The Exon amendment

Topics: FreeSpeech
28 Jun 1995

From: "DG Ervan Darnell"

Where does one start with such an odious piece of legislation? It shows
congress (the Senate half in this case) at its worst: passing a bill that
infringes on clearly defined constitutional rights, greatly expanding power
to regulate people who really have nothing to do with the case at hand
(sysops and providers), possibly causing great economic damage by reaching
out to throttle precisely what is successful, and all for all the absurd
reason of buying votes from a bunch of "puritanical pinheads" [1] who do not
even use the internet or have a clue what it is.

Let me start with what the amendment says [2]:
1) Whoever makes "any comment, request, suggestion, proposal, image, or
other communication which is obscene, lewd, lascivious, filthy, or indecent,
with intent to annoy, abuse, threaten, or harass another person [...or]
knowingly permits any telecommunications facility [to be used to do such
will be punished with specified fines and jail time]"

2) Obscenity (more or less legally defined as kiddie porn and possibly
bestiality, but not mere pornography) is banned in all circumstances (as it
already is). Sysops are again liable.

3) Whoever makes available "any indecent comment, request, suggestion,
proposal, [or] image" to a minor, or any sysop who knows it is happening, is

4) In all cases, it is a defense for the sysop if he can show he had no
knowledge and no reasonable way of getting such knowledge of the activity.
The burden of proof is shifted though. It is clearly guilty until proven
innocent. Furthermore, you have to prove a negative to prove your innocence
(I'm sure there will be much legal thrasing on just where this comes down as
it is not completely spelt out). There are some other exceptions that
basically say people installing phones and that sort of thing are not be
held liable (gee, thanks).

The first question in all of this is how can it be constitutional? Well, it
isn't of course (even Gingrich agrees with that). So the real question is:
how it is plausibly so? Exon claims that it is constitutional [3] because
it merely extends current law regarding the telephone and the mail. This is
disingenuous on several counts. First, this is a merely a slight of hand.
He brags that this bill will prevent pornography on the internet. Everyone
from MacNeil/Lehrer to the NYT reports as simple fact (and, in this case,
correctly so) that this censors the internet. That is its intent and most
likely its effect. The extension argument is a constitutional fig leaf.

First, consider the post office analogy. There are materials which are
legal to possess but not legal to mail (e.g. pictures of sexual penetration
or any sort). The court let this go on the theory that it is legal for the
government to outlaw private mail and then legal to regulate the content of
what a government agency handles in a way that it could not regulate a
private corporation. So far as I am concerned, this is only an argument for
abolishing the USPS (among many others); it's existance is censorship. So,
extending the USPS analogy to privately sold services is nonsense.

Second is the phone analogy. In the case, it is illegal to harass someone
by making repeated unwelcome calls (or even a single unwelcome call of the
sort that threatens physical or sexual abuse). Regardless of how much sense
that makes (and it does make some), the extension to the internet removes
the condition of who initiates. That is, even if someone *requests*
something, and then does not like it, it can be considered harassement under
the Exon amendment. So, this is not merely an extension of the phone code,
it is of a wholly different nature.

Third, the amendment would reclassify the internet as a broadcast media and
put it under the control of the Federal Censorship Commission [5]. This is
so much techno-nonsense. The FCC was originally justified (and wrongly so)
on the idea that bandwidth was limited and therefore what channels there
were had to "serve the public interest". "Broadcast" was an incidental
technical features of limited bandwidth at the time. Now, Exon wants to
take "broadcast" as a defining reason for government control, bogus, then
insist the internet is a "broadcast" media, doubly bogus. Of course, the
FCC has broad content control authority, well beyond mere porno, which is
the real reason the internet may be defined as "broadcast".

On the Senate floor, Exon said "One quarter of the images involve torture of
women." [4]. As a semi-professional net surfer, I know that's simply false,
way false. That Exon is liar is already clear enough. But there is
something else telling in this comment. It is a complaint about content,
not about access for children, nor about harassment, but about content.
Regulating content is the purpose.

Even Exon himself said ([3], and I paraphrase) 'We have to stop dragging out
this dusty old argument about free speech and the First Amendment. We have
get to the business of stopping this stuff.' Could one ask for a more
explicit confession of its unconstitutionality?

In practice, the expectation is that whenever the local prudes find
something they do not like, they can log on, download it, claim harassment,
then seize the equipment, and arrest the operator (or perhaps track down a
home somewhere that the kids were not properly supervised in). Ther former
already happened in the Milpitas case. This will just make it that much


There is also this canard about the 'rights of children' or the 'rights of
parents'. It says that if you cannot control your kids, you get to use the
government to control the rest of society instead, rubbish, of course. Just
for the sake of argument, if we believe parents should be able to regulate
what their children see, there is no problem to be fixed here.

