[Congressional Record Volume 141, Number 112 (Wednesday, July 12, 1995)]
[Senate]
[Pages S9770-S9775]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                      LIES THAT PORNOGRAPHERS TELL

  Mr. EXON. Mr. President, I am going to be asking unanimous consent 
for publication of a letter in the Record at the appropriate point, and 
I would like to ask unanimous consent that the heading of this letter, 
when it appears in the Record, be entitled ``Lies That Pornographers 
Tell.''
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. EXON. Mr. President, the letter that I referenced is a letter 
from attorney Bruce Taylor, of the National Law Center for Families and 
Children, dated July 10, 1995, and I ask unanimous consent that that 
letter, and an introductory memorandum, be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

              National Law Center for Children & Families


    memorandum of opinion in support of the communications decency 
        amendment as adopted by the u.s. senate on june 14, 1995

       The National Law Center for Children and Families (``NLC'') 
     \1\ is of the opinion that the Communications Decency 
     Amendment (``CDA'') is both effective and constitutional, as 
     adopted by the United States Senate on June 14, 1995, by a 
     vote of 84-16 in favor of Amendment 1288 to Title IV of S. 
     652, The Telecommunications Competition and Deregulation Act 
     of 1995.
      Footnotes at the end of article.
---------------------------------------------------------------------------
       The CDA would clearly extend the historical proscriptions 
     against the knowing distribution of obscenity to the 
     burgeoning computer service networks, such as the 
     ``Internet'', ``Use Net'', and ``World Wide Web''. The 
     amendment also forbids the knowing dissemination of 
     ``indecent'' material to minor children. Both provisions 
     cover non-commercial, as well as commercial, 

