Exon Bill Opposed by DoJ
Date: Sat, 6 May 95 13:12:07 PDT
From: Peter Langston <psl>
Subject: Exon Bill Opposed by DoJ
Excerpted-from: EFFector Online Volume 08 No. 04 May 6, 1995
A Publication of the Electronic Frontier Foundation ISSN 1062-9424
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Subject: Dept. of Justice Opposes Exon Bill - But Calls for Replacement
Below is a letter from the Justice Department in response to (D-VT) Sen. Pat
Leahy's recent enquiry regarding the DoJ's position on the Exon/Gorton
Communications Decency Act. The CDA was recently folded into larger
Senate telecom deregulation bill S. 652, after significant but
insufficient amendment to reduce system operator liability. The House
version of the bill, still in its original form, remains a separate bill,
H.R.1004, whose sponsor appears to have had second thoughts and has
called for slowing the bill down.
As grassroots, and especially online, activists and concerned citizens
continue to raise serious doubts about this bill, and as organizations
like EFF, Voters' Telecommunications Watch, the Center for Democracy and
Technology, and dozens of others, work to derail it, the following letter
comes as a pleasant surprise for the most part.
The Department of Justice maintains first and foremost that the bill will
greatly harm law enforcement's efforts against obscenity and sexual abuse
of minors, in a number of ways. Most of these flaws in the bill are due
to imprecise application of terms like "digital" and insufficient
consideration of the effects that supposedly minor changes to one section of
the telecommunications regulations have on other sections, their enforcement
and their interpretation by the courts.
However, and to their credit, the DoJ has also identified four distinct
and serious threats to privacy posed by the CDA. Besides making it
easier for system crackers to evade detection, Sen. Exon's legislation
would also negate the "exclusionary rule" of 18 USC section 2515,
reducing the privacy protections of phone calls in one way, and
additionally weaken this privacy by introducing a loophole into the
wiretap statute that would broadly allow monitoring by anyone of private
voice communications. The Department further warns that one section of the
bill "would encourage intrusion by on-line service providers into the
private electronic mail communications of individual users. [The section]
actually promotes intrusions into private electronic mail by making it
'safer' to monitor private communications than to risk liability. At the
same time, [the section] would defeat efforts by the government to
enforce federal privacy protections against illegal eavesdropping."
Not all is sunshine however, and those concerned about civil liberties online
should keep one eye open for a replacement bill in the not too distant
future. The Acting Assistant Attorney General notes that "While we agree
with the goal of various legislative proposals designed to keep obscenity
and child pornography off of the information superhighway, we are
currently developing a legislative proposal that will best meet these
challenges and provide additional prosecutorial tools. This legislative
package is being developed while taking into consideration the need to
protect fundamental rights guaranteed by the First Amendment."
Needless to say, many of us will remain skeptical.
Department of Justice Letter to Sen. Leahy
May 3, 1995
Honorable Patrick J. Leahy
United States Senate
Washington, DC 20510
I write to respond to your letter of March l, 1995 concerning our
prosecution of violations of federal child pornography and obscenity laws
and your April 21, 1995 request for the views of the United States
Department of Justice on the "Communications Decency Act," which has been
incorporated as title IV of the proposed "Telecommunications Competition
and Deregulation Act of 1995," S. 652. In accordance with your request,
the analysis of the Communications Decency Act focuses on sections 402
and 405 of the bill.
The Department's Criminal Division has, indeed, successfully prosecuted
violations of federal child pornography and obscenity laws which were
perpetrated with computer technology. In addition, we have applied
current law to this emerging problem while also discovering areas where
the new technology may present challenges to successful prosecution.
While we agree with the goal of various legislative proposals designed to
keep obscenity and child pornography off of the information superhighway,
we are currently developing a legislative proposal that will best meet
these challenges and provide additional prosecutorial tools. This
legislative package is being developed while taking into consideration
the need to protect fundamental rights guaranteed by the First Amendment.
