[Congressional Record Volume 141, Number 94 (Friday, June 9, 1995)]
[Senate]
[Pages S8087-S8092]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
COMMUNICATIONS DECENCY ACT
Mr. EXON. Mr. President, I have delayed bringing up this matter until
an appropriate time when I would not necessarily inconvenience all of
my colleagues with the very important amendments that I have had a part
in developing as a member of the committee of jurisdiction, the
Commerce Committee.
I will be back on the floor on this matter, though, next week before
the vote or votes are held on the matter on which I wish to address the
Senate today. There has been a great amount of behind-the-scenes
activity. There has been a great amount of activity on the Internet
system, and I am here today to outline the measure that I will offer as
a substitute to the measure that was reported unanimously out of the
Commerce Committee, called the Exon decency bill with regard to the
Internet.
I cannot think of a more appropriate means of bringing this to the
attention of the Senate and the American people than in our debate and
eventual enactment of the telecommunications legislation, which is the
most far-reaching legislation dating back to 1934. Obviously, everyone
knows of the dramatic developments in telecommunications since 1934. It
is about time we do something.
But as we are doing this, and with the many important factors that we
have considered and deliberated on for a long, long time, including
last year when the Commerce Committee had extensive hearings on the
whole matter and scope of telecommunications, what we should do and
should not do, what we should try to do, and what we can do--
unfortunately, the Senate adjourned before that bill was reported out
of the Commerce Committee last year and was considered and enacted into
law.
When Senator Pressler took over as the very distinguished chairman of
the Commerce Committee this year, Senator Pressler, rightfully, in
company with the Democratic leader on the Commerce Committee, Senator
Hollings, moved very aggressively on, once again, bringing forth a
piece of legislation not distinctly different from the legislation that
we reported after extensive hearings and deliberations and brought to
the floor last year.
So here we are, Mr. President, making some very significant changes.
One of the things this Senator feels we should properly address, and
will address and, hopefully, act on in a fair and reasonable fashion,
with full understanding, absent of outlandish claims and charges, is
the matter of trying to clean up the Internet--or the information
superhighway, as it is frequently called--to make that superhighway a
safe place for our children and our families to travel on.
Mr. President, at this time, I send an amendment to the desk and ask
unanimous consent that it be printed in the Record and held at the
desk. I will formally call it up for consideration sometime next week.
The PRESIDING OFFICER. Without objection, it is so ordered. The
Senator has that right.
(The text of the amendment is printed in today's Record under
``Amendments Submitted.'')
Mr. EXON. Mr. President, earlier this week, I circulated a ``Dear
Colleague'' letter which explained the revisions in the communications
decency provision. In title IV of the telecommunications reform bill,
as my colleagues know, title IV includes legislation that I have worked
on for about a year to make the Internet and other aspects of the
information superhighway safer for our families and for our children to
travel.
It seems an appropriate time to explain these revisions and file my
amendment so that it may be printed in the Record, as I have just asked
for and received consent for--primarily, for the convenience and review
of my colleagues before we debate this matter further next week and
eventually come to a vote.
Mr. President, some basic rules of the road need to be established.
As the information superhighway rolls up to the front door of every
household and school and library in America, this bill will bring
exciting, revolutionary, and new information technologies within the
reach of every American. There has not been anything that I think is
more exciting that has ever been developed than the information
superhighway and what it is going to do to make more information and
more education readily accessible to any who seek it.
I have said on many occasions that I happen to believe the whole
computer Internet system is the most important, the most revolutionary
development since the printing press. Eventually, I predict, it will do
as much good for circulation of information as the printing press. I
support the development of this so very, very strongly.
I simply cite that there are some dangerous places, Mr. President, on
the information superhighway. I think that while we are creating this
as an important part of our new telecommunications bill, we who are
charged with the responsibilities to pass laws that are reasonable and
proper should emphasize a little in our thinking what is proper and
what is not proper. [[Page S8088]]
It is my intention to point out to the U.S. Senate some of what I
think is highly improper, what I think is eroding the society and will
continue to erode the society of America, unless we have the courage to
stand up and do something about it, despite the minority of naysayers
in the United States of America who do not want to change anything.