[[Page S 9771]]
     transmissions. These are critically needed updates in federal law. 
     Present law does not prohibit providing indecency to minors 
     over computer-phone modem facilities, since children are 
     protected from indecency only in commercial dial-porn 
     messages over the phone lines, 47 U.S.C. Sec. 223(b)(2) and 
     (c), or when broadcast over TV and radio communications, 18 
     U.S.C. Sec. 1464. Likewise, the CDA would clearly cover all 
     distributions of hard-core obscenity over the computer 
     networks, whereas existing law has been applied only to 
     commercial sales of obscenity by computer bulletin board use 
     of phone facilities, 18 U.S.C. Sec. 1465.\2\
       ``This much has been categorically settled by the Court, 
     that obscene material is unprotected by the First 
     Amendment.''--Miller v. California, 413 U.S. 15, at 23 (1973)
       ``A requirement that indecent language be avoided will have 
     its primary effect on the form, rather than the content, of 
     serious communication. There are few, if any, thoughts that 
     cannot be expressed by the use of less offensive 
     language.''--F.C.C. v. Pacifica Foundation, 438 U.S. 726, at 
     743 n.18 (1978)
       In Miller v. California, 413 U.S. at 24-25, the Court 
     announced it's ``Miller Test'' and held, at 29, that its 
     three part test constituted ``concrete guidelines to isolate 
     `hard core' pornography from expression protected by the 
     First Amendment''. The Court has consistently upheld federal 
     and state obscenity laws which prohibit the public and 
     commercial dissemination of such unprotected hard-core 
     obscenity. The United States Government and the States have 
     long banned the use of the mails for transporting obscenity. 
     See: Rosen v. United States, 161 U.S. 29, 41-42 (1896); Roth 
     v. United States, Alberts v. California, 354 U.S. 476, 493-94 
     (1957). The use of common carriers has also been banned for 
     the transportation of obscenity, even for private use. See: 
     United States v. Orito, 413 U.S. 139, 141-44 (1973). The 
     Court has held that telephone companies are ``communication 
     common carriers'' subject to federal jurisdiction. See: 
     United States v. RCA, 358 U.S. 334, 348-49 (1959); F.C.C. v. 
     Sanders Bros. Radio Station, 309 U.S. 470, 474 (1940). In 
     1988, Congress amended 18 U.S.C. Sec. 1465 to include new 
     technologies, such as computer-phone modem systems, by adding 
     the words ``uses a facility or means of interstate commerce'' 
     to the prohibitions on commercial shipments of obscenity 
     across state lines. (See: H.R. 3889, The Child Protection and 
     Obscenity Enforcement Act of 1988, 100th Cong., 2nd Sess.) 
     \3\ By that 1988 Act, Congress also criminalized the use of 
     cable, subscription, and satellite TV to distribute 
     obscenity, 18 U.S.C. Sec. 1468.
       Congress also spent several years developing a valid dial-
     porn statute, resulting in the present, constitutionally 
     valid, version of 47 U.S.C. Sec. 223 (b) and (c), as amended 
     in 1988-89. The Supreme Court upheld the power to completely 
     ban obscenity from the phone systems. Sable Communications of 
     Calif., Inc. v. F.C.C., 492 U.S. 115, 124-26 (1989). In the 
     Sable case, the Court struck down a total ban on indecent 
     dial-porn to adults, but discussed with approval the 
     reasonableness of the F.C.C.'s ``least restrictive'' 
     practical methods to screen out minors, such as credit cards, 
     access code-pin numbers, and scrambling. Id. at 121-22, 128-
     31. This blueprint for a valid statutory-F.C.C. scheme was 
     adopted by Congress and upheld by the courts as a valid means 
     to prohibit the distribution of indecency to minors by these 
     ``least restrictive means'' that allow adult access while 
     providing adequate safeguards to protect all but ``the most 
     enterprising and
      disobedient young people''. Information Providers' Coalition 
     v. F.C.C., 928 F.2d 866 (9th Cir. 1991); Dial Information 
     Services v. Thornburgh, 938 F.2d 1535 (2nd Cir. 1991), 
     cert. denied, 112 S.Ct. 966 (1992).
       The Senate version of the Communications Decency 
     Amendments, as sponsored by Senators Exon and Coats, amends 
     47 U.S.C. Sec. 223 in a way that is consistent with and 
     follows the Court's pronouncements on First Amendment 
     requirements discussed in the cases cited above. Such an 
     extension of the valid dial-porn law to computer porn would 
     prohibit only illegal obscenity and restrict indecency only 
     to minors, while allowing adults access to non-obscene 
     indecent communications when the F.C.C.'s technical screening 
     devices are used, or when similarly effective practical means 
     are developed by the users or service or access providers 
     themselves, even if beyond those of the present F.C.C. 
     regulations. The ``Exon-Coats'' amendment is, thus, more 
     protective of legitimate rights than the existing dial-porn 
     scheme.
       It is not a valid argument that ``consenting adults'' 
     should be allowed to use the computer BBS and ``Internet'' 
     systems to receive whatever they want. If the materials are 
     obscene, the law can forbid the use of means and facilities 
     of interstate commerce and common carriers to ship or 
     disseminate the obscenity. See: Paris Adult Theatre I v. 
     Slaton, 413 U.S. 49, 57 (1973). The Supreme Court has 
     forbidden the criminalization of the mere possession of 
     obscenity in the privacy of one's own home, Stanley v. 
     Georgia, 394 U.S. 557, 568 (1969), but has rejected any 
     ``correlative right to receive it, transport it, or 
     distribute it'' since there is no ``zone of constitutionally 
     protected privacy [that] follows such material when it is 
     moved outside the home area protected by Stanley''. Orito, 
     supra, 413 U.S. at 141-42. To the contrary, the Court has 
     held that there is ``a long-recognized legitimate interest in 
