From: David Josephson Subject: S.314 To: chan@shell.portal.com Date: Mon, 20 Feb 1995 20:14:00 -0800 (PST) Jeff, Another log for the fire. I didn't want to send this to firearms-alert, but you might, or put it on your ftp site. Cheers DJ Forwarded message: > From dat-heads-owner@fedney.near.net Mon Feb 20 19:20:13 1995 > Message-Id: <199502210012.TAA20050@fedney.near.net> > From: Digestifier > To: dat-heads@fedney.near.net > Date: Mon, 20 Feb 95 19:12:19 EST > Subject: DAT-Heads Digest #206 > > DAT-Heads Digest #206, Volume #2 Mon, 20 Feb 95 19:12:19 EST > > Contents: > A petition for the Internet (fwd) (ERNEST S ENSIGN) > > ---------------------------------------------------------------------------- > > From: ERNEST S ENSIGN > Subject: A petition for the Internet (fwd) > Date: Mon, 20 Feb 1995 19:08:39 -0500 (EST) > > Send this to everyone that you can, And please read it, it is vital > to our use of the internet. > > [The newsgroups listed above are considered appropriate for posting this > petition because passage of this bill will no doubt greatly affect them, if > not cause their outright removal. And please distribute this Petition far > and wide, and upload it everywhere (where appropriate, of course).] > > *** PROTECT THE INTERNET. READ THIS MESSAGE *** > > This document is an electronic Petition Statement to the > U.S. Congress regarding pending legislation, the > "Communications Decency Act of 1995" (S. 314) which will > have, if passed, very serious negative ramifications for > freedom of expression on Usenet, the Internet, and all > electronic networks. The proposed legislation would remove > guarantees of privacy and free speech on all electronic > networks, including the Internet, and may even effectively > close them down as a medium to exchange ideas and > information. > > For an excellent analysis of this Bill by the Center for > Democracy and Technology (CDT), refer to the Appendix > attached at the end of this document. The text to S. 314 > is also included in this Appendix. > > This document is somewhat long, but the length is necessary > to give you sufficient information to make an informed > decision. Time is of the essence, we are going to turn > this petition and the signatures in on 3/16/95, so if you > are going to sign this please do so ASAP or at least before > midnight Wednesday, March 15, 1995. > > Even if you read this petition after the due date, please > submit your signature anyway as we expect Congress to > continue debating these issues in the foreseeable future > and the more signatures we get, the more influence the > petition will have on discussion. And even if Congress > rejects S. 314 while signatures are being gathered, do > submit your signature anyway for the same reason. > > Please do upload this petition statement as soon as > possible to any BBS and on-line service in your area. > If you have access to one of the major national on-line > services such as CompuServe, Prodigy, AOL, etc., do try > to upload it there. We are trying to get at least 5000 > signatures. Even more signatures are entirely possible > if we each put in a little effort to inform others, such > as friends and coworkers, about the importance of this > petition to electronic freedom of expression. > > Here is a brief table of contents: > > (1) Introduction (this section) > (2) The Petition Statement > (3) Instructions for signing this petition > (4) Credits > (Appendix) Analysis and text of S. 314 (LONG but excellent) > > > ******(2) The Petition Statement > > In united voice, we sign this petition against passage of S. 314 (the > "Communications Decency Act of 1995") for these reasons: > > S. 314 would prohibit not only individual speech that is "obscene, lewd, > lascivious, filthy, or indecent", but would prohibit any provider of > telecommunications service from carrying such traffic, under threat of > stiff penalty. Even aside from the implications for free speech, this > would cause an undue - and unjust - burden upon operators of the various > telecommunications services. In a time when the citizenry and their > lawmakers alike are calling for and passing "no unfunded mandates" laws > to the benefit of the states, it is unfortunate that Congress might seek to > impose unfunded mandates upon businesses that provide the framework for > the information age. > > An additional and important consideration is the technical feasibility of > requiring the sort of monitoring this bill would necessitate. The > financial burden in and of itself - in either manpower or technology to > handle such monitoring (if even legal under the Electronic Communications > Privacy Act) - would likely cause many smaller providers to go out of > business, and most larger providers to seriously curtail their services. > > The threat of such penalty alone would result in a chilling effect in the > telecommunications service community, not only restricting the types of > speech expressly forbidden by the bill, but creating an environment > contrary to the Constitutional