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[Congressional Record Volume 141, Number 92 (Wednesday, June 7, 1995)]
[Senate]
[Pages S7922-S7923]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. GRASSLEY (for himself, Mr. Dole, Mr. Coats, Mr. McConnell, 
        Mr. Shelby, and Mr. Nickles):
  S. 892. A bill to amend section 1464 of title 18, United States Code, 
to punish transmission by computer of indecent material to minors; to 
the Committee on the Judiciary.

    the protection of children from computer pornography act of 1995

  Mr. GRASSLEY. Mr. President, I am pleased to introduce the Protection 
of Children from Computer Pornography Act of 1995. I believe this bill 
would provide children with the strongest possible protection from 
computer pornography. I would like to thank the majority leader for his 
crucial support of this important piece of legislation. Currently, 
child molesters and sexual predators use computer networks to locate 
children and try to entice them into illicit sexual relationships. 
Accordingly, my bill would make it a crime to knowingly or recklessly 
transmit indecent pornographic materials to children over computer 
networks. Some so-called access providers facilitate this by refusing 
to take action against child molesters, even after other computer users 
have complained. So, my bill would make it a crime for access providers 
who are aware of this sort of activity to permit it to continue.
  Mr. President, I have carefully drafted this bill so that it will 
withstand the inevitable court challenge. This bill focuses only on 
protecting children from material which the Supreme Court has 
repeatedly stated is harmful to children. The Protection of Children 
from Computer Pornography Act of 1995 would not tell any adult what 
type of computerized material they may view or obtain.
  Finally, Mr. President, due to time constraints, I ask unanimous 
consent that the remainder of my remarks be printed into the Record.

Analysis of the Protection of Children From Indecent Pornography Act of 
                                  1995

       At the outset, this initiative, which amends 18 U.S.C. 
     Sec. 1464 (1984), defines several technical terms. For 
     ``remote computer facility'' and ``electronic communications 
     service,'' the definitions used in the ``Protection of 
     Children from Computer Pornography Act of 1995'' are taken 
     from existing sections of the criminal code. Because it was 
     unclear whether the terms ``remote computer service'' and/or 
     ``electronic communications service'' would include an 
     electronic bulletin board, the Grassley initiative creates a 
     specific definition for electronic bulletin board systems. 
     This was done to avoid the possibility that electronic 
     bulletin boards, some of which specialize in providing 
     pornographic materials, would be exempt from the bill.
       Substantively, this creates two distinct criminal offenses. 
     First, it is a crime to knowingly or recklessly transmit 
     indecent pornography to minors. The Grassley bill deals 
     exclusively with indecent pornography provided to children 
     because there are already federal laws against providing 
     obscene material and child pornography to anyone, including 
     children. See 18 U.S.C. Sec. 2252 (Supp. 1994); 18 U.S.C. 
     Sec. 1465 (Supp. 1995). The definition of indecent material 
     has been established by the Supreme Court and is discussed 
     below.
       Second, the bill would make it a crime for an on-line 
     service which permits users to access the Internet or 
     electronic bulletin board to willfully permit an audit to 
     transmit indecent pornography to a minor. In the criminal 
     law, ``willful'' has a specific meaning which is uniquely 
     suited to on-line access providers. See ``Manual of Modern 
     Criminal Jury Instructions for the Ninth Circuit'' Sec. 5.05 
     (West 1989). A willfulness standard is more appropriate for 
     on-line service providers because those services can only 
     monitor customer communications in narrow circumstances, or 
     face criminal prosecution for invasion of privacy. See 18 
     U.S.C. Sec. 2510 (Supp. 1995).
       To prove a violation under the bill for permitting adults 
     to transmit indecent material to children, the Justice 
     Department would have to show that the access provider was 
     actually aware that a particular recipient was a child and 
     that the access provider's customers were using the on-line 
     service to transmit indecent material to minors. Importantly, 
     although this burden of proof appears to be high, it could 
     easily be met by prosecutors, given the current practice.

