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Document 27 of 27.

January 9, 1999

SECTION: TECHNOLOGY; Pg. 38; Vol. 31, No. 1-2

LENGTH: 4176 words

HEADLINE: The Web's Pornucopia

BYLINE: Neil Munro

BODY:

Only 15 pages long, the Child Online Protection Act
seemed like a modest little bill. Modeled after the 1987 ''dial-
a-porn'' law that restricts the access of minors to phone-sex
lines, the act calls for criminal penalties against commercial
Web sites that display pornography without first making a good-
faith effort to shut out cyberspace visitors younger than 17.

The Internet ''is a marvelous technology,'' said former
Sen. Dan Coats, R-Ind., a sponsor of the legislation, ''but it is
a double-edged sword, and when it comes to children, we have an
obligation to do what we can to try to create some zone of
protection.''

When the bill came before Congress in the fall, hardly
anyone objected publicly (not counting the predictable protests
from the American Civil Liberties Union on free speech grounds).
Only two legislators, Sen. Patrick J. Leahy, D-Vt., and Rep.
Barney Frank, D-Mass., spoke against the measure. With little
fanfare, the act was folded into the $ 500 billion omnibus
appropriations bill, which cleared Congress and was signed by
President Clinton on Oct. 21.

Behind the scenes, however, it was a different story.
During closed-door negotiations, the White House, several
Internet industry associations, Time Warner Inc., the Motion
Picture Association of America--even the Walt Disney Co.--fought
the measure. Their reservations had less to do with free speech
considerations than with economic ones: namely, that the modest
little anti-pornography bill could encourage more efforts to
regulate the Internet's content, and those restrictions, in turn,
could hobble its money-making potential.

Movie and TV companies are rushing to become much more
active in cyberspace, hoping to feed their products straight into
the world's living rooms via a new generation of computerized
TVs. For example, NBC thinks the Internet has the potential to
deliver many more viewers at less cost than the much-touted
digital TV technology, said B. Robert Okun, a vice president in
NBC's Washington office. Moreover, TV programs distributed via
the Internet would bypass many current government regulations,
including public service obligations, price caps on political
advertising, and curbs on tobacco and alcohol advertisements,
Okun said. Hollywood industry lobbyists see the same
opportunities for their movies, as more and more homeowners buy
high-tech computerized televisions.

But if such measures as the Child Online Protection Act
were replicated and enforced by states, movie producers might
have to tailor their products to avoid the ire of prosecutors and
juries in conservative communities. The picture for industry
clouds further if foreign countries follow suit. Companies are
already grappling with a nation-by-nation patchwork of rules:
Canada's expansive laws against ''hate speech,'' Germany's ban on
Nazi propaganda, Chinese curbs on political news.

Unless these laws can be leveled or bypassed, companies
will have to develop multiple versions of each movie or risk
expensive lawsuits when their products cross the sometimes-
difficult-to-discern barrier between acceptable and unacceptable.
America Online Inc. has already felt this pain: an executive in
Germany of its CompuServe unit was arrested because its network
was used to transmit child pornography.

''If we can put restrictions on one thing for even an
ostensibly healthy purpose, other countries can say, 'Well, fine
. . . we can do what we want to restrict speech (and Internet
movies) in any way we find interesting.' '' said Arthur Sackler,
Time Warner's vice president for law and public policy.

But this is a natural dilemma in the world-circling
Internet. ''The flip side of doing business all over the world is
. . . that you're doing business with prosecutors who say,
'You're in my jurisdiction,' '' said Andrew J. Schwartzman,
president of the Washington-based, nonprofit Media Access
Project, a public-interest law firm.

So it will be with more than casual interest that some of
the nation's biggest entertainment companies watch legal
proceedings beginning Jan. 20 in Philadelphia. In response to a
filing there by a coalition of free speech activists led by the
ACLU, federal Judge Lowell A. Reed Jr. has agreed to consider the
constitutionality of the Child Online Protection Act. In
November, Judge Reed issued a temporary restraining order barring
enforcement of the act--and raising confidence among the act's
opponents that the bill's only result may be to create another
judicial precedent against government regulation of the Internet.