     regulating the use of obscene material in local commerce and 
     in all places of public accommodation''. Paris Adult Theatre, 
     supra, 413 U.S. at 58. The Court also held that Stanley 
     ``does not extend to one who is seeking . . . to distribute 
     obscene material to the public, nor does it extend to one 
     seeking to import obscene materials from abroad, whether for 
     private use or public distribution''. United States v. 
     Thirty-Seven Photographs, 402 U.S. 363 376-77 (1971) (adding 
     that ``Congress may declare it contraband''). Perhaps the 
     best defense for the CDA was summarized by the Court in 
     Orito, supra at 143-44, where it held that Section 1462 could 
     not be used to ship obscenity from San Francisco to Milwaukee 
     by a common carrier, the airlines, stating:
       ``Given (a) that obscene material is not protected under 
     the First Amendment . . . (b) that the Government has a 
     legitimate interest in protecting the public commercial 
     environment by preventing such material from entering the 
     stream of commerce . . . and (c) that no constitutionally 
     protected privacy is involved . . . we cannot say that the 
     Constitution forbids comprehensive federal regulation of 
     interstate transportation of obscene material merely because 
     such transport may be by private carriage, or because the 
     material is intended for the private use of the transporter. 
     . . . Congress may regulate on the basis of the natural 
     tendency of the material in the home being kept private and 
     the contrary tendency once material leaves that area, 
     regardless of a transporter's professed intent. Congress 
     could reasonably determine such regulation to be necessary to 
     effect permissible federal control of interstate commerce in 
     obscene material, based as that regulation is on a 
     legislatively determined risk of ultimate exposure to 
     juveniles or to the public and the harm that exposure could 
     cause.'' [Citations omitted.]
       As the late Chief Justice Burger stated in Paris Adult 
     Theatre, supra at 69: ``The States have the power to make a 
     morally neutral judgment that public exhibition of obscene 
     material, or commerce in such material, has a tendency to 
     injure the community as a whole, to endanger the
      public safety, or to jeopardize, in Mr. Chief Justice 
     Warren's words, the states' [and the Nation's] `right . . 
     . to maintain a decent society.'' The Court has also 
     recognized that legislatures ``must be allowed a 
     reasonable opportunity to experiment with solutions to 
     admittedly serious problems'', Young v. American Mini 
     Theatres, 427 U.S. 50, 71 (1976), and Congress has taken 
     up such challenges by updating the various federal 
     obscenity, child pornography and exploitation, and 
     telephone and broadcasting statutes to cover new ways that 
     people invent from time to time to traffic in unprotected 
     obscenity and the provision of indecency to minors. The 
     overlap of some criminal acts by inclusion in two or more 
     federal statutes, like the corresponding prohibitions of 
     the various state laws, is a testament to the need to keep 
     all federal statutes comprehensive and paying their 
     individual roles in deterring harmful, unprotected conduct 
     and allowing prosecution under various circumstances. 
     Shortly after World War II, the Court upheld application 
     of the common carrier laws to cover the new technology of 
     phonograph records, recognizing the power and intent of 
     Congress to legislate comprehensively to prohibit traffic 
     in obscenity. United States v. Alpers, 338 U.S. 680682-83 
     (1950). Congress later amended Section 1462 to 
     specifically include phonographs, so as to clarify and 
     give undeniable notice to all what the law prohibits. Such 
     a task is now before the Congress and the Communications 
     Decency Amendment serves this dual and noble purpose. 
     (Congress should likewise consider updating and clarifying 
     Section 1462 to plainly prohibit commercial and non-
     commercial use of any and all common carriers, including 
     telephone, wire, cable, microwave, satellite, computers, 
     etc., for carriage of obscenity for private and public use 
     in interstate, intrastate, and foreign commerce and 
     travel. Times are changing, technology is advancing, but 
     obscenity is till obscene, unprotected, and harmful.)
       Much of the hard-core obscenity on the BBS and ``Internet-
     World Wide Web'' networks is placed there for sale or 
     advertisement by members of the pornography syndicates and by 
     fledgling pornographers. However, the vast amount of hard-
     core pornography on today's computer bulletin boards and 
     interactive nets is placed there indiscriminately by 
     individual ``porn pirates'' who post freely available 
     pictures of violence, rape, bestiality, torture, excretory 
     functions, group sex, and other forms of hard and soft core 
     pornography which are as available to teenage computer users 
     as to men who are addicted to pornography. A tough federal 
     law is needed to deter such unprotected and viciously harmful 
     activity and the CDA does just that, making such activity a 
     felony in order to deter those who would violate such 
     federally protected interests and public decency and safety 
     concerns. This proposed law would remove hard-core obscenity 
     from most of the generally available computer boards and 
     sites and isolate those who continue so that the remaining 
     obscenity distributors may be identified and prosecuted or 
     deterred by their own lack of anonymity. Present law is not 
     successfully serving its intended deterrence and apprehension 
     roles, obviously.
       The CDA would also channel indecent speech and pictures 
     that are not obscene away from the general access public 
     boards and sites where minors and non-consenting adults could 
     take advantage of the serious 