Mr. President, the Snowe-Rockefeller-Exon-Kerrey amendment that
assures that schools and libraries will gain affordable access to the
digital world, including the Library of Congress, the great
universities, and the museums, will remain in place.
The Communications Decency Act is proposed in the context of this
information revolution that is exploding in our society. Just as we
modernize the rules which apply to the telecommunications industry, we
need to modernize the rules which apply to the use of their products
and their services that are going to be distributed in a form that we
never even imagined previously.
Unfortunately, the current laws, which clearly protect young and old
users from harassment and obscenity and indecency, are woefully out of
date with this new challenge and this new opportunity. The current law
is drafted in the technology, primarily, of the telephone, dating back
to 1934. Our efforts today, and in the coming weeks, bring closer the
day of technological convergence. Soon the concept of a telephone will
be as relevant as today's concept of the telegraph.
The principles that I have proposed in the Communications Decency Act
are simple and constitutional. Telecommunications devices should not be
used to distribute obscenity, indecency to minors, or used to harass
the innocent.
The revisions offered to the committee-reported bill are in response
to concerns raised by the Justice Department, the profamily and
antipornography groups, and the first amendment scholars. If anyone
would take the time to look through them and study them, I think most,
but not all, would conclude that they are reasonable and proper.
I have also had a great deal of cooperation from the online service
providers. The online service providers, of course, are those
entrepreneurs who have assisted us in providing services to the many
outlets that are anxious to have their services in America. These
service providers are key members of this new industry.
Certainly, what we are trying to do here is to only craft and put
into law some of the provisions that have been in existence for a long,
long time, way back to 1934, to make sure that the same restrictions
that were necessary and have been placed into law, and have been held
constitutional time and time again by the courts, have a role to play
in the new Internet system and how that Internet system reacts, as best
explained on this chart, which I will get to in a few moments.
So I have had good cooperation from many, many people who are truly
experts in this area, including members of the telephone industry who
have worked and operated without problems under very similar, if not
identical, restraints in the law that everyone thought had been good.
The proposed revisions that I have submitted to the desk that passed
unanimously out of the Commerce Committee, follow closely the confines
of several Supreme Court cases. I am very confident that this
legislation will withstand a constitutional challenge.
I am not interested, Mr. President, in passing a piece of legislation
here, and then say, ``Look what a good job we did,'' and then have that
matter in the very near future declared unconstitutional by the Supreme
Court. We would have to start all over again.
I assure all from the beginning, I have put out the hand of
cooperation to all parties--even those most opposed to any action
whatever in this area--and I find that there are a great number of
well-intentioned people who shudder at the thought of passing any kind
of legislation in this area.
They are not bad people. I just do not think they fully understand,
as I think I do and as I think 9 out of 10 Americans do, when they find
out what is going on, on the information superhighway today.
Mr. President, a few days ago I had a remarkable demonstration, in
more detail than I had even fully known, of what is readily available
to any child with the very basic Internet access. I want to repeat
that, Mr. President: Of what is readily available to any child with the
basic Internet access. It is not an exaggeration to say that the worst,
most vile, most perverse pornography is only a few click-click-clicks
away from any child on the Internet.
I have talked to so many people about this and had so many interviews
and read so much material. There have been many experiences during
these last few months, people have told me of the fact that they knew
nothing about what was on the Internet with regard to what I was
concerned about.
Only last week I had a journalist who was doing a story on this who
conceded--this was a woman--when she started writing this story she was
extremely skeptical of what my motives were and whether there truly was
a problem. It just happened that very recently, though, during the
process of writing the article that she was doing for a national
publication, she put her computer at home on the Internet system and
was sitting with her 8- or 9-year-old daughter one evening.
She said, ``Senator, I got my eyes opened very wide, very quickly.''
She said, ``I was astonished at what I came across accidentally. Even
more astonished when I started doing even preliminary searches of what
we were getting into. Finally, I recognized it was not something I
wanted my daughter to see, let alone me sharing it with her.''
I did a television show on this subject. Half the people that called
in were very upset that I was not for free speech, I wanted to violate
the Constitution.
