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** ** ** *** POLICY POST
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** ** ** *** June 20, 1995
** ** ** *** Number 19
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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 19 June 20, 1995
CONTENTS: (1) CDT Analysis of Senate Passed Exon/Coats Communications
Decency Act
(2) Text of the Statute With Proposed Amendment
(3) About CDT/Contacting Us
This document may be re-distributed freely provided it remains in its
entirety.
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(1) CDT Analysis of Senate Passed Exon/Coats Communications Decency Act
The United States Senate last week approved sweeping Internet censorship
legislation which dramatically restricts the free flow of information in
interactive media, and fails to even provide effective protection for
children from access to inappropriate information. The Center for
Democracy and Technology strongly opposes the Exon/Coats Communications
Decency Act for the following reasons:
* UNCONSTITUTIONAL BAN ON "INDECENT" MATERIAL IN MOST PARTS OF THE
INTERNET: The Act imposes criminal penalties of $100,000 fines or up to two
years in prison on anyone who "knowingly ... makes or makes available any
indecent communications ... to any person under 18 years of age." This
restriction on indecency (a legal term which includes the "seven dirty words"
as well as any sexually-explicit material) amounts to a total ban on all
"indecent" information in public areas of the Internet, since all users of the
Internet know that public areas are accessible to minors. The United States
Supreme Court has held over and over again that indecent material is protected
by the First Amendment and may only be regulated with narrowly tailored means
that leave adults free to communicate. Senator Exon's bill has failed to
identify Constitutionally-appropriate means of regulation. As Senator Leahy
pointed out during the Senate debate, the Exon bill would force everyone on
the Internet to behave as if there were in "Sunday school."
* SECOND-CLASS FREE SPEECH RIGHTS FOR ALL INTERACTIVE MEDIA: The
Exon/Coats amendment diminishes the First Amendment rights of those who use
interactive media as opposed to those who communicate through print. The
indecency ban in Exon/Coats creates the paradoxical result that speech which
would be fully-protected in books, magazines, newspapers, or other print-based
publications, would be subject to criminal sanction if made available
over the Internet. In other words, what is legal in all of the nation's
bookstores would become illegal in cyberspace.
* CRIMINALIZATION OF "ANNOYING" MESSAGES: Annoying someone using harsh
(but not obscene) language over interactive media would become a crime, also
punishable by $100,000 fines and two year jail terms. Federal and many state
laws already criminalize harassment, no matter what the medium, but
prohibiting mere annoyance is clearly unconstitutional and a wasteful abuse of
federal power.
* FEDERAL COMMUNICATIONS COMMISSION JURISDICTION OVER CONTENT AND
TECHNICAL STANDARDS ON THE INTERNET: Enforcement of the Exon/Coats bill will
require extensive an ongoing FCC proceedings to determine what exactly
constitutes "indecency" in various interactive media, and how the "safe harbor"
defenses in the bill will function. Such regulation will mean that the FCC
intrude on the development of all current and future Internet standards for
services such as the World Wide Web, electronic mail, and Usenet newsgroups. CDT
believes that such an FCC role will lead to unnecessary confusion and delay in
the growth of the Internet, as well as cast a continual chill over all speech on
the Internet and other interactive media.
* PROVISIONS DESIGNED TO PROTECT ONLINE SERVICE PROVIDERS FROM LIABILITY ARE
INEFFECTIVE: The "defenses" to prosecution that are intended to
protect online services and Internet access providers from liability will
create significant risk of criminal liability for all services that provide
access to the Internet. Though Senator Exon may originally promised to exempt
these providers from liability, his last-minute compromise with Senator
Coats, and failure to understand the basic operation of Internet services, left
all Internet access providers at risk of criminal liability for providing
access to Usenet newsgroups and other public information services.
* "GOOD FAITH DEFENSE" FOR SERVICE PROVIDERS MAY ENCOURAGE VIOLATIONS OF
USER PRIVACY: Section (f)(4) of Act insulates online service providers
from any contractual liability that may arise from their efforts to restrict
minors' access to indecent material. Because of the vaguaries of the
Electronic Communications Privacy Act regarding service provider access to
subscriber email for "system maintenance purposes," this provision may imunize
online service providers who read private messages of their users in
circumstances where the provider is acting within the bounds of the Exon/Coats
bill.
* UNDUE BURDEN ON INDIVIDUAL USERS, CONTENT PROVIDERS, AND SMALL SYSTEM
OPERATORS: Although Senator Exon claims that his bill is only an extension
of the dial-a-porn law, it is actually far broader. The dial-a-porn law
applied only to commercial providers of 900 number services, not every
telephone customer in the country. Given the fact that every Internet user is
both publisher and a receiver of information, Exon's new law, if enacted,
would create new regulations on the speech of all those who use interactive
media.
