House panel holds hearing on measures regulating Net porn

Tuesday, September 15, 1998

A House subcommittee heard testimony last Friday on a slew of bills designed to protect minors from harmful material on the Internet. However, cyber-liberty advocates fear that in the rush to protect minors, legislators may trample on First Amendment rights.


These various legislative efforts come in the wake of last year's U.S. Supreme Court decision in Reno v. ACLU striking down portions of the federal Communications Decency Act, which criminalized “indecent” and “patently offensive” online communications.


The House Commerce Committee's Subcommittee on Telecommunications, Trade and Consumer Protection considered several different bills, including:


  • H.R. 1180 — the Family Friendly Access Act of 1997 introduced by Rep. Joseph McDade, R-Pa. This bill would require Internet access providers like America Online or CompuServe to provide customers with filtering software.
  • H.R. 1964 — the Communications Privacy and Consumer Empowerment Act introduced by Rep. Edward Markey, D-Mass. This measure would also require Internet access providers to provide “parental empowerment through marketplace solutions.”
  • H.R. 3442 — the E-Rate Policy and Child Protection Act of 1998 introduced by Markey. This proposal would require that public schools and libraries which receive federal funds for Internet services “establish a policy with respect to access to material that is inappropriate for children.”
  • H.R. 774 — the Internet Freedom and Child Protection Act of 1997 introduced by Rep. Zoe Lofgren, D-Calif. This measure, substantially similar to H.R. 1110 and H.R. 1964, would also require Internet access providers to ensure that customers have filtering software product at their disposal.
  • H.R. 3783 — the Child Online Protection Act introduced by Rep. Oxley, R-Ohio. This bill would prohibit the commercial online distribution of material that is deemed “harmful to minors.” The legislation mirrors the so-called CDA II, introduced by Sen. Dan Coats, R-Ind.
  • H.R. 3177 — the Safe Schools Internet Act of 1998 introduced by Rep. Bob Franks, R-N.J. This measure would require public schools and libraries receiving federal funds for Internet hook-ups to install blocking software. The bill is very similar to Arizona Republican Sen. John McCain's Internet School Filtering Act of 1998.

The subcommittee also discussed an amendment to a labor appropriations bill that would require schools and libraries receiving federal funds to install a filter software on their computers. In late June, another subcommittee unanimously approved the measure introduced by Rep. Ernest Istook, R-Okla.


The hearing consisted of three panels of witnesses. The first panel was composed of three legislators — Coats, Istook and Franks — who have submitted different measures regulating Internet pornography to either the House or Senate.


The second panel featured only one speaker — Stephen Wiley, Chief of the Violent Crimes and Major Offenders Section of the FBI.


The third panel featured a variety of speakers, including the leaders of anti-censorship organizations, a public librarian, law professors, a psychology professor and several CEOs of Internet-related or software companies.


Jerry Berman, executive director of the Center for Democracy and Technology, testified that “the legislative proposals before the subcommittee today repeat the mistakes of the CDA. They fail to take into account the special aspects of this potentially powerful medium. They are ineffective, unconstitutional or unnecessary.”


Lawrence Lessig, a Harvard law professor, testified that most of the bills were “more respectful of our free-speech tradition than was the Communications Decency Act of 1996.” However, Lessig said that “until we know more about how the Internet will develop, we should not pass laws that entrench technologies that may, in a very short time, no longer be necessary or effective.”


The subcommittee heard comments from the various sponsors of the proposals but did not reach a consensus as to the best bill or solution for protecting children from online pornography.


Commerce Committee Chairman Tom Bliley, R-Va., said that Congress must recognize its duties to both protect children from harmful materials and to protect First Amendment free-speech rights.


“Legislative solutions must be seriously considered, but if legislation is to survive, it must be narrowly tailored so that it doesn't squash the First Amendment rights of adults,” Bliley said. “Regardless of what actions Congress may take, parents, educators and industry must take some responsibility to ensure that our kids are not getting access to this harmful material.”


However, others fear Congress is simply rushing in too quickly with unconstitutional legislation. Solveig Singleton, director of information studies at the libertarian think tank the Cato Institute, said that “legislators are seeming to propose these various bills because it is an easy way for them to show their constituents that they are doing something about porn on the Internet.”


Singleton said the measures placing conditions on those who receive federal funds are unconstitutional. “The legislators probably feel that these bills are constitutional because instead of imposing criminal penalties like the CDA, they are only placing conditions on subsidies,” she said. “However, this view is misplaced. The government cannot hand out subsidies and then impose content controls on material.”


The Internet Free Expression Alliance, a coalition of 24 organizations supporting freedom of speech on the Net, submitted a joint statement to the subcommittee expressing opposition to all of the various proposals.


The IFEA wrote that the bills “ignore the central holding of the [U.S. Supreme ]Court: expression on the Internet is entitled to the highest degree of First Amendment protection.”


The next step in the legislative process is for the subcommittee to schedule what's known as a mark-up session to examine each bill in detail. That meeting has not yet been set.