               legal background: the concept of indecency

       Basically, there are three categories of sexually explicit 
     expression which are subject to congressional regulation 
     notwithstanding the First Amendment. See New York v. Ferber, 
     458 U.S. 747 (1982); Miller v. California, 413 U.S. 15 
     (1973). The Grassley initiative focuses exclusively on 
     indecent material because existing federal laws largely cover 
     the transmission of obscene and child pornographic material 
     in interstate commerce. See U.S.C. Sec. 2252 (Supp. 1995); 
     U.S.C. Sec. 1465 (Supp. 1995); U.S.C. Sec. 1462 (Supp. 1995).
       For present purposes, indecent material can be defined as 
     depictions of sexual activity or sexual organs which are 
     patently offensive according to contemporary community 
     standards. See FCC v. Pacifica, 438 U.S. 726, 732 (1978); 
     Alliance for Community Media v. FCC, 10 F.3d 812 (D.C. Cir. 
     1993), rehearing en banc granted, 15 F.3d 186 (D.C. Cir. 
     1994); Action for Children's Television v. FCC, 932 F.2d 1504 
     (D.C. Cir. 1991). This test is basically the second prong of 
     the ``Miller Test.'' 413 U.S. 24-25. It is important to note 
     that while indecent material is not constitutionally 
     protected for children, indecency is protested for and among 
     adults. Thus, laws intended to protect children must not 
     ``reduce the adult population . . . [to viewing] . . . only 
     what is acceptable to children.'' Butler v. Michigan, 352 
     U.S. 380, 383 (1957). While some court have applied the 
     indecency in slightly different ways depending on the medium, 
     (see Pacifica, supra; Sable Communications, Inc. v. FCC, 492 
     U.S. 115 (1989)), the central purpose of the indecency 
     standard is to prohibit or to regulate the display of 
     patently offensive representations of sexually explicit 
     material which is openly available to the public. As the 
     Court stated in Pacifica, see 438 U.S. at 748-49, this means 
     a medium, like computers, which has ``a uniquely pervasive 
     presence in the lives of all Americans'' and is ``uniquely 
     accessible to children'' can be regulated to protect 
     children.
       That is precisely what the ``Protection of Children from 
     Computer Pornography'' initiative would do--prohibit 
     transmission of computerized indecent pornography to children 
     while permitting adults to access otherwise constutitionally 
     protected material.
       In some respects indecency is similar, though not 
     identical, to the concept of ``harmful to juveniles'' laws, 
     which exist in nearly every state. These laws prohibit the 
     sale (and sometimes the display) of certain sexually explicit 
     material to minors. See Ginsberg v. New York, 390 U.S. 629 
     (1968). In order to determine whether material is harmful to 
     juveniles, the material must be found to satisfy a three-part 
     test. One part of this test involves a showing that the 
     material depicts or describes sexual activity in terms 
     patently offensive according to contemporary community 
     standards for what is acceptable for children. In a sense, 
     the federal indecency standard is designed to protect 
     children from harmful depictions of sexual activity, similar 
     to the goal of the harmful to juveniles test.
       Traditionally, the federal government has not regulated 
     extensively to protect children from inappropriate exposure 
     to pornography because it is primarily a matter of local 
     concern. With the rise of global, international computer 
     networks, however, it has become clear that Congress has a 
     more extensive role to play in protecting children. The 
     Grassley initiative responds to this changed environment by 
     ``filing in the gaps'' created by new technology.

  Mr. GRASSLEY. Mr. President, I ask unanimous consent that a statement 
from the Family Research Council and the bill be printed in the Record.
  It has the coauthorship of Senators Dole, Coats, McConnell, Shelby, 
and Nickles.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:
                                 S. 892

           Be it enacted by the Senate and House of 
     Representatives of the United States of America in 
     Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Protection of Children From 
     Computer Pornography Act of 1995''.

     SEC. 2. TRANSMISSION BY COMPUTER OF INDECENT MATERIAL TO 
                   MINORS.

