The Obscenity of Decency

Here's what you can do.

By Brock N. Meeks

Border skirmishes over First Amendment rights along the electronic frontier have broken into a full-scale range war. A bill gaining momentum in Congress threatens to impose government mandated censorship on all forms of electronic speech, including your private e-mail. If passed, this bill would cast a bone-deep chill across all forms of online communication, reducing them to nothing more thought-provoking than Hallmark greeting cards. The "Communications Decency Act," as the bill (S 314) is euphemistically called, was introduced in February by Senators James Exon (D-Nebraska) and Slade Gorton (R-Washington), apparently in an effort to save cyberspace from becoming what the senators claim is a debaucherous haven for perverts and pedophiles.

"I want to keep the information superhighway from resembling a red-light district," Exon said when introducing the bill. "This legislation will help stop those who electronically cruise the digital universe to engage children in inappropriate communications."

What Exon doesn't tell you, however, is that the bill would slap criminal liabilities on all Internet service providers, commercial online services, bulletin board systems and even electronic mail providers whenever their services are used to transmit any material that's considered "obscene, lewd, lascivious, filthy, or indecent." Oh yeah, the person actually responsible for sending the message gets hammered as well, with up to US$100,000 in fines and two years behind bars.

But here's a small catch: Who decides the definition of those words? The bill, not surprisingly, is silent on that issue.

"Obscene, lewd, lascivious, filthy, or indecent" speech via the telephone is illegal, according to the battle-scarred Communications Act of 1934, which Exon's bill would amend. Since the `30s, the courts have narrowly interpreted the law, restricting the criminal penalties to only nonconsensual speech. But Exon's bill ups the ante substantially. His bill would broaden the scope of the act by stating that anyone who "makes, transmits, or otherwise makes available any comment, request, suggestion, proposal, image, or other communication" that is "obscene, lewd, lascivious, filthy, or indecent" using a "telecommunications device" is a criminal.

The upshot: carriers of all types would be forced - or coerced, depending on your point of view - to clamp down on their customer's private and public comments, turning the companies into de facto "speech police." Heads up to America Online: under this bill, the lusty and healthy sensual fantasy messages I sometimes send to my wife via your e-mail service turns me into a criminal, dragging you along for the ride to the cellblock. An analysis of the bill, written for the Electronic Messaging Association by lawyers James Bruce and Richard Pfohl of Wiley, Rein & Fielding, a DC-based firm, says: "This provision [of banning consensual sexually oriented messages], unless limited to nonconsensual communications as the courts have done with regard to the existing prohibition on such telephone calls, is most likely unconstitutional."

How did this happen? Exon's bill seems to be part of a nationwide trend creepingly criminalizes the Net. The Nebraska lawmaker has had more than a year to hone his message, playing the political hand of paranoia. Last year he introduced an identical bill, wrapped into a telecommunications reform package; the Senate recessed before acting on it. He will likely take the same tack this year, now that telecommunications reform is being given top legislative priority in both the House and the Senate.

Beyond being a full-scale attack on our cyber rights, the bill is unworkable on its face. Every day brings an explosion of newly formed newsgroups, bulletin board topics, and mailing lists. Such logarithmic proliferation of message traffic makes "comprehensive screening" for lewd or obscene messages "practically impossible," lawyers Bruce and Pfohl say in their analysis. Under this bill, you don't have to use the word fuck to be held libel. Even flames that someone finds indecent, annoying, abusive or harassing - again without specific definition of what that entails - "could subject employers, services, and carriers to liability," Bruce and Pfohl say.

There also is a dangerous subtext imbedded in the Exon bill: the increasing willingness of government to step in and try to regulate the Internet, a move that is unprecedented.

Marc Rotenberg, director of the Electronic Privacy Information Center raised this issue during a debate with Exon on CNN: "It would be a mistake to try to regulate Internet communications as we currently regulate the telephone network," he said. "This is a very different type of communications environment, and I think the proposal will raise a whole host of problems." Exon tried to brush the comments aside, saying Rotenberg was "overrracting." Critics of the bill, Exon claimed, misinterpreted the bill's intent, "but it's part of the hoopla that goes on any time anyone tries to take any action to clean up portions of our society that myself and others believe are bringing great injury."

Hoopla? You're damn right, Senator, but you haven't seen anything yet. As this article goes to press, there's still time to drive a stake through the heart of this bill. If, as expected, it gets added as an amendment to the telecom reform bill, enough pressure can be brought to bear so that its cancerous provisions get surgically removed. The problem: finding a Senator with the stones to stand against a "morality bill," as S 314 is being pitched. Act now. And remember this: accept no compromise. Why? Compromise got us the "Easy Access Wiretap Bill," courtesy of the FBI and a slick collaboration with the Electronic Frontier Foundation. Compromise only serves to validate the creeping trend toward government regulation of the Internet.

What can you do? Here's a three-part guerrilla strategy that has proven effective in the past. First, steal this article. That's right. Download it from HotWired's Internet site and electronically plaster it where appropriate, keeping an eye out for others that may have beat you to it.

Second, make your voice known in Washington by calling, faxing or writing a letter to the members of the United States Senate, particularly the Senators from your home state and the members of the Commerce Committee. The Commerce Committee unanimously approved a modified version of the act on March 23, 1995. Tell them you oppose the bill, even in its modified form. They do listen! You can find updates on the legislation, sample text for writing letters, and the names of congressmen to write at the Voters Telecommunications Watch gopher site. Get on the vtw-announce@vtw.org mailing list and find out what others are doing to rally the cause.

To subscribe to the mailing list, send a message to listproc@vtw.org. On the first line of the message (no subject needed) write subscribe vtw-announce [Firstname Lastname].

And remember the rallying cry. Put it in your .SIG file. Cyber Rights Now: Accept No Compromise.

Brock N. Meeks is Washington, DC, bureau chief for Interactive Week. He's also the editor and publisher of CyberWire Dispatch, a free, Internet-based news service.