principles of free speech, press, and > assembly - principles which entities such as the Internet embody as > nothing has before. > > By comparison, placing the burden for content control upon each individual > user is surprisingly simple in the online and interactive world, and there > is no legitimate reason to shift that burden to providers who carry that > content. Unlike traditional broadcast media, networked media is > comparatively easy to screen on the user end - giving the reader, viewer, > or participant unparalleled control over his or her own information > environment. All without impacting or restricting what any other user > wishes to access. This makes regulation such as that threatened by this > S. 314 simply unnecessary. > > In addition, during a period of ever-increasing commercial interest in > arenas such as the Internet, restriction and regulation of content or the > flow of traffic across the various telecommunications services would have > serious negative economic effects. The sort of regulation proposed by this > bill would slow the explosive growth the Internet has seen, giving the > business community reason to doubt the medium's commercial appeal. > > We ask that the Senate halt any further progress of this bill. We ask > that the Senate be an example to Congress as a whole, and to the nation > at large - to promote the general welfare as stated in the Preamble to > the Constitution by protecting the free flow of information and ideas > across all of our telecommunications services. > > > ******(3) Instructions for signing the petition > > ====================================== > Instructions for Signing This Petition > ====================================== > > It must first be noted that this is a petition, not a > vote. By "signing" it you agree with *all* the requests > made in the petition. If you do not agree with everything > in this petition, then your only recourse is to not sign > it. > > In addition, all e-mail signatures will be submitted to > Congress, the President of the United States, and the > news media. > > Including your full name is optional, but *very highly > encouraged* as that would add to the effectiveness of the > petition. Signing via an anonymous remailer is highly > discouraged, but not forbidden, as an attempt will be made > to separately tally signatures from anonymous remailers. > > Because this is a Petition to the U.S. Congress, we ask > that you state, as instructed below, whether or not you > are a U.S. citizen. We do encourage non-U.S. citizens to > sign, but their signatures will be tallied separately. > > Signing this petition is not hard, but to make sure your > signature is not lost or miscounted, please follow these > directions EXACTLY: > > 1) Prepare an e-mail message. In the main body (NOT the > Subject line) of your e-mail include the ONE-LINE statement: > > SIGNED > > You need not include the "<" and ">" characters. 'SIGNED' > should be capitalized. As stated above, your full name is > optional, but highly recommended. If you do supply your > name, please don't use a pseudonym or nickname, or your > first name -- it's better to just leave it blank if it's > not your full and real name. If you are a U.S. citizen, > please include at the end of the signature line a 'YES', > and if you are not, a 'NO'. All signatures will be > tallied whether or not you are a U.S. Citizen > > **************************************************** > Example: My e-mail signature would be: > > SIGNED dave@kachina.altadena.ca.us Dave C. Hayes YES > **************************************************** > > 2) Please DON'T include a copy of this petition, nor any > other text, in your e-mail message. If you have comments > to make, send e-mail to me personally, and NOT to the > special petition e-mail signature address. > > 3) Send your e-mail message containing your signature to > the following Internet e-mail address and NOT to me: > > =========================== > s314-petition@netcom.com > =========================== > > 4) Within a few days of receipt of your signature, an > automated acknowledgment will be e-mailed to you for e-mail > address verification purposes. You do not need to respond or > reply to this acknowledgement when you receive it. We may > also contact you again in the future should we need more > information, such as who your House Representative and > Senators are, which is not asked here as it is unclear > whether such information is needed. > > Thank you for signing this petition! > > > ******(4) Credits > > The petition statement was written by slowdog > , super.net.freedom.fighter. > > The rest of this document mostly collated from the net > by Dave Hayes, net.freedom.fighter. > > Much help came from Jon Noring, INFJ and > self.proclaimed.net.activist who made a few > suggestions and will be tallying the signatures. > > Thanks to the EFF and CDT for the excellent analysis of > the bill. > > (p.s., send your signature to s314-petition@netcom.com) > > > ******(Appendix) Analysis