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** ** ** *** POLICY POST
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** ** ** *** May 26, 1995
** ** ** *** Number 14
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CENTER FOR DEMOCRACY AND TECHNOLOGY
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A briefing on public policy issues affecting civil liberties online
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CDT POLICY POST Number 14 May 26, 1995
CONTENTS: (1) Analysis of Proposed revision of Exon CDA By CDT and
People For The American Way -- Bill Still Unconstitutional
(2) Text of Draft Revision
(3) Sign the Petition To Help Senator Leahy Fight the CDA
(4) Petition Update -- 10,000 sigs as of Friday 5/26/95!
(5) About CDT/Contacting Us
This document may be re-distributed freely provided it remains in its
entirety.
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(1) SUBJECT: New Draft proposed to Revise Exon CDA -- Bill Still
Unconstitutional
The Communications Decency Act, authored by Senator James Exon
(D-NE), has attracted a firestorm of criticism from nearly all groups that
are concerned about censorship, children's access to controversial material
and the health of the Internet marketplace. Critics include the American
Family Association, American Online, People for the American Way, and the
United States Justice Department, as well as a variety of civil liberties
and press groups. In an effort to seek a compromise among these disparate
groups, some parties have drafted a legislative proposal as an alternative
to the current Exon language in the Senate Telecommunications Reform bill.
As far as we know, this draft has not yet been accepted by any parties.
We believe that the draft contains several significant improvements
over the original language, but it still contains unconstitutional
prohibitions against First Amendment-protected speech and fails to fully
account for the unique characteristics of interactive media.
* The Free Speech Rubicon for Interactive Media
The key flaw remaining in this proposal is its well-intentioned but
overbroad effort to regulate indecent material (the "seven dirty words") in
interactive media. Regulation of indecency has been found constitutional
only in limited cases involving radio and television broadcasting and
audiotext services. We believe that given the unique user control
attributes of interactive media, as well as the great abundance of
capacity, it is unconstitutional to regulate indecency in this new medium.
The result of this overbroad regulation is the paradoxical result that
information which is freely available in bookstores, libraries and record
shops will be barred on the Internet. Such restrictions will stifle the
free flow of information in interactive media and deal a grave blow to the
development of markets for multimedia products and services.
Based on our initial analysis, we have the following comments on
the new language:
A. Unconstitutional restrictions on indecent speech online: Banning
the "seven dirty words" on the Net.
If this new proposal became law, the level of discourse on the
Internet as a whole would have to be reduced to that which is considered
appropriate for children. A newly added section (e) effectively makes it
illegal to use any of the "seven dirty word" in public forums on the
Internet. This new subsection makes in a crime to "knowingly" make and
transmit an indecent message to anyone under 18 years old. This provision
covers both private messages between two individuals and public postings to
newsgroups that may well reach hundreds of thousands of people around the
world. Though the drafters may want to limit this crime to situations
where material is provided directly to minors, that is simply impossible on
the net. Anyone who participates in public discussion groups knows that
there may well be kids reading the group as well. Thus, they would be
violating the law simply by posting a hotly-worded message.
Prohibited items under the new subsection (e) include:
* Rap music lyrics (both the text and the sound files)
* Lady Chatterly's Lover
* Public eclaration that you're "pissed off" or that someone
is a "shit."
* Calvin Klein ads (the ones with naked bodies)
The constitutional flaw in this section lies in the critical
distinction between "obscenity," that which is truly hard-core pornography,
and "indecency," sexually-explicit material which may be offensive to some
or may be considered by some to be inappropriate for children, but which is
protected by the First Amendment. Under the First Amendment, Congress has
broad power to regulate obscenity, but can only regulate indecency in very
narrow circumstances, such as in the broadcast media where there is a
captive audience. Even in these narrow circumstances, such regulation may
be the "least intrusive means" for accomplishing the government's goal of
protecting children. Given the existence of software and hardware that
enable parents to block children's access to indecent material the
regulation here does not constitute the "least restrictive means"
requirement set out by the Supreme Court.
Furthermore, the government may not regulation indecent material in
a way that would deny adults access to such material. This is precisely
the result that is produced by this new statutory proposal. Such as result
would be both unwise and unconstitutional. The highly restrictive
treatment proposed here for interactive media creates a situation in the
future whereby material that is legally available to people of all ages in
bookshops and libraries will be banned from the Internet.
B. Unfair treatment of individual users, educational institutions and
other non-commercial services: Pre-emption against restrictive state laws
only for commercial services
If enacted, this proposal would protect commercial service
providers from additional censorship by state legislatures, but leave all
non-commercial users, including libraries, schools, community groups, and
individuals subject to additional regulation and censorship under state
law. The proposal pre-empts state statutes that might censor commercial
services beyond the scope of federal law, but leaves all other net users
and groups exposed to any censorship that states may choose to enact. We
find no valid public policy argument which would accord greater protection
to commercial speech than is granted to non-commercial users of the net.