       (a) Offenses.--Section 1464 of title 18, United States 
     Code, is amended--
       (1) in the heading by striking ``Broadcasting obscene 
     language'' and inserting ``Utterance of indecent or profane 
     language by radio communication; transmission to minor of 
     indecent material from remote computer facility, electronic 
     communications service, or electronic bulletin board 
     service'';
       (2) by striking ``Whoever'' and inserting ``(a) Utterance 
     of Indecent or Profane Language by Radio Communication.--A 
     person who''; and
       (3) by adding at the end the following: [[Page S7923]] 
       ``(b) Transmission to Minor of Indecent Material From 
     Remote Computer Facility, Electronic Communications Service, 
     or Electronic Bulletin Board Service Provider.--
       ``(1) Definitions.--As used in this subsection--
       ``(A) the term `remote computer facility' means a facility 
     that--
       ``(i) provides to the public computer storage or processing 
     services by means of an electronic communications system; and
       ``(ii) permits a computer user to transfer electronic or 
     digital material from the facility to another computer:
       ``(B) the term `electronic communications service' means 
     any wire, radio, electromagnetic, photo optical, or 
     photoelectronic system for the transmission of electronic 
     communications, and any computer facility or related 
     electronic equipment for the electronic storage of such 
     communications, that permits a computer user to transfer 
     electronic or digital material from the service to another 
     computer; and
       ``(C) the term `electronic bulletin board service' means a 
     computer system, regardless of whether operated for 
     commercial purposes, that exists primarily to provide remote 
     or on-site users with digital images, or that exists 
     primarily to permit remote or on-site users to participate in 
     or create on-line discussion groups or conferences.
       ``(2) Transmission by remote computers facility operator, 
     electronic communications service provider, or electronic 
     bulletin board service provider.--A remote computer facility 
     operator, electronic communications service provider, 
     electronic bulletin board service provider who, with 
     knowledge of the character of the material, knowingly--
       ``(A) transmits or offers or attempts to transmit from the 
     remote computer facility, electronic communications service, 
     or electronic bulletin board service provider a communication 
     that contains indecent material to a person under 18 years of 
     age; or
       ``(B) causes or allows to be transmitted from the remote 
     computer facility, electronic communications service, or 
     electronic bulletin board a communication that contains 
     indecent material to a person under 18 years of age or offers 
     or attempts to do so,

     shall be fined in accordance with this title, imprisoned not 
     more than 5 years, or both.
       ``(3) Permitting access to transmit indecent material to a 
     minor.--Any remote computer facility operator, electronic 
     communications service provider, or electronic bulletin board 
     service provider who willfully permits a person to use a 
     remote computing service, electronic communications service, 
     or electronic bulletin board service that is under the 
     control of that remote computer facility
      operator, electronic communications service provider, or 
     electronic bulletin board service provider, to knowingly 
     or recklessly transmit indecent material from another 
     remote computing service, electronic communications 
     service, or electronic bulletin board service, to a person 
     under 18 years of age, shall be fined not more than 
     $10,000, imprisoned not more than 2 years, or both.''.
       (b) Technical Amendment.--The item for section 1464 in the 
     chapter analysis for chapter 71 of title 18, United States 
     Code, is amended to read as follows:

``1464. Utterance of indecent or profane language by radio 
              communication; transmission to minor of indecent material 
              from remote computer facility.''.
              
                                                                    ____
                                      Family Research Council,

                                     Washington, DC, June 7, 1995.
     Statement of Legal Director Family Research Council
       Pursuant to your request, the Family Research Council has 
     reviewed the constitutionality of the ``Protection of 
     Children from Computer Pornography Act of 1995.'' It is our 
     opinion that the Act is fully consistent with the Supreme 
     Court's indecency precedents.
       Before providing more extensive analysis, it is prudent 
     that I state my qualifications to render this opinion. I have 
     practiced in the area of pornography law and have 
     participated in extensive litigation before the Supreme 
     Court, federal courts of appeal, and state courts on 
     pornography-related controversies. I am thus very familiar 
     with the manner in which courts have treated statutes aimed 
     at regulating pornographic materials.
       The seminal cases applicable to the Act are FCC v. 
     Pacifica, 438 U.S. 726 (1978) and Sable Communications, Inc. 
     v. FCC, 492 U.S. 115 (1989). Taken together, these cases 
     clearly and unambiguously establish the principle that 
     society may prohibit the transmission of indecent material to 
     children. As the Act only attempts to do that, in my view it 
     presents no serious constitutional concerns.
       Please contact me if I can be of further assistance.
                                        Cathleen A. Cleaver, Esq.,
                                         Director of Legal Policy.
                                 ______
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