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MacNeil/Lehrer transcript, Berman v. Exon Date: Thu, 29 Jun 1995 09:03:36 -0400 The MacNeil/Lehrer NewsHour, June 22, 1995 FOCUS - SEX IN CYBERSPACE? <blockquote> MS. FARNSWORTH: The debate over sex on the Internet is next tonight. The Senate has passed a bill that would ban pornography in cyberspace. But yesterday, the Speaker of the House of Representatives, Newt Gingrich, said the ban is a bad idea. REP. NEWT GINGRICH, Speaker of the House: [last night] Clearly a violation of free speech and it's a violation of the right of adults to communicate with each other, but was I think seen as a good press release back home so people voted for it. MS. FARNSWORTH: The Speaker was referring to a provision in the sweeping Telecommunications Reform Act passed by the Senate last week. Its sponsor, Senator James Exon, said it would protect children from one of the pot holes on the information highway. SEN. JAMES EXON, [D] Nebraska: I had a remarkable demonstration of what is readily available to any child with the basic Internet access. It is not an exaggeration to say that the worst, most vile, most perverse pornography is only a few "click, click, clicks" away from any child on the Internet. MS. FARNSWORTH: The Internet is a global network of smaller computer networks. An estimated 25 million people are plugged into the Internet, and the number has been doubling every year. Until recently, access was only available through powerful computers at universities and government research facilities. But now, dozens of companies offer access to anyone with a home computer and a modem connected to a phone line. With that access, users can send E-Mail messages to other users or search the Internet for whatever interests them, the latest satellite photos from NASA, digitized collections of fine art, information on a favorite rock band, or the latest medical information on any given disease or treatment. And along with all the art and science has come pornography and chat rooms, where people can send messages on any number of subjects, including sexually explicit ones, to other Internet users. Since the Internet is a network of users, nobody owns it, nobody runs it, and up until recently, nobody tried to police it. REP. NEWT GINGRICH: I don't agree with it, and I don't think it's a serious way to discuss a serious issue, which is: How do you maintain right of free speech for adults while also protecting children in a medium which is available to both? MS. FARNSWORTH: The Senate's answer is a bill that would make it a crime to send obscene or harassing messages on the Internet. It would also impose a $100,000 fine and a two-year prison term on anyone who made indecent sexual material available to under-age Internet users. Should there be restrictions on the Internet? We have two views: Sen. James Exon, Democrat from Nebraska, and Jerry Berman, the executive director of the Center for Democracy and Technology, a non-profit civil liberties organization based in Washington. Thank you, gentlemen, for being with us. Sen. Exon, let's start with you. I know you can't be terribly specific on a show like this, but what did you see on the Internet that made you want to enact this bill? SEN. JAMES EXON, [D] Nebraska: [Capitol Hill] Elizabeth, I saw the opening of your show. If we could show on your program tonight what's readily available most unfortunately to children on the Internet, I had a book that was downloaded with pictures that I showed to many of my colleagues in the United States Senate, they did not know this was available. It's pornography at its worst. It's obscenity at its worst. And to say it's indecent is an understatement. I wish I could show the pictures, but you couldn't, and I wouldn't. I simply say the Exon-Coats Bill that passed the United States Senate 86 to 14 is a step in the right direction. It's not a cure-all, but it will provide a deterrent to stop the profiteering that's going on today that are polluting the minds of our youth. We can't just sit idly by and say, oh, this is so complicated we can't do anything about it. I believe maybe -- although not very many people can tell Newt Gingrich anything these days -- even I might be able to convince Newt, as I did many others, that sitting idly by and letting this happen on the Internet today is going to have a serious deterrent to other people getting on the Internet to take advantage of that vast new system to spread knowledge that I'm excited about. We've got to do something to protect the kids. MS. FARNSWORTH: Senator, the Speaker says it's a violation of free speech. Isn't it? SEN. EXON: It's not a violation of free speech, and I called on a lot of well-known lawyers to make sure that this bill could test -- to be properly tested on the constitutional rights provision. We never know what the courts are going to do. We based this on the law that has been in effect and been approved constitutional with regard to pornography on the telephones and pornography in the U.S. mail. We're not out in no-man's land. We're running on the record of courts' decisions that have said you can use community standards to protect especially kids on telephones and in the mails. We're trying to expand that as best we can to the Internet. MS. FARNSWORTH: Mr. Berman, I surfed the Internet a little bit today to see what I could find on it, and I also can't say exactly what I found on this show, but one of the things I found was a solicitation for pictures of eight to eleven year old girls having sex with adult men. What, if anything, should be done about this? JERRY BERMAN, Center for Democracy and Technology: First of all, they ought to be rounded up and prosecuted. The Justice Department is out there. It has a, a whole division that works on computer crime prosecution. It should be pointed out that the Justice Department did not ask for new legislation in this area. They are prosecuting under current law. Child pornography, bestiality, the most perverse things that Sen. Exon talks about, are violations of the criminal law. What he fails to point out is that his statute went much broader than that and would ban the knowing, making available any materials which may be indecent to anyone under the age of 18. That not only covers pornography and obscenity, which we all abhor, but it also would cover the communications between adults where they might be talking about "Ulysses" or talking about rap music or having a discussion about, about their sexual preferences. The problem with the Internet, unlike the U.S. mails and the telephone system, is that it's not a closed system. It's not just two people communicating with each other through a closed envelope or a closed telephone line. Here, when you communicate on the Internet, you make information available, you put it up, and you put it up and anyone can come and get it. And it's important in this technology to understand that you have to come and get it. I understand it may be a few clicks away but you have to come and get it. And that makes it very different because you know, just simply know that there are children on the Internet, and, therefore, any information that maybe we would try to communicate between adults