[[Page S 9772]]
     uses and benefits of this new computer technology. The service and 
     access providers could and would set up consensual access 
     ``adult'' boards and sites where adults could subscribe or 
     provide credit cards and/or access-pin codes and engage in 
     all the ``adult'' (pornographic) speech they wish to consent 
     to. This is no more burdensome than obtaining dial-porn, or 
     cable television's pay-per-view or premium channels, or 
     asking for ``men's sophisticate magazines'' at the 
     convenience stores, or going to hard-core ``adult'' 
     bookstores or into the ``adult'' porn section of video 
     stores, etc., etc., etc. The hysterical arguments about 
     indecency laws banning serious works of literature or library 
     art, so cleverly but hypocritically pandered by the porn 
     user's advocates, are no more real than they would have been 
     under existing laws or in past enforcement actions by the 
     F.C.C. The generations of law enforcement and judicial 
     supervision have narrowly tailored the application of 
     obscenity laws to ``hard-core pornography'' and indecency 
     laws to intentional patterns of patently offensive sex, 
     graphic sexual nudity, and four-letter ``Seven Dirty Words''. 
     As the Court said in Pacifica, sura, 438 U.S. at 743, ``the 
     Commission's definition of
      indecency will deter only the broadcasting of patently 
     offensive references to excretory and sexual organs and 
     activities''. The Court in Pacifica, at 742, also stressed 
     that ``indecency is largely a function of context'' and 
     that speech is not indecent unless it is so patently 
     offensive for the time, place, and manner of its utterance 
     that the community would universally disapprove of its 
     open availability in those circumstances.
       A review of the decisions of the Supreme Court and other 
     federal and state courts shows that a slip of a four letter 
     word of showing nudity for legitimate reasons has never been, 
     nor would it be, found indecent under the F.C.C.'s, the 
     Court's, or the Justice Department's interpretation of the 
     term ``indecent''. Those in the ACLU and EFF who sound the 
     screeching alarm are merely trying to deafen the gullible to 
     drown out the screams of the children and parents who are 
     being screamed off the modern age's most promising tool for 
     education and global communications. They don't seek in 
     earnest to ``empower'' parents to protect children, they want 
     to force parents by the power of their arrogance to kick the 
     kids off the system so they can trade dirty words and 
     pictures. The Internet does not belong to the most obscene 
     and indecent characters of this world, it was created and 
     should be available to everyone, like radio, television, and 
     telephone services, like the mails, common carriers, and 
     other public interstate facilities. To these concerns should 
     Congress turn in this critical time. The recent study of 
     computer porn by the prestigious Carnegie Mellon University, 
     as reported in the venerable Georgetown University law review 
     provides ample reality to the real alarm being heard by the 
     public and responsible public officials. The obscenity and 
     indecency is totally out of control and the law is behind the 
     times. The CDA merely modernizes existing federal law so that 
     the old maxim that ``the law is presumed to know what 
     everyone knows'' can be fulfilled.
       The CDA as adopted by the Senate is both fair and 
     reasonable. It intentionally safeguarded legitimate corporate 
     and private rights. Some provisions of the CDA have even been 
     criticized by pro-family groups as too lenient and providing 
     too many defenses for pornographers, as well as too much 
     exemption and good-faith defense for the on-line computer 
     service access providers, such as Prodigy, CompuServe, 
     NETCOM, and America On Line. The present version of the 
     Amendment would, indeed, exempt the phone company carriers 
     and computer access providers only to the extent that they 
     provide mere access for users to connect to the services and 
     boards of other companies and individuals beyond their 
     control. This would not make the law ineffectual, however, it 
     would simply channel the blame to those who deserve it and 
     enlist the responsible corporations into taking good-faith 
     efforts to avoid and block hard-core pornography and channel 
     indecent speech to adults. To the extent any phone or 
     computer access company would offer obscenity in their own 
     boards, they would be as liable as anyone else. Likewise for 
     making indecent material available to minors under age 18, if 
     they do it-they are liable, but if they don't do it-they 
     aren't liable if someone else does it. This puts the primary 
     criminal liability on those who distribute obscenity to 
     anyone and on those who make indecency available to minors 
     without taking reasonable steps to limit it to adults. 
     Although some people and groups may feel that the phone and 
     computer access providers should bear responsibility for the 
     traffic in obscenity and indecency that is available to 
     minors, but the law need not extend the strictness of its 
     liability to those who act in good faith or merely provide 
     carriage to the illegal materials of others. Existing Section 
     1462 does not criminalize the act of the common carrier in 
     merely carrying illegal materials. It prohibits the user from 
     using the carrier to transport the obscenity. The carrier 
     would be liable only if it acted beyond its role as a carrier 
     and conspired with, or intentionally aided and abetted, the 
     misuse of company facilities for illegal purposes. The same 
     type of knowledge and
      criminal involvement would be required under the CDA and 
     could be applied to such conduct.\4\ The CDA's 
     restrictions to protect minors from indecent speech are 
     the ``least restrictive means'' to protect minors while 
     allowing adults access to non-obscene speech. This is all 
     the public can demand of its laws. The law cannot impose 
     strict liability, but the CDA is designed to provide a 
     serious criminal deterrent to those who would put 
     obscenity onto the computer nets or who would publicly 
     post indecent materials within easy reach of children.
       Consistent with this aim, the Amendment contains ``good 
     faith'' defenses that would allow any company, carrier, 
     Internet connector, or private individual to create 
     reasonable and effective ways to screen children out of adult 
     conversations and allow adults to use indecent, non-obscene, 
     speech among adults. This would encourage, and enable (or 
     ``empower''), the access providers to take steps to enforce 
     corporate responsibility and family friendly policies and 
     monitor their systems against abuse. When they do take such 
     steps, the good faith defense would protect them from 
     becoming liable for unfound or unknown abuses by others, and 
     that is all we think the law can ask of them at this point. 
     There is only so much that can be done in a way that is 
     ``technically feasible'' at any point in time (as the Court 
     reminded us in Sable), and the CDA would not require anyone 
     to take steps that are not technically feasible and does not, 
     and should not, expect anyone to take all steps that may be 
     technically possible.
       This bill would also allow the States to enforce their own 
     obscenity and ``harmful to minors'' laws against the 
     pornographers and porn pirates. If they chose to regulate the 
     carriers and connectors, they would be bound by the Supremacy 
     Clause of the Constitution and the First Amendment to using 
     consistent measures. This ``pre-emption clause'', subsection 
     (g), is not intended to be inconsistent with existing 
     requirements for the States to meet under any criminal law. 
     The joint role of federal and state prosecution of those who 
     distribute the obscenity, and indecency to minors, is 
     intended to be a specifically preserved.\5\
       The good faith defense also allows responsible users and 
     providers to utilize the existing regulations from the F.C.C. 
     for dial-porn systems, until such time as the F.C.C. makes 
     new regulations specifically for the computer networks. This 
     means that a company or individual who takes a credit card, 
     pin number, or access code would be protected under present 
     F.C.C. rules if a minor stole his parent's Visa card or dad's 
     porn pin number. In other words, some responsibility still 
     resides with parents to watch what their kids are watching on 
     the computer. This is serious business and there is a lot of 
     very harmful pornography on the ``Internet'', so parents 
     better take an interest in what their children have access 
     to, and cannot rely on the law or the businesses to solve the 
     entire problem for them. Federal law can make it a crime to 
     post hard-core obscenity on the computer boards, but many 
     people are willing to break the law. The porn pirates are 
     posting the kind of porn that hasn't been sold by the 
     pornography syndicates in their ``adult'' bookstores in 
     nearly 20 years. This law should deter them for doing that 
     any longer and it would allow federal prosecutors to charge 
     them for it now.
       The defenses to indecency are available to every one, so 
     that every one has a chance to act responsibly as adults in 
     protecting children from indecency. This is what the Supreme 
     Court will require for the indecency provisions to be upheld 
     as ``least restrictive'' under the First Amendment. 
     Conversely, no one has a defense to obscenity when they 
     distribute or make obscenity available. The only exception to 
     this is for the carriers and connectors in their role as mere 
     access connectors, only then would they be exempt from the 
     obscenity traffic of others. However, if the on-line service 
     providers go beyond solely providing access, and attempt to 
     pander or conspire with pornographers, for instance, then 
     they would lose their obscenity exemption and be liable along 
     with every one else. This is a limited remedy to prevent the 
     bill from causing a ``prior restraint'' on First Amendment 
     rights. This bill would be nothing at all if it were struck 
     down or enjoined before it could be used against those who 
     are posting, selling, and disseminating all the pornography 
     on the computer networks.
       There has been some criticism that this bill in adopting 
     good faith defenses would make it ineffectual and that this 
     would weaken the bill in the same way that the existing dial-
     porn law is not completely effective. We disagree. The 
     defenses in the dial-porn law were necessary to having that 
     law upheld by the courts. Without them, it was struck down by 
     the Supreme Court. Only after the F.C.C. provided its 
     technical screening defenses was the law upheld by the 
     federal appeals courts. This law adopts those 
     constitutionally required measures for indecency and for 
     obscenity only for the mere access providers. The dial-porn 
     law has removed the pre-recorded message services from the 
     phone lines. The pornographers have gone to live credit card 
     calls. To the extent they are still obscene, they can and 
     should be prosecuted by the Department of Justice, with the 
     help of the F.B.I. That is what it will take to remove the 
     rest of the illegal dial-porn services. The most ineffective 
     part of the dial-porn law is not the F.C.C. defenses, they 
     are fine. What is broken is the phone company defense in the 
     statute, 47 U.S.C. Sec. 223(c)(2)(B), that allows the bell 
     companies to rely on ``the lack of any representation by a 
     provider'' of dial-porn that the provider is offering illegal 
     messages. This means that if the dial-porn company does 