Tackling Online Porn

The Child Online Protection Act had its roots in another
piece of anti-pornography legislation, the Communications Decency
Act of 1996. Spurred by Coats and then-Sen.

J. James Exon, D-Neb., Congress voted to outlaw the
display to children of indecent or obscene material anywhere on
the Internet. The act was immediately taken to court by a
coalition of businesses and free speech advocates.

In June 1997, the Supreme Court struck down the
''indecency'' portion of the bill, saying that it was too broad
and vague and would chill free speech throughout the Internet and
its multimedia service, the World Wide Web. The court then
granted full First Amendment status to Internet content--thus
barring any future regulations except those that address a
compelling government interest, and do it in a way that's not
overly burdensome.

However, neither the businesses nor the ACLU argued
against--and the court did not strike down--two other features of
the Communications Decency Act. The first grants AOL and other
companies that provide access to the Internet exemption from
expensive lawsuits brought by customers outraged by sexual
enticements or pornography transmitted to their children. The
second outlaws the display of Internet obscenity to minors.

Following the court's decision, many Internet porn sites
decided to hide their most graphic images behind electronic doors
that open only to a credit card. That still leaves plenty of
pornography openly displayed on the Web, where at least 30,000
pornographic Web sites are carefully sorted and cataloged by Web-
search firms, such as Yahoo! Inc., and swiftly located by their
easy-to-use search engines. (See box, page 41.) That's a problem
to social conservatives, who argue that pornography undermines
morals. ''If we want a society where anything goes, in the name
of economic freedom . . . we'll (have) children without a sense
of right and wrong, without a sense of values that are necessary
for a proper functioning of society,'' said Coats. Coats'
position is not without public support. In a September 1997
Wirthlin Worldwide poll funded by the New York City-based
Morality in Media, 80 percent of respondents said they wanted
obscenity laws enforced.

Sent back to the drawing board by the 1997 Supreme Court
decision, conservative lawmakers began working on narrower
legislation. Instead of trying to take on the entire Internet,
they focused on commercial Web sites, exempting electronic-mail
services, Usenet newsgroups, and nonprofit Web sites. Instead of
trying to restrict all indecent material, they sought to crack
down on material deemed ''harmful to minors,'' applying a
standard that is used by 48 states and has been upheld by the
courts; it covers only a small amount of material. To fall into
this ''harmful to minors'' category, legislators said,
pornography must be designed to pander or appeal to ''the
prurient interest,'' depict ''lewd exhibition of the genitals,''
and lack ''serious literary, artistic, political, or scientific
value for minors.''

As the legislation started emerging in early 1998, such
free speech advocates as the Electronic Privacy Information
Center and the ACLU began lobbying. ''They certainly want to
censor much more than hard-core porn,'' charged Ann Beeson, an
ACLU attorney. ''They're pushing a values agenda.'' But
supporters of the measure say the lobbying was not vigorous,
perhaps because opponents and their industry allies had become
complacent after their 1997 Supreme Court victory. Not until
August--when the House and Senate sponsors, Rep. Michael G.
Oxley, R-Ohio, and Sen. Coats, were ready to push their new bills
through committee--did opponents really get alarmed, they said.

Online pornography companies did not intervene in the
debate, partly because they are poorly organized and partly
because some of them welcome the new law. ''None of us want
children on our sites, for basic moral reasons,'' said Mark
Tiarra, CEO of TiarraCorp. of Midland Park, N.J., which creates
pornographic sites for other entrepreneurs to operate. Besides
(and perhaps more to the commercial point), Tiarra said, minors
can't be held responsible for any debts they incur when viewing
online porn. Plus, some porn-site operators hoped that the law
would force the closure of small sites that are flooding the
market with cheap porn and driving down profits.