and text of S. 314 > > [This analysis provided by the Center for Democracy and > Technology, a non-profit public interest organization. > CDT's mission is to develop and advocate public policies > that advance Constitutional civil liberties and democratic > values in new computer and communications technologies. > For more information on CDT, ask Jonah Seiger > .] > > CDT POLICY POST 2/9/95 > > SENATOR EXON INTRODUCES ONLINE INDECENCY LEGISLATION > > A. OVERVIEW > > Senators Exon (D-NE) and Senator Gorton (R-WA) have > introduced legislation to expand current FCC regulations > on obscene and indecent audiotext to cover *all* content > carried over all forms of electronic communications > networks. If enacted, the "Communications Decency Act of > 1995" (S. 314) would place substantial criminal liability > on telecommunications service providers (including > telephone networks, commercial online services, the > Internet, and independent BBS's) if their network is used > in the transmission of any indecent, lewd, threatening or > harassing messages. The legislation is identical to a > proposal offered by Senator Exon last year which failed > along with the Senate Telecommunications reform bill (S. > 1822, 103rd Congress, Sections 801 - 804). The text the > proposed statute, with proposed amendment, is appended at > the end of this document. > > The bill would compel service providers to chose between > severely restricting the activities of their subscribers > or completely shutting down their email, Internet access, > and conferencing services under the threat of criminal > liability. Moreover, service providers would be forced to > closely monitor every private communication, electronic > mail message, public forum, mailing list, and file archive > carried by or available on their network, a proposition > which poses a substantial threat to the freedom of speech > and privacy rights of all American citizens. > > S. 314, if enacted, would represent a tremendous step > backwards on the path to a free and open National > Information Infrastructure. The bill raises fundamental > questions about the ability of government to control > content on communications networks, as well as the locus > of liability for content carried in these new > communications media. > > To address this threat to the First Amendment in digital > media, CDT is working to organize a broad coalition of > public interest organizations including the ACLU, People > For the American Way, and Media Access Project, along with > representatives from the telecommunications, online > services, and computer industries to oppose S. 314 and to > explore alternative policy solutions that preserve the > free flow of information and freedom of speech in the > online world. CDT believes that technological > alternatives which allow individual subscribers to control > the content they receive represent a more appropriate > approach to this issue. > > > B. SUMMARY AND ANALYSIS OF S. 314 > > S. 314 would expand current law restricting indecency and > harassment on telephone services to all telecommunications > providers and expand criminal liability to *all* content > carried by *all* forms of telecommunications networks. > The bill would amend Section 223 of the Communications Act > (47 U.S.C. 223), which requires carriers to take steps to > prevent minors from gaining access to indecent audiotext > and criminalizes harassment accomplished over interstate > telephone lines. This section, commonly known as the > Helms Amendment (having been championed by Senator Jesse > Helms), has been the subject of extended Constitutional > litigation in recent years. > > * CARRIERS LIABLE FOR CONDUCT OF ALL USERS ON THEIR > NETWORKS > > S. 314 would make telecommunication carriers (including > telephone companies, commercial online services, the > Internet, and BBS's) liable for every message, file, or > other content carried on its network -- including the > private conversations or messages exchanged between two > consenting individuals. > > Under S. 314, anyone who "makes, transmits, or otherwise > makes available any comment, request, suggestion, > proposal, image, or other communication" which is > "obscene, lewd, lascivious, filthy, or indecent" using a > "telecommunications device" would be subject to a fine of > $100,000 or two years in prison (Section (2)(a)). > > In order to avoid liability under this provision, carriers > would be forced to pre-screen all messages, files, or > other content before transmitting it to the intended > recipient. Carriers would also be forced to prevent or > severely restrict their subscribers from communicating > with individuals and accessing content available on other > networks. > > Electronic communications networks do not contain discrete > boundaries. Instead, users of one service can easily > communicate with and access content available on other > networks. Placing the onus, and criminal liability, on > the carrier as opposed to the originator of the content, > would