[[Page S 9773]]
     not tell the phone company that the messages are obscene or going to 
     children as indecency, then the phone company doesn't have to 
     block all the dial-porn lines until an adult subscribes in 
     writing. This is not workable and should be fixed by 
     Congress. The dial-porn law should also be amended to give 
     good faith reliance only of a false representation by a dial-
     porn provider. If the phone company doesn't know about a 
     dial-porn service, then they should not be responsible. 
     However, the phone company should block all the dial-porn 
     lines and only unblock them on adult request. This is the 
     provision that is causing the phone companies not to act, not 
     the F.C.C. defenses. There is no such provision in the CDA 
     that would allow the carriers or connectors to wait for the 
     pornographers to confess guilt before they must act. If they 
     know, they must act in good faith. No more, no less. This 
     computer porn law is, therefore, better than the existing 
     dial-porn law in that respect.
       This amendment would allow federal prosecutions against the 
     pornographers and porn pirates immediately, thus removing 
     much of the hard-core material from the networks that the 
     carriers would be providing access to. A more perfect 
     solution, if any there could be, cannot wait several months 
     or years. If Congress has to exempt the connectors as long as 
     they merely carry the signal and otherwise act in good faith, 
     then so be it. If they abuse it, then Congress can take that 
     break away when it is shown that they don't deserve it. In 
     the meantime, the CDA will give federal law enforcement 
     agencies a tool to get at those who are responsible for 
     distributing the obscenity that is at the heart of the 
     complaints at present. It is a good and constitutional law 
     and arguments that it is too much Government involvement, or 
     not enough, are not true, not realistic, and should not lead 
     Congress to bypass this opportunity to enact an effective 
     remedy to protect the public and our children from this 
     insidious problem.
       Bruce A. Taylor, June 29, 1995.
                                                                    ____

