 
giving system administrator's a Hobson's choice: either allow hackers to 
attack systems unobserved or violate federal law.

There are three other concerns as well. First, by adding the term 
"digital" without amending the suppression provisions of 18 USC section 
2515, voice communications -- if they are deemed "digital" -- will no 
longer be protected by the statute's exclusionary rule. This would serve 
to reduce the privacy protections for phone calls.

Second, section 405 would replace the words "oral communication" with 
"communication" in 18 USC section 2511 (l)(B). This would have 
undesirable consequences for law enforcement because it would criminalize 
the interception of communications as to which there was no reasonable 
expectation of privacy (see footnote #2).
From the law enforcement perspective, there is simply no sound reason for 
eliminating this highly desirable feature of present law. Additionally, 
the amendment might also impact upon the news gathering process. For 
example, if the conversation of two individuals shouting in a hotel room 
were recorded by a news reporter standing outside the room, the reporter 
would, under section 405, be violating the wiretap statute. Under current 
law, of course, the individuals could not complain about the recording 
because, by shouting loud enough to be heard outside the room, they lack 
any reasonable expectation of privacy.

Last, the provision in section 402 (d)(5) provides that "no cause of 
action may be brought in any court ... against any person on account of 
any action which the person has taken in good faith to implement a 
defense authorized under this section ...." This would seem to suggest 
that any person can freely engage in electronic surveillance otherwise 
prohibited under Title III- so long as they claim to be implementing a 
section 402 defense. As such, section 402 (d)(5) severely weakens the 
privacy protections currently offered by the wiretap statute.

In sum, sections 402 and 405 of the bill would hamper the government's 
ongoing work in stopping the dissemination of obscenity and child 
pornography and threaten law enforcement's continued ability to use 
court-authorized wiretaps. We believe that a comprehensive review be 
undertaken [sic] to guide response to the problems that the Communications 
Decency Act seeks to address.

I assure you that the Department is aware of the growing use of computers 
to transmit and traffic obscenity [sic] and child pornography. The Criminal 
Division's Child Exploitation and Obscenity Section is aggressively 
investigating and prosecuting the distribution of child pornography and 
obscenity through computer networks, and the use of computers to locate 
minors for the purpose of sexual exploitation. As we have discussed with 
your staff in a meeting focused on these issues, we remain committed to 
an aggressive effort to halt the use of computers to sexually exploit 
children and distribute obscenity.



Kent Markus
Acting Assistant Attorney General


(1) It should be noted that "digital" communications are already covered 
by the wiretap statute. Under current law, a "digital" communication is 
either a wire communication under 18 USC sec 2510 (1) (if it contains 
voice) or an "electronic communication" under 18 USC sec 2510 (12) (if it 
does not contain voice). Since such communications are already covered, 
the reason for enacting section 405 is unclear, and it is difficult to 
predict how the courts will interpret the amendment.

(2) The definition of "oral communication" in 18 USC sec 2510 (2) 
contains a requirement that the communication to be protected must have 
been made under circumstances justifying an expectation of privacy.

[End of DoJ document.]


Subject: A Note About This Newsletter

To better serve our members and the interested public, EFF will be 
releasing its newsletter more frequently.  This has the dual benefit of 
getting news to you faster, and keeping the size of the newsletter small
and easier to digest in these times of "information overload".

If you have comments or questions about this newsletter or EFF in 
general, please send them to (Stanton McCandlish).


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 (

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:, /pub/EFF/calendar.eff
gopher:, 1/EFF, calendar.eff

Updated: May 6, 1995

May  7-
     11 - Assoc. for Computing Machinery Conf. on Computer-Human Interaction
          (CHI95); Denver, Colorado.
          Contact: +1 410 263 5382 (voice)

May  8-
     10 - IEEE Symposium on Security & Privacy, Oakland, Calif.

