Exon Amendment Passes the Senate

by Charles A. Gimon


Is the party over?

On Wednesday, June 14, 1995, the U.S. Senate passed the Exon/Coats Amendment to the Telecommunications Reform Act (S. 652) by a vote of 84-16, which would punish users of the Internet for saying things that are "obscene" or "indecent".

Sen. Patrick Leahy, Democrat of Vermont, had proposed an alternative amendment, which would call for a Justice Dept. study of "obscenity on computer networks" (S. 1288), but Sen. James Exon, Democrat of Nebraska, got his original amendment passed as an amendment to Leahy's amendment. (The original "Exon Amendment" was S. 316; the final bill number ended up being S. 1362.)

Here's what the so-called Communications Decency Act would put into law. Anyone who "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, or image regardless of whether the maker of such communication placed the call or initiated the communications; or knowingly permits any telecommunications facility under such person's control to be used for [the same] shall be fined not more than $100,000 or imprisoned not more than two years or both."

Likewise, anyone who makes any "indecent" communication to anyone under 18 years old on the Internet would face the same penalties. Later subsections say that employers aren't responsible for their employees unless they're "an entity actively involved in the creation, editing or knowing distribution of communications which violate this section," and Internet providers aren't liable if they make "good faith" efforts to censor themselves. Earlier drafts of the bill made it look like a college could be held liable for the actions of a student; this language limits the scope of the bill slightly.

The gist of it is: say fuck in e-mail, and you're a felon.

(I can print that sentence in the United States with no problem, but if the Exon Amendment becomes law, that same sentence in e-mail would make me a felon, too.)

Internet activists and civil libertarians had spent months fighting this amendment, collecting well over 100,000 digital "signatures" on a petition to the Senate asking them not to pass the amendment. Exon had made a couple of TV newstalk appearances that convinced no one on the Internet, and were ignored by anyone off it.

Yet on the day the amendment came onto the Senate floor, Exon was handing around a blue binder that his staff had compiled. In the binder was a collection of naughty images that had been gotten from Internet sources. After repeating a benediction the Senate chaplain had given on the previous Monday, begging the Almighty to save our children from computer porn, Exon said: "I hope that all of my colleagues, if they are interested, will come by my desk and take a look at this disgusting material, pictures of which were copied off the free Internet only last week, to give you an idea of the depravity on our children, possibly our society, that is being practiced on the Internet today."

The contents of the binder couldn't have been more than a thin selection of a week's traffic--otherwise offensive to nobody--on the Internet. The division between yes votes and no votes in the Senate was a brute line between the few who were familiar with the Internet and its emerging technologies, and the ignorant majority who had no idea what the Internet, online services, or the "Info-Highway" were, apart from the contents of Exon's blue binder.

Senator Leahy, speaking in favor of his alternate plan to refer the matter to the Justice Department for further study, could speak from personal experience:

"I do town meetings on the Internet. I correspond with people around the world with the Internet. I call up information I need and plan trips to other countries. I call up information and maps, and so on. I find it is a most marvelous tool. Somebody raised the question about something in Australia the other day, and I could click into the Internet and pull up something from a country thousands of miles away, instantaneously.

"Now, I have not seen the things on the Internet--I do not doubt that they are there--that the Senator from Nebraska speaks of. I am six-foot-four, and I looked over the shoulders of a huddle of Senators going through the blue book of the Senator from Nebraska. I saw one page of it, but I do not care to see that kind of filth. I also know that I use the Internet probably more than most, and I have not been able to find some of these things. But I do not question that they are there. I do worry about the universal revulsion for that kind of pornography...and that we not unnecessarily destroy in reaction what has been one of the most remarkable technological advances, certainly in my lifetime--the Internet.

"It has grown as well as it has...because it has not had a whole lot of people restricting it, regulating it, and touching it and saying, do not do that or do this or the other thing. Can you imagine if it had been set up as a Government entity and we all voted on these regulations for it? We would probably be able to correspond electrically with our next-door neighbor, if we ran a wire back and forth, and that would be it. Had we had the Government... micromanaging it every step of the way, we would not have the Internet that we have today."

Leahy went on to say that the main responsibility for guiding children should be with the parents, and not with the federal government.

Leahy was followed by Republican Dan Coats of Indiana, who was frank about his knowledge of the subject at hand: "My generation--I have not figured out how to use the VCR yet. I have a blinking 12 I do not know how to get rid of. It is the children today who are trained from almost kindergarten on, on how to access the computer."

The clearest defender of free speech that afternoon was Russell Feingold, Democrat of Wisconsin. Feingold stated what the "protecting children" would really mean: "Communication between adults through the Internet would likely be reduced to the lowest common denominator--that which is appropriate for children...That is not free speech."

Feingold had really done his homework. (One gets the impression that the VCR in the Feingold home isn't blinking midnight.) He went on to list many of the legal controversies the Exon amendment would bring up, and some of the possible effects:

"...The threat of criminal sanctions despite a user's lack of control over, or knowledge of, who views his/her message, is of additional concern given that indecency is defined based on community standards.

"The definition of indecency for computer networks hasn't been fully explored. For broadcast media, FCC has defined indecency as `language or material that, in context, depicts or describes in terms patently offensive as measured by contemporary community standards for broadcast medium, sexual or excretory activities or organs'--including the so-called seven dirty words.

"The nature of interactive telecommunications makes even the 'community standard' an entirely different matter. As a bulletin board user you may not even be aware of who will be reading your communication, let alone where they are located for purposes of figuring out what a community standard might be...