                               footnotes

     \1\ The National Law Center for Children and Families 
     (``NLC'') is a non-profit legal advice organization which 
     supports law enforcement and governmental agencies in the 
     prosecution and improvement of federal and state laws dealing 
     with obscenity and the protection of children.
     The author of this Memorandum, NLC's Chief Counsel, Bruce 
     Taylor, has been prosecuting obscenity and child pornography 
     cases since 1973, presenting over 85 cases to juries and 
     numerous oral arguments on appeal, as: Senior Trial Attorney, 
     Child Exploitation and Obscenity Section, Criminal Division, 
     U.S. Department of Justice (1989-94); Assistant Attorney 
     General of Arizona (1989); General Counsel, Citizens for 
     Decency through Law, Inc. (1979-89); Associate in Bertsch, 
     Fludine, Millican & O'Malley, L.P.A. (1978-79); Assistant 
     Director of Law, City of Cleveland (1977-78); Assistant 
     Prosecutor, City of Cleveland (175-77); Chief Law Clerk to 
     the Cleveland Prosecutor (1973-75) (see attached Resume of 
     Bruce A. Taylor).
     \2\ The CDA and existing Section 223 are attached hereto.
     \3\ It was under Section 1465 that the Government convicted 
     the operators of Amateur Action BBS in the Western District 
     of Tennessee for shipping hard-core obscenity, depicting 
     rape, incest, torture, children, excretory functions, etc, 
     etc., from Milpitas, Cal., to Memphis by computer-phone 
     modern facilities. The case is U.S. v. Thomas and is 
     presently pending in the U.S. Court of Appeals for the Sixth 
     Circuit. Interestingly, the A.C.L.U. and the Electronic 
     Frontier Foundation, and some interactive computer service 
     and access providers argued, as amici curiae in support of 
     the Defendants, that present law did not apply to the 
     computer systems, BBS and Internet networks, and that the 
     material should be judged according to the ``cyberspace'' 
     community standards of the customers of such pornographic 
     distributors. This alone should illustrate the need to 
     clarify and update all federal laws on this subject.
     \4\ In this regard, the Senate version of the CDA would be 
     more clear if it were amended to add the words: ``or who 
     aids, abets, or advertises for,'' after the phrase ``or a 
     conspirator with'' in subsection (f)(1).
     \5\ In this regard, the CDA would be more clear by replacing 
     the words ``this section'' at the end of the pre-emption 
     clause, subsection (g); with: ``subsections (a)(2), (d)(2), 
     or (e)(2)''. As we pointed out in Senate colloquies, this is 
     intended to preserve the right and ability of the states to 
     enforce this obscenity and harmful to minors statutes, 
     consistent with the decision of the Court in Roth-Alberts, 
     supra, 354 U.S. at 493-94.
                      Lies That Pornographers Tell

                                               National Law Center


                                    for Children and Families,

                                                    July 10, 1995.
     Re Cox-Wyden bill on the Internet connectors as consistent 
         with Exon-Coats Senate CDA.
     Hon. Christopher Cox,
     House of Representatives, Cannon House Office Building, 
         Washington, DC.
     Hon. Ron Wyden,
     House of Representatives, Longworth House Office Building, 
         Washington, DC.
       Dear Representatives Cox and Wyden: Please excuse the 
     length of this letter, but much misinformation needs to be 
     corrected and this is an issue of utmost importance to 
     America's children and families. You have been lied to. I'd 
     like to give you my views on the pornographer's propaganda 
     and offer an explanation of the true meaning of the Exon-
     Coats amendment dealing with computer assisted obscenity and 
     the problem of indecency being made available to minors.
       A review of your proposed legislation to protect the 
     computer information service providers shows that you are 
     trying to accomplish the same objectives as the Senate 
     version of the Communications Decency Amendment (``CDA''). 
     Whatever you may have been led to believe about the ``Exon-
     Coats Amendment'' is obviously incorrect. The Senate bill 
     accomplishes the same benefits and protections your proposed 
     bill seeks to provide. However, I feel your bill, in giving 
     immunity and a defense without a corresponding offense, will 
     have the opposite effect to that which you seek.
       Your bill imposes no obligations or prohibitions on either 
     the computer or phone companies, nor on the pornographers. No 
     one would be required to remove or restrict obscenity from 
     the Internet or any BBS bulletin board systems, or to 
     restrict indecency from minors. If any company wishes to take 
     responsible corporate policy measures, your bill would only 
     seek to protect them from civil liability. Under the Senate 
     CDA, every company must clean up its own facilities, could 
     not assist other persons to violate the law, and would be 
     protected from both civil and criminal liability for good 
     faith steps to enforce a responsible policy and restrict 
     obscenity from everyone and indecency from minors.
       Your explanatory statement for the Cox-Wyden Bill to 
     protect the access provider Internet connectors (Prodigy, 
     AOL, etc.) expressed a genuine concern for the unfairness of 
     holding these connectors liable civilly for acts they may 
     take in good faith to restrict or prevent the transmission of 
     offensive materials over their facilities and services.
       I think that your proposed measure is consistent with and 
     intends a like result as the Communications Decency Amendment 
     (CDA) of Senators Coats and Exon. The defense-immunity in 
     your proposal, and the exemption and defenses in the CDA, as 
     passed by the Senate, are co-extensive, not different. It is 
     apparent to me that your purpose would be furthered by 
     supporting the Senate's CDA (and even adding some additional 
     provisions to the House version of the CDA, as discussed 
     below and in my attached Memorandum of Opinion in Support of 
     the CDA).
       The New York decision against Prodigy, to which you 
     referred, is a lawsuit result to which we also disagree. In 
     fact, the Exon-Coats amendment recognized the same concern by 
     granting those access providers and phone carriers an 
     exemption from criminal liability for crimes committed by 
     others over the facilities of others beyond their control, in 
     (f)(1). The CDA also provides a good faith defense to 
     offenses committed over one of their own facilities, if they 
     take steps to restrict or prevent such offensive or unlawful 
     communications, in (f)(3). Then, the CDA provided a civil 
     hold-harmless provision to protect users and providers from 
     liability for lawful acts taken in good faith to avoid 
     liability for the offenses specified in 47 U.S.C. Sec. 223, 
     as amended, in (f)(4).
       The Senate CDA does not exempt access providers ``if they 
     exercise `no control' over the information their customers 
     get'', as your release states. Just the opposite is true. A 
     phone carrier or access connector is only exempt, under 
     (f)(1), from crimes committed over facilities over which that 
     company ``has no
      control''. If they have control, they must act (such as over 
     their own boards and chat lines and over services with 
     which they enter contracts or carriage agreements). If 
     they truly have no control, they are not strictly liable 
     for another's offenses (such as over a university or 
     pornographer's board existing independently on the 
     Internet or Use Net or World Wide Web to which they 
     ``solely'' provide unassisted access.
       To the extent the phone and access companies learn of other 
     people abusing their systems with unlawful activities, they 
     can and must act in good faith to prevent or restrict access 
     to the offensive and unlawful materials, under (f)(3). The 
     phone carriers and access providers are liable for all 
     unlawful activity they know of on their own facilities, under 
     (d)(1) and (e)(1). They are also liable for knowingly 
     allowing others to use their facilities for unlawful acts, 
     under (d)(2) and (e)(2).
       The key to responsible action, to taking ``good samaritan'' 
     policy measures, therefore, is in the operation of the good 
     faith defenses. If a bill provided strict liability on a 
     carrier or connector for all unlawful acts they know of on 
     their systems, then their only avoidance of liability would 
     be to pull the plug or to maintain complete ignorance (not to 
     know is not to act ``knowingly'', so they won't look for what 
     would give them guilty knowledge). A strict liability law, 
     without good faith defenses, would have the effect of making 
     the phone and computer companies turn a blind eye. The Senate 
     version requires responsible action and empowers them to use 
     technically feasible soft-ware and hard-ware measures and 
     protects them from liability in doing so. Your bill seeks the 
     effect of the Senate version, and the opposite effect of a 
     ``no defense'' bill.
       Your bill provides a similar exemption from liability for 
     good faith acts to restrict access to objectionable material, 
     in (c) of IFFEA. Without the exemption in (f)(1) and the 
     defenses in (f)(3) of the CDA, the telephone-computer porn 
     statute would provide near strict liability for the carriers 
     and connectors without any incentive to protect themselves 
     except to avoid all knowledge of the offensive materials.
       Ignorance would be their best defense if the good faith 
     defenses are removed from the Senate version and they would 
     be criminally, as well as civilly, liable if they knew there 
     were unlawful materials on other facilities over which they 
     had no control but to which they knew one could gain access 
     by using their facilities to reach the Internet and get 