could get in the hands of a child and, therefore, it's a crime. So the only way to clean up the Internet is to make it safe only for children. MS. FARNSWORTH: What about that problem, Sen. Exon? Let's say there's a discussion among adults about James Joyce's "Ulysses," which might be considered indecent, and a sixteen-year-old logs on. Won't that be against the law under your bill? SEN. EXON: I think Jerry tries to make a case, it's a false case. Certainly, it would have to be prosecuted by a prosecutor, and the judge would have to so decide that watching that type of a program that I do not think under the definition that anyone considers would be pornographic. That's one of the problems we have with people like Jerry. They may be well intentioned, but they just don't seem to realize that we can't sit back and see what you saw on the Internet today and what kids are seeing all over. The facts of the matter are that there is not enough prosecution taking place today. MS. FARNSWORTH: But the -- SEN. EXON: The Coats-Exon Bill will assist in stopping this, but it won't be a cure-all. MS. FARNSWORTH: What about what Mr. Berman said, though, the worry that only that which is good for kids or which kids can look at will be on the Internet if, if this bill passes? SEN. EXON: Well, that's obviously not true. The -- we have -- hardly have a day goes by that what we don't have some case of a kid being lured away from home, taken advantage of. What you saw today is replete on the Internet. There will be a study coming out very soon that's going to be widely distributed next week that proves the case once and again that we've got a disease going on on the Internet today. I think that Jerry and his people should work with us to try and solve this problem, rather than hiding behind the old constitutional protection once again that simply says anything can go and you dare not do anything about it because you're going to run afoul of the Constitution. I think that's not reasonable. I think that is not realistic. MS. FARNSWORTH: Mr. Berman, how would you solve the problem? MR. BERMAN: Two things. First of all, we tried to work with Sen. Exon, and we're still prepared to work with him and others in the House to draft narrow statute which if there's -- the Justice Department can show that there's a gap in current law and going after materials that he's described, but we do not want to leave it to the discretion of prosecutors all over the United States to decide what may be indecent. And there are many times and there are places where "Ulysses" would be considered indecent material, and, therefore, adults will have to have the chilling effect of not knowing what they can put up on the Net. But let's go to the real issue. I think that Sen. Exon has raised a very important issue for the American public. The information highway I stipulate has a lot of material on it which is very troublesome and which our children should not get ahold of. The problem is that we should not try to put forward solutions that are really fig leafs that will not solve the problem. For example, the worldwide Internet is a worldwide network. I don't know where Sen. Exon downloaded the materials that he found abhorrent, but if they're downloaded from Sweden or they're downloaded from Denmark, which looks exactly like any U.S. site, any law that he passes will not reach it. If you want to -- what the Speaker is talking about is an approach which says let us really look at the user end of the Internet, what kinds of technologies can we bring on line to make it possible for parents to screen out and control what they see or what they interact with on the Net and what their children interact with? I have here, for example, a software [holding up "Surf- Watch"] which is available on the market which screens out adult sexual material. You just put it in with your computer, and it keeps your kid out. America On-Line and other information services are trying to put screening technology -- in fact, they have screening technology and lock-out technology bundled into the America On-Line, and they are trying to update that. The industry really will respond. The problem, by bringing these technologies on board, what Rep. Cox and Widen in the House, along with the Speaker, realize that while Sen. Exon's bill is well-intentioned, it was drafted in a way which creates disincentives for industry to do this kind of policing. Under his legislation, if an Internet provider like America On-Line tried to control information, they are -- they cannot rely on the defenses in the legislation for prosecuting of someone other than them who puts up content. MS. FARNSWORTH: Okay, let me ask the Senator about this. First of all, Sen. Exon, on the question of user, policing this by policing the user, by using a technology which can block it for the user, a parent could put something in their computer and make it impossible to get Penthouse Magazine, which I read is the No. 1 site on the Internet now, what's wrong with that? SEN. EXON: There's nothing wrong with that. We didn't hear much about that until the Exon Decency Bill was widely considered and debated. Yes, we have gotten the intention, and it may well be that eventually -- although I am convinced that there's no way to filter out all of this material. Let's take the case that Jerry just used. Let's say that Mom and Dad could lock out on their computer, which you can't do now, and Jerry knows you can't do it now, and there's nothing available on the market today that would begin to take out everything that is pornographic and obscene, but I'm certainly not saying that they shouldn't try that. I don't believe that's going to work or be effective. One of the problems that we have today is we tried to work with Jerry, but we found out that basically Jerry goes back to the old idea that I think is kind of foreign that Thomas Jefferson and all of the good people who wrote the Constitution worked overnight and planned and plotted to make sure that the Constitution protected the most gross pornographers, pedophiles, those who are trying to lure children today. Children can get this information outside the home. They can get it in the schools. They can get it in the libraries. They can get it at the neighbors. I wish that we could wake up, and maybe if I could get to Newt Gingrich, maybe if he would at least look at the material that I have and take a look at our bill that is not nearly as restrictive as Jerry would like to believe it is, maybe we could solve the problem. MS. FARNSWORTH: Mr. Berman, we have just a few seconds for a response. MR. BERMAN: Yes. But I'm sorry if I'm -- if I am associated with the gang that goes back to Thomas Jefferson, I'm quite proud of that association. We need to draft careful legislation here which is not thrown out by the Supreme Court. We need to look at these technology solutions. We should not pass bandaids. We should not go for press releases, and I think the Senator has raised important issues. I think he would -- it would behoove him to work with industry on the user controls. That is the only effective way to deal with pornography on the Internet. MS. FARNSWORTH: Senator, Mr. Berman, thank you for being with us.</blockquote>