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** ** ** *** POLICY POST
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** ** ** *** March 24, 1995
** ** ** *** Number 6
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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 3/24/95 Number 6
CONTENTS: (1) CDT Analysis of Revised Exon Indecency Legislation
(2) Section 223 as amended by Communications Decency Act
(3) About the Center For Democracy and Technology
This document may be re-distributed freely provided it remains in its
entirety.
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CDT ANALYSIS OF REVISED EXON INDECENCY LEGISLATION
I. OVERVIEW
A revised version of the Communications Decency Act (S.314) was added to the
Senate telecommunications reform legislation as the reform bill was reported
out of the Senate Commerce Committee. In an important improvement over the
original version, several exemptions have been created to limit criminal
liability of online services providers where they exercise no control over
content. However, despite this significant change the bill is still an
unconstitutional intrusion of the free speech and privacy rights of Internet
users and all content providers in interactive media. (The complete text of
the bill interleaved into the current statute is attached at the end of this
Policy Post.)
In simple terms, the Communications Decency Act would enshrine in statute a
sharp distinction between the print medium and new interactive media. The
bill subjects interactive media to the same weak First Amendment protections
that have evolved for mass media. Moreover, it places all speech that occurs
on the Internet and elsewhere in cyberspace under the jurisdiction of the
Federal Communications Commission. Both the interactive media and the print
media are arenas in which individuals and organizations exercise core First
Amendment free speech rights. Thus, new interactive media -- which includes
not only email and Internet servicese, but also interactive TV, video on
demand and distance learning -- must be protected by the First Amendment.
The Center for Democracy and Technology (CDT) remains actively opposed to this
bill. With the help of Senator Leahy and other civil liberties advocates in
Congress, we will fight to keep it from being enacted and continue to search
for alternatives to this dangerous legislation. CDT believes that federal
legislation is needed to solidify free speech rights and clarify online
service provider liability. Without such legislation, a series of state
legislative proposed as bad or worse than the Exon/Gorton bill will
proliferate. Restrictive proposals already under consideration in states such
as Maryland, Oregon, and Washington must be pre-empted. We will work with
concerned legislators and the Interactive Working Group (an ad hoc coalition
of public interest organizations, and computer, communication, and publishing
firms) to develop alternatives.
II. ANALYSIS OF CURRENT PROPOSAL
The Exon/Gorton bill was introduced to promote the important purpose of
protecting minors from access to controversial and inappropriate sexually
explicit material in interactive media including the Internet, other
commercial online services, electronic bulletin board services (BBS's).
However, because the proposed statute is grafted onto a twenty five year-old
provision of the Communications Act which was designed for a centralized
monopoly telephone environment, instead of diverse, decentralized interactive
media, it both fails to accomplish its goal and is unconstitutional on its
face. In spite of the changes made by Senator Exon, the bill still suffers
the following critical defects from the standpoint of users and content
providers:
1. SECOND CLASS FIRST AMENDMENT RIGHTS FOR USERS AND CONTENT PROVIDERS ON
THE NET AND ALL INTERACTIVE MEDIA: Even though many laud cyberspace as
the new electronic gutenberg printing press accessible to all, the Exon
bill treats the Internet, interactive television, and video dialtone
systems as if they were one big radio station whose broadcasts are
constantly assaulting unwilling listeners. Those who use these new
technologies know that this is not the case. However, viewing
interactive media as an extension of broadcasting diminishes the First
Amendment rights of all who use these systems and create content for
them. 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 if this legislation is enacted.
2. FEDERAL COMMUNICATIONS COMMISSION JURISDICTION OVER ONLINE SPEECH: The
defenses to prosecution established in the new version of the bill gives
the Federal Communications Commission jurisdiction to establish rules
governing distribution of content online. This will have a dramatic
chilling effect on online activity and squelch the development of
interactive media. Regulation of indecency in this new medium is a bad
precedent for all kinds of speech in the interactive world.