The pornography industry's Free Speech Coalition did not
lobby against the bill but, instead, worked to derail legislation
in the California statehouse, said Kat Sunlove, a former
sadomasochism instructor, pornography publisher, and now a
lobbyist for the coalition. In Sacramento, Sunlove worked
alongside the Motion Picture Association of America and the
Recording Industry Association of America to defeat proposals
that would have levied extra taxes on pornographic videos and
forced retailers to segregate any material deemed harmful to
minors on separate shelves.

Mainstream Foes

The most significant opposition to the Child Online
Protection Act, however, emerged from outside the porn
community--from mainstream companies, including the Internet
industry.

This industry was represented by several companies--AOL
among them--and by several industry-backed associations,
including the Center for Democracy and Technology, the Computer
and Communications Industry Association, and the Internet
Alliance. These groups quickly got results: The House Commerce
Committee narrowed the bill to take the law's enforcement out of
the hands of state officials, and also exempted Internet service
providers--companies that link computer users to the Internet,
such as AOL--as well as telecommunications firms and search-
engine companies that do not create or edit online material.

In September, Coats and Oxley noticed broad, closed-door
opposition from California legislators--a reflection of the
growing involvement of the movie lobbyists. The movie industry,
led by the MPAA, asked legislators to limit the law to companies
whose principal business is pornography. Simultaneously, it
worked with Internet industry lobbyists to promote the business
community's preferred answers: filtering software, ratings, and
kid-safe zones.

The proliferation of Internet porn creates a painful
dilemma for mainstream companies trying to convert the Web into a
global family-friendly shopping mall. Mainstream executives keep
their distance from the porn business--but they know it attracts
new users to the Internet, generates much revenue, and develops
innovative technology. However, porn also makes the Internet
look, to many parents, ''like one giant red-light district,''
said Shyla R. Welch, spokeswoman for Enough Is Enough, an anti-
pornography group in Fairfax, Va.

One of the industry's answers to this dilemma is
filtering technology, in various forms. Disney, for example,
offers a porn-free search service called dig.com; AOL offers a
kids' zone; and Microsoft includes filtering software in its Web
browser. A software filter, once it's been installed in a home
computer, automatically detects most X-rated Web sites and blocks
youngsters from seeing them. The earliest filters were poorly
designed, blocking out sites that used such innocuous terms as
Middlesex or couple. But newer filtering technology, fueled by
demands from parents, libraries, and schools, has reduced these
errors. The filtering efforts are ''good business,'' said John
Sampson, Microsoft's federal government affairs manager. ''The
Internet is not going to be a viable medium until it is safe for
everybody.''

President Clinton and Vice President Gore have repeatedly
touted filters and parental oversight. Their support for the
filters is part of a larger hands-off policy toward the Internet,
designed to maximize the growth of the high-tech industry. This
fall, when the Child Online Protection Act started moving through
Congress, industry tried for a delay. On Oct. 1, Microsoft, AOL,
and Disney met with the Republican leadership's top aides and
requested that the bill be shelved for a year, pending further
study.

Social conservatives--with strong support from activist
groups and Rep. Thomas J. Bliley Jr., R-Va., the chairman of the
House Commerce Committee--learned that the meeting had taken
place and ''told leadership to stay the hell out of it,'' said
Oxley. And when the movie lobbyists continued to lobby against
COPA, ''we immediately went public with that,'' said Oxley.

The resulting publicity on Oct. 7 caused the movie
lobbyists to retreat--and prompted a public statement from
Disney, supporting the Coats and Oxley bills. ''Whether those
(requested) improvements were made or not . . . we supported the
bills,'' said Preston Padden, Disney executive vice president for
government relations. Microsoft also bowed out, fearing political
damage should it be seen as opposing the bill, said a company
official.

In the Senate, said Coats, the bill was hobbled by a
''rolling hold'' coordinated by the White House. ''Every time we
were ready to move forward, we found there was a new objection,
from a different member,'' each of which was no sooner resolved
than the next objection appeared, he said. ''After a while, we
suspected they were trying to run out the clock.'' Those
obstacles prevented Coats' bill from reaching the Senate floor,
so conservatives on Oct. 7 combined the Child Online Protection
Act with the bill at the top of the Internet industry's wish
list--the Internet Tax Freedom Act, which bars states from
levying sales taxes on Internet commerce.