The most rewarding of those who supported it was a call out of the
blue from an obviously very young person who identified himself as a
12-year-old boy. He said, ``Senator Exon, I want to salute you for
doing this. I am a 12-year-old. I am completely literate on the
computer. I have seen and observed the material that you are talking
about. It is common talk among all of us my age and younger, and, of
course, older, in school.'' He said, ``I appreciate the fact you are
trying to do something about it, because someone has to.'' That word
from a 12-year-old really meant more to me, Mr. President, than all of
the brickbats that have been thrown my way from, basically, people that
I think are uninformed in what this Senator is trying to do.
The fundamental purpose of the Communications Decency Act is to
provide much-needed protection for children. Throughout the process of
refining this legislation, I have held out the hand of friendship and
understanding and cooperation to those who have had different ideas,
and I have made revisions in many instances that I think are very
appropriate and help in our effort rather than hurt us.
I responded to the concerns raised over the last several months and
those raised earlier today by my friend and colleague from the State of
Vermont, Senator Leahy. I have publicly and privately expressed support
for Senator Leahy's study. But not as a substitute for or at the
expense of these critical provisions which are designed to allow
children and families to share and enjoy the many wonderful benefits of
the information revolution that are taking part on the Internet.
The reason that I am concerned is that I am afraid that there are
some of my colleagues in the Senate on both sides of the aisle that
might be tempted by Senator Leahy's efforts, that have been primarily
sponsored, as I understand it, by the Clinton administration people,
primarily in the Justice Department.
What the Clinton administration and the Justice Department is trying
to do is punt--punt like in football. We happen to know something about
football in Nebraska. I would simply say that any time Nebraska has a
fourth down and 37 yards on our own 3-yard line, they always punt. But
this is not a time to punt on this important matter, if it concerns my
colleagues as much as it does me.
I think if they will take time to study it, most of my colleagues
would agree that we cannot punt. Even though it is third down or fourth
down and 37, we better act.
In response to the concerns that have been raised by the Justice
Department [[Page S8089]] and others, the Exon revision drops the
bill's definition of ``knowing'' and the so-called ``predominant
defense issue.''
The remaining defenses are narrow and streamlined and limited to the
new revised section 223. A new section is added to assure that no other
Federal statute will be limited or affected by the Communications
Decency Act.
I want to repeat that, Mr. President: The new section is added to
assure that no other Federal statute will be limited or affected by the
Communications Decency Act.
This is important to many Members and pro-family groups. The current
dial-a-porn statute would be left untouched and unamended by the
decency provisions. We have made that clear.
Furthermore, the bill's narrow, streamlined defenses would not apply
to the current dial-a-porn law or any other Federal statute. We are
leaving that measure that has been heavily debated, on which there have
been court cases alone, to stand exactly like it is.
The Exon Decency Act does not touch it.
With these revisions, decency provisions pose no risk to any current
or future dial-a-porn, obscenity, or indecency prosecution. The State
preemption provision in the committee-reported bill is clarified, in
that its application is limited to commercial activities and consistent
with the interstate commerce clause. This provision will assure that
businesses and nonprofit services and access providers know that State
and Federal rules and obligations with respect to the Communications
Decency Act are consistent and are predictable. This assurance is
critical to any interstate enterprise.
In addition, new language is added to this provision to assure that
the State preemption provision in no way limits State authority over
activities not covered by the Communications Decency Act. In other
words, State child endangerment or delinquency statutes will in no way
be adversely affected by this legislation.
The heart and the soul of the Communications Decency Act are its
protection for families and children. The distribution of obscenity and
indecency to minors by means of telecommunications devices would be
covered by new sections in the revised language. Unlike the current
dial-a-porn statute, there would be no noncommercial loophole in the
new provisions. I am saddened to report that there is a great deal of
grossly obscene and indecent material on the Internet available to
anyone free of charge. The decency revisions strengthen the committee-
reported bill by providing clear, constitutional, and much-needed
protections for users of the telecommunications services.
I look forward to discussing this critical piece of legislation as
the Senate further considers the telecommunications reform bill, as I
indicated earlier, next week.
Mr. President, given the floor debate will be a key part of the
legislative history for these new provisions, I ask unanimous consent
that a section-by-section analysis, as well as the text of my
amendment, be printed in the Record following my remarks.