3. CRIMINALIZATION OF BOTH PUBLIC AND PRIVATE MESSAGES THAT ARE NOT
OBSCENE: The Act criminalizes not only obscene, but also "lewd,
lascivious, filthy, or indecent" communications, all of which are
protected by the First Amendment and cannot be banned.
4. IMPERMISSIBLY INTRUSIVE MEANS OF ACHIEVING LEGITIMATE GOAL: First
Amendment jurisprudence requires that restrictions on speech adopt the
"least restrictive means" available for achieving a compelling purpose.
Relying on technological assumptions applicable only to 900 number
services and a centrally-controlled telephone system, the Act fails to
account for the fact that government restriction on content is
unnecessary in interactive media, where parents can control the content
that their children access.
5. FAULTY ANALOGY TO BROADCAST MEDIA: Proponents of the Act have justified
the constitutionality by improper reliance on content restrictions found
acceptable in broadcast media. These arguments fail to recognize that
while broadcast media may "assult" unwilling listeners, who may be
in need of government protection, interactive media enables users to
control the information that they receive.
6. INVASION OF PRIVACY: By criminalizing the content of private, non-
obscene messages, the Act would force an invasion of the realm of
private electronic communications and end the individual's ability to
control the content of information he or she chooses to access in
private.
Alternative means of achieving the goal of protecting minors from access to
material considered inappropriate by their parents would include:
1. FEDERAL LEGISLATION ESSENTIAL TO PROTECT FREE SPEECH ON THE NET:
CDT believes that there mujst be federal legislation to solidify free
speech rights and clarify carrier liability which pre-empts state
legislation in this area. Otherwise, as series of state legislative
proposed where are as bad or worse than the Exon/Gorton bill will
proliferate.
2. MAXIMUM RELIANCE ON TECHNOLOGY TO EMPOWER PARENTS: Interactive media
offers parents and other users the ability to filter certain kinds of
content. Instead of relying on government censorship, or even
government-imposed rating systems, parents should be able to block the
delivery of certain information to their children on the basis of their
own individual tastes and preferences.
3. CLEAR PROTECTION FOR CONSTITUTIONALLY-PERMISSIBLE SPEECH: Any
alternative legislation must provide affirmative protection for
constitutionally-permissible speech, even if it is lewd, filthy or
otherwise controversial. The First Amendment demands that offensive or
disturbing speech must be treated separately than that which is clearly
obscene and unprotected.
4. EMPHASIS ON ENFORCEMENT OF EXISTING STATUTES: Federal and state law
already prohibits transportation of obscenity, child pornography, as
well as, in many instances threats, stalking and harassment. To the
extent that there are obstacles to enforcing these laws in the new on-
line environment, Congress should examine whether new law is required,
or whether more resources for enforcement (including training for law
enforcement in interactive services and cooperative efforts with the
industry).
5. CODIFICATION SEPARATELY FROM EXISTING DIAL-A-PORN STATUTE:
Modification of the existing ¤ 223, originally written for the analogue
telephone system, to regulate new interactive media causes unnecessary
confusion, both for the treatment of the new technology and with
respect to the stability of the regulation of audiotext services. If new
is written, it should stand on its own. Moreover, Congress should
consider which elements properly belong in the Communications Act and
which in the Criminal Code.
The regulation of speech, commerce, and privacy rights in new interactive
communications systems raises many difficult issues of public policy and
constitutional law. Before proceeding with legislation, Congress must provide
the opportunity for public hearings to identify clearly the problems that
exist, and to identify solutions that are appropriate to the new technology.
Failure to do so will result in ineffective policy, years of constitutional
litigation, and a disastrous chilling effect on the development and growth of
a very promising new communications medium.
