Assuring that a sweeping telecommunications deregulation bill will include strict and highly controversial restrictions on online smut, House conferees on Wednesday reversed themselves and embraced broad limits on "indecent" material on the Internet.
Despite concerns that the provision might be unconstitutional, House conferees joined their Senate colleagues in supporting hefty fines and prison sentences for those who send indecent words or images over computer networks without assuring that they are not accessible to children. They rejected a compromise proposal that would have limited federal regulation to material "harmful to children."
Conferees also tentatively agreed on 33 other provisions, including one that would require TV manufacturers to incorporate new electronic chips in sets to permit parents to block violent television programs. The so-called V-chip proposal is fiercely opposed by the TV industry as expensive and unworkable. In addition, the conferees late Wednesday neared agreement on the crucial question of when the Baby Bell telephone companies would be allowed to enter the long-distance phone business.
The developments came as a House-Senate conference committee met for the first time in more than a month to hammer out an accord on the far-reaching telecommunications bill passed in different versions last summer by both chambers.
The overall measure would clear the way for telephone and cable television companies to compete in one another's markets, thus significantly affecting what consumers pay for communications services and, in principle, speeding the introduction of new services, such as advanced wireless communications and electronic home banking and shopping.
But the regulation of cyberporn has mushroomed into one of the two most controversial aspects of the telecommunications bill--producing a scramble among lawmakers to capitalize on the issue.
The House Republicans' plan to curb online smut closely approximates the Senate provision sponsored by Sen. J. James Exon (D-Neb.). That makes it virtually certain that a tough anti-porn amendment will be included in the final bill.
While President Clinton has objected to various aspects of the telecommunications bill and may yet veto it, sources said the administration would not take issue with the anti-porn provisions.
Without defining the terms, both the Exon amendment and the new House provision would extend the current prohibition against sending "obscene and indecent" messages over the telephone to fax machines and computer networks, and would apply to speech as well as photos and other images. The Exon amendment carries maximum penalties of two years in prison and $100,000 in fines.
Rep. Rick White (R-Wash.), who attempted to engineer a compromise with the online industry but ultimately lost out to more conservative colleagues, said the House provision was not directed at consenting adults and would apply only to material accessible to children. But opponents counter that strict access controls are often unworkable on the Internet, and that the "indecent" standard could be interpreted to cover many things other than pornography.
The American Civil Liberties Union threatened to sue over the cyberporn provisions. Civil libertarians and online service operators united in saying that the proposed restrictions amounted to impractical and probably unconstitutional restrictions on free speech.
"This action is indecent," fumed Jerry Berman, executive director of the Center for Democracy and Technology, a Washington-based group active in online policy issues. "The chilling effect on adult communications is enormous."
Commercial online providers, which only days ago had grudgingly accepted the House conferees' language regulating material "harmful to children," criticized the latest development.
"They have really opened up a legal can of worms," said William W. Burrington, director of public policy for Vienna, Va.-based America Online Inc. "I'm concerned that we are now taking this brand-new medium and shackling it with significant new regulation. I hope this is still a work in progress. . . . I hope we're not back to Square One."
"This is an area that could do well with less regulation," added Stephen M. Heaton, general counsel for CompuServe in Columbus, Ohio. Even the House conferees' earlier provision would have caused "major legal headaches."
But Heaton said he would have preferred the harmful-to-children standard because "at least there is some legal precedent" for how the courts would interpret that term.
Barry Steinhardt, associate director of the ACLU, released a statement saying both the earlier House conferees' provision and the Exon amendment "violate the 1st Amendment and privacy rights of adults who communicate freely in the online environment. Congress is making it ever more clear that we will have to turn to the courts to uphold free speech in the promising new medium of cyberspace."
Religious and conservative lawmakers, however, hailed the House conferees' action.
"We felt we came out of this with a decisive victory," said Mike Russell, spokesman for the Christian Coalition, in Chesapeake, Va. "I think what we are seeing here is a bipartisan effort to stand up for children and families."
Although the cyberporn measure would protect online service providers from liability for indecent material transmitted without their knowledge, some online executives complained that the measure was vague about when they should be deemed to be on notice about unlawful material. Those who provided the content, whether an organization responsible for steamy World Wide Web pages or individuals posting bawdy messages to online discussion groups, would be liable for transmitting indecent material.
Supporters argue that the Exon amendment is very similar to laws governing telephone dial-a-porn lines. They predicted that the measure would be upheld in court.
But many legal experts said the measure is broader than most indecency laws, such as the federal rules governing television and radio broadcasters, which generally channel indecent material to certain late-night periods rather than impose across-the-board bans.
"I seriously doubt that this will survive constitutional muster," said Rex S. Heinke, a partner at the Los Angeles law firm of Gibson, Dunn & Crutcher and an expert on the 1st Amendment. "The courts have held you can outlaw pornography," he said, but they have imposed only narrow restrictions on indecent material, ruling that [government] can only set time or place restrictions on when such material can be aired.
"We are very concerned that they have adopted an over-broad indecency standard . . . [that] threatens how libraries can provide access to their broad breadth of collections," said Lynne Bradley, executive deputy director of the American Library Assn.'s Washington office. As an example, Bradley said libraries might be constrained from posting a reproduction of a Michelangelo nude painting on the Internet, for fear of prosecution.
"This will have a chilling effect on the whole Internet," Bradley said. "We have been consulting with our allies and attorneys all day to see if there is some fix to this."