[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.
____________________