For More Information Contact:
Center for Democracy and Technology
Jerry Berman
Daniel Weitzner
(voice) +1.202.637.9800
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TEXT OF STATUTE WITH PROPOSED AMENDMENT:
Substantial changes from previous version include:
-- the term 'knowingly' has been added to section (a)(1)(A)
-- additional defenses have been added in subsection (d)
**NOTE: [] = deleted
ALL CAPS = additions
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]
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
communication by means of [telephone] TELECOMMUNICATIONS
DEVICE--
[ (A) makes any comment, request, suggestion or proposal which is obscene,
lewd, lascivious, filthy, or indecent;]
(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;
(B) makes a telephone call, whether or not conversation ensues,
without disclosing his identity and with intent to annoy, abuse,
threaten, or harass any person at the called number;
(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, during which conversation
ensues, solely to harass any person at the called number; or
(2) knowingly permits any [telephone] TELECOMMUNICATIONS facility
under his control to be used for any purpose prohibited by this section, shall
be fined not more than $[50,000]100,000 or imprisoned not more than [six
months] TWO YEARS, or both.
(b)(1) Whoever knowingly--
[(A) within the United States, by means of telephone, makes (directly or by
recording device) any obscene communication for commercial purposes to any
person, regardless of whether the maker of such communication placed the
call;]
(A) WITHIN THE UNITED STATES, BY MEANS OF TELECOMMUNICATIONS DEVICE --
(i) MAKES, CREATES, OR SOLICITS, AND
(ii) PURPOSEFULLY MAKES AVAILABLE,
ANY OBSCENE COMMUNICATION FOR COMMERCIAL PURPOSES TO ANY PERSON, REGARDLESS OF
WHETHER THE MAKER OF SUCH COMMUNICATION PLACED THE CALL OR INITIATED THE
COMMUNICATION; OR
(B) permits any [telephone facility] TELECOMMUNICATIONS
FACILITY under such person's control to be used for an activity
prohibited by subparagraph (A), shall be fined in accordance with
title 18, United States Code, or imprisoned not more than two
years, or both.
(2) Whoever knowingly--
[ (A) within the United States, by means of telephone,
makes (directly or by recording device) any indecent communication for
commercial purposes which is available to any person under 18 years of age or
to any other person withoutthat person's consent, regardless of whether the
maker of such communication placed the call; or ]
(A) WITH THE UNITED STATES, BY MEANS OF TELEPHONE OR TELECOMMUNICATIONS
DEVICE,
(i) MAKES, CREATES, OR SOLICITS, AND
(ii) PURPOSEFULLY MAKES AVAILABLE (DIRECTLY OR BY RECORDING DEVICE)
ANY INDECENT COMMUNICATIONS FOR COMMERCIAL PURPOSES WHICH IS AVAILABLE TO ANY
PERSON UNDER 18 YEARS OF AGE OR TO ANY OTHER PERSON WITHOUT THAT PERSON'S
CONSENT, REGARDLESS OF WHETHER THE MAKER OF SUCH COMMUNICATION PLACED THE
CALL; OR
(B) permits any [telephone facility] TELECOMMUNICATIONS
FACILITY under such person's control to be used for an activity
prohibited by subparagraph (A), shall be fined not more than
$[50,000] 100,000 or imprisoned not more than [six months]
TWO YEARS, or both.
(3) It is a defense to prosecution under paragraph (2) of this
subsection that the defendant restrict access to the prohibited
communication to persons 18 years of age or older in accordance
with subsection (c) of this section and with such procedures as the
Commission may prescribe by regulation.
(4) In addition to the penalties under paragraph (1), whoever,
within the United States, intentionally violates paragraph
(1) or (2) shall be subject to a fine of not more than $[50,000]
100,000 for each violation. For purposes of this paragraph, each
day of violation shall constitute a separate violation.
(5)(A) In addition to the penalties under paragraphs (1), (2),
and (5), whoever, within the United States, violates paragraph (1)
or (2) shall be subject to a civil fine of not more than $[50,000]
100,000 for each violation. For purposes of this paragraph, each
day of violation shall constitute a separate violation.
(B) A fine under this paragraph may be assessed either--
(i) by a court, pursuant to civil action by the Commission or
any attorney employed by the Commission who is designated by the
Commission for such purposes, or
(ii) by the Commission after appropriate administrative
proceedings.