In simple terms, the Communications Decency Act would enshrine in
statute a sharp distinction between the print medium and new interactive
media. For example, though an individual is allowed to go into a
bookstore and buy a sexually-explicit magazine or a "lewd" work of art,
one would not be able to access the identical information over the
Internet. Both the interactive media and the print media are arenas in
which individuals and organizations exercise core First Amendment free
speech rights. Before Congress elects to diminish the First Amendment
protections available in this new medium, we believe that careful,
public consideration is required.
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.
Examples of Prohibited items under the new subsection (e)
Rap music lyrics (both the text and the sound files)
Lady Chatterly's Lover
Public declaration that you're "pissed off" or that someone is a
"shit."
Calvin Klein advertisements (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 ban obscenity, but can only regulate
indecency in very narrow circumstances, such as in the broadcast media
where there is a captive audience. Pacifica Foundation v. FCC (1978) .
Even in these narrow circumstances, such regulation may be the "least
intrusive means" for accomplishing the government's goal of protecting
children. Sable Communications v. FCC. 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.
CDT believes that the Act as drafted would not survive a First Amendment
challenge under the law of Sable because the Senate has altogether
failed to investigate less restrictive alternatives to meeting its goal
of protecting children. The Senate has held no hearings and made no
legislative findings which support its decision. During the debate on
the Senate floor, both Senator Leahy and Senator Feingold offered
evidence that there are less restrictive alternatives available.
Neither Senator Exon, Senator Coats, no any other Senator rebutted or
responded to these assertions. In light of the overwhelming evidence
that users and parents can exercise control over what they and their
children receive over the Internet, a court reviewing the
constitutionality of the bill, would, we believe, be forced to return
the matter to Congress for further consideration.
Furthermore, the government may not regulation indecent material in a
way that would deny adults access to such material. Butler v. Michigan
(1957). 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. During the Senate debate,
Senator Feingold also pointed out that there are many kinds valuable
information on the Internet that might be considered indecent under FCC
definitions, such as AIDS education information, various works of art,
etc.
B. INTRUSION OF THE FEDERAL COMMUNICATIONS COMMISSION ON CONTENT AND
STANDARDS IN INTERACTIVE MEDIA
There are "defenses to prosecution" under this statute which are
designed to limit the liability of service providers and, possibly,
users and content creators. (See subsection (f)) To avoid being
prosecuted under this statute an entity can take "good faith steps" to
restrict access to the possibly infringing communications and then hope
that if charged with violating the Act, that the court believes you took
sufficient steps. A more prudent person, or a corporation with money
and reputation at risk, would more likely wait to see what the FCC says
are sufficient steps to restrict access and follow those regulations.
Until the FCC acts, the defenses applicable to the dial-a-porn law are
available, but it is not clear how they would apply to interactive
media.
If this provision were to become law, an FCC rulemaking will be required
to decide two issues:
1) what is indecent in interactive media?
This could include the "seven dirty words", frontal nudity, sound files
with heavy breathing, or many other examples. However, granting the
Federal Communications Commission the authority to answer to this
question would bring the Internet under a similar content regime as
broadcast television and radio.
2) what steps must be taken to restrict access to indecent material?
The FCC will also have to decide what techniques must be used to
restrict access sufficiently to enable users and providers to avoid
criminal liability. FCC intrusion in the rapidly evolving interactive
media market promises to delay the development of new technologies,
squelch the entrepreneurial spirit which has helped the Internet to
grow, and chill the speech of all users and content creators. The FCC
took 8 years to get blocking rules settled just for 900# services, and
that was one relatively simple technology. Giving the FCC authority to
set child-access standards for every piece of the Net, and all new Net
services that develop is a disaster for the medium and will have a
sweeping chilling effect on both the technology and free expression
online.
As Senator Leahy noted during debate on the bill, "the Internet has
become the tremendous success it is because it did not have Big Brother,
the Federal Government, trying to micromanage what it does and trying to
tell users what it could do. If the Government had been in charge of
figuring out how to expand the Internet or make it more available and so
on, I guarantee it would not be one-tenth the success it is today."
(Cong. Rec. 8344)
C. A NEW CRIME OF ONLINE ANNOYANCE
Senator Exon proposes criminal sanctions for anyone who uses "obscene,
lewd, lascivious, filthy, or indecent" communications "with intent to
annoy, abuse, threaten, or harass another person." Federal and state
laws already punish criminal harassment, regardless of the medium used
to perpetrate the crime. (See 18 USC 875(c)). CDT believes that
additional laws in this area are simply unnecessary. Moreover, the
Department has Justice has said that it has adequate prosecutorial
powers in this new environment. (See DoJ letter June 14, 1995).