[[Page S 9774]]
     to those other boards and web sites. The unfairness of this result is 
     the reason the Exon-Coats amendment was structured the way it 
     is and your bill shows a like interest in having a fair 
     application of the law without extending undue liability to 
     those who take responsible action.
       Here's how the Senate's CDA really works:
       No substantive changes are made to existing ``dial-a-porn'' 
     provisions in 47 U.S.C. Sec. 223 (b) and (c). Subsection 
     223(a) is clarified only to codify that subsection's historic 
     interpretation as applying to unconsented harassing and 
     obscene calls for annoyance or threat. This merely codifies 
     present law and prevents subsection (a) from any argument 
     that it would ban all ``indecent'' or ``obscene'' phone or 
     computer conversations.
       The CDA adds four new offenses, two in each of the new 
     subsections (d) and (e), which are subdivisions (d)(1) and 
     (d)(2) and then (e)(1) and (e)(2):
       (d)(1) knowingly make or make available obscenity;
       (d)(2) knowingly allow one's own facility to be used by 
     others to make or make obscenity available;
       (e)(1) knowingly make or make available indecency to 
     minors;
       (e)(2) knowingly allow one's own facility to be used by 
     others to make or make indecency available to minors.
       The (d)(1) and (e)(1) offenses apply to everyone, the 
     pornographers, and the persons who post or sell it on a 
     bulletin board or chat line or web site, and any board or 
     site owner-operator who knowingly conspires with them or aids 
     & abets them. They also apply to phone carriers and computer 
     connectors who would provide such unlawful materials as one 
     of their own services.
       The (d)(2) and (e)(2) offenses are ``carriers'' crimes and 
     apply only to phone carriers and access connectors who own-
     operate telecom. facilities used by others to make computer-
     modem connections to the Internet, Use Net, World Wide Web, 
     or private BBS boards. To the extent a computer connector 
     acts as a mere conduit, they act like carriers when they 
     connect someone to the facilities of others on the nets or 
     boards. To that extent, only, they are and should be treated 
     as carriers are treated for the same activity.
       Legally, the access provider-connectors (Prodigy, America 
     On Line, CompuServe, NETCOM, etc.) are not ``common 
     carriers''
      like the telephone companies (ATT, MCI, Sprint, and the Bell 
     companies). The Senate CDA specifically recognizes this in 
     the last sentence of (f)(3), thus precluding FCC 
     jurisdiction over the operation of those ``enhanced 
     information services''. (Your bill, conversely, merely 
     states, in (d), that nothing in your bill gives FCC 
     jurisdiction. Nothing prevents FCC jurisdiction from 
     another source or act, just that your bill doesn't confer 
     it.) The Senate's CDA allow the FCC only to develop 
     defenses and technical methods to screen out children from 
     indecency and allow adults to have reasonable access to 
     indecent material among themselves, like it did for dial-
     a-porn. The FCC's technical screening devices (credit 
     cards, access-pin codes, and blocking) were cited by the 
     Supreme Court as effective ``least restrictive means'' to 
     screen out minors without affecting adult's rights to non-
     obscene but indecent communications among adults. Allowing 
     these FCC regulations, along with any present or future 
     soft or hard-ware solutions to restrict indecency to 
     adults, makes the indecency provisions of subsection (e) 
     of the CDA constitutional and effective.
       Since existing federal law (18 U.S.C. Sec. 1462 and 47 
     U.S.C. Sec. 223) treats common carriers differently, because 
     of their role as public access carriers, the CDA treated the 
     access connectors in like fashion when they act as common 
     carriers by merely providing access to the facilities of 
     others beyond their control. To the extent a connector gives 
     one access to its own facilities or services, like its own 
     boards and chat sites that are within its control, it is 
     liable like anyone else and must police its own operations. 
     This is like dial-a-porn, where Mountain Bell (which does not 
     provide lines to dial-porn providers) would not be liable for 
     a call from a customer in Arizona who calls through Mountain 
     Bell, then is carried from Mountain Bell by ATT to NYNEX, and 
     reaches a dial-porn company in New York with which NYNEX has 
     a contract. NYNEX can and should be liable if it is culpable, 
     but Mountain Bell should not. The CDA apportions the same 
     criminal liability on those who share the same criminal 
     blame.
       The CDA's (f)(1) only exempts the phone carriers and access 
     connectors when they ``solely'' give one mere access to 
     others' facilities over which they have ``no control''. As to 
     their own boards and sites, they are liable for the offenses 
     when they knowingly and intentionally allow users to transmit 
     obscenity, or indecency to minors, through their systems. In 
     that regard, however, they have the good faith defense in 
     (f)(3) if they monitor, block, screen, etc., all the 
     offensive material they know about and someone still gets 
     unlawful material through. If they've done all they could to 
     police their own boards, they would be protected. If they do 
     nothing and they know their facilities are being so used for 
     unlawful purposes, they would be liable under (d)(2) and 
     (e)(2).
       The incentive is therefore mandated (f)(3) that they do 
     their own corporate responsible actions to restrict or 
     prevent such transmissions or access. It is obvious, however, 
     that Prodigy cannot police what is posted on a CompuServe 
     board or on an independently operated board on the Internet 
     (such as a university, pornographer, or private company 
     board). They can, and would, delete such boards from their 
     index and directory listings, and they could block the drive 
     paths to known offending sites and porn pictures (known as 
     ``GIF'' files-Graphic Interchange Format), to the extent 
     technically feasible. If they advertised for such sites or 
     GIF files of others, then they would not be ``solely'' 
     providing access as exempted under (f)(1).
       There is one change to the Senate CDA that could be made to 
     specify some things that an access provider could not do to 
     assist a pornographer on another's service, like listings and 
     advertising porn sites and GIF files. To accomplish this 
     result more clearly, I suggest that the House CDA add the 
     words: ``or who aids, abets, or advertises for,'' after the 
     phrase ``or a conspirator with'' in (f)(1). This would mean 
     that the access connectors would be responsible for policing 
     their own boards and services and could not assist or aid the 
     unlawful activities of others that they cannot otherwise 
     control.
       Another change I would like to see in the CDA is to correct 
     the last clause of the pre-emption clause, subsection (g), to 
     make it clear and consistent with the first sentence. I 
     suggest the words ``this section'' be replaced with: 
     ``subsections (a)(2), (d)(2), or (e)(2)''.
       Finally, I believe Congress has been betrayed by some 
     telephone companies by not blocking all their dial-a-porn 
     numbers unless they receive a written request from the 
     customer for access to those numbers, as intended and 
     provided in 47 U.S.C. Sec. 223(c)(1). The problem lies with 
     the immunity granted by subsection 223(c)(2)(B)(i), which 
     allows the phone carriers to avoid their blocking duties by 
     relying ``upon the lack of any representation'' from a dial-
     porn provider that the provider is selling illegal messages. 
     In other words, if the phone-sex company does not confess 
     guilt to the phone company, the phone company need do 
     nothing. Since the dial-pornographers don't admit anything, 
     some phone companies don't block anything. This loophole has 
     become a sink hole that Congress should plug. This can be 
     remedied to its original intent by removing the immunity from 
     reliance on silence and giving them immunity only if they
      were lied to or unknowingly misled. Two changes to that 
     clause, Sec. 223(c)(2)(B)(i), would remedy this unjust 
     result, as follows: (i) in good faith reliance upon the 
     representation by a provider of communications that 
     communications provided by that provider are not 
     communications specified in subsection (b) of this 
     section, or
       Other than the two suggested clarifications to the CDA, and 
     the one suggested correction to the dial-a-porn law, the 
     Senate version of the CDA is eminently fair and as 
     constitutional and effective as the law will allow.
       I hope that, when you consider the Senate version in its 
     entirety and as it would be applied and followed in reality, 
     you will agree that the CDA provides the same protections you 
     seek for the legitimate interests of the computer and phone 
     companies, while outlawing illegal obscenity from the 
     computer networks and allowing minor children to take 
     advantage of the educational and growing benefits of the 
     computer without being bombarded with so-called ``adult'' 
     materials. The Internet need not be the ``adult bookstore'' 
     of cyberspace. The Senate bill would put the ``adult'' books 
     in the back room and have adults show ID to get in. Just like 
     in every day life in the rest of the country. This is the 
     least restrictive means to protect children, and they are 
     entitled to at least ``the least'' the law will allow them 
     under the First Amendment.
       As for obscenity, the Senate version only prohibits that 
     which is already illegal to distribute by any other federal 
     means. Existing laws in Title 18 of the U.S. Code prohibit: 
     the sale of obscenity on federal property or in Indian 
     Country (Sec. 1460); all mailings of any obscenity 
     (Sec. 1461); use of a common carrier to ship any obscenity in 
     interstate or foreign commerce or smuggle it into the U.S.A. 
     (Sec. 1462); broadcasting obscenity or indecency by radio or 
     TV (Sec. 1464); transporting it across state lines by any 
     method, or using an interstate commerce facility such as 
     computer phone-modems, to ship or transit it for sale or 
     distribution (Sec. 1465); selling obscenity at retail that 
     was shipped through interstate commerce (Sec. 1466); and 
     using cable, subscription, or satellite TV systems to 
     distribute obscenity (Sec. 1468).
       The Communications Decency Amendment is a good, fair, and 
     constitutional proposal. You and your colleagues have been 
     lied to about what it would do and what it provides. I trust 
     that you seek a proper blend of law and private action and I 
     trust in your instincts to see through the smoke. Without a 
     law, the computer nets will continue to be abused by the 
     purveyors of hard-core obscenity and it will continue to be a 
     place in which responsible adults should fear to let their 
     children play. A law that does not prohibit unlawful 
     materials is no law at all to the pornography syndicates, 
     their associates, and the addicted customers. An overly 
     strict law would not be tolerated by the courts, for fear of 
     an unconstitutional prior restraint.
       There is no reasonable doubt that only a carefully worded 
     and First Amendment sensitive statute will survive the legal 
     challenges that the ACLU, Center for Democracy and 
     Technology, Electronic Frontier Foundation, and some 
     commercial pornography companies will mount. The CDA can 
     withstand the tests to be applied, no other proposal can make 
     that claim. This is a serious 

