Bomb Making On The Internet p.38

By: Debra Gersh Hernandez Amendment to Senate anti-terrorism bill makes it
illegal to distribute certain types of information sp.

AN AMENDMENT TO the Senate anti-terrorism bill, which was passed June 7, makes it illegal to distribute information about bomb making if the disseminator knows or intends the bomb will be used in a criminal act.
The amendment, introduced by Sen. Dianne Feinstein (D-Calif.) specifically to address online dissemination of such information, was carefully drafted so it does not infringe on First Amendment-protected freedoms.
The penalty for violation is a maximum of 20 years in jail, a $250,000 fine, or both.
"The purpose of this amendment is to say that if you know or intend this [bomb] will be used in a criminal way, you have committed a federal criminal offense by putting out this information," she said during the floor debate.
Citing examples from the Terrorist Handbook, which is offered on the Internet, of booby traps and explosives in toilet paper rolls, light bulbs and baby food, Feinstein said "these bombs are there for one reason and one reason only, and that is a criminal purpose
. . . None of this is for use in any constructive civilian or military project."
Feinstein, who earlier spoke out against such activity during a subcommittee anti-terrorism hearing, said, "Enough is enough. Common sense should tell us that the First Amendment does not give someone the right to teach others how to kill people," she said.
"I do not for one minute believe that anyone writing the Constitution of the United States some 200 years ago wanted to see the First Amendment used to directly aid one in how to learn to injure and kill others," Feinstein said.
"The right to free speech in the First Amendment is not absolute, and there are several well-known exemptions to the First Amendment which limit free speech," she added, citing examples such as obscenity, defamation and commercial speech.
The amendment, she pointed out, "is not aimed at suppressing contents, per se, or fashioned as a prior restraint. Its purpose is addressing the facilitation of unlawful criminal conduct . . .
"In today's day and age, when violent crimes, bombings and terrorist attacks are becoming too frequent ? 2,900 bombings a year, 541 in California alone in the year 1993 ? and when technology allows for the distribution of bomb-making material over computers to millions of people across the country in a matter of seconds, I believe that some restrictions on speech are appropriate," she said.
After a brief floor debate over wording, the amendment was approved. It reads, in part: "It shall be unlawful for any person to teach or demonstrate the making of explosive materials, or to distribute by any means information pertaining to, in whole or in part, the manufacture of explosive materials, if the person intends or knows, that such explosive materials or information will be used for, or in furtherance of, an activity that constitutes a federal criminal offense or a criminal purpose affecting interstate commerce."
There is currently a federal statute similar to the Feinstein amendment that makes it illegal to teach or demonstrate to someone else how to make a bomb if the first person knows or intends the device will be used unlawfully. In addition, at least 18 states have adopted similar laws, she said.
Sen. Joseph Biden (D-Del.) commended Feinstein for drafting such a careful amendment.
"I remember her sitting there [at a hearing discussing the issue] and saying, 'You mean you can do this? I mean, why are we allowing this?' " Biden recalled.
"All of us who were supposedly hopefully good lawyers, all looked and said, 'First Amendment problem, Senator.' And we all did say that," he noted.
"Those of us who are conservative, liberal and moderate alike all said, 'First Amendment problem.' We all kind of went on to other things," Biden said, lauding Feinstein for finding a way around that problem.
Washington attorney Allan Adler of Cohn & Marks, said that Feinstein "is to be commended for narrowing the scope of the amendment" to make it constitutional.
Adler noted that the press community and others concerned with free expression issues are concerned "that the overall focus of legislators now seems to be regulating the dissemination of various kinds of content in a new medium about which very little is known."
In this instance, "the proponent of regulation acted responsibly to achieve a narrow objective . . . . I think Sen. Feinstein was diligent in trying to conform her amendment to the Constitution," Adler said, pointing out, "We will have to remain vigilant."
Other concerns for online content regulation include a bill that focuses on people who disseminate indecent material over the Internet, and an amendment to the Senate telecommunications bill regarding obscene or harassing information online.
The telco amendment, sponsored by Senators J. James Exon (D-Neb.) and Daniel Coats (R-Ind.), was approved 84-16.
Sen. Patrick Leahy (D-Vt.) had offered a counter-amendment calling for a Justice Department study of obscene material online and what barriers exist, but that measure was defeated.
The amendment includes a penalty of up to two years in jail and a $100,000 fine for those who make obscene material available or send electronically such data to minors. Communications between consenting adults will not be regulated.
In addition, providers such as America OnLine and CompuServe will have to come up with ways to prevent minors from accessing indecent online material, and to avoid prosecution will have to show they made a good faith effort to do so. They would not, however, be responsible for what is sent over the network.


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