D. LIMITATIONS ON SERVICE PROVIDER LIABILITY ARE WEAK AND THREATEN TO
RADICALLY REDUCE THE DECENTRALIZED NATURE OF THE INTERNET
Some provisions of the Exon/Coats bill attempt to limit the liability of
service providers where they act only as passive transmitters of
content. However, these provisions have been significantly weakened as
a result of pressure from anti-pornography groups, and are subject to
interpretation which creates great risk for both users and service
providers. Anti-pornography groups have been pressing to hold online
providers responsible for all of the information accessible to minors on
the Internet. The earlier version of the Exon bill excused from
criminal liability anyone who had no editorial control over the content
of the message. However, the bill passed by the Senate removed the
"editorial control" defense. Instead, service providers could limit
their liability only if they "ha[ve] no control" over the service, or if
they take steps to restrict access for minors. The degree of nature or
degree of control which could leave a provider open to liability is,
however, not specified. CDT believes that these weakened "defenses"
leave access providers, and thus Internet users, in a state of great
uncertainty as to their responsibility under this bill.
One of the major criticisms of the original legislation introduced by
Senator Exon in February 1995 was that it placed criminal liability on
online service providers and Internet access providers for any content
that traveled across their networks. In response to these criticisms,
Senator Exon altered his bill to assure that service providers would not
be held responsible for content on their network unless they exercised
editorial control. However, in the final days before Senate action on
the bill, Senator Exon changed the provisions again at the request of
Senator Coats. Now, the presumption of liability has been reversed and
a service provider would have to show that it has no control over the
service which carried indecent content to a particular minor.
* THE END OF USENET NEWSGROUPS?
The major uncertainty of the defenses centers on what it means for a
service provider to have control over indecent or obscene content. The
uncertainty of this defense is revealed in an analysis of an Internet
access providers relationship and potential criminal liability for
providing access to Internet newsgroups such as Usenet. Most Internet
service providers provide access to Usenet, and, generally make choices
about which newsgroups they carry. Some carry all newsgroups, others
carry only some groups. The architecture of the Internet newsgroup
system is such that a particular Internet access provide can chose to
exclude the "alt.sex" newsgroups, or not. Does this ability to exercise
control mean that the service provider is criminally liable under the
statute? Or, does a carrier have to actually exercise control over the
content of individual messages? These definitional questions are legal
fine points, but create substantial uncertainty over the meaning of the
Act and are likely to lead to litigation and instability in the Internet
environment. Until these issues are resolved, there will likely be a
substantial chilling effect on all speech on such services.
The bill and associated legislative history leave some doubt as to the
meaning of control, since it is never explicitly defined. Debate on the
Senate floor, which is often used by courts to divine the legislative
intent of the drafters where a statute is unclear, gives seemingly
contradictory signals on the question of service provider liability for
services such as Usenet newsgroups. One the one hand Senator Exon says
in the Congressional Record of the debate that an online provider merely
providing access, navigational tools and incidental services "is not
aware of the contents of the communications and should not be
responsible" for violation of the obscenity, indecency or harassment
crimes in the Act. (Cong. Rec., S8345). On the other hand, Senator
Coats, the co-sponsor of the bill, says that the Act "does not create a
defense for someone who has some level of control over the material of
the provision of the material." (Cong. Rec. S8345). Senator Exon also
says in the course of this "colloquy" with Senator Coats that those
"engaging in pornography and indecency should install 'electronic
bouncers' at their electronic doors" to keep minors out. (Id.)
CDT believes that defenses to prosecution for online service providers
are critical in the context of this legislation, but is concerned that
the defenses no longer serve the function for which they were originally
designed. As written in the Senate-passed bill, the defenses appear to
require Internet service providers to interfere with the content of
messages on their networks if they have any ability to do so.
* CREATION OF NEW GATEKEEPERS
Forcing online services providers to exercise control as the new
Exon/Coats bill seems to require would spell the end of the open,
decentralized communications environment which has characterized the
Internet until now. As we have argued elsewhere, users and parents have
a great degree of control over what they and their children receive in
interactive media. Federal policy should encourage the development of
this user control potential, rather than return to the centralized
control regulatory models which characterized the mass media. As an
open, decentralized medium, the Internet promotes the free flow of
information and serves as a valuable political and cultural forum. If we
rely on user control technology we can protect children without
involving federal regulators in the censorship of constitutionally-
protected speech.
E. 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.
CONCLUSION: 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.
