(fwd) EFF Statement Regarding Passage of Telecom Bill
Prentiss Riddle
YOUR CONSTITUTIONAL RIGHTS HAVE BEEN SACRIFICED FOR POLITICAL EXPEDIENCY
EFF Statement on 1996 Telecommunications Regulation Bill
Feb. 1, 1996 Electronic Frontier Foundation
Contacts:
Lori Fena, Exec. Dir.
415/436-9333 * lo...@eff.org
Mike Godwin, Staff Counsel
510/548-3290 * mnem...@eff.org
Shari Steele, Staff Counsel
301/375-8856 * sst...@eff.org
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The Electronic Frontier Foundation (EFF), decries the forfeiture of free
speech prescribed by the sweeping censorship provisions of the
telecommunications "reform" legislation passed overwhelmingly by the
House and Senate Feb. 1, 1996, almost immediately after being reported
out of committee, before the public was able to read, much less comment
upon this bill.
Congress demonstrates once more their willingness to abandon their most
sacred responsibilities - the protection of the US Constitution and
Bill of Rights - in order to expedite legislation that sacrifices
individual, family and community rights in its rush to win the support
of telecom industry giants as well as the religious right, during an
election year.
The consolation offered by our elected officials to those concerned about
abridging free speech, is that there is a high probability that the
censorship provisions in this bill would not stand up to court challenges
based on constitutional grounds.
Consider this a wake-up call. Our elected officials have spoken, and
with the passage of the most sweeping US telecommunications legislation
in over 60 years, our Constitutional rights in the new medium
of computer networking have been usurped. As the 21st century draws near,
our elected representatives have chosen to take us back to the close of
the 19th.
EFF is dismayed by the process and substance of this legislation, as
well as by the immediate and far-reaching negative impact it will have on
individuals, society and commerce.
Impact
------
This latest version of the "Communication Decency Act", originally proposed
by Sen. James Exon (D-NB), contains a deadly combination of a vague and
overly broad definition of what speech is unacceptable online, criminal
prosecution, and large monetary fines, which will set off a tidal wave of
censorship to avoid real and perceived liability.
Although the bill provides for some protection for service providers, this
shelter only exists if the provider takes an active roll in censoring
public and private messages. We have already felt the industry foreshocks
when AOL and CompuServe responded to recent government censorship
requests. The censorship wave will begin with the largest online
services, and flow rapidly through the whole U.S. community of service
and content providers.
The result will be a crippling of free society and commerce in the U.S., and
damage to the global Internet.
Individual participants in this medium stand to lose the freedom that has
characterized the Internet since its beginning.
Providers of online content, such as authors of World Wide Web documents,
or hosts of AOL forums, will find themselves forced to "dumb down" all
information and entertainment that they provide into little more than a
cleansed, thin collection of "G-rated" material suitable for children.
If the Internet is one vast, global library of information, this
legislation will have reduced the public spaces of the Net to the
"children's room" of that library.
System operators and access providers will divert resources to censorship
mechanisms and programs to avoid exposure to felony-level criminal liability
for the actions and posts of users over whom they can exercise no control.
New multi-billion dollar industries currently based in the U.S., such as
Internet service, online publishing, and digital commerce, face
economic uncertainty just as they begin to hit their stride, as investors,
stockholders, and customers evaluate the negative impact of censorship on
the value of their product and their company.
The telecom bill unwisely encourages states to follow suit, defining and
legislating online censorship and liability their own ways. These
aftershocks, already working their way through state legislatures all
over the country, will subject individuals and companies to legal mayhem
as they run into contradictory local regulations enforced from afar against
providers and users in other jurisdictions.
The long-term effects could reach other media as well. As traditional
content providers such as publishers, newspapers, television shows and
talk radio, increasingly merge with online communications, it will
become prohibitively expensive to produce two versions of the content,
one for the Net, and one for everywhere else - a single, censored, version
for all formats would be produced, chilling expression in print and
other currently freer media.
Process
-------
A quick review of the political process which produced this bill
demonstrates how bad legislation occurs when the content of a bill is kept
from public scrutiny, allowing only staffers and lobbyists to participate.
* There have been no public hearings on this legislation. Neither the
CDA, nor the larger Telecom Bill have been presented openly to the
public. As a result, Congress has neither heard expert testimony about the
medium and industry, nor allowed constituents to review and comment on what
their "representatives" are doing.
* No conference committee report or final bill text was made available for
review, except to committee staffers and innermost lobbyists until after
passage. Despite repeated promises from House Speaker Newt Gingrich,
Congress has failed to provide online public access to committee reports
and "live" bills.
* Congresspersons voted for passage of this regulation without even having
time to read, much less consider the impact of, the bill - less than
one day after it is voted out of conference.
* The sponsors of the bill and its fundamentalist supporters have, with no
public participation or oversight, thrown away more rational proposals,
including the Cox/Wyden bill, which would have actually helped parents
and teachers control the online access of their children and students.
EFF, along with Taxpayer Assets Project and several other public interest
organizations, have repeatedly asked that current Congressional information
be immediately provided to the public, not just to lobbyists, and that
that the Telecom Bill be put on hold, pending full public participation
in this debate. Voters may wish to express to Congress how they feel
about being denied the right to read or have a say in legislation
that threatens their freedom of expression.
