It took the old media a solid year of heavy breathing and alarm-pulling over the red scare of the '90s - cybersex - to even begin to spread the hysteria onto Capitol Hill.

When Dateline NBC ran an already overdone story about online pedophiles in July 1994, the broadcast made it into the home of one Senator Jim Exon (D-Nebraska), who was apparently appalled.

So begins the tale of some relatively small amendments that threaten to put tighter censorship clamps on the online world than on newspapers - provided that the legislation can survive both houses of Congress and the Supreme Court.

Exon looks at dirty GIFs

After his unimpressive, unsuccessful attempt in the summer of '94 to add a broadly restrictive online censorship amendment to the still young telecommunications bill, Exon came back with both guns blasting last February. In the interim, he'd compiled a big blue binder full of "disgusting material" downloaded from the Internet to wave in front of the Senate, narrated by ghoulish tales of online child-porn and bestiality GIFs.

While Exon's Communications Decency Act was gathering new momentum, Senator Patrick Leahy (D-Vermont) was hatching a Clinton-backed scheme to stave off Exon's pillaging of freedoms in the online world. Leahy had an age-old proposal for the Senate: why not look before they leap? His legislation would have directed the Department of Justice and the Commerce Department to conduct a study of ways that users can self-select content on the Net, and to assess the need for new laws addressing cyberspace.

Leahy's attempt failed.

The Senate approved Exon's amendment to the massive telecommunications bill 84 to 16 on 14 July 1995. The Communications Decency Act allowed for fines of up to US$100,000 and prison terms of up to two years for "obscene, lewd, lascivious, filthy, or indecent" language on the Net that is intended to annoy or harass. The Federal Communications Commission, under the amendment, would be granted broad powers to regulate the Net. Online services and ISPs would be liable for illegal material posted by their customers. One Senate down, one House to go, thought Exon and his backers.

Gingrich stands up for the Net

But Exon didn't count on the Speaker of that House being a geek himself. Newt Gingrich, still basking in the glow of his newfound political dominance, declared the Exon Amendment unconstitutional and unenforceable, in a speech that as good as killed the amendment in the Gingrich-worshipping House.

The Net-savvy Speaker's condemnation of the amendment opened up an opportunity for two of his fellow Congressional netizens to draft legislation for a more modest set of controls on the current anarchy of the Net. Representatives Chris Cox (R-California) and Ron Wyden (D-Oregon) drafted the "Internet Freedom and Family Empowerment" amendment, barring the FCC from imposing regulations on the Internet or other interactive media, and implementing policy that would prohibit other content regulation in interactive media. The amendment also removed the liability of online service providers who make a good-faith effort to restrict access in order to protect minors from indecent or obscene material. On 4 August, the House approved the Cox-Wyden amendment by an overwhelming 420 to 4.

But it also approved contradictory legislation, buried in a broad Manager's Amendment to the telecom reform bill. There went Exon, sneaking in the back door. Nestled among the more than 40 unrelated amendments in the Manager's Amendment was a provision that would make it punishable to "intentionally communicate by computer ... 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." Under the amendment, it would also be a crime to receive the prohibited content.

The white knight of cyberspace

With conflicting amendments attached to the telecom bill, it was time for both houses to get serious, and form a conference committee to reconcile the war of the words already raging over the massive bill.

When the list of conference committee members was posted, there were some long faces in the cyber rights community. Neither Cox nor Wyden were on the committee, but Exon was back on board, ready to wield his blue binder again. The Christian Coalition favorite, Representative Henry Hyde (R-Illinois) - a major architect of the sneaky Manager's Amendment - would join Exon.

While the committee slogged through the telecom bill's myriad of issues for the next month, Rick White (R-Washington), a representative from Microsoft's district, drafted a proposal seeking middle ground between the existing disparate amendments. Based on the Cox-Wyden amendment, which White co-sponsored, the White proposal combined elements from Exon and Cox-Wyden into a package designed to be "one that works for a global medium."

First, White narrowed the definition of illegal material in Exon's proposal, replacing the vague "indecent" with the more specific "harmful to minors." This semantic difference represented a major shift. "Material harmful to minors" is defined as obscenity (graphic sexual images so hardcore as to not be protected by the First Amendment), applies to people under 18, and was dramatically more pointed than the nebulous "indecency."

His compromise also limited the law to content published or sent directly to minors, and materials harmful to minors posted in areas accessible to minors. Also from Cox-Wyden, the White compromise saved online services and ISPs from liability for violations of these laws that escape their scrutiny. Like Exon's legislation, the new amendment made displaying images a punishable crime.

The old switcheroo

What happened on 6 December in the House conference committee is what's known in grifter movies as "the old switcheroo." After the committee voted to adopt White's amendment, Hyde and cohort Representative Bob Goodlatte (R-Virginia) moved to change the language in the White amendment back to "indecency" from "material harmful to minors," and the committee voted in favor of the change by a margin of one vote, 17 to 16. With this rewording, all the rules rendered specific and narrow in White's amendment ballooned into huge, vague, interpretable laws that could be used against much of the art and literature often caught in censorship cross-fire, such as J. D. Salinger's The Catcher in the Rye and James Joyce's Ulysses.

So the House's current bastardized version of the White amendment awaits reconciliation with the Senate's Exon amendment, with which it has much in common, such as $100,000 fine limits, two-year prison terms, and a challenge to define "indecency."

And while it isn't over until the Feds come knocking on your door because you said "motherfucker" on your homepage, even optimistic crusaders for cyber rights expect the current amendment to accompany the gargantuan telecom bill out of Congress, and past the president's desk.

Aside from a miraculous presidential veto, there's only one thing that can save the online world from the grips of a hysterical, technophobic government: the Constitution.

So if you plan to keep on eye on the changing status of what's illegal or legal online, what's decent or indecent in cyberspace, we'll see you in court. The Supreme Court.

By Cate C. Corcoran

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