With respect to the communications Decency Act, while we understand that
section 402 is intended to provide users of online services the same
protection against obscene and harassing communications afforded to
telephone subscribers, this provision would not accomplish that goal.
Instead, it would significantly thwart enforcement of existing laws
regarding obscenity and child pornography, create several ways for
distributors and packagers of obscenity and child pornography to avoid
criminal liability, and threaten important First Amendment and privacy
Similarly, while we understand that section 405 of this bill is intended
to expand privacy protections to "digital" communications, such
communications are already protected under existing law. Moreover, this
provision would have the unintended consequences of jeopardizing law
enforcement's authority to conduct lawful, court-ordered wiretaps and
would prevent system administrators from protecting their systems when
they are under attack by computer hackers.
Despite the flaws in these provisions, the Administration applauds the
primary goal of this legislation: prevent obscenity from being widely
transmitted over telecommunications networks to which minors have access.
However, the legislation raises complex policy issues that merit close
examination prior to Congressional action. We recommend that a
comprehensive review be undertaken of current laws and law enforcement
resources for prosecuting online obscenity and child pornography, and the
technical means available to enable parents and users to control the
commercial and non commercial communications they receive over
interactive telecommunications systems.
The following are the Department's primary objections to sections 402 and
405 of the pending telecommunication bill:
First, Section 402 of the bill would impose criminal sanctions on the
transmission of constitutionally protected speech. Specifically,
subsections 402(a)(1) and (b)(2) of the bill would criminalize the
transmission of indecent communications, which are protected by the First
Amendment. In _Sable Communications of Cal. v. FCC_, 492 U.S. 115 (1989),
the Supreme Court ruled that any restrictions on the content of protected
speech in media other than broadcast media must advance a compelling
state interest and be accomplished by the "least restrictive means." 8y
relying on technology relevant only to 900 number services, section 402
fails to take into account less restrictive alternatives utilizing
existing and emerging technologies which enable parents and other adult
users to control access to content.
Nearly ten years of litigation, along with modifications of the
regulations, were necessary before the current statute as applied to
audiotext services, or "dial-a-porn" calling numbers, was upheld as
constitutional. See _Dial Information Services v. Thornburg_, 938 F. 2d
1535 (2d Cir. 1991). The proposed amendment in section 40-2 of the bill
would jeopardize the enforcement of the existing dial-a-porn statute by
inviting additional constitutional challenges, with the concomitant
diversion of law enforcement resources.
Second, the definition of "knowingly" in section 402 of the bill would
cripple obscenity prosecutions. Under subsection 402(e), only those
persons with "actual knowledge" of the "specific content of the
communication" could be held criminally liable. This definiition would,
make it difficult, if not impossible, to prove guilt, and the standard is
higher than the prevailing knowledge requirements under existing
obscenity and child sexual exploitation statutes. Under _Miller v.
California_, 413 U.S. 629 (1973j, the government must only prove that a
person being prosecuted under an obscenity statute had knowledge of the
general nature of the material being distributed. Large-scale
distributors of child pornography and other obscene materials--among the
most egregious violators -- do not read or view each obscene item they
distribute. the proposed definition in subsection 402(e) would make it
nearly impossible for the government to establish the necessary knowledge
requirement and would thereby severely handicap enforcement of existing
Third, section 402 would add new terms and defenses that would thwart
ongoing enforcement of the dial-a-porn statute. Currently, the government
is vigorously enforcing the existing dial-a-porn statute. It took more
than ten years for the government to be able to do so, due to
constitutional challenges. The proposed amendment to this statute
fundamentally changes its provisions and subjects it to renewed
constitutional attack which would hinder current enforcement efforts.
