We reported last week that a provision regarding indecent material on computer networks had been approved as part of the Managers Amendment to H.R. 1555. This language passed in addition to the Cox/Wyden amendment which was hailed by many as the best available alternative to Senate endorsed Exon amendment language.
The language in question was included as number 41 of 42 largely unrelated amendments in a package offered by Rep. Tom Bliley and approved by a vote of 256-149. The ACLU has said in an email notice that the language "raises the same questions about service provider liability that were raised by the Exon amendment." However, there are a number of differences between this measure and the Exon amendment which make that claim somewhat questionable.
First, the language amends Title 18 of U.S. Code, "Crimes and Criminal Procedure" in Chapter 71, "Obscenity." The Exon amendment would amend Title 47 regarding telegraph and telephones. Second, while the Exon amendment includes provisions prohibiting "annoying" and "harassing" behaviour, the provision now in H.R. 1555 is limited to essentially one fairly tightly written paragraph:
"Whoever intentionally communicates by computer, in or affecting interstate or foreign commerce, to any person the communicator believes has not attained the age of 18 years, any material that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs, or attempts to do so, shall be fined under this title or imprisoned not more than five years, or both."
"Intentionally communicates" seems to encompass a lot fewer actions than does the Exon amendment. Exon disregards whether the "maker of such communication placed the call or initiated the communications." Also, Exon includes actions such as "makes available" and "knowingly permits any telecommunications facility...to be used for such activity."
The rest of amendment 41 consists mainly of conforming amendments. However, section (b)(1)(B)(i) does seem to broaden a provision that would incriminate those who "take" to those who merely "receive" such materials brought into the United States.
It is unclear as of yet where exactly this provision came from, except that we know that much of the Mangers Amendment was a result of House Republican Leadership pressure on Chairman Bliley to change a number of provisions voted out of the committee. Furthermore, this provision went very unnoticed at the same time that House members were voting 420-4 to approve the Cox/Wyden amendment, commonly referred to by its sponsors (and supported by much of the community) as a direct attack on Exon-like language.
The more important question is, what does it do to the chances of the Exon amendment being thrown out in a conference? Prior to this event, supporters of the Cox/Wyden amendment were hopeful that it would be accepted over the Senate's Exon amendment by conferees on the telecommunications bill. In reality, Cox/Wyden was probably *never* a direct antidote to Exon. In fact, what Exon actually does is 1) clear up a contradiction between a recent court decision and an Exon defense for providers and 2) prohibit FCC regulation of the computer networks. This second provision would not have been a direct hit on Exon, only a hit on the FCC's ability to establish definitions for a "good faith defense" for providers.
Nevertheless, at a time when Capitol Hill was embracing the hot topic of "cyberporn," the Cox/Wyden amendment was the best that opponents of Exon could hope for. The overwhelming support in the House for Cox/Wyden might have set up an Exon versus Cox/Wyden debate where Cox/Wyden would have likely won.
Now, with the addition of amendment 41, it becomes much more unclear as to what could happen in conference. As has always been the case (even before this addition), *both* Exon and Cox/Wyden could have coexisted in a final bill. But this becomes even more likely because of amend. 41, which might tip the balance back towards the Exon amendment. At the same time, as stated above, Cox/Wyden had tremendous support on the House floor, which would work against its elimination. Thus, conferees might decide to "compromise" on the issue by including some form of both provisions. At least the House apparently has no problem in overwhelmingly approving one provision while quietly slipping just the opposite language into the tail end of a routinely approved package of amendments.