The Chair had previously given authority for those to be printed. I
am asking that they be printed following the conclusion of my remarks
today.
The PRESIDING OFFICER. Without objection, it is so ordered.
(See exhibit 1.)
Mr. EXON. I also ask that a copy of an Omaha World-Herald article,
which appeared in the Seattle Times, entitled, ``Police Cruise the
Information Highway'' appear in the Record, also following my remarks.
The PRESIDING OFFICER. Without objection, it is so ordered.
(See exhibit 2.)
Mr. EXON. I send those to the desk for action, as has been agreed to.
Mr. President, let me, if I might at this juncture, go into a little
further discussion as best I can, and as I think decency would allow me
to proceed. This is the blue book. This is a sample of what is
available today free of charge: Click, click, click on the computer, on
the information superhighway. This will be available for any of my
colleagues who are not familiar with what is going on on the Internet
today, to have a firsthand look at the listings of materials that are
available free of charge and pictures of what is being shown. To give
an idea, let me read through some of the listings that appear on the
bulletin boards.
The computer is a wonderful device for arranging, storing, and making
it relatively easy for anyone to call up information or pictures on any
subject they want. That is part of the beauty of the Internet system.
This is on some of these bulletin boards, and there is such a long list
it would take a big binder to cover all of them, but let me read
through what is in the form of pictures that have been taken on
computer screens on the Internet. I have several pages of them here. I
am going to just go through some of them and tell you any child who can
read--and of course anyone else, too--could click onto this kind of an
index that tells them what to do to punch in very easily to any of
these types of things.
Multimedia erotica; erotica fetish; nude celebrities;
pictures black, erotic females; pictures boys; pictures
celebrities; pictures children; pictures erotic children;
pictures erotica; pictures erotica amateur; pictures erotica
amateur females; pictures erotica amateur males; erotica
animal; erotica auto; erotica bestiality; erotica bestiality,
hamster, duct tape; bestiality, hamster, duct tape; [two of
those] erotica black females; erotica black males; erotica
blondes; erotica bondage; erotica breasts. Here is a good
one: Erotica cartoons; erotica children; erotica female;
erotica female, anal; erotica fetish; erotica fury; erotica
gay men; erotica male; erotica male, anal; erotica Oriental;
erotica porn star.
This goes on and on and on--so much repetition. But it is startling,
page after page after page, on screen after screen after screen--free,
free of charge, with a click, click, click.
The blue book will be available to any who want to see how bad this
is. I hope if any of my colleagues are not familiar with it, they
become familiar.
Mr. President, I draw the Senate's attention to the chart that I have
before me. I have been here in the Senate for 17 years. I think this is
the second time I have ever used charts. We never had charts in the
Senate until we had television. But now we talk to our American
citizens, many of whom watch us very religiously from their homes
throughout the Nation, as much as we do to our colleagues on the floor.
To try to explain this as briefly as I can, and I certainly do not
claim to be an expert at it, the Internet system here in the center is
the information system and the information system explosion that I have
been talking about. When we look at what is good about this system, it
is the Internet, the information, and all the multitude of good that is
coming out of this today and is going to be further exploding in the
future.
Then we have people at home on the Internet and children at home on
the Internet. Under the system that the Exon Decency Act would provide
and protect is this kind of a system with those at home, the children,
having direct and full access to the Internet. After they get on the
Internet, there would be a degree of protection
to keep them from going on to the pornography bulletin boards.
That is what I am talking about here. The child at home, the adult at
home could get on the Internet and they could go to the Library of
Congress, the museums or any of the other magnificent sources of
information we have. But anyone who pollutes that system over here on
the pornography bulletin board would be subjected to the restraints in
the law that the Exon decency provision tries to put in place.
Let me describe this for just a moment, if I might, and emphasize
once again that we have today laws against--and providing fines and
jail terms--people who misuse the telephone system to promiscuously
spread pornography.
We also have in like manner in that regard laws prohibiting the use
of United States mail for pornography.
Obviously, Mr. President, under the present law we do not put the
innocent mailman in jail for delivering pornography, which is prevented
by the law, from one place into a home.
This is a way that I would like to see, and I think most people would
like to see, the Internet operate. But that is not the way the system
works today and is the reason for the Exon decency provisions.