"Whose community? That of the initiator or that of the recipient? Will all free speech on the Internet be diminished to what might be considered decent in the most conservative community in the United States?

"...Again, in the case of obscenity, the community standard is of less concern because obscene speech is not protected. But in S. 652, we are prohibiting protected speech, so-called indecent speech. The uncharted community standards for indecency pose a risk that few users will be willing to bear.

"Based on the definition which has been applied to broadcast media, we could declare the content of many bulletin boards indecent--including those containing medical and academic discussions, on-line support groups where users discuss the trauma of sexual and physical abuse, or bulletin boards which contain information on sexually transmitted diseases and AIDS and how one might prevent them.

"Arguably, while the content is of a mature nature, these types of forums have tremendous social value. However, if minors gained access to these services, those making the indecent comment could be subject to 2 years in prison. Many of these bulletin boards for adults would simply cease to exist.

"Would the threat of criminal sanctions and the unclear nature of an indecency standard have a chilling effect on free speech via computer networks? I say it will. You bet it will.

"Adults will be forced to self-censor their words, even if they did not intend those words for children and even if they are protected by the first amendment."

Feingold went on to point out that this legislation would make things that are not illegal or even controversial in print form felonious on the Net. He showed a familiarity with Usenet as well as e-mail and the Web. He even cited Ed Krol, author of the popular "Whole Internet Guide", as saying that the free market could provide solutions for worried parents by selling filtering and rating software such as the soon-to-be-released SurfWatch program.

Feingold's spirited and well-informed speech and the pile of petitions from individual citizens presented by Sen. Leahy were no match for Exon's blue binder, and his backing from the Christian Coalition. 84 senators voted for the Exon/Coats amendment, while only 16 voted against (including Democrat Paul Wellstone of Minnesota).

So what happens next? The legislation still has to pass the House of Representatives, and a similar Internet censorship amendment hasn't been introduced in the House yet. The amendment is part of a huge telecommunications reform bill, and there is talk that Clinton may veto the whole package for reasons that may have nothing to do with censorship. Meanwhile, Senator Robert Dole of Kansas (fresh from his Hollywood-bashing speech of May 31st) and Senator Charles Grassley of Iowa, both Republicans, introduced their own stand-alone net censorship bill on June 8th (S. 892). This bill is comparable to Exon's, except that it allows a maximum of five years in jail instead of two.

If the Exon amendment or something similar passes, there is still the question of whether the government is even capable of censoring the Internet. The NSA is rumored to scan Internet traffic for character strings like "plastique" or "jihad"--would they reset their search parameters to look for "shit"? Many Usenet newsgroups would fly right out the window, certainly alt.sex.bondage would be gone, but as Sen. Feingold says, sci.med.aids might have to go as well. IRC channels like #hotsex would be asking for trouble.

Explicit pictures on Web pages and in ftp directories are not nearly as easy to find and access as the proponents of censorship say. In real life, public sites with actual porn are rare. When they're discovered, they get a huge inrush of traffic, because they're so difficult to find. The traffic overload causes that site to remove the porn materials, because the extra incoming traffic is slowing down the system for other users--often paying customers. This keeps porn on the Web and in ftp-able sites rare, which guarantees a tsunami of traffic the next time a porn site is uncovered, which continues the cycle. The current technology is doing a better job of keeping the Web clean than the feds ever could.

Scanning and monitoring can only go so far. Strong encryption makes scanning useless, and anonymous remailers mean that you may never know just who sent a certain item. Person A could uuencode a dirty picture, then encrypt it, then mail it to a system in the Netherlands which would strip the part of the e-mail that says who it's from, then forward it to Person B somewhere else in the United States, who would decrypt it, uudecode it, and have a new dirty picture of their very own. Uncle Sam would never be able to put the pieces of the transaction back together. It sounds complicated, but software to automate the various steps in this process is already easy to get.

U.S. Internet users could telnet to Europe, or Australia, or even South Africa to read Usenet groups that would be against the law here. According to the Exon amendment, foreigners who do this would be in violation of U.S. law, but nobody seems to have any idea of how this could be enforced.

The only way the Exon amendment could be enforced is by using hamhanded, police-state tactics that would disgust most Americans--massive snooping, snitching, and entrapment. Profanity police walking the beat in IRC channels, or listening in to the action in MUDs and MOOs to make sure nobody says "eat my kaka". Disgruntled employees or jilted spouses turning in the objects of their hate for supposedly abusive e-mail. Government-run dirty Web sites that would entrap the curious into making the mouse click that lands you a $100,000 fine or two years in federal prison.

A more likely, and in some ways more frightening, scenario would have Net Censorship legislation lurking in the back of the law books like sodomy laws--never enforced, but always there in case the government needs to prosecute a troublemaker for something that 80% of the population does anyway. That creeping danger to the First Amendment might be even worse than a blunt, forward attack on our rights to free speech and a free press.

Meanwhile, the persons who posted the images that ended up in Exon's blue binder are asking themselves: "Do I paste this digitized face of Senator Exon on the farmer, or on the sheep?"

To stay updated, here are some Internet sites (without pornography) that you can access on the World Wide Web:

Voters Telecomm Watch
Electronic Privacy Information Center
Electronic Frontier Foundation
Center for Democracy and Technology

Check up on the situation in other countries, too.
Charles A. Gimon teaches an Intro to the PC class at the English Learning Center in South Minneapolis. He can be reached at gimonca@skypoint.com or ay778@freenet.carleton.ca.
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