S7922 CONGRESSIONAL RECORD — SENATE June 7, 1995

Morale, Welfare, and Recreation Fund Account of the Department of the Army an

amount equal to the portion of such funds

corresponding to the fair market value of the

two Fort Ord Golf Courses conveyed under

subsection (a), as established under subsection (b).

(2) The Secretary shall deposit the balance

of the funds paid by the City under subjection (b), after deducting the amount deposited under paragraph (1), in the Department

of Defense Base Closure Account 1990.

(d) DESCRIPTION OF PROPERTY.—The exact

acreage and legal description of the real

property (including improvements thereon)

to be conveyed under subsection (a) shall be

determined by a survey satisfactory to the

Secretary and the City. The cost of the survey shall be borne by the City.

(e) ADDITIONAL TERMS AND CONDITIONS.—

The Secretary may require such additional

terms and conditions in connection with the

conveyance under this section as the Secretary considers appropriate to protect the

interests of the United States.∑

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. § 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. § 2252 (Supp.

1994); 18 U.S.C. § 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’’

§ 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. § 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.

§ 2252 (Supp. 1995); U.S.C. § 1465 (Supp. 1995);

U.S.C. §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:
June 7, 1995 CONGRESSIONAL RECORD — SENATE 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 onsite 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.

By Mr. SANTORUM:

S. 893. A bill to amend the Internal

Revenue Code of 1986 to provide a credit for charitable contributions, and for

other purposes; to the Committee on

Finance.

THE CHOICE IN WELFARE TAX CREDIT ACT OF 1995

∑ Mr. SANTORUM. Mr. President,

today I am introducing the choice in

welfare tax credit bill.

The goal of our welfare reforms

should be to continue to focus antipoverty efforts not just to the States

but to local, private charities as well.

With the choice in welfare tax credit,

taxpayers would be allowed a 100 percent tax credit up to $100 per wage

earner each year for contributions to

charities engaged in antipoverty efforts. This would go a long way toward

transferring antipoverty efforts from

the inefficient and ineffective Federal

Government to nonprofit charities who

are more efficient and have a much

better sense for what their local population needs.

I have faith in the ability of people

living in the communities to know

what works best and to provide

prompt, temporary assistance to those

who need it most. The emphasis here is

on temporary. Private charities view

antipoverty assistance not as a right or

a way of life but as a tool by which to

change behavior and encourage personal responsibility for one’s own life.

I want to give the people that pay

the bills and provide the services in the

local community a much larger role in

how poverty relief efforts are structured. This bill would also empower

taxpayers to have some direct influence on how their tax dollars are spent.

In fact, it will expand the number of

people donating to charities. Currently, about 28 percent of taxpayers

take the tax deduction for charitable

contributions. This bill will allow all

taxpayers, whether they itemize or

not, to receive a credit for contributing. Inspiring more taxpayers to contribute to local charities will make

people more aware of antipoverty efforts in their community, and may inspire them to volunteer their time as

well.

So I want to encourage my colleagues to take a close look at this bill,

and lend their support to an idea that

truly returns power to the individual

taxpayer and the community in which

they live.

Mr. President, I ask unanimous consent that the text of the bill be printed

in the RECORD.

There being no objection, the bill was

ordered to be printed in the RECORD, as

follows:

S. 893

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

Congress assembled,

SECTION 1. CREDIT FOR CHARITABLE CONTRIBUTIONS TO CERTAIN PRIVATE

CHARITIES PROVIDING ASSISTANCE

TO THE POOR.

(a) IN GENERAL.—Subpart A of part IV of

subchapter A of chapter 1 of the Internal

Revenue Code of 1986 (relating to nonrefundable personal credits) is amended by inserting after section 22 the following new section:

‘‘SEC. 23. CREDIT FOR CERTAIN CHARITABLE

CONTRIBUTIONS.

‘‘(a) IN GENERAL.—In the case of an individual, there shall be allowed as a credit against

the tax imposed by this chapter for the taxable year an amount equal to the qualified

charitable contributions which are paid by

the taxpayer during the taxable year.

‘‘(b) LIMITATION.—The credit allowed by

subsection (a) for the taxable year shall not

exceed $100 ($200 in the case of a joint return).

‘‘(c) QUALIFIED CHARITABLE CONTRIBUTION.—For purposes of this section, the term

‘qualified charitable contribution’ means

any charitable contribution (as defined in

section 170(c)) made in cash to a qualified

charity but only if the amount of each such

contribution, and the recipient thereof, are

identified on the return for the taxable year

during which such contribution is made.

‘‘(d) QUALIFIED CHARITY.—

‘‘(1) IN GENERAL.—For purposes of this section, the term ‘qualified charity’ means,

with respect to the taxpayer, any organization described in section 501(c)(3) and exempt

from tax under section 501(a)—

‘‘(A) which is certified by the Secretary as

meeting the requirements of paragraphs (2)

and (3),

‘‘(B) which is organized under the laws of

the United States or of any State in which

the organization is qualified to operate, and

‘‘(C) which is required, or elects to be

treated as being required, to file returns

under section 6033.

‘‘(2) CHARITY MUST PRIMARILY ASSIST THE

POOR.—An organization meets the requirements of this paragraph only if the predominant activity of such organization is the provision of services to individuals whose annual incomes generally do not exceed 150 percent of the official poverty line (as defined

by the Office of Management and Budget).

‘‘(3) MINIMUM EXPENDITURE REQUIREMENT.—

‘‘(A) IN GENERAL.—An organization meets

the requirements of this paragraph only if

the Secretary reasonably expects that the