* S.314

Topics: FreeSpeech
24 Feb 1995

From: "DG Ervan Darnell"

Here is a copy of the letter I sent this evening. It is possibly the
calmest thing you will ever see from me ;-)

I should point out that I read the text of the bill carefully several times.
It does grant carriers several special defenses (not that they should be
liable under any circumstance to start with). First, "common carries",
particularly the phone company, are exempted from liability. What this does
to BBS operators is anyone's guess. Second, if the sysadmin can prove that
he had no knowledge, nor could have had any reasonable knowledge, of the
material in question, that is also a defense. So, merely having
dogsuck2.gif go through your IP node is probably not enough. Even so, it's
ridiculous that the burden of proof has shifted. You must prove you are
innocent of something you may simply have no knowledge of.

Ervan Darnell
4857 Kingfisher
Houston, TX 77035-4934

February 24, 1995

The Honorable Kay Bailey Hutchison
United States Senator
703 Hart Senate Office Building
Washington, D.C. 20510

Dear Senator Hutchison:

I am writing to you to urge you to oppose S.314 (the "Communications Decency
Act of 1995").

First, as an ardent supporter of free speech, I oppose any censorship.
S.314 goes beyond merely banning already unprotected obscenity to encompass
several classes of speech that are otherwise legal.

Second, as a frequent user of various internet services, I can say from
personal experience that e-mail and other network communication services are
quite distinct in their nature from the telephone. Using a telephone to
send harassing messages forces the victim to personally tolerate at least
some part of the abuse. Electronic communications are not of that sort.
When they are e-mail, they can simply be ignored, without even reading any
of the message itself in many cases. When they are posted on bulletin
boards, it is entirely up to the recipient to request them and thus
harassment in the usual sense is impossible. So, while S.314 seems like a
natural extension to 47 USC 223 by generalizing from telephone to electronic
communications, it actually changes the nature of the regulation by
regulating pure content instead of harassing behavior.

Third, as a computer system administrator, I see the provisions for making
carriers liable as quite onerous. While there are some safeguards in place,
the situation has a lot more shades of gray than for telephone calls. There
are many cases where someone may be acting as an intermediary and yet not
clearly be a "common carrier" (thus having no protection under S.314).
Similarly, a system administrator, who is acting as no more than a postman,
now has liability because of content that accidentally comes to his
attention. The liability should remain with the malfeasant and not be
transferred to people in the way.

Thank your for your consideration of these issues.

Ervan Darnell