Fourth, section 402 would do significant harm by inserting new and
sweeping defenses that may be applied to nullify existing federal
criminal statutes. The government currently enforces federal criminal
laws preventing the distribution over computer networks of obscene and
other pornographic material that is harmful to minors (under 18 U.S.C.
section 1465, 2252 * 2423 (a)), the illegal solicitation of a minor by
way of a computer network (under 18 U.S.C. section 2252), and illegal
"luring" of a minor into sexual activity through computer conversations
(under 18 U.S.C. section 2423(b)). These statutes apply to all methods of
"distribution" including over computer networks. The new defenses
proposed in subsection 402(d) would thwart ongoing government obscenity
and child sexual exploitation prosecutions in several important ways:
* The first defense under subsection 402 (d)(1) would immunize from
prosecution "any action" by a defendant who operates a computer bulletin
board service as an outlet for the distribution of pornography and
obscenity so long as he does not create or later the material [sic]. In
fact, this defense would establish a system under which distributors of
pornographic material by way of computer would be subject to fewer
criminal sanctions than distributors of obscene videos, books, or magazines.
* The second defense provided in subsection 402(d)(2) would exculpate
defendants who "lacked editorial control over the communications." Such a
defense may significantly harm the goal of ensuring that obscene or
pornographic material is not available on the Internet or other computer
networks by creating a disincentive for operators of public bulletin
board services to control postings on their boards.
Moreover, persons who provide critical links in the pornography and
obscenity distribution chains by serving as "package fulfillment centers"
filling orders for obscene materials, could assert the defense that they
lack the requisite "editorial control." This proposed defense would
complicate prosecutions of entire obscenity distribution chains.
* The third defense provided in subsection 402 (d)(3), containing five
subparts, would be available to pornographic bulletin boards operators
who take such innocuous steps as (A) directing users to their "on/off"
switches on their computer as a "means to restrict access" to certain
communications; (B) warning, or advertising to, users that they could
receive obscene material; and (C) responding to complaints about such
minimum, [sic] this proposed defense would lead to litigation over whether
such actions constitute "good faith" steps to avoid prosecution for
violating the section 402, and could thwart existing child pornography
and obscenity prosecutions.
* The fourth defense provided in subsection 402 (d)(4) would exculpate
defendants whose pornography business does not have the "predominate
purpose" of engaging in unlawful activity. This defense would severely
undercut law enforcement's efforts to prosecute makers and distributors
of noncommercial pornography and obscenity.
* The fifth defense provided in subsection 402 (d)(5) would preclude any
cause of action from being brought against any person who has taken good
faith steps to, _inter_alia_, "restrict or prevent the transmission of,
or access to," a communication deemed unlawful under section 402. This
defense would encourage intrusion by on-line service providers into the
private electronic mail communications of individual users. The defense
actually promotes intrusions into private electronic mail by making it
"safer" to monitor private communications than to risk liability. At the
same time, this defense would defeat efforts by the government to enforce
federal privacy protections against illegal eavesdropping.
Finally, but no less significantly, section 405 amends the federal
wiretap statute in several respects, each of which creates considerable
problems. First, it amends the wiretap statute to add the term "digital"
to 10 USC section 2511 (see footnote #1), without considering the effect
of this amendment on other statutory provisions. For example, 10 USC
section 2516 (1) provides that certain government officials may authorize
an application for a wiretap order for wire or oral communications while
18 USC section 2516 (3) provides that other government officials may
authorize an application for a wiretap order for electronic
communications. Since section 405 does not amend 10 USC section 2516, to
include the term "digital," it would appear that _no_ government official
has the authority to authorize an application for a wiretap order for
digital communications. This is particularly problematic, since this
investigative tool is reserved for the most serious cases, including
those involving terrorists, organized crime, and narcotics.
Equally disconcerting, the amendment serves to protect computer hackers
at the expense of all users of the National Information Infrastructure
(NII), including businesses, government agencies and individuals. Prior
to 1994, wiretap statute allowed electronic communication services
providers to monitor _voice_ communications to protect their systems from
abuse. 18 USC section 2511 (2)(a)(i) (1986 version). Thus, when hackers
attacked computer systems and system administrators monitored these
communications, they had no clear statutory authority to do so. In
October 1994, Congress finally remedied this defect by amending 10 USC
section 2511 (2)(a)(i) to permit the monitoring of electronic (i.e.,
digital, non-voice) communications. If section 405 is enacted and these
hacker communications are deemed digital, system administrators will
once again be denied the statutory authority to monitor hacker
communications. It would be most unfortunate if, at the same time
Congress is encouraging the widespread use of the NII, it passed a law
giving system administrator's a Hobson's choice: either allow hackers to
attack systems unobserved or violate federal law.
