[Congressional Record Volume 141, Number 59 (Thursday, March 30, 1995)]
[Senate]
[Pages S4841-S4842]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


                          CENSORING CYBERSPACE

  Mr. LEAHY. Mr. President, I rise today to speak about legislation 
that would impose Government regulation on the content of 
communications transmitted over computer networks.
  Ironically, this legislation was accepted without debate by the 
Commerce Committee as an amendment to a draft telecommunications bill 
whose purported purpose is to remove regulation from significant parts 
of the telecommunications industry.
  It is rumored that this matter could be headed for consideration by 
the Senate on Monday, although the bill has yet to be introduced and 
the Commerce Committee has yet to issue its report on the measure.
  There is no question that we are now living through a revolution in 
telecommunications with cheaper, easier to use and faster ways to 
communicate electronically with people within our own homes and 
communities, and around the globe.
  A byproduct of this technical revolution is that supervising our 
children takes on a new dimension of responsibility.
  Very young children are so adept with computers that they can sit at 
a keypad in front of a computer screen at home or at school and connect 
to the outside world through the Internet or some other online service.
  Many of us are, thus, justifiably concerned about the accessibility 
of obscene and indecent materials online and the ability of parents to 
monitor and control the materials to which their children are exposed.
  But Government regulation of the content of all computer 
communications, even private communications, in violation of the first 
amendment is not the answer--it is merely a knee-jerk response.
  Although well-intentioned, my good friend from Nebraska, Senator 
Exon, is championing an approach that I believe unnecessarily intrudes 
into personal privacy, restricts freedoms, and upsets legitimate law 
enforcement needs.
  He successfully offered the Commerce Committee an amendment that 
would make it a felony to send certain kinds of communications over 
computer networks, even though some of these communications are 
otherwise constitutionally protected speech under the first amendment.
  This amendment would chill free speech and the free flow of 
information over the Internet and computer networks, and undo important 
privacy protections for computer communications. At the same time, this 
amendment would undermine law enforcement's most important tool for 
policing cyberspace by prohibiting the use of court-authorized wiretaps 
for any digital communications.
  Under this Exon amendment, those of us who are users of computer e-
mail and other network systems would have to speak as if we were in 
Sunday school every time we went online. I, too, support raising our 
level of civility in communications in this country, but not with a 
Government sanction and possible prison sentence when someone uses an 
expletive.
  The Exon amendment makes it a felony punishable by 2 years' 
imprisonment to send a personal e-mail message to a friend with 
obscene, lewd, lascivious, filthy or incident words in it. This penalty 
adds new meaning to the adage, ``Think twice before you speak.''
  All users of Internet and other information services would have to 
clean up their language when they go online, whether or not they are 
communicating with children.
  It would turn into criminals people, who in the privacy of their own 
homes, download racy fiction or indecent photographs.
  This would have a significant chilling effect on the free flow of 
communications over the Internet and other computer networks. 
Furthermore, banning the use of lewd, filthy, lascivious or indecent 
words, which fall under constitutional protection, raises significant 
first amendment problems.
  Meanwhile, the amendment is crafted to protect the companies who 
provide us with service. They are given special defenses to avoid 
criminal liability. Such defenses may unintentionally encourage conduct 
that is wrong and borders on the illegal.
  For example, the amendment would exempt those who exercise no 
editorial control over content.
  This would have the perverse effect of stopping responsible 
electronic bulletin board system [BBS] operators from screening the 
boards for hate speech, obscenity, and other offensive material. Since 
such screening is just the sort of editorial control that could land 
BBS operators in jail for 2 years if they happened to miss a bit of 
obscenity put up on a board, they will avoid it like the plague. Thus, 
this amendment stops responsible screening by BBS operators.
  On the other hand, another defense rewards with complete immunity any 
service provider who goes snooping for smut through private messages.
  According to the language of the amendment, online providers who take 
steps to restrict or prevent the transmission of, or access to obscene, 
lewd, filthy, lascivious, or indecent communications are not only 
protected from criminal liability but also from any civil suit for 
invasion of privacy by a subscriber. We will thereby deputize and 
immunize others to eavesdrop on private communications.
  Overzealous service providers, in the guise of the smut police, could 
censor with impunity private e-mail messages or prevent a user from 
downloading material deemed indecent by the service provider.
  I have worked hard over my years in the Senate to pass bipartisan 
legislation to increase the privacy protections for personal 
communications over telephones and on computer networks.
  With the Exon amendment, I see how easily all that work can be 
undone--without a hearing or even consideration by the Judiciary 
Committee, which has jurisdiction over criminal laws and constitutional 
matters such as rights of privacy and free speech.
  Rather than invade the privacy of subscribers, one Vermonter told me 
he would simply stop offering any e-mail service or Internet access. 
The Physician's Computer Co. in Essex Junction, VT, provides Internet 
access, e-mail services, and medical record tracking services to 
pediatricians around the country.
  The President of this company let me know that if this amendment 
became law, he feared it would cause us to lose a significant amount of 
business. We should be encouraging these new high-technology 
businesses, and not be imposing broad-brush criminal liability in ways 
that stifle business in this growth industry.
  These efforts to regulate obscenity on interactive information 
services will only stifle the free flow of information and discourage 
the robust development of new information services.
  If users realize that to avoid criminal liability under this 
amendment, the information service provider is routinely accessing and 
checking their private communications for obscene, filthy, or lewd 
language or photographs, they will avoid using the system.
  I am also concerned that the Exon amendment would totally undermine 
the legal authority for law enforcement to use court-authorized 
wiretaps, one of the most significant tools in law enforcement's 
arsenal for fighting crime. The Exon amendment would impose a blanket 
prohibition on wiretapping digital communications. No exceptions 
allowed.
  This means the parents of a kidnapping victim could not agree to have 
the 
[[Page S4842]] FBI listen in on calls with the kidnapper, if those 
calls were carried in a digital mode. Or, that the FBI could not get a 
court order to wiretap the future John Gotti, if his communications 
were digital.
  Many of us worked very hard over the last several years and, in 
particular, during the last Congress, with law enforcement and privacy 
advocates to craft a carefully balanced digital telephony law that 
increased privacy protections while allowing legitimate law enforcement 
wiretaps. That work will be undercut by the amendment. Our efforts to 
protect kids from online obscenity need not gut one of the most 
important tools the police have to catch crooks, including online 
criminals, their ability to effectuate court-ordered wiretaps.
  The problem of policing the Internet is complex and involves many 
important issues. We need to protect copyrighted materials from illegal 
copying. We need to protect privacy. And we need to help parents 
protect their children.
  I have asked a coalition of industry and civil liberties groups, 
called the Interactive Working Group, to address the legal and 
technical issues for policing electronic interactive services. Instead 
of rushing to regulate the content of information services with the 
Exon amendment, we should encourage the development of technology that 
gives parents and other consumers the ability to control the 
information that can be accessed over a modem.
  Empowering parents to control what their kids access over the 
Internet and enabling creators to protect their intellectual property 
from copyright infringement with technology under their control is far 
preferable to criminalizing users or deputizing information service 
providers as smut police.
  Let's see what this coalition comes up with before we start imposing 
liability in ways that could severely damage electronic communications 
systems, sweep away important constitutional rights, and undercut law 
enforcement at the same time.
  We should avoid quick fixes today that would interrupt and limit the 
rapid evolution of electronic information systems--for the public 
benefit far exceeds the problems it invariably creates by the force of 
its momentum.


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