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CDA II behind closed doors

Free-speech advocates brace for congressional debate on two bills that could institute serious Internet content controls.

Civil liberties advocates are bracing themselves for a closed-door debate in Congress that could institute serious Internet content controls similar to the Communications Decency Act, defeated last year.

In July, the Senate unanimously passed a major spending bill with two controversial amendments: Sen. Dan Coats's (R-Indiana) so-called CDA II makes it a crime for commercial Web sites to distribute "harmful" material to minors; and Sen. John McCain's (R-Arizona) bill mandates the filtering of "inappropriate" sites at schools and libraries that receive federal discounts on Net access.

Soon after the House returns to session next week, a conference committee is expected to be established to resolve any differences between the House version of the fiscal 1999 appropriations bill for the Commerce, State, and Justice departments, and the Senate bill which included the Coats and McCain bills.

The fate of CDA II and the filtering mandate will likely be decided by the approximately dozen members of that conference committee.

Civil liberties advocates agree that swaying the conference members to strip the final bill of the provisions is their best chance at derailing the passage of the first sweeping online content restrictions proposed since the Supreme Court threw out portions of the CDA last summer.

But there is little public outcry about the First Amendment issues the bills raise, and many members of Congress have remained committed to passing a law that purports to limit children's access to sexual content.

"We need to get members to understand that there still a tremendous amount of controversy attached to these pieces of legislation," said Brian O'Shaughnessy, director of public policy for the Internet Alliance. "It is an unfortunate effect of the Net becoming mainstream: There appears to be a less impassioned view of controversial legislation in Congress and in the states."

The situation is reminiscent of the passage of the CDA, which also was solidified in a conference committee, and made it a felony to send indecent material to minors over the Net as part of the massive Telecommunications Act of 1996. The law could have applied to material Web sites, chat rooms, or email about everything from safe sex to art.

The Coats amendment prohibits "commercial" Web sites from allowing underage surfers to view adult-oriented material deemed "harmful to minors." It would apply to any communication, image, or writing that contains nudity, actual or simulated sex, or that "lacks serious literary, artistic, political, or scientific" value. Violators could be fined up to $50,000 and imprisoned for six months.

McCain pushed his bill because he says taxpayers shouldn't support children's online access to "inappropriate" material.

But free-speech groups say both bills could hinder online access to educational, scientific, and medical material, for example.

Despite civil liberties advocates' grim outlook about the impact of the proposals, the Senate quickly passed the provisions and now the unnamed conference committee members will have to decide if the Coats and McCain bills will stick. Then both houses have to vote on the spending bills before they are sent to President Clinton.

Advocates say they have some hope that the conference committee will reject the Net content controls. Foes of the Coats and McCain bills say the conference committee might pull out the amendments to make room for further debate.

For instance, sources say the House Commerce Committee is scrambling to set up hearings in the next few weeks on Internet pornography. The chairman, Rep. Tom Bliley (R-Virginia), has said he would prefer to see this issue settled outside an appropriations bill to allow more discussion about the constitutional issues.

"Scheduling hearings could bolster the position that this is an issue that needs to be debated and explored," said David Sobel, general counsel at the Electronic Privacy Information Center, which fought to overturn the CDA.

Still, winning over the conference committee will be difficult. And if the spending bill ends up including the Net content controls, getting both houses to reject the entire spending bill over the issue will be almost impossible, advocates admit.

"When the funding of three major government departments is at issue--that is an uphill battle and that is why Coats and McCain put these in the appropriations bill," Sobel said.

"The conference committee is going to be crucial--beyond that point it will be difficult to get people to focus on this issue. This is very similar to how we got the CDA," he added. "People who are concerned about the issue need to pay attention and weigh in."

Lacking the same force of the Net community's chest-beating protests against the CDA, public pressure is not mounting against the bills, which makes their defeat that much harder.

"It should be troubling to anyone who cares about the future of the Net to see Congress passing laws affecting the medium in what really amounts to a thoughtless way," said Sobel. "The so-called Internet community is substantially different than it was when the CDA passed. With the CDA, the Net was a small town--now it's a large city, and it's that much more difficult to get people's attention."

Still, some free-speech advocates say that at least one factor is on their side.

"Something about the second time around that goes into our favor is that citizens and some politicians are more educated about the Net--and that couldn't hurt," said Emily Whitfield, a spokeswoman for the American Civil Liberties Union.