The combined bill was then rolled into the $ 500 billion
omnibus spending act, just in time for closed-door budget
negotiations between the Republican leadership and the White
House. Even at this late stage, business lobbyists had not given
up their fight against the bill. ''I had a conversation or two,''
with White House officials,'' said Sackler, Time Warner's
lobbyist. ''We certainly told them what our position was.''

In those last-minute negotiations, the White House won
numerous concessions on other issues--extra money for hiring
teachers, removal of riders weakening environmental protections--
but couldn't get the Republicans to drop the anti-pornography
language. Led by David Beier, chief domestic policy adviser to
Vice President Al Gore, White House officials ''tried like hell
to take (the language) out,'' said Oxley.

But a White House official said the intent was to improve
the anti-pornography provisions, not scuttle them. He said the
White House suggested amendments to help the bill survive
judicial review and to reassure movie and advertising companies
that they would not become entangled in unwarranted prosecutions.

In the negotiations, Beier argued that parental filtering
offered a better approach, and he turned over letters from the
Commerce and Justice Departments that laid out several objections
to the Child Online Protection Act. Justice's letter--which was
quickly released to the media--said the new law would divert
funds from more-important tasks, could be invalidated by the
Supreme Court's 1997 decision, and contains several ambiguities,
such as the phrase ''engaged in the business.''

Proponents of the bill scoffed at the letters, saying
they revealed little understanding of obscenity law and merely
underlined the White House's willingness to flack for Hollywood.
''There was a huge gap between the Administration's public
position and their behind-the-scenes actions,'' said Coats.
Republican staff--backed up by Bliley and Senate Majority Leader
Trent Lott, R-Miss.--refused to budge, and again the Republicans
called a press conference, on Oct. 12, to highlight the White
House opposition. That prompted a spurt of news stories linking
the White House, the MPAA, Disney, and pornography. ''The last
thing Al Gore needed was stories about how he was trying to kill
a bill intended to protect kids against online porn,'' said
Oxley. The next day, White House opposition folded.

Industry officials complained afterward that the
Republican leadership kept pushing the Child Online Protection
Act because they needed to mollify conservatives' opposition to
the budget agreement, and because they were trying to make amends
for having released Independent Counsel Kenneth Starr's report
online. Once they released it, the uncensored report--with its
dry descriptions of sexual acts--was available via the Internet
to children and adults all around the world.

In the end, ''the Republicans would not yield, and the
White House was reluctant to have this as the last issue on the
table,'' said Ronald Weich, a lawyer with Zuckerman, Spaeder,
Goldstein, Taylor & Kolker, who lobbied on behalf of the ACLU.

The battle has now moved to the courts, where first blood
went to a 17-member coalition of free speech advocates, led by
the ACLU and the Electronic Privacy Information Center. The
coalition persuaded Judge Reed on Nov. 19 to issue a temporary
restraining order barring enforcement of the act.

The ACLU argues that the Child Online Protection Act is
flatly unconstitutional because it forces speakers to censor
themselves or risk ruinous prosecutions. The bill's opponents--
including the Internet Content Coalition, whose members include
Playboy Enterprises Inc., MSNBC, The New York Times, and Time
Warner--argue that the law threatens, among other mainstream
enterprises, the online magazine Salon, which has published
articles about anal sex amid its stories on politics and
technology. The coalition also maintains that the law is
ineffective because it can't curb foreign porn sites and is too
broad. Despite claims to the contrary by the bill's sponsors, the
coalition said the measure would cover e-mail and other forms of
private communication carried out via Web pages.

In the November hearing before Judge Reed, the Justice
Department's lawyer took issue with the ACLU's arguments, citing
a chain of legal precedents anchoring the law. Another critic of
the ACLU's approach is Jerry Berman, executive director of the
industry-supported Center for Democracy and Technology; Berman
worries that the courts may agree with the ACLU that the act is
broad but then decide that it is also constitutional.