(6) The Attorney General may bring a suit in the appropriate
district court of the United States to enjoin any act or practice
which violates paragraph (1) or (2). An injunction may be granted
in accordance with the Federal Rules of Civil Procedure.
(c)(1) A common carrier within the District of Columbia or
within any State, or in interstate or foreign commerce, shall not,
to the extent technically feasible, provide access to a
communication specified in subsection (b) from the
[telephone] TELECOMMUNICATIONS DEVICE of any subscriber who has not
previously requested in writing the carrier to provide access to such
communication if the carrier collects from subscribers an identifiable charge
for such communication that the carrier remits, in whole or in part, to the
provider of such communication.
(2) Except as provided in paragraph (3), no cause of action may
be brought in any court or administrative agency against any common
carrier, or any of its affiliates, including their officers,
directors, employees, agents, or authorized representatives on
account of--
(A) any action which the carrier demonstrates was taken in good
faith to restrict access pursuant to paragraph (1) of this
subsection; or
(B) any access permitted--
(i) in good faith reliance upon the lack of any representation
by a provider of communications that communications provided by
that provider are communications specified in subsection (b), or
(ii) because a specific representation by the provider did not
allow the carrier, acting in good faith, a sufficient period to
restrict access to communications described in subsection (b).
(3) Notwithstanding paragraph (2) of this subsection, a provider
of communications services to which subscribers are denied access
pursuant to paragraph (1) of this subsection may bring an action
for a declaratory judgment or similar action in a court. Any such
action shall be limited to the question of whether the
communications which the provider seeks to provide fall within
the category of communications to which the carrier will provide
access only to subscribers who have previously requested such
access.
(d) ADDITIONAL DEFENSES; RESTRICTIONS ON ACCESS; JUDICIAL REMEDIES
RESPECTING RESTRICTIONS. --
(1) NO PERSON SHALL BE HELD TO HAVE VIOLATED THIS SECTION
WITH RESPECT TO ANY ACTION BY THAT PERSON OR A SYSTEM UNDER HIS CONTROL
THAT IS LIMITED SOLELY TO THE PROVISION OF ACCESS, INCLUDING TRANSMISSION,
DOWNLOADING, INTERMEDIATE STORAGE, NAVIGATIONAL TOOLS, AND RELATED
CAPABILITIES NOT INVOLVING THE CREATION OR ALTERATION OF THE CONTENT OF THE
COMMUNICATIONS, FOR OTHER
PERSON'S COMMUNICATIONS TO OR FROM A SERVICE, FACILITY, SYSTEM, OR NETWORK NOT
UNDER THAT PERSON'S CONTROL.
(2) IT IS A DEFENSE TO PROSECUTION UDER SUBSECTIONS (a)(2),
(b)(1(B), AND (b)(2)(B) THAT A DEFENDANT LACKED EDITORIAL CONTROL OVER THE
COMMUNICATIONS SPECIFIED IN THIS SECTION.
(3) IT IS A DEFENSE TO PROSECUTION UNDER SUBSECTIONS
(a)(2), (b)(1)(B), AND (b)(2)(B) THAT A DEFENDANT HAS TAKEN GOOD FAITH,
REASONABLE STEPS, AS APPROPRIATE --
(A) TO PROVIDE USERS WITH THE MEANS TO RESTRICT
ACCESS TO COMMUNICATIONS DESCRIBED IN THIS SECTION;
(B) PROVIDE USERS WITH WARNINGS CONCERNING THE
POTENTIAL FOR ACCESS TO SUCH COMMUNICATIONS;
(C) TO RESPOND TO COMPLAINTS FROM THOSE WHO ARE
SUBJECTED TO SUCH COMMUNICATIONS;
(D) TO PROVIDE MECHANISMS TO ENFORCE A PROVIDER'S
TERMS OF SERVICE GOVERNING SUCH COMMUNICATIONS; OR
(E) TