==================================================== ################ ############# ################ ## # ## ############# ## ### # ### ### # # # ## # ### ### ## # # # # # # # # ## # # # # ## ## # ## # # # ## ## ## # # ### # ## # # # # # # # ## # ## # # # # ## ### ### ### ### # # # ## # ### # ==================================================== Free Speech Media, LLC August 14, 1995 Number 12 5 pages ==================================================== Compiled, written, and edited by Coralee Whitcomb Please direct comments and inquiries to cwhitcom@bentley.edu ==================================================== The Telecom Post is posted to several distribution lists and is also available from the CPSR listserv. To subscribe, send to LISTSERV@CPSR.ORG with the message SUBSCRIBE TELECOM-POST YOUR NAME. The Telecom Post will be published weekly while the U.S. Congress works on a comprehensive overhaul of the U.S information delivery systems. ====================================================== TOPICS 1. Freedom of Speech Cox/Wyden HR1555, Manager's Amendment The Communications Decency Act The Protection of Children Against Pornography Act The Anti-Electronic Racketeering Act of 1995 Export Controls 2. Regulatory Reform 3. Nonprofit Gag Rules 4. Spectrum Flexibility FREEDOM OF SPEECH Hats off to the terrific effort put forth the ACLU, People for the American Way, Voters Telecom Watch, Center for Democratic Technology, and the many others that put out such heroic efforts to protect the freedom of speech on the Internet through the Cox/Wyden amendment. The Internet Freedom and Family Empowerment amendment passed with a vote of 420 to 4 during the final hours of HR1555 debate. Cox/Wyden language: "No provider or user of interactive computer services shall be treated as the publisher or speaker of any information provided by an information content provider. No provider or user of interactive computer services shall be held liable on account of -- (1) any action voluntarily taken in good faith to restrict access to material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or (2) any action take to make available to information content providers or others the technical means to restrict access to material described in paragraph (1)" "Nothing in this Act shall be construed to grant any jurisdiction or authority to the Commission (FCC) with respect to content or other regulation of the Internet or other interactive computer services." The ACLU has put forth the following principles to be adhered to in any legislation. 1. The First Amendment Rights of all Americans must be preserved. 2. Policies must empower users -- including parents -- to make personal decisions about content. 3. There should be no incentive for government or private industry to infringe on privacy rights by reading private e-mail. 4. The online world must operate free from intrusive and unenforceable government content regulation. HR1555 - Manager's Amendment Lest we declare the First Amendment victory, a closer look at the infamous "Manager's Amendment" is necessary. This amendment, which altered much of the final outcome of HR1555, had a sneaky bit of First Amendment abuse tucked inside. The Protection of Minors provision makes criminally liable anyone who "intentionally communicates by computer... to any person the communicator believes has not attained the age of 18 years, any material that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs." It also makes it a crime to receive prohibited material by computer thus including all possible geographical locations of senders and receivers in its "community standards". This is fundamentally no different than the spirit of the Exon Amendment. The chilling effect it would produce "would effectively reduce all online content to that which is suitable only for children" and "reduce all online speech to the obscenity standards of the most restrictive community in the United States..." claims an ACLU alert. The Communications Decency Act also known as the Exon Amendment and now Title IV of the Telecommunications Competition and Deregulation Act of 1995. Though the opposition in the House to the Exon Amendment might give us a sense of relief, the passage of HR 1555 does not mean it is gone for good. When the conference committee convenes, it will have to strike an agreement between Cox/Wyden and the CDA, both having passed overwhelmingly in their respective houses. The Protection of Children from Computer Pornography Act, S892 Sponsored by Dole (R-KS), Coats (R-IN), Grassley (R-IA), McConnell (R-KY), Shelby (R-AL), Nickles (R-OK), Hatch (R-UT). Would impose criminal penalties on a service provider that knowingly transmits indecent material to a minor, or who "willfully" permits its network to be used to transmit indecent material to a minor. Obscene speech is not constitutionally protected, however, indecent speech is, giving this act questionable constitutionality. There is no evidence that current law is insufficient to cover the spirit of this act and the feared outcome is that service providers would have to rely on the broadest possible interpretation of the statute in order to avoid liability. The chilling effect on the entire Internet would be severe. Anti-Electronic Racketeering Act of 1995, S974 Sponsored by Senator Charles Grassley (R-IA), this bill will allow for export of cryptography products as long as it is sufficient for commercial use but still able to be broken by the US intelligence community. All encoding or encrypting software would be required to include a "universal decoding device" a la Clipper Chip Export Controls Senator Charles Grassley (R-IA) has introduced the Anti-Electronic Racketeering Act of 1995 that outlaws software that encrypts communications knowingly accessible to foreign nationals and foreign governments regardless as to whether it is designated non-exportable. Would they really control what we see and here? - You bet The 90's Channel, the nation's only full-time progressive television network is currently facing huge increases in their renewal rates from Tele-Communications Inc. (TCI) Increases that would "drive us out of business for sure", claims John Schwartz, president of the channel. At the same time TCI intends to air "Damn Right", a daily political program with a decidedly right-wing bent. The campaign to rid the airwaves of 90's Channel programming started in August, 1992 when TCI informed that channel that it was to be dropped. After court proceedings, an agreement was reached to continue carriage until October 31 of this year. REGULATORY REFORM A group of Democratic senators, led by John Kerry (D-MA) have been working on a package of amendments that would make S343 more acceptable. The Center for Sensible Safeguards has been closely monitoring and advising the Democratic group while asking the rest of us to keep the pressure on. This bill is undergoing terrific scrutiny by industry and enormous pressure is felt by all the legislators involved. It's beginning to sound more like political football than a genuine effort at improving the legislative process. It is still unclear as to whether the Democrats want a passable bill or simply want to humiliate Senator Dole. The bill is currently on hold until after the recess. S343 would impose cost-benefit analysis and judicial review on existing and new regulations. If the process is not successfully completed in a given amount of time, the regulation would be rendered unnecessary. This bill would eliminate many of the health, safety, and environmental safeguards that we have come to expect. It would tie up the courts terribly. Clinton has vowed to veto this bill in its current form. NONPROFIT GAG RULE The move to drastically limit public advocacy work financed by federal funds was passed on August 4, 1995 as a part of the Labor, HHS, Education Appropriations bill. Rep. David Skaggs (D-CO) proposed an amendment to delete the "Istook amendment" but it failed by a vote of 187-232. The appropriations bill won by a vote of 219-208. Rep. David Obey (D-WI) stated that the bill was a "mean and ugly piece of work" and that it was a "vicious exercise of public power". The August 7, New York Times described the amendment as a "remarkable rider" which "calls for a cutoff of grants to nonprofit entities if they spend more than a threshold amount - even of money from other sources - on political advocacy. A cancer society that gets Federal funds might then not be able to testify before congress on the best prospects for cancer research". This nasty piece of legislation still must pass the Senate before it becomes law. The advocacy group, Independent Sector, will be holding "road shows" in states where members of the Senate Appropriations Labor HHS Committee reside in order to drum up opposition during the next series of legislative steps. SPECTRUM FLEXIBILITY New spectrum, valued at $100 billion has been given to the broadcast industry for free. Originally reserved for the transition to HDTV technology, broadcasters now wish to use this spectrum for more profitable ventures such as PCAs, pay-TV, paging and data services. HR 1555 provided this $100 billion gift. Other, more public minded initiatives have emerged for a more public use of this spectrum. Apple has submitted a petition to the FCC (RM-8653) for an unlicensed "NII band". This 300 megahertz band would be made available to the American citizenry for free (the petition can be found at http://www.apple.com/documents/fcc.html). This would appear to be the last remaining hope for that "electronic commons" so many of us once thought possible - Space, set aside, for free, for everyone. The deadline for public comment on this proposal was July 25. Now that HR1555 has passed, the last public attempt at retrieving a portion of the public air waves for non-commercial use is in the making. The Small Business Survival Committee is creating the "Campaign for Broadcast Competition" which will attempt to enhance public understanding of the issue. The Campaign will use the argument that broadcasters be held to the same financial barriers that exist for everyone else - the spectrum should be auctioned and the proceeds used to reduce the deficit. 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