C. Failure to take full advantage of user and parental control
features inherent in interactive media
Legislating about new interactive media requires a careful
understanding of the unique attributes of this new medium. First and
foremost, interactive media enable users (including parents) to exercise
choice over the information that they and their children have access to.
In sharp contrast to older media, government content regulation is simply
not necessary in order to shield children from possibly inappropriate
information. Any legislative action in this are must identify ways to
promote greater parental and user control. As drafted, the proposal before
us suggests possible FCC rulemaking on this issue, but is no guaranty that
the Commission would take this course. Instead of just passing this
critical question off to a regulatory body, Congress must identify both
legal and voluntary means to encourage the development of more and more
flexible and accessible user control techniques.
Conclusion
In light of the serious constitutional concerns raised about the
Act, and the danger that it poses for the development of a vital new
communications medium, we believe that it is essential that the Congress
given careful scrutiny and study to provisions involving the regulation of
indecency in interactive media. Senator Leahy and Rep. Klink have offered
legislation (S. 714) which would conduct just such as study. Thoughtful
consideration is essential before moving ahead with legislation that is
both unconstitutional and patently ineffective toward the goal of
protecting children.
For more information contact:
Center for Democracy and Technology 202-637-9800
Jerry Berman
Daniel Weitzner
People for the American Way 202-467-4999
Leslie Harris
Jill Lesser
For background on the Communications Decency Act, see the Center for
Democracy and Technology's World Wide Web site at http://www.cdt.org/.
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(2) Proposed revision to Communications Decency Act
May 19, 1995 draft
** NOTE: Changes indicated in this draft (as marked below) represent
changes to the draft itself, and not to the language of the current
Communications Decency Act (Title IV of S. 652). This draft would replace
Title IV in its entirety.
[ ] = Deletion
_text_ = Addition
Sec. 223. Obscene or harassing utilization of telecommunications
devices and facilities in the District of Columbia or in interstate or
foreign communications .
(a) Whoever --
(1) in the District of Columbia or in interstate or foreign
communications by means of telecommunications device
(A) knowingly
(i) makes, creates, _or_ solicits, and
(ii) initiates the transmission of,
any comment, request, suggestion, proposal, image, or other communication
which is obscene, lewd, lascivious, filthy, or indecent, with intent to
annoy, abuse, threaten or harass another person;
(B) makes a telephone call or utilizes a telecommunications device,
whether or not conversation or communications ensues, without disclosing
his identity and with intent to annoy, abuse, threaten, or harass any
person at the called number or who receives the communication;
(C) makes or causes the telephone of another repeatedly or continuously
to ring, with intent to harass any person at the called number; or
(D) makes repeated telephone calls or repeatedly initiates
communication with a telecommunications device, during which conversation
or communication ensues, solely to harass any person at the called number
or who receives the communication; or;
(2) knowingly [and willfully] permits any telecommunications facility
under his control to be used for any _activity_[purpose] prohibited by this
subsection with the intent that it be [so] used _for such activity_.
shall be fined not more than $100,000 or imprisoned not more than two
years, or both.
NO CHANGES TO CURRENT LAW FOR SEC. (b) & (c)
"DIAL-A-PORN" Statute.
NEW SECTION (d)
(d) Whoever--
(1) knowingly within the United States by means of telecommunications device
(A) makes, creates, _or_ solicits, and
(B) initiates the transmission of or purposefully makes available
any comment, request, suggestion, proposal, image, or other communication
which is obscene, regardless of whether the maker of such communication
placed the call or initiated the communications, or
(2) knowingly [and willfully] permits any telecommunications facility
under such person's control be used for an activity prohibited by
subparagraph (d)(1 ) with the intent that it be so used for _such
activity_,
__shall be fined not more than $100,000 or imprisoned not more than two
years or both.
(e) Whoever,--
(1) knowingly within the United States by means of telecommunications device
(A) makes, creates, [or] solicits, and
(B)initiates the transmission of, or purposely makes available,
any indecent comment, request, suggestion, proposal, image, or other
communication [which is available] to any person under 18 years of age [or
to any person 18 years of age or older without that person's consent,]
regardless of whether the maker of such communication placed the call or
initiated the communications, or
(2) knowingly [and willfully] permits any telecommunications facility
under such person's control be used for an activity prohibited by
subparagraph (e)(1) with the intent that it will be so used _for such
activity_,
shall be fined not more than $100,000 or imprisoned not more than two
years or both.