There are three other concerns as well. First, by adding the term
"digital" without amending the suppression provisions of 18 USC section
2515, voice communications -- if they are deemed "digital" -- will no
longer be protected by the statute's exclusionary rule. This would serve
to reduce the privacy protections for phone calls.
Second, section 405 would replace the words "oral communication" with
"communication" in 18 USC section 2511 (l)(B). This would have
undesirable consequences for law enforcement because it would criminalize
the interception of communications as to which there was no reasonable
expectation of privacy (see footnote #2).
From the law enforcement perspective, there is simply no sound reason for
eliminating this highly desirable feature of present law. Additionally,
the amendment might also impact upon the news gathering process. For
example, if the conversation of two individuals shouting in a hotel room
were recorded by a news reporter standing outside the room, the reporter
would, under section 405, be violating the wiretap statute. Under current
law, of course, the individuals could not complain about the recording
because, by shouting loud enough to be heard outside the room, they lack
any reasonable expectation of privacy.
Last, the provision in section 402 (d)(5) provides that "no cause of
action may be brought in any court ... against any person on account of
any action which the person has taken in good faith to implement a
defense authorized under this section ...." This would seem to suggest
that any person can freely engage in electronic surveillance otherwise
prohibited under Title III- so long as they claim to be implementing a
section 402 defense. As such, section 402 (d)(5) severely weakens the
privacy protections currently offered by the wiretap statute.
In sum, sections 402 and 405 of the bill would hamper the government's
ongoing work in stopping the dissemination of obscenity and child
pornography and threaten law enforcement's continued ability to use
court-authorized wiretaps. We believe that a comprehensive review be
undertaken [sic] to guide response to the problems that the Communications
Decency Act seeks to address.
I assure you that the Department is aware of the growing use of computers
to transmit and traffic obscenity [sic] and child pornography. The Criminal
Division's Child Exploitation and Obscenity Section is aggressively
investigating and prosecuting the distribution of child pornography and
obscenity through computer networks, and the use of computers to locate
minors for the purpose of sexual exploitation. As we have discussed with
your staff in a meeting focused on these issues, we remain committed to
an aggressive effort to halt the use of computers to sexually exploit
children and distribute obscenity.
Acting Assistant Attorney General
(1) It should be noted that "digital" communications are already covered
by the wiretap statute. Under current law, a "digital" communication is
either a wire communication under 18 USC sec 2510 (1) (if it contains
voice) or an "electronic communication" under 18 USC sec 2510 (12) (if it
does not contain voice). Since such communications are already covered,
the reason for enacting section 405 is unclear, and it is difficult to
predict how the courts will interpret the amendment.
(2) The definition of "oral communication" in 18 USC sec 2510 (2)
contains a requirement that the communication to be protected must have
been made under circumstances justifying an expectation of privacy.
[End of DoJ document.]
Subject: What YOU Can Do
* The Exon Bill (Communications Decency Act)
The Communications Decency Act poses serious threats to freedom of
expression online, and to the livelihoods of system operators. The
legislation also undermines several crucial privacy protections.
Business/industry persons concerned should alert their corporate govt.
affairs office and/or legal counsel. Everyone should write to their own
Senators and ask them to oppose this bill. Explain, quickly and
clearly, why this bill is dangerous, and urge efforts to stop this
legislation or remove it from the larger bill it is a part of.
S.652, the Senate telecom deregulation bill, now contains Sen. Exon's
"Communications Decency Act" (formerly S.314.) The House version, even
more dangerous to system operators, is H.R.1004.
For more information on what you can do to help stop this dangerous
gopher.eff.org, 1/Alerts, s314_hr1004_s652.alert
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© 1995 Peter Langston