Interactive media such as the Internet, commercial online services, and
interactive television networks, are, by nature, distinctly different
from traditional broadcast and television mass media. Interactive media
does not suffer from a scarcity of capacity, nor does it assault an
audiance of captive viewers. Most importantly, interactive media offers
users tremendous control over the content that they and their children
receive. The Exon/Coats proposal completely fails to account for these
unique aspects of interactive media. As House of Representatives begins
to consider this and other proposals to regulate content on the
Internet, CDT will continue to fight the Exon/Coats proposal, and will
work to find alternative prolicy solutions which preserve the First
Amendment an the free flow of information in cyberspace.
Center for Democracy and Technology
Jerry Berman
Daniel Weitzner
+1.202.637.9800
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(2) TEXT OF THE STATUTE WITH PROPOSED AMENDMENT
TITLE 47. TELEGRAPHS, TELEPHONES, AND RADIOTELEGRAPHS
CHAPTER 5. WIRE OR RADIO COMMUNICATION
COMMON CARRIERS
47 USCS | 223 (1992)
| 223. Obscene or harassing telephone calls in the District of Columbia
or in interstate or foreign communications
Strike all of current Section (a) and insert the following:
(a) Whoever --
(1) in the District of Columbia or in interstate or foreign
communications
(A) by means of telecommunications device 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 communication 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 permits any telecommunications facility under his
control to be used for any activity prohibited by paragraph (1) with the
intent that it be used for such activity,
shall be fined not more than $100,000 or imprisoned not more than two
years, or both._
NO CHANGE TO THE DIAL-A-PORN SECTIONS (B) AND (C)
(NOTE: BILL ADDS NEW SECTIONS (D) - (J))
(d) Whoever--
(1) knowingly within the United States or in foreign communications
with the United States by means of telecommunications device makes or
makes available any obscene communication in any form including any
comment, request, suggestion, proposal, image, regardless of whether the
maker of such communication placed the call or initiated the
communications; or
(2) knowingly permits any telecommunications facility under such
person's control to be used for an activity prohibited by subsection
(d)(1) with the intent that it be 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 or in foreign communications
with the United States by means of telecommunications device makes or
makes available any indecent comment, request, suggestion, proposal,
image to any person under 18 years of age regardless of whether the
maker of such communication placed the call or initiated the
communication; or
(2) knowingly permits any telecommunications facility under such
person's control to be used for an activity prohibited by paragraph (1)
with the intent that it be 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), (d), and (e), restrictions on
access, judicial remedies respecting restrictions for persons providing
information services and access to information services--
(1) No person shall be held to have violated subsections
(a), (d), or (e) solely for providing access or connection to or
from a facility, system, or network over which that person
has no control, including related capabilities which are
incidental to providing access or connection. This subsection
shall not be applicatable to an individual who is owned or
controlled by, or a conspirator with, an entity actively
involved in the creation, editing or knowing distribution of
communications which violate this section.
(2) No employer shall be held liable under this section for
the actions of an employee or agent unless the employee's or
agent's conduct is within the scope of his employment or agency
and the employer has knowledge of, authorizes, or ratifies the
employee's or agent's conduct.
(3) It is a defense to prosecution under subsection (a),
(d)(2), or (e) that a person has taken reasonable, effective and
appropriate actions in good faith to restrict or prevent the
transmission of, or access to a communication specified in such
subsections, or complied with procedures as the Commission may prescribe
in furtherance of this section. Until such regulations become
effective, it is a defense to prosecution that the person has complied
with the procedures prescribed by regulation pursuant to subsection
(b)(3). Nothing in this subsection shall be construed to treat enhanced
information services as common carriage.
(4) No cause of action may be brought in any
court or any administrative agency against any person on account
of any action which in not in violation of any law punishable
by criminal penalty, which activity 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 an activity or action which constitutes a violation
described in subsection (a)(2), (d)(2), or (e)(2) that is
inconsistent with the treatment of those activities or actions
under this section provided, however, that nothin 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 rights, duties or obligations on
the provision of interstate services. Nothing in this subsection
shall preclude any State or local government from governing conduct
not covered by this section.
(h) Nothing in subsection (a), (d), (e), or (f) 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.
(i) The use of the term 'telecommunications device' in this section
shall not impose new obligations on (one-way) broadcast radio or (one-
way) broadcast television operators licensed by the Commission or (one-
way) cable services registered with the Federal Communications
Commission and covered by obscenity and indecency provisions elsewhere
in this Act.
(j) Within two years from the date of enactment and every two
years thereafter, the Commission shall report on the effectiveness of
this section.
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(3) About The Center For Democracy And Technology/Contacting Us
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:
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Posts directly), send email to with a subject of
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