There are perfectly reasonable technical means available to achieve
everything the censors *claim* they want. Prodigy & AOL are the two prime
examples. They make a point of selling "family" accounts, which means
censored. If that's what you want, buy it. Prodigy especially works on
censoring e-mail as well as more general bulletin-board like postings.
Internet you say? Where is it written that someone has a right to internet
access on given terms? If you don't like it, stay away. Not fair? I don't
know why not. If cable TV costs too much, don't buy it. If you accept the
internet access & kiddie-proof options on AOL, they will block all of the
fun usenet groups as well as dubious FTP sites & URL's. Now, this isn't
perfect of course. But, what we do have is a provider charging people real
money, to provide a real service, and doing the best job of it they can,
keeping up with changing porno-links as they come around. In other words,
performing the service at its most economically efficient level. The
government, on the other hand, is interested in taking your money to pay to
enforce the law that represents someone else's morality.

Those instances they do not catch are all similar to a minor having an older
friend buy a porno mag. Technophobes will see this as a technological
end-run instead of an inevitable facet of human behavior. Consider this at
a deeper level, what if a lot of people wanted porn free internet? There
would be meta-providers that sent feeds to AOL & Prodigy who promised to do
all of the screening, just to save on duplicated effort. There would be
schools and "Christian" households who wanted to get their feed from this
service. There would spring up other high level routing nodes just to move
the traffic from this service. In other words, there would be a competing
internet carefully gatewayed onto the "real" internet. All of this would
happen if there were real demand.

There is no real demand, which is why it has not happened to a great extent.
That is the big lie of the whole debate. People are not so much concerned
about protecting themselves or their children. They are concerned about
protecting you from yourself. It is about censorship, not about "protecting

Ironically, the legislation make it more difficult for people to "protect"
their children. A internet service provider who knows absolutely nothing
about his node, stays away, & can prove he never looks at it, has a
plausible defense. On the other hand, if Prodigy makes an error while
trying to filter out porn and let's something through, they are liable!
Again, it is your right to free speech that is under attack. Any proposal
which still lets people buy what they want would not have the intended effect.


Next is the economics of it. No law in the U.S. can prevent what other
countries put on their nodes. It is the *inter*net despite Exon's parochial
view. I'm sure the U.S. will try and strong arm the Netherlands with U.N.
votes, aid money, or whatever to get them to change their laws, but what if
they don't? The Exon amendment will just force more businesses overseas.
It will abjectly fail to achieve its goal of making porno unavailable to
children. We will be right back in the current situation of needing to pay
someone to do the screening. It will be a fine tool to arbitrarily harass
sysops who have politically unpopular positions. I don't know where it will
all go, but government approved internet providers seems a likely outcome.
The internet can either by abysmally run as are government protected cable
TV operators or struggling with people being constantly put out of business
for not towing the line. Either way, it will seriously retard an important
tool of economic progress. Again, it will just force everyone to make their
first link off shore and to hell with the feds.

The drug war is an analogy here. After spending untold $G's, doubled the
crime rate, ruined uncountably many lives, & seriously trashed civil
liberties, the results are that casual use is down a little bit. In other
words, the people who do not have an addiction problem, do not steal to
finance their habit, and do not fall out of society are having a little less
recreation. Meanwhile, hard core addiction is unchanged. The people with a
problem that cause the problems are unaffected. The law completely misses
its target. So it is with this amendment. Kids who occasionally glance at
a pair of tits on the computer will no longer bother to jump through the
hoops. The ones really after ther porno (who presumably are the ones
needing "protection") will not be stopped.


Finally, a bit of humor from what passes for the pathetic mainstream press:
Time magazine [5] wrote in the lead paragraph on their article on
"cyber-porn" (by which they mean pictures of people on the computer and not
pictures of robots in magazines): "Most Americans have become so inured to
the open display of eroticism--and the arguments for why it enjoys special
status under the First Amendment--that they hardly notice it's there." !

Special status! Get serious. Singled out for special harassment is more
like it, everything from postal regulations, to never-on-TV, to zoning laws
restricting jurisdiction, to outright prohibition. If that's what passes
for real journalism, I'm glad we have an uncensored internet where crazies
can post porno and mumble about Waco being more tragic than Oklahoma City.

(1) - from an essay in PC Magazine
(3) 6/22/95 MacNeil/Lehrer
(5) July 3rd, Time