It would be much better, said Berman, if the government
viewed the act narrowly and applied it only to large-scale
purveyors of hard-core pornography. That would leave consumer-
operated filtering technology--not government--as the de facto
regulator of cyberspace, he argued. As the Internet becomes more
of a distribution medium, Berman predicted, many regulations now
governing the movie, broadcast TV, and cable TV businesses will
be sidestepped. Those regulations--including liberal-backed
requirements for educational TV, curbs on TV violence, and bans
on advertisements for tobacco or cigarettes--will all be undercut
as the major media companies begin distributing their product via
the Internet, he said. ''Any time you can show the technology is
more effective and less restrictive than the content regulation,
then the content regulation is in jeopardy and should be,'' said
Berman, who is trying to rally support from the high-tech
industry for his immediate legal strategy of persuading the
government to narrow the law's focus to porn distributors.

Defining Commercial Speech

Despite their disagreement over tactics, Berman and the
ACLU share a long-term hope that Internet-related cases will
yield greater legal protection for commercial speech--that is,
speech that is intended to attract customers. Currently, the
Supreme Court grants very strong protection to expressive speech
about ideas and politics, but allows modest government regulation
of commercial speech.

Those arguments are attractive to Internet companies,
which expect to increasingly blend with the TV industry as they
offer video images over the Internet. For example, America Online
is planning a new service dubbed AOL TV, while Microsoft is
already selling its WebTV service.

Internet companies are closely watching how commercial
speech is defined, not only in the United States but also
overseas. For example, the 15 countries in the European Union are
developing economic policies intended to stimulate growth in
their lagging Internet industry while also curbing child
pornography. Amid lobbying from the White House and from
companies such as Microsoft, the multinational European
Commission has proposed that government and companies work
cooperatively to curb pornography, but that companies should be
subject to the obscenity laws of only the country where they are
based--not the countries where their customers reside. ''We're
moving from community standards (of obscenity) to a national
standard to an international standard,'' said Time Warner's
Sackler. Conservatives, of course, oppose the effort to dilute
the United States' obscenity rules. ''The ultimate result of a
global standard,'' said Coats, ''is no standard.''

In the lawsuit over the Child Online Protection Act,
Justice Department officials have suggested--as Berman has
urged--that the law be narrowly tailored against hard-core porn
sites and that it not apply to the large media empires.
Conservatives, however, are skeptical of Justice's resolve. ''I
am a little concerned if they have any real backbone,'' said
Oxley.

Conservatives' worry about the Justice Department
reflects their lack of allies in the campaign against Internet
porn. They find none among feminist groups. Those erstwhile
enemies of porn despise the conservatives, and have in any case
been overruled by libertarian feminists who don't care about
pornography, said Diana Russell, a Berkeley, Calif.-based
radical-left feminist and anti-pornography activist. And liberal
advocacy groups that support traditional media regulations--such
as those that impose public-interest obligations, require kids'
TV programs, or curb TV violence and tobacco ads--react with
distaste to the conservatives' concern over media pornography.

But the fight over the bill will have an impact on the
liberals' agenda, acknowledge liberal activists, because media
companies will try to use any precedent from obscenity law to
undermine other regulation. ''My concern is that they will use
the relative deregulation of the Internet to argue that their
other businesses should be deregulated,'' said Gigi B. Sohn,
executive director of the Media Access Project.

Still, liberals say they are confident their favored laws
will be extended, as media companies move onto the Internet.
''We're ahead of the game,'' said Jeffrey Chester, executive
director of the Center for Media Education, which championed a
recent law curbing Internet companies' collecting of valuable
information--such as birth date, parental income, and address--
from children age 13 or younger. That law had industry opposition
and White House support; it's unchallenged in the courts, and it
may be expanded by Congress, Chester said.

That leaves the Child Online Protection Act as one of the
most controversial aspects of the much larger international
debate over governments' authority to regulate cyberspace
business. The issue may never be settled. Government priorities
change, judicial leanings shift, and new technologies emerge.
That is likely to keep the balance of power from resting in one
place for very long.

LOAD-DATE: January 11, 1999

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