This is the way it works, Mr. President. You will notice in the
previous chart that there are lines connecting these entities. On this
chart, I simply say to you this is the way it is today. This is the way
it is today where either [[Page S8090]] the child or the adult at home
enters the Internet system and is automatically connected with an
additional click to the pornography bulletin board which is the
material in the blue book and everything that I connected with it that
I call smut. They are all connected together.
I happen to feel, if we make law the Exon decency bill, the Exon
decency bill would not prevent or eliminate people from seeking the
pornography bulletin board, and if they are adults and if the material
on that is designed for and dedicated to adults, whom I would basically
describe perhaps for these purposes as someone 18 years of age or more,
then they could seek out the pornography bulletin board, and any of the
people on the Internet, who have been claiming that Senator Exon's bill
wants to close them down, if they want to watch pornography on the
Internet, should have that right. I agree. I do not like it but I
agree. It would be unconstitutional I think if we tried to eliminate
that totally.
What I am trying to do with the Exon Decency Act is make the Internet
like this rather than the direct connection accidentally to this
system.
Over here in the pornography bulletin board we have entrepreneurs,
entrepreneurs who are seeking money, cash money-making opportunities.
They have facilities to where you dial into these bulletin boards, and
they will through a credit card system allow you to subscribe whenever
you want to the whole galaxy of things that they have, some of which I
read out of the blue book. And that would continue, that would be
allowed for adults under the Exon Decency Act.
What would be prevented under the Exon Decency Act is that these
people who make lots of money, hundreds of millions of dollars selling
smut, people on this pornography bulletin board, not unlike the Library
of Congress, if I dare use that example, have a complete library of
anything and everything that you could possibly imagine that you might
see in an adult bookstore. If it is pocketed over there where it is
very difficult to reach and you have to pay for it, that is one thing.
But that is not the way it is.
What do these entrepreneurs over here do, Mr. President? What they do
is to use the free access, without charge advertising with the best of
some of their pornographic, obscene material, and they put it over here
on the Internet with their printing press. That is a printing press and
everybody has one. They can enter their computer, and they can take off
anything that is in the Internet and store it, if they have the proper
equipment. And people do.
Let me emphasize once again what I am trying to do, Mr. President, is
to stop these people over here essentially from using teasers, not
unlike coming attractions that we see when we go to the movies--best of
the coming shows that will be here 2 weeks from today. And obviously
when you get into movies you see some of the most violent explosions on
previews of things to come.
When they, the pornographers over here, the money-making
pornographers enter the free system of advertising, you do not even
have to pay the price of going in and sitting down in a seat at a movie
theater. What they do is take the best and most enticing pictures of
whatever they want to sell that particular day or that particular week
and they enter it over here on the Internet. They are posted on the
bulletin board. And those are the ones, those are the pictures, those
are the articles that are freely, without charge, accessible to very
young children and to anyone else who wants to see them.
Among other things, the Exon bill would prevent the money makers over
here--and many of them are perverts but very smart perverts--from
advertising free on the Internet system to pollute, in the view of this
Senator, our children and our grandchildren.
Simply stated, Mr. President, I have tried to summarize this as best
I can in the 20 or 30 minutes' time I have taken of the Senate today,
and I will be talking more about it next week as we come to a vote on
this matter. I hope that most of my colleagues would recognize and
realize that this is not the time to punt. This is the timely way to
take action with regard to the telecommunications measure before us. I
say today, as I have said before to my colleagues and all others
outside the Senate who have an interest in this, many of them
legitimate, I invite once again, if there is any particular problem you
have with the Exon language, come let us reason together. I am not an
unreasonable individual as my colleagues on both sides of the aisle in
the Senate recognize.
There has been nothing that has concerned me more in my 8 years as
Governor of Nebraska and my 17 years of having the great opportunity to
serve my State in the Senate, there is nothing that I feel more
strongly about than this piece of legislation, because I think it is
more than just a piece of legislation. It is a time I suggest to step
up to the plate and not offer excuses, not go along with those who say
I wish to do what I wish to do, when and in whatever form I want, and I
do not care what it might do to others.