May  14-
     17 - Interactive95; Anaheim, Calif. "The leading forum for developers
          and users of multimedia learning technology".
          Contact: 1-800-348-7246 (voice, US-only), +1 617 393 3344 (voice,

May  16 * Networking the World Conf.; Virginia Commonwealth U., Richmond, VA.
          Legal issues panel includes Shari Steele (EFF)

May  17-
     20 - National Public Telecomputing Network 1995 Conf. (Free-Net '95);
          Computing Commons Bldg., ASU, Tempe, Arizona.
          Includes a session entitled "Laws and Liabilities of Electronic 

May  22-
     24 - ErgoCon '95 - Silicon Valley Ergonomics Conference & Exposition;
          San Jose, Calif.
          Contact: Abbas Moallem, +1 408 9244132 (voice), +1 408 924 4153 (fax)

May  26-
     28 - Virtual Futures 1995; U. of Warwick, Coventry, UK.  VF'95 "is an 
          interdisciplinary event that examines the role of cybernetic 
          and specifically dissipative or non-linear models in the arts,  
          sciences, and philosophy. The conference explores the relationship
          between postmodern philosophy and chaos theory, with topics 
          ranging from: information  technology, hypertext and
          multimedia applications...[to] neural nets, and nanotechnology."
          Speakers include: Kathy Acker, Hakim Bey, Richard Kadrey, Manuel
          DeLanda, Alan Sondheim and many more.  Deadline for proposals:
          Mar. 1 '95.
          Contact: +44 0203 523523 x2582 (voice), +44 0203 523019 (fax)

May  31 - Deadline for paper submissions, 11th Ann. Computer Security 
          Applications Conference (see Dec. 11, below).

June 4-
     6  - Cyber.Xpo.95; Sahara Hotel, Las Vegas, Nevada; sponsored by 
          _Sysop_News_. Seminar sessions & tradeshow.
          Contact: +1 614 452 4541 (voice)

June 5-
     6  ! 5th Annual "U.S. Copyright Office Speaks" Seminar (West Coast);
          the Beverly Hilton, Los Angeles, Calif.  Topics include: inside 
          look at New Register's agenda, analysis of NII legislation, 
          ACCORD update, & international developments. (See May 1-2 for 
          East Coast event.)
          Contact: +1 201 894 8260 (voice)

June 7-
     9  - Third International Conference on Artificial Intelligence
          Applications on Wall Street; Pace University, New York City, NY.
          Contact: +1 914 763 8820 (voice), +1 914 763 9324 (fax)

June 8-
     10  - Exploring the VideoClass Alternative; Raleigh, N. Carolina.

June 11-
     14 - Society & the Future of Computing (SFC'95); Tamarron Lodge, 
          Durango, Colorado.  Sponsored by the Assoc. for Computing 
          Machinery, LANL, U. of Md., IEEE. Speakers will include Phil Agre 
          (UCSD), Leslie Sandberg (Institute for Telemedicine), Wm. 
          Halverson (PacBell), Don Norman (Apple), Linda Garcia 
          (Congressional Office of Technology Assessment), John 
          Cherniavsky (Natl. Science Found.) and several others.

June 13-
     15 - IDT 95 - 12th Congress on Information Markets and Industries;
          Paris, France.  Organized by ADBS (a society of information
          professionals), ANRT (National Association of Technological
          Research), and GFII (French association of information industries).
          Contact: +33 1 43 72 25 25 (voice), +33 1 43 72 30 41 (fax)

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)

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)

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)

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)

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:, /isoc/inet95/
          Gopher:, 1/isoc/inet95 


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.  The
legislation also undermines several crucial privacy protections.

Business/industry persons concerned should alert their corporate govt. 
affairs office and/or legal counsel.  Everyone should write to their own 
Senators and ask them to oppose this bill.  Explain, quickly and 
clearly, why this bill is dangerous, and urge efforts to stop this 
legislation or remove it from the larger bill it is a part of.

S.652, the Senate telecom deregulation bill, now contains Sen. Exon's 
"Communications Decency Act" (formerly S.314.)  The House version, even 
more dangerous to system operators, is H.R.1004.

For more information on what you can do to help stop this dangerous 
legislation, see:, /pub/Alerts/s314_hr1004_s652.alert, 1/Alerts, s314_hr1004_s652.alert

If you do not have full internet access, send a request for this action 
alert to

* Find Out Who Your Congresspersons Are

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

* Join EFF!

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



EFFector Online is published by:

The Electronic Frontier Foundation
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Hardcopy publications:
General EFF, legal, policy or online resources queries:

Editor: Stanton McCandlish, Online Services Mgr. (

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
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ually at will.

To subscribe to EFFector via email, send message body of "subscribe
effector-online" (without the "quotes") to, which will add
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Back issues are available at:, /pub/EFF/Newsletters/EFFector/, 1/EFF/Newsletters/EFFector

To get the latest issue, send any message to (or, and it will be mailed to you automagically.  You can also get
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time for a copy of the current issue.  HTML editions available in the HTML
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