make the carrier legally responsible not only for > the conduct of its own subscribers, but also for content > generated by subscribers of other services. > > This regulatory scheme clearly poses serious threats to > the free flow of information throughout the online world > and the free speech and privacy rights of individual > users. Forcing carriers to pre-screen content would not > only be impossible due to the sheer volume of messages, it > would also violate current legal protections. > > * CARRIERS REQUIRED TO ACT AS PRIVATE CENSOR OF ALL > PUBLIC FORUMS AND ARCHIVES > > S. 314 would also expand current restrictions on access to > indecent telephone audiotext services by minors under the > age of 18 to cover similar content carried by > telecommunications services (such as America Online and > the Internet). (Sec (a)(4)). > > As amended by this provision, anyone who, "by means of > telephone or telecommunications device, makes, transmits, > or otherwise makes available (directly or by recording > device) any indecent communication for commercial purposes > which is available to any person under the age of 18 years > of age or to any other person without that person's > consent, regardless of whether the maker of such > communication placed the call or initiated the > communication" would be subject of a fine of $100,000 or > two years in prison. > > This would force carries to act as private censors of all > content available in public forums or file archives on > their networks. Moreover, because there is no clear > definition of indecency, carriers would have to restrict > access to any content that could be possibly construed as > indecent or obscene under the broadest interpretation of > the term. Public forums, discussion lists, file archives, > and content available for commercial purposes would have > to be meticulously screened and censored in order to avoid > potential liability for the carrier. > > Such a scenario would severely limit the diversity of > content available on online networks, and limit the > editorial freedom of independent forum operators. > > ADDITIONAL NOTABLE PROVISIONS > > * AMENDMENT TO ECPA > > Section (6) of the bill would amend the Electronic > Communications Privacy Act (18 USC 2511) to prevent the > unauthorized interception and disclosure of "digital > communications" (Sec. 6). However, because the term > "digital communication" is not defined and 18 USC 2511 > currently prevents unauthorized interception and > disclosure of "electronic communications" (which includes > electronic mail and other forms of communications in > digital form), the effect of this provision has no clear > importance. > > * CABLE OPERATORS MAY REFUSE INDECENT PUBLIC ACCESS > PROGRAMMING > > Finally, section (8) would amend sections 611 and 612 of > the Communications Act (47 USC 611 - 612) to allow any > cable operator to refuse to carry any public access or > leased access programming which contains "obscenity, > indecency, or nudity". > > C. ALTERNATIVES TO EXON: RECOGNIZE THE UNIQUE USER > CONTROL CAPABILITIES OF INTERACTIVE MEDIA > > Government regulation of content in the mass media has > always been considered essential to protect children from > access to sexually-explicit material, and to prevent > unwitting listeners/views from being exposed to material > that might be considered extremely distasteful. The > choice to protect children has historically been made at > the expense of the First Amendment ban on government > censorship. As Congress moves to regulate new interactive > media, it is essential that it understand that interactive > media is different than mass media. The power and > flexibility of interactive media offers a unique > opportunity to enable parents to control what content > their kids have access to, and leave the flow of > information free for those adults who want it. Government > control regulation is simply not needed to achieve the > desired purpose. > > Most interactive technology, such as Internet browsers and > the software used to access online services such as > America Online and Compuserve, already has the capability > to limit access to certain types of services and selected > information. Moreover, the electronic program guides > being developed for interactive cable TV networks also > provide users the capability to screen out certain > channels or ever certain types of programming. Moreover, > in the online world, most content (with the exception of > private communications initiated by consenting > individuals) is transmitted by request. In other words, > users must seek out the content they receive, whether it > is by joining a discussion or accessing a file archive. > By its nature, this technology provides ample control at > the user level. Carriers (such as commercial online > services, Internet service providers) in most cases act > only as "carriers" of electronic transmissions initiated > by individual subscribers. > > CDT believes that the First Amendment will be better > served by