I am going to do everything I can to see that a constitutional remedy
is offered. If it is offered exactly as I am recommending or will
recommend in future, if changes are in order, will that stop all of
this and end the problem? No, it will not. It is too big for that. We
still have obviously pornography through the mails, yet we have laws
against it. We have pornography on the telephone. I guess that we do
not have, though, anywhere near the stalking that is going on with
regard to children by deviants. The newspapers have been full of that
material very recently. And there are many hundreds of cases that take
place all of the time that never reach the press, for obvious reasons.
I simply say, Mr. President, that this Senator is very dedicated to
this cause.
I have no ill will toward those who do not agree with me, but I hope
that after studying this they would at least agree that there is a
problem that we should do something about.
I thank the Chair, and I yield the floor.
Exhibit 1
Amendment 1268
Beginning on page 137 line 12 through page 143 line 10,
strike all therein and insert in lieu thereof:
(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) Section 223 (47 U.S.C. 223) is further amended 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--
``(A) makes, creates, or solicits, and
``(B) initiates the transmission of or purposefully makes
available,
any comment, request, suggestion, proposal, image, or other
communication which is obscene, 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-- [[Page S8091]]
``(A) makes, creates, or solicits, and
``(B) initiates the transmission of, or purposefully makes
available,
any indecent comment, request, suggestion, proposal, image,
or other communication 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) The provision of access by a person, to a person
including transmission, downloading, storage,
navigational tools, and related capabilities which are
incidental to the transmission of communications, and not
involving the creation or editing of the content of the
communications, for another person's communications to or
from a service, facility, system, or network not under the
access provider's control shall by itself not be a violation
of subsection (a), (d), or (e). This subsection shall not be
applicable to an individual who is owned or controlled by, or
a conspirator with, an entity actively involved in the
creation, editing or knowing distribution of communications
which violate this section.
``(2) It is a defense to prosecution under
subsection (a)(2), (d)(2), or (e)(2) that a person did not
have editorial control over the communication specified in
this section. This defense shall not be available to an
individual who ceded editorial control to an entity which
the defendant knew or had reason to know intended to
engage in conduct that was likely to violate this section.
``(3) It is a defense to prosecution under subsection (a),
(d)(2), or (e) that a person has taken good faith, reasonable
and appropriate steps, to restrict or prevent the
transmission of, or access to, communications described in
such provisions according to such procedures as the
Commission may prescribe by regulation. 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
administrative agency against any person on account of any
activity which is not in violation of any law punishable by
criminal or civil 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), (b)(2), or (e)(2)
that is inconsistent with the treatment of those activities
or actions under this section provided, however, that nothing
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 an 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 service
registered with the Commission and covered by obscenity and
indecency provisions elsewhere in this Act.''.
On page 144, strike lines 1 through 17.
____
Section by Section Analysis--Exon Revisions to the Communications
Decency Act
Section 223(a) of the Communications Act is amended to
modernize its application to new technologies and to codify
Court and FCC interpretations that this section applies to
communications between non-consenting parties. This revision
would make Section 223(a) Constitutional on its face. Section
223(a) would become the key Federal telecommunications anti-
harassment provision.
Sections 223 (b) and (c), the current law ``dial-a-porn''
statute provisions are left untouched. The ``dial-a-porn''
statute remains drafted in the technology of the telephone.
This ``overlap'' remains as an ``insurance policy'' against
challenges to new sections.
A new Section 223(d) is added. Whoever knowingly by means
of telecommunications device ``makes, creates or solicits''
and ``initiates the transmission of or purposefully makes
available'' an obscene communication could be subject to
penalty.
A new Section 223(e) is added. Whoever knowingly by means
of telecommunications device ``makes, creates or solicits''
and ``initiates the transmission of or purposefully makes
available'' an indecent communication to a minor could be
subject to penalty.
The section (f) defenses of the Committee-reported bill are
narrowed, and streamlined. Similar defenses exist in the
current ``dial-a-porn'' statute. These new defenses are
necessary because information service providers are not
common carriers and the total absence of defenses would
expose the statute to Constitutional invalidation.
Defense (f)(1) (the access defense) is narrowed from the
Committee-reported bill. This defense can not be used by one
owned, controlled or a conspirator with a violator of this
section.
