Electronic Frontier Foundation

Senator John McCain
The Committee on Commerce, Science, and Transportation
United States Senate
Washington, DC

February 9, 1998

Dear Senator McCain:

I write on behalf of the Electronic Frontier Foundation (EFF) to urge that the Senate make no further attempts to regulate speech on the Internet. Existing federal and state legislation covering such matters as the creation and distribution of child pornography and the solicitation of minors for sexual activity already provide sufficient tools to protect America's children.

The new legislation under discussion will inevitably run afoul of the free speech protections of the First Amendment, just as Congress' attempt to impose an "indecency" standard on the Internet was struck down last year in Reno v. ACLU.

Indeed, as the Congress considers new legislation it is worth noting the Supreme Court's warning that:

The record demonstrates that the growth of the Internet has been and continues to be phenomenal. As a matter of constitutional tradition, in the absence of evidence to the contrary,we presume that governmental regulation of the content of speech is more likely to interfere with the free exchange of ideas than to encourage it. The interest in encouraging freedom of expression in a democratic society outweighs any theoretical but unproven benefit of censorship.

EFF is particularly concerned about the possibility that the Congress may seek to block access to "indecent" or "harmful" online material to schools receiving Universal Service Funds by requiring the use of filtering software. Filtering and blocking software is not the panacea that some of its advocates have suggested.

The Internet contains virtually limitless content. Given that fact, filtering and blocking products are inevitably crude and overbroad. It is physically impossible for such products to block material based on a legal defintion, and such products have been demonstrated to block the sites and writings of many speakers with no "indecent" content whatsoever. The blocking is performed either by simplistic keyword searches, or by the biased, error-prone, and often politically motivated choices of human censors employed by the software's producer.

Much material, which is perfectly relevant and appropriate for students, including material in present-day biology text books and social studies text books, is now and would be blocked by these products. No system of censorship that prevents student access to material based simply on the medium by which it is conveyed should be encouraged by the Congress and certainly cannot hope to withstand First Amendment scrutiny.

It is not difficult to sympathize with the purpose behind the suggested legislation. We all want to protect our children from inappropriate thoughts and materials. The problem is that we all have a different standard of impropriety and we cannot conceive of any software product that will provide a solution to that dilemma.

In the end, we are going to have to put our faith in our educational institutions. How do we keep kids from looking at online "indecency" in the classroom? The same way we keep them from looking at paper "indecency" (or comics for that matter ) in the classroom -- teacher supervision

Classroom discipline is not an area needing federal regulatory oversight. It is not the place of the national legislature to dictate to teachers what materials must or should not be used in the classroom. This is an issue that today rests on the shoulders of teachers and the local community, as it always has.

As a final note, we are disappointed that a broader range of viewpoints will not be heard by Commerce Committee at Tuesday's hearing. We urge that any future hearings include witnesses who speak to the free speech concerns of American's, including young Americans, who wish to make use of the full potential of the Internet as not only a research tool, but as what the Supreme Court noted was " the most participatory form of mass speech yet developed,".


Barry Steinhardt