Substance
---------
A brief summary of the problems inherent in the Telecom Bill's censorship
provisions illuminates the magnitude of the issues. The CDA would:
* subject all online content to the interpretation of ill-defined
"indecency" law;
* irrationally equate Internet communications with radio and TV broadcasting,
and unconstitutionally impose on computer networks indecency restrictions
that are more severe than those applied to any other medium;
* actively hinder the on-going development and refinement of real
solutions to problems such as online harassment and parents' needs to
supervise their own children's online access;
* in all probability will establish broad FCC regulation of the Internet,
with all of the attendant problems that will entail;
* create a new "access crime", equating the posting of material on a web
site, or even the provision of basic Internet access, with willful
transmission of indecent material directly to minors - harming the online
service industry, and retarding the development of the electronic press;
* afford no effective legal protection for system operators, creating a
speech-chilling liability no more sensible than holding librarians and
postmasters responsible for the content on bookshelves and in parcels.
* weaken the privacy of all Internet users by turning system operators
into snoops and censors.
* would criminalize even classic works of literature and art, or medical
and educational materials on breast cancer or sexually transmitted
disease. Obscenity law, not the indencency law used in the Telecom Bill,
considers literary, artistic or scientific value. Indecency law makes
no such exceptions.
Many reasonable adults might be surprised to find that the Telecom Bill's
indecency restrictions could ban:
* the online distribution of the King James Bible, which quite prominently
features the word "piss" (in II Kings) - a word already specifically
defined by the Supreme Court to be indecent;
* the text (or video, for that matter) of a PG movie that any child may
attend without parental supervision, not to mention the R-rated content
available on any of a number of cable TV stations;
* a _Schindler's_List_ WWW site, which could earn an Internet service
provider prison time;
* anything featuring nudity, in any context, including breast cancer
information or photos of Michelangelo's Cistine Chapel paintings, which
could result in the poster have to pay hundreds of thousands of dollars
in fines, if the material happened to seem "patently offensive" to an
excitable prosecutor.
This is the grim reality of censorship through indecency regulation: It
makes no allowances for artistic merit, social value, or medical necessity.
It is without reason, and without conscience.
Court Challenge
---------------
Fortunately, there is a very good chance that the courts will refuse
outright to uphold the Communications Decency provisions of the Telecom
Bill. EFF, along with other civil-liberties groups, will be mounting a
legal challenge to the bill's censorship provisions, on First Amendment and
other Constitutional grounds. Among the bases for challenging the act:
* Unconstitutional expansion of federal authority. It is inappropriate
for the Federal Communications Commission or any other federal agency to
dictate standards for content in a medium where there is no independent
Constitutional justification for federal regulation, as there has been in
the broadcast arena and in certain narrow areas of basic telephone
service. Like newspapers and bookstores, the Internet is fully protected
by the First Amendment.
* Vagueness and overbreadth. The terms the act relies on -- "indecency"
and "patently offensive" -- have never been positively defined by the
courts or the Congress, and so create uncertainty as to the scope of the
restriction, necessarily resulting in a "chilling effect" on protected
speech. Moreover, these terms criminalize broad classes of speech that are
understood to be protected by the First Amendment, including material that
has serious literary, artistic, political, or scientific value.
* Failure to use the "least restrictive means" to regulate speech. The
First Amendment requires that speech regulation laws must pass the "least
restrictive means" test. That is, if government censorship is not
the least restrictive possible means of ensuring the goal (protecting
an unwitting or under-age audience from unsolicited indecency), then
the restriction is unconstitutional. In the case of the Internet,
government control is demonstrably not the least restrictive means,
as filtration, ratings, and labeling technology and services are already
available and operational - from software tools to help parents shield
their children from inappropriate material, to special filtered
Usenet service for entire schools, in which all information has been
checked for indecent content.
An indecency restriction must pass all of these tests to be constitutional.
The Communications Decency Amendment fails every one of them.
EFF, together with a wide range of civil-liberties groups and
organizations that would be affected by the legislation, has already
joined preparations for a massive legal challenge to the CDA should
it pass - an effort that should enjoin enforcement of this legislation,
and, we hope, prevent the darker scenarios outlined above. The entire
process will be very costly in time, human resources and money, but is
necessary to protect what remains of our rights to free speech, press, and
association.
Launching of the Blue Ribbon Campaign
-------------------------------------
A blue ribbon is chosen as the symbol for the preservation of basic civil
rights in the electronic world.
EFF asks that a blue ribbon be worn or displayed to show support for the
essential human right of free speech. This fundamental building block of
free society, affirmed by the U.S. Bill of Rights in 1791, and by the U.N.
Declaration of Human Rights in 1948, has been sacrificed in the 1996 Telecom
Bill.
The blue ribbon will be a way to raise awareness of these issues, and for
the quiet voice of reason to be heard.
The voice of reason knows that free speech doesn't equate to abuse of
women and children, or the breeding of hatred or intolerance.
**************
For more information on the Blue Ribbon Campaign, including blue ribbon
graphics we encourage Net users to prominently display on their WWW pages
with links to the URL below, please see:
http://www.eff.org/blueribbon.html
gopher.eff.org, 1/Activism/BlueRibbon
ftp.eff.org, /pub/Activism/BlueRibbon/
For more information on the Communications Decency legislation and other
Internet censorship bills, see:
http://www.eff.org/pub/Alerts/
gopher.eff.org, 1/Alerts
ftp.eff.org, /pub/Alerts/