Defense (f)(2) (the editorial control defense) is narrowed
and not available to one who cedes editorial control to
another likely to use that control to violate this section.
Defense (f)(3) (the good faith defense) is narrowed and the
illustrative list of options in the Committee-reported bill
is dropped. The FCC would determine by regulation ``good
faith, reasonable and appropriate'' steps to restrict access
to prohibited communications.
Defense (f)(4) assures that service providers will not be
prosecuted for implementing a defense which is not a
violation of law.
The State pre-emption provision in Section (g) limited to
``commercial'' activities and savings language is added to
assure that States retain full rights to prosecute activities
not covered by this section.
A new section (h) is added to assure that the
Communications Decency Act in no way adversely affects
prosecutions under other federal laws.
And finally, a new section (i) is added to clarify that
one-way broadcasters and cable operators already covered by
other obscenity and indecency provisions in the
Communications Act of 1934 as amended incur no new
obligations under this section.
Exhibit 2
[From the Omaha World-Herald, June 8, 1995]
Police Cruise Information Highway
Police in Fresno, Calif., have a quick and dirty way to
show parents how easily their children find sexually explicit
material over computers: They bring parents in for show and
tell.
Surfing the Internet, police have unearthed sexually
graphic conversations, photographs and X-rated movie clips,
complete with audio.
``(Parents) come up and go, `What? Computers can do
that?''' said Ken Diliberto, a network-systems specialist who
helps detectives in Fresno, one of few cities whose police
departments are using sophisticated methods to catch
computer-aided criminals.
A Maple Valley, Wash., youth's disappearance for 18 days
after meeting a San Francisco teen in an America Online
``chat room'' for gays and lesbians startled parents and
raised questions about just what can happen in cyberspace.
Just as pedophiles and stalkers exist in society, there are
electronic predators, police and prosecutors say. Though
parents warn children not to talk to strangers on the street,
few are as vigilant with people their kids meet via computer.
``There's nothing from the message itself that tells you
anything about the person,'' said Ivan Orton, a King County,
Wash. senior deputy prosecutor who handles technology crimes.
``You've got nothing but the words, and lots of people
adopt different personas when they go on-line,'' he said.
``Men become women. Women become men. You don't know who
you're dealing with.''
The FBI has pursued charges against people who transmit
pornography, including child pornography, on-line, or who
entice children with e-mail messages to cross state lines for
sexual purposes.
Diliberto and Fresno detectives suggest that parents be
aware of their children's computer use.
Attention Surprises On-Line Runaway
Maple Valley, WA.--When Daniel Montgomery took a bus to San
Francisco to meet a friend he had encountered on-line, he
figured he might get some attention from his parents.
But Daniel, who turned 16 Monday, had no idea he'd draw the
attention of the nation.
``I didn't think it was going to get this big'' he said,
clicking the mouse of a computer in his Maple Valley house
Tuesday. ``I don't know, maybe it was stupidity.''
Nearly three weeks after he disappeared to meet a mystery
person called Damien Starr, fueling speculation of abduction
and pedophilla, Daniel explained publicly that his departure
was neither a kidnapping nor a luring. Instead, he said, it
was something closer to running away with the encouragement
of an on-line friend.
Sitting at the computer where he first communicated with
Starr in a gay-and-lesbian ``chat room'' on America Online,
Daniel said his friend was not an older man looking to
exploit him sexually but rather a teen-ager, 16 or 17, who
had been kicked out of his own house because he was gay.
While he would not reveal Damien Starr's real name or say
much about the three men in their 30s who live with Starr in
a San Francisco apartment. Daniel did say none of them tried
to harm him in any way.
Daniel, who described his adventure as an ``uninformed''
vacation, said he was never hurt or in danger.
``I want people to understand there was nothing but
friendly contact,'' he said.
Mr. KERREY addressed the Chair. [[Page S8092]]
The PRESIDING OFFICER. The Senator from Nebraska.
Mr. KERREY. Mr. President, I ask unanimous consent that I be allowed
to speak for 15 additional minutes as in morning business.
The PRESIDING OFFICER (Mr. Pressler). Without objection, it is so
ordered.
____________________