giving parents and other users the tools to > select which information they (and their children) should > have access to. In the case of criminal content the > originator of the content, not the carriers, should be > responsible for their crimes. And, users (especially > parents) should be empowered to determine what information > they and their children have access to. If all carriers > of electronic communications are forced restrict content > in order to avoid criminal liability proposed by S. 314, > the First Amendment would be threatened and the usefulness > of digital media for communications and information > dissemination would be drastically limited. > > > D. NEXT STEPS > > The bill has been introduced and will next move to the > Senate Commerce Committee, although no Committee action > has been scheduled. Last year, a similar proposal by > Senator Exon was approved by the Senate Commerce committee > as an amendment to the Senate Telecommunications Bill (S. > 1822, which died at the end of the 103rd Congress). CDT > will be working with a wide range of other interest groups > to assure that Congress does not restrict the free flow of > information in interactive media. > > > TEXT OF 47 U.S.C. 223 AS AMENDED BY S. 314 > > **NOTE: [] = deleted > ALL CAPS = additions > > 47 USC 223 (1992) > > Sec. 223. [Obscene or harassing telephone calls in the District > of Columbia or in interstate or foreign communications] > > OBSCENE OR HARASSING UTILIZATION OF TELECOMMUNICATIONS > DEVICES AND FACILITIES IN THE DISTRICT OF COLUMBIA OR IN > INTERSTATE OR FOREIGN COMMUNICATIONS" > > (a) Whoever-- > > (1) in the District of Columbia or in interstate or foreign > communication by means of [telephone] TELECOMMUNICATIONS > DEVICE-- > > (A) [makes any comment, request, suggestion or proposal] > MAKES, TRANSMITS, OR OTHERWISE MAKES AVAILABLE ANY COMMENT,REQUEST, > SUGGESTION, PROPOSAL, IMAGE, OR OTHER COMMUNICATION which is > obscene, lewd, lascivious, filthy, or indecent; > > [(B) makes a telephone call, whether or not conversation ensues, > without disclosing his identity and with intent to annoy, abuse, > threaten, or harass any person at the called number;] > > > "(B) MAKES A TELEPHONE CALL OR UTILIZES A TELECOMMUNICATIONS > DEVICE, WHETHER OR NOT CONVERSATION OR COMMUNICATIONS > ENSUES,WITHOUT DISCLOSING HIS IDENTITY AND WITH INTENT TO ANNOY, > ABUSE, THREATEN, OR HARASS ANY PERSON AT THE CALLED NUMBER OR WHO > RECEIVES THE COMMUNICATION; > > > (C) makes or causes the telephone of another repeatedly or > continuously to ring, with intent to harass any person at the > called number; or > > [(D) makes repeated telephone calls, during which conversation > ensues, solely to harass any person at the called number; or] > > (D) MAKES REPEATED TELEPHONE CALLS OR REPEATEDLY INITIATES > COMMUNICATION WITH A TELECOMMUNICATIONS DEVICE, DURING WHICH > CONVERSATION OR COMMUNICATION ENSUES, SOLELY TO HARASS ANY PERSON > AT THE CALLED NUMBER OR WHO RECEIVES THE COMMUNICATION, > > (2) knowingly permits any [telephone facility] > TELECOMMUNICATIONS FACILITY under his control to be used > for any purpose prohibited by this section, shall be fined not more > than $[50,000]100,000 or imprisoned not more than [six months] TWO > YEARS, or both. > > (b)(1) Whoever knowingly-- > > (A) within the United States, by means of [telephone] > TELECOMMUNICATIONS DEVICCE, makes (directly or by recording device) > any obscene communication for commercial purposes to any person, > regardless of whether the maker of such communication placed the > call or INITIATED THE COMMUNICATION; or > > (B) permits any [telephone facility] TELECOMMUNICATIONS > FACILITY under such person's control to be used for an activity > prohibited by subparagraph (A), shall be fined in accordance with > title 18, United States Code, or imprisoned not more than two > years, or both. > > (2) Whoever knowingly-- > > (A) within the United States, [by means of telephone], > makes BY MEANS OF TELEPHONE OR TELECOMMUNICATIONS DEVICE, MAKES, > TRANSMITS, OR MAKES AVAILABLE(directly or by recording device) any > indecent communication for commercial purposes which is available > to any person under 18 years of age or to any other person without > that person's consent, regardless of whether the maker of such > communication placed the call OR INITIATED THE COMMUNICATION; or > > > (B) permits any [telephone facility] TELECOMMUNICATIONS > FACILITY under such person's control to be used for an activity > prohibited by subparagraph (A), shall be fined not more than > $[50,000] 100,000 or imprisoned not more than [six months] > TWO YEARS, or both. > > > (3) It is a defense to prosecution under paragraph (2) of this > subsection that the defendant restrict access to the prohibited > communication to persons 18 years of age or older in accordance > with subsection (c) of this section and with such procedures as the > Commission may prescribe by regulation. > > (4) In addition to the penalties under paragraph (1), whoever, > within the United