(f) Defenses to the subsections (a)[(2)], (d), and (e) restrictions on
access, judicial remedies respecting restrictions for persons providing
carriage or information services --
(1) _The provision of access by a_ person [including] transmission,
downloading, storage, or navigational tools, and related capabilities which
are incidental to the transmission of communications, and not involving the
creation or alteration of the content of the communications ), for another
person's communications to or from a service, facility, system, or network
not under _the access provider's_[that first person's] control _shall by
itself not be a violation of subsection (a), (d) or (e)_. [This defense
shall not be available to a defendant who is owned or controlled by or a
conspirator with an entity actively involved in the creation, alteration or
knowing distribution of communications which violate this section or to an
entity which exists for the creation, alteration, or knowing distribution
of communications which violate this section.]
(2) It is a defense to prosecution under subsections (a)(2), (d)(2) or
(e)(2) that a defendant _did not have editorial contgrol_ over the [lacked
the capability of exercising editorial control over the] communication
specified in this section. This defense shall not be available to a
defendant who has ceded editorial control to an entity which the defendant
knows or [has substantial] _had_ reason to know intends to engage in
conduct that is likely to violate this section.
(3) It is a defense to prosecution under subsections (a), (d)(2) and
(e) that a defendant has taken good faith, reasonable steps, to restrict or
prevent the transmission of, or access to communications described in [this
section] _such provisions_ according to such procedures as the Commission
may prescribe by regulation. _Such steps and FCC procedures may include
enabling the user to restrict or prevent access to communication described
in this section_. Nothing in this subsection [in and of itself] shall be
construed to treat enhanced information services as common carriage.
(4) No cause of action may be brought in any court or administrate
agency against any person on account of any [otherwise lawful] action _not
in violation of any law punishable by criminal penalty_ which the person
has taken in good faith to implement a defense authorized under this
section or otherwise to restrict or prevent the transmission of, or access
to, a communication specified in this section.
(g) No State or local government may impose any liability for commercial
activities or actions by commercial entities in connection with a violation
described in subsection (a)(2), (d)(2), or (e)(2) that is inconsistent with
the treatment of those violations under this section provided, however,
that nothing herein shall preclude any State or local government from
enacting and enforcing complementary oversight, liability, and regulatory
systems, procedures, and requirements, so long as such systems, procedures,
and requirements govern only intrastate services and do not result in the
imposition of inconsistent obligations on the provision of interstate
services. Furthermore, nothing in this subsection shall preclude any State
or local government from governing conduct not covered by this section.
(h) Nothing in this subsection (a), (d) or (e) or in the defenses to
prosecution under (a), (d), or (e) shall be construed to affect or limit
the application or enforcement of any other federal law.
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(3 & 4) PETITION UPDATE: 10,000 Signatures in the first week!
The petition in support of Senator Patrick Leahy's (D-VT) alternative to the
Communication Decency Act has in its first week generated 10,000
signatures. Thank you to those of you who have already singed! With your
help, we are
demonstrating that the net.community is a political force to be reckoned with.
If you have not signed the petition yet:
Visit the petition web page: http://www.cdt.org/petition.html
For instructions on how to sign via email (for thouse w/o access to the web):
send email to vtw@vtw.org with a subject send petition
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(5) ABOUT THE CENTER FOR DEMOCRACY AND TECHNOLOGY
The Center for Democracy and Technology is a non-profit public interest
organization. The Center's mission is to develop and advocate public
policies that advance constitutional civil liberties and democratic
values in new computer and communications technologies.
Contacting us:
To subscribe to CDT's news distribution list (to receive future Policy Posts
directly), send email to with a subject of 'subscribe
policy posts'.
** NOTE TO THOSE WHO HAVE ALREADY REQUESTED TO BE ADDED TO CDT's DISTRIBUTION
LIST: We are still working to build our listserv -- you will beging
receiving Policy Posts on this list very soon. We appreciate your patience!
General information on CDT can be obtained by sending mail to
CDT has set up the following auto-reply aliases to keep you informed on the
Communications Decency Act issue.
For information on the bill, including
CDT's analysis and the text of Senator
Leahy's alternative proposal and
information on what you can do to
help -- cda-info@cdt.org
For the current status of the bill,
including scheduled House and
Senate action (updated as events
warrant) -- cda-stat@cdt.org
World-Wide-Web:
http://www.cdt.org/
ftp:
ftp://ftp.cdt.org/pub/cdt/
gopher:
CDT's gopher site is still under construction and should be operational
soon.
snail mail:
Center For Democracy and Technology
1001 G Street, NW Suite 700 East
Washington, DC 20001
voice: +1.202.637.9800
fax: +1.202.637.9800
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