IP: CDA II behind closed doors

[Dave Farber <farber () cis upenn edu>]

CDA II behind closed doors
By Courtney Macavinta
September 2, 1998, 1:30 p.m. PT
http://www.news.com/News/Item/0%2C4%2C25996%2C00.html?sas.mail


Civil liberties advocates are bracing themselves for  a closed-door debate 
in Congress that could institute serious Internet content controls similar 
to the Communications Decency  Act, defeated last year.  


    In July, the Senate unanimously passed a major spending bill with  two 
controversial amendments: Sen. Dan Coats's (R-Indiana) so-called  CDA II 
makes  it a crime for commercial Web sites to distribute "harmful" material 
to minors; and  Sen. John  McCain's (R-Arizona) bill mandates  the filtering 
of "inappropriate" sites at schools and libraries that  receive federal 
discounts on Net access.


    Soon after the House returns to session next week, a conference 
committee is expected to be established to resolve any differences between 
the House version of the fiscal 1999 appropriations bill for the Commerce, 
State, and Justice departments, and the Senate bill which included the Coats 
and McCain bills.


    The fate of CDA II and the filtering mandate will likely be decided by 
the  approximately dozen members of that conference committee.


    Civil liberties advocates agree that swaying the conference members to  
strip the final bill of the provisions is their best chance at derailing  
the passage of the first sweeping online content restrictions proposed  
since the Supreme Court threw out portions of the CDA last summer.


    But there is little public outcry about the First Amendment issues the  
bills raise, and many members of Congress have remained committed to  
passing a law that purports to limit children's access to sexual content.


    "We need to get members to understand that there still a tremendous 
amount  of controversy attached to these pieces of legislation," said Brian  
O'Shaughnessy, director of public policy for the Internet Alliance. "It is 
an  unfortunate effect of the Net becoming mainstream: There appears to be a 
less impassioned view of controversial legislation in Congress and in the  
states."


    The situation is reminiscent of the passage of the CDA, which also was  
solidified in a conference committee, and made it a felony to send indecent  
material to minors over the Net as part of the massive Telecommunications  
Act of 1996. The law could have applied to material Web sites, chat rooms,  
or email about everything from safe sex to art.


    The Coats amendment prohibits "commercial" Web sites from allowing 
underage  surfers to view adult-oriented material deemed "harmful to 
minors." It  would apply to any communication, image, or writing that 
contains nudity,  actual or simulated sex, or that "lacks serious literary, 
artistic, political,  or scientific" value. Violators could be fined up to 
$50,000 and imprisoned for six months.


    McCain pushed his bill because he says taxpayers shouldn't support 
children's online access to "inappropriate" material.


    But free-speech groups say both bills could hinder online access to the 
same type of educational, scientific, and medical material, for example.


    Despite civil liberties advocates' grim outlook about the impact of the 
proposals, the Senate quickly passed the provisions and now the unnamed 
conference committee members will have to decide if the Coats and McCain 
bills will stick. Then both houses have to vote on the spending bills before 
they are sent to President Clinton.


    Advocates say they have some hope that the conference committee will 
reject the Net content controls. Foes of the Coats and McCain bills say the 
conference committee might pull out the amendments to make room for further 
debate.


     For instance, sources say the House Commerce Committee is scrambling to 
set up hearings in the next few weeks on Internet pornography. The chairman, 
Rep. Tom Bliley (R-Virginia), has said he would prefer to see this issue 
settled outside an appropriations bill to allow more discussion about the 
constitutional issues.


    "Scheduling hearings could bolster the position that this is an issue 
that needs to be debated and explored," said David Sobel, general counsel at 
the Electronic Privacy Information Center, which fought to overturn the CDA.


    Still, winning over the conference committee will be difficult. And if 
the spending bill ends up including the Net content controls, getting both 
houses to reject the entire spending bill over the issue will be almost  
impossible, advocates admit.


    "When the funding of three major government departments is at 
issue--that is an uphill battle and that is why Coats and McCain put these 
in the appropriations bill," Sobel said.


    "The conference committee is going to be crucial--beyond that point it 
will be difficult to get people to focus on this issue. This is very similar 
to how we got the CDA," he added. "People who are concerned about the issue 
need to pay attention and weigh in."


    Lacking the same force of the Net community's chest-beating protests 
against the CDA, public pressure is not mounting against the bills, which 
makes their defeat that much harder.


    "It should be troubling to anyone who cares about the future of the Net 
to see Congress passing laws affecting the medium in what really amounts to 
a thoughtless way," said Sobel. "The so-called Internet community is 
substantially different than it was when the CDA passed. With the CDA, the 
Net was a small town--now it's a large city, and it's that much more 
difficult to get people's attention."


    Still, some free-speech advocates say that at least one factor is on 
their side.


    "Something about the second time around that goes into our favor is that 
citizens and some politicians are more educated about the Net--and that 
couldn't hurt," said Emily Whitfield, a spokeswoman for the American Civil 
Liberties Union.


     




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