States, intentionally violates paragraph > (1) or (2) shall be subject to a fine of not more than $[50,000] > 100,000 for each violation. For purposes of this paragraph, each > day of violation shall constitute a separate violation. > > (5)(A) In addition to the penalties under paragraphs (1), (2), > and (5), whoever, within the United States, violates paragraph (1) > or (2) shall be subject to a civil fine of not more than $[50,000] > 100,000 for each violation. For purposes of this paragraph, each > day of violation shall constitute a separate violation. > > (B) A fine under this paragraph may be assessed either-- > > (i) by a court, pursuant to civil action by the Commission or > any attorney employed by the Commission who is designated by the > Commission for such purposes, or > > (ii) by the Commission after appropriate administrative > proceedings. > > (6) The Attorney General may bring a suit in the appropriate > district court of the United States to enjoin any act or practice > which violates paragraph (1) or (2). An injunction may be granted > in accordance with the Federal Rules of Civil Procedure. > > (c)(1) A common carrier within the District of Columbia or > within any State, or in interstate or foreign commerce, shall not, > to the extent technically feasible, provide access to a > communication specified in subsection (b) from the > telephone of any subscriber who has not previously requested in > writing the carrier to provide access to such communication if the > carrier collects from subscribers an identifiable charge for such > communication that the carrier remits, in whole or in part, to the > provider of such communication. > > (2) Except as provided in paragraph (3), no cause of action may > be brought in any court or administrative agency against any common > carrier, or any of its affiliates, including their officers, > directors, employees, agents, or authorized representatives on > account of-- > > (A) any action which the carrier demonstrates was taken in good > faith to restrict access pursuant to paragraph (1) of this > subsection; or > > (B) any access permitted-- > > (i) in good faith reliance upon the lack of any representation > by a provider of communications that communications provided by > that provider are communications specified in subsection (b), or > > (ii) because a specific representation by the provider did not > allow the carrier, acting in good faith, a sufficient period to > restrict access to communications described in subsection (b). > > (3) Notwithstanding paragraph (2) of this subsection, a provider > of communications services to which subscribers are denied access > pursuant to paragraph (1) of this subsection may bring an action > for a declaratory judgment or similar action in a court. Any such > action shall be limited to the question of whether the > communications which the provider seeks to provide fall within > the category of communications to which the carrier will provide > access only to subscribers who have previously requested such > access. > > ********************************************* > > NOTE: This version of the text shows the actual text of current law as > it would be changed. For the bill itself, which consists of unreadable > text such as: > > [...] > (1) in subsection (a)(1)-- > (A) by striking out `telephone' in the matter above > subparagraph (A) and inserting `telecommunications device'; > (B) by striking out `makes any comment, request, > suggestion, or proposal' in subparagraph (A) and inserting > `makes, transmits, or otherwise makes available any > comment, request, suggestion, proposal, image, or other > communication'; > (C) by striking out subparagraph (B) and inserting the > following: > `(B) makes a telephone call or utilizes a > [...] > > See: > > ftp.eff.org, /pub/EFF/Legislation/Bills_new/s314.bill > gopher.eff.org, 1/EFF/Legislation/Bills_new, s314.bill > http://www.eff.org/pub/EFF/Legislation/Bills_new/s314.bill > > ************** End of Petition Statement ************************ > > > -- > OmniMedia | The Electronic Bookstore. Come in and browse! Two > 1312 Carlton Place | locations: ftp.netcom.com /pub/Om/OmniMedia/books > Livermore, CA 94550 | and ftp.awa.com /pub/softlock/pc/products/OmniMedia > 510-294-8153 | E-book publishing service follows NWU recommendations. > > > > > > > > > > > > > > ------------------------------ > > ** FOR YOUR REFERENCE ** > > Requests to be added to or deleted from the DAT-heads mailing list, > questions about the list, and requests for the current version of the > Frequently Asked Questions file must be sent to one of the following > service addresses: > > Internet: dat-heads-request@virginia.edu > UUCP: ...!uunet!virginia!dat-heads-request > > You can send mail to the entire list via one of these addresses: > > Internet: dat-heads@virginia.edu > UUCP: ...!uunet!virginia!dat-heads > > End of DAT-Heads Digest > ****************************** > -- David Josephson / Josephson Engineering / San Jose CA / david@josephson.com