[[Page S 9775]]
     problem and needs a serious and lawful solution. The CDA would be a 
     valid extension of federal obscenity law to the computer 
     networks and a valid extension of dial-a-porn protections for 
     children from indecent adult material.
       Our hope is that you sponsor and support the CDA as passed 
     by the Senate. Your leadership would probably insure its 
     passage. The country, all us parents and grandparents, all of 
     our children, our neighbors, even the addicted customers need 
     your help and that of your fellow Members of the House of 
     Representatives. Please reconsider and look at the 
     Communications Decency Amendment in a new light. It is a good 
     bill. Look for yourself. It won't lie to you like porn 
     advocates have.
       Please let us know if we can help you in this regard.
           Sincerely yours,
                                                  Bruce A. Taylor,
                                        President & Chief Counsel.

  Mr. EXON. Mr. President, this letter is by a distinguished lawyer, 
who has, I guess, as much experience with the prosecution of 
pornographers as most lawyers in the United States would recognize as a 
real authority on the subject.
  The letter of July 10 is addressed to the Honorable Christopher Cox 
of the House of Representatives and the Honorable Ron Wyden of the 
House of Representatives. The subject is the Cox-Wyden bill on Internet 
connectors as consistent with the Exon-Coats Senate decency amendment. 
And I quote:

       Dear Representatives Cox and Wyden: Please excuse the 
     length of this letter, but much misinformation needs to be 
     corrected and this is an issue of utmost importance to 
     America's children and families. You have been lied to. I'd 
     like to give you my views on the pornographer's propaganda 
     and offer an explanation of the true meaning of the Exon-
     Coats amendment dealing with computer assisted obscenity and 
     the problem of indecency being made available to minors.
       A review of your proposed legislation to protect the 
     computer information service providers shows that you are 
     trying to accomplish the same objectives as the Senate 
     version of the communications decency amendment (``CDA'').
      Whatever you may have been led to believe about the ``Exon-
     Coats amendment'' is obviously incorrect. The Senate bill 
     accomplishes the same benefits and protections your 
     proposed bill seeks to provide. However, I feel your bill, 
     in giving immunity and a defense without a corresponding 
     offense, will have the opposite effect to that which you 
     seek.

  Mr. President, although the letter has been printed in the Record, I 
would like at this time to quote from the last two or three paragraphs:

       The communications decency amendment is a good, fair, and 
     constitutional proposal. You and your colleagues have been 
     lied to about what it would do and what it provides. I trust 
     that you seek a proper blend of law and private action and I 
     trust in your instincts to see through the smoke. Without a 
     law, the computer nets will continue to be abused by the 
     purveyors of hard-core obscenity and it will continue to be a 
     place in which responsible adults should fear to let their 
     children play. A law that does not prohibit unlawful 
     materials is no law at all to the pornography syndicates, 
     their associates, and the addicted customers. An overly 
     strict law would not be tolerated by the courts, for fear of 
     an unconstitutional prior restraint.
       There is no reasonable doubt that only a carefully worded 
     and first amendment sensitive statute will survive the legal 
     challenges of the ACLU, Center for Democracy and Technology, 
     Electronic Frontier Foundation, and some commercial 
     pornographic companies will mount. The CDA can withstand the 
     tests to be applied, no other proposal can make that claim. 
     This is a serious problem and needs a serious and lawful 
     solution. The CDA would be a valid extension of Federal 
     obscenity law to the computer networks and a valid extension 
     of dial-a-porn protections for children from indecent adult 
     material.
       Our hope is that you sponsor and support the CDA as passed 
     by the Senate. Your leadership would probably insure its 
     passage. The country, all us parents and grandparents, all of 
     our children, our neighbors, even the addicted customers need 
     your help and that of your fellow Members of the House of 
     Representatives. Please reconsider and look at the 
     communications decency amendment in a new light. It is a good 
     bill. Look for yourself. It won't lie to you like porn 
     advocates have.
       Please let me know if we can be of help in this regard.
           Sincerely yours,
                                                  Bruce A. Taylor,
         President and Chief Counsel for the National Law Center 
           for Children and Families

  Mr. President, since the Exon-Coats measure passed with a 84 to 16 
majority, the Senate of the United States sent a very loud and clear 
signal that something has to be done about obscenity. Something has to 
be done with regard to material that is being used promiscuously on the 
Internet today. This is a wonderful new system for the distribution of 
information. But if we are to sit idly by and listen to some of the 
opponents, who do not want to do anything about this problem, the 
American people are being convinced and are now being told by national 
publications, including Time magazine, who last week had an indepth 
story with a front-page cover showing a child.
  This is a carefully crafted piece of legislation. It is obviously 
necessary, as has become evident to most people who have taken the time 
to either see this smut--and I use that word very advisedly because it 
does not begin to describe the bestiality and the sexual perverts that 
have invaded this system, primarily to make money.
  The courts have continually held that we have the right to do 
something in the courts when we have this kind of material in full 
swing. We had a hearing in the Commerce Committee today, primarily on 
violence on television. The people are justifiably upset about that. We 
also talked today about the large amount of sex and suggested sex that 
is being thrown at our children today. The Exon-Coats proposal with 
regard to our Internet system is an important step in the right 
direction. And as more and more people look at it, and as more and more 
people recognize all of the lies that are being told about this piece 
of legislation--simply untruths designed and planted in many 
publications by those who want the pornographers to run at will and be 
available at will to our children on the Internet.
  Mr. President, I think this is a step in the right direction. I have 
personally hand delivered a copy of this letter that I had printed in 
the Record to the Attorney General of the United States, Janet Reno. I 
have had a personal conversation with the Vice President of the United 
States about this today. He was very much interested in this letter. I 
faxed the letter to him. In addition thereto, I have had delivered 
today to the White House itself, to the attention of the President, 
this well-thought-out letter that adequately and honestly describes the 
well-thought-out Exon-Coats amendment. I only hope that the Members of 
the House of Representatives will awaken. I think too many of them have 
been misled and lied to about the communications decency amendment. I 
hope it becomes law.
  I thank the Chair and yield the floor.
  Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. COHEN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                          ____________________