[Congressional Record Volume 142, Number 15 (Monday, February 5, 1996)]
[Extensions of Remarks]
[Pages E153-E154]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                  FIGHTING PORNOGRAPHY ON THE INTERNET

                                 ______


                         HON. ROBERT K. DORNAN

                             of california

                    in the house of representatives

                       Thursday, February 1, 1996

  Mr. DORNAN. Mr. Speaker, we are discussing the telecommunication bill 
which is a large and complicated piece of legislation. Buried within 
this complex labyrinth of highly technical legislation is an important 
provision that attempts to control child pornography on the Internet. 
This provision gives us false security to believe that we are dealing 
with this heinous crime. However, the reality is that the provision 
does not have the power to eradicate computer pornography. Mark my 
words: We will have to come back to this issue 6 or 7 months from now 
trying to fix the deficiencies in this provision. Read about the German 
experience and laws.
  Mr. Speaker, I highly recommend to my colleagues the following 
article by Patrick Trueman, one of America's foremost legal experts in 
the area of child protection and the former Director of the Child 
Exploitation and Obscenity Office in the U.S. Department of Justice.

                 Porn On the Internet, Here and Abroad

                        (By Patrick A. Trueman)

       Compuserve, one of the nation's top Internet access 
     providers, temporarily blocked more than 200 sexually 
     explicit sites recently because a German prosecutor thought 
     the provision of such material by the company to German 
     citizens violated that country's law. Compuserve may have 
     reason to fear German law but seems safe in providing 
     pornography to American citizens, even children. That is 
     because Congress is contemplating passage of a 
     telecommunications bill which will protect Compuserve and all 
     Internet access providers from criminal liability for the 
     provision of similar material to anyone, including children.
       Yes, the bill in question contains specific protective 
     language for those access providers who make millions 
     distributing pornography, even hard-core pornography, to 
     children and others. Sen. James Exon, Democrat Nebraska, and 
     Rep. Rick White, Washington Republican, are responsible for 
     this political favor. They are the principle authors of the 
     Communications Decency Act, which they have characterized as 
     a measure to control computer pornography.
       Computer pornography should be eradicated, not controlled. 
     Senator Exon originally proposed a bill that was a simple, 
     straightforward prohibition. His top staffer on the bill 
     frankly admitted to me that he caved in to demands of access 
     providers under heavy lobbying pressure by them and thousands 
     of Internet users. The interests of Rep. White are patently 
     obvious. In his Washington state district is the headquarters 
     of major Internet access provider, Microsoft.
       Last year when the telecommunications bill was in 
     committee, the American Family Association fought hard 
     against special protections for access providers. So too did 
     such notables with a high profile in the fight against 
     pornography as former Attorney General Edwin Meese III and 
     Rep. Henry Hyde, chairman of the U.S. House Judiciary 
     Committee.
       Why is Congress so willing to protect those who distribute 
     and profit from computer pornography? Because one major pro-
     family group and a few smaller ones urged it to. Access 
     providers and the so-called ``free speech'' lobby fought for 
     the protections, but they couldn't have gotten such major 
     concessions from the family-friendly 104th Congress without 
     the cover certain pro-family groups gave them.
       Pro-family champion Mr. Hyde offered a much tougher, no-
     exceptions computer pornography provision in committee as an 
     alternative to Exon-White. He was defeated, however, by Mr. 
     White--who liberally touted the support of the few pro-family 
     groups who supported the position of the access providers.
       Soon Congress will vote on the final version of the 
     telecommunications bill, which contains this soft-on-
     pornography language. The effect on the Internet is 
     predictable--computer pornography will continue to flow 
     freely.
       Under the Hyde provision anyone would have been liable, 
     including access providers, for knowingly and intentionally 
     distribution or making available pornography to children or 
     obscene pornography to anyone. The argument in favor of the 
     Hyde provision--that by providing no exceptions in the law, 
     access providers will voluntarily restrict access to 
     pornography--was made crystal clear by Compuserve's response 
     to the German prosecutor.
       That is the exact response that could be expected from all 
     U.S. Internet access providers by passage of the Hyde 
     language. It is an inexplicable irony that due only to the 
     efforts of some pro-family groups, Compuserve and other 
     access providers may have to block pornography to German 
     children, but are free to provide it to the children of 
     America.
       Why did pro-family groups go to bat for access providers? I 
     still wonder. The arguments of their representatives shifted 
     throughout the months-long debate during consideration 

[[Page E154]]
     of the various computer pornography provisions in Congress. The lawyer 
     for one argued that it is unconstitutional to hold access 
     providers liable because they have no ability to block 
     pornographic Internet sites. Her ``constitutional argument'' 
     is undermined by Compuserve's response to the German 
     prosecutor. She also contended that the Internet is a 
     ``wonderful resource'' and we shouldn't go ``too far'' in 
     regulating it.
       Wow. Since when did Internet protection become a pro-family 
     priority? Another prominent argument was that any computer 
     pornography measure should be modeled after the federal dial-
     a-porn law with access providers treated like the phone 
     companies are in that law. There is no more ineffective 
     criminal law than the federal dial-a-porn law. It is hardly 
     an appropriate model. Dial-a-porn is a thriving business in 
     America precisely because this law has almost zero deterrent 
     effect.
       There have been no prosecutions under it since it was 
     revised in the late 1980s to give phone companies almost 
     blanket exemption from prosecution for what otherwise would 
     be a crime of conspiracy when they knowingly provide service 
     to and profit from dial-a-porn companies. The reason for this 
     exemption was that phone companies are heavily regulated 
     common carriers. Access providers are not common carriers and 
     after this bill won't be regulated at all.
       Congress, in the telecommunications bill to which Exon-
     White is appended, will impose on them all the benefits of a 
     common carrier but none of the burdens. If Congress wants an 
     appropriate computer pornography model, it should mirror the 
     federal child pornography law which, like the Hyde proposal, 
     does not exempt access providers. That is undoubtedly a major 
     reason why one access provider, America OnLine, so willingly 
     cooperated with the Justice Department in a recent computer 
     child pornography sting operation.
       As Compuserve has demonstrated, the best carrot and stick 
     approach is a tough law. Only when Compuserve understood it 
     was the liable under German law for the distribution of 
     pornography did it block pornographic site. The company has 
     indicated that it regretted the blockage of pornographic 
     sites to its customers in this country and quickly ended the 
     blockage.
       Finally, some pro-family advocated argued that any law is 
     better than what we have now. That arguments assumes that 
     current federal obscenity laws do not allow prosecution of 
     those who traffic in such material by computer. There is no 
     court that has ever taken this position and, indeed, the 
     Justice Department has successfully used current law to 
     prosecute a computer pornography crime. Thus, it only makes 
     sense to enact a new computer pornography law if it improves 
     the ability of the Justice Department to prosecute for 
     computer pornography crimes.
       The Justice Department has told Congress in three letters 
     that any law that exempts access providers from liability 
     undermines its ability to prosecute those who traffic in 
     computer pornography. Exon-White, then, is a retreat in the 
     war against pornography.
       Sure, Exon-White will allow the Justice Department to 
     prosecute the individuals who put obscene pornography on the 
     Internet or provide pornography via the Internet to children. 
     But how many of the thousands of individuals in this country 
     who are potential prosecution targets will really be deterred 
     by Exon-White? The Justice Department can only do a 
     relatively few prosecutions a year for such violations? Not 
     long ago it announced it was dropping or postponing a great 
     number of investigations targeting those who distribute child 
     pornography by computer for lack of investigative resources.
       Certainly child pornography will be given the highest 
     priority by the department, leaving few resources to enforce 
     Exon-White against violators in this country. And what about 
     the tens of thousands of individuals in other countries who 
     fill the Internet with pornography? Since our government has 
     no jurisdiction to prosecute them, there is no reason to 
     believe they will change their behavior.
       There is also no reason to believe that any pornographic 
     Internet sites will disappear. Exon-White guarantees they 
     will remain since access providers who make those sites 
     available will be free under Exon-White to provide them.
       The simple solution to eliminating or substantially 
     reducing those sites was Henry Hyde's bill. If access 
     providers are liable for making pornography available, they 
     will clean up the Internet. The Hyde proposal would have 
     allowed access providers to make indecent but not obscene 
     pornography available to adults so long as they took 
     measures to assure that the material was not available to 
     children. This provision is made necessary by a line of 
     court cases indicating that adults have a constitutional 
     right to indecent material. It could have been 
     accomplished by providing access codes or pin numbers to 
     adult customers like banks do for ATM card customers.
       Under Hyde, access providers would not be held liable for 
     all illegal pornography on the Internet which their services 
     may be used to obtain. Nor would it require that they check 
     all communications to ensure that no violations of the law 
     are occurring. They would simply be required to avoid knowing 
     violations of the law.
       This is an obligation imposed on all citizens, and Congress 
     is foolish to exempt Compuserve and others like it from such 
     a responsibility, especially since those most likely to be 
     harmed will be children who, with a few clicks of a computer 
     mouse, can enter that grand international pornographic swap 
     meet that the Internet will be for them, courtesy of the 
     access provider companies.
       Federal criminal law has traditionally assigned equal 
     liability both for those who commit a crime and those who aid 
     and abet a crime. Thus any notion that access providers 
     aren't directly responsible for the provision of pornography 
     on the Internet should be legally irrelevant because without 
     their willing facilitation there would be no Internet 
     pornography.
       Exon-White won't make the issue disappear from Congress. 
     The access providers and those who enjoy the easy 
     availability of pornography on the Internet have won round 
     one. Soon, however, that segment of decent American society 
     that began the clamor for a solution to the disease of 
     computer pornography will realize that Exon-White is little 
     more than the placebo it was designed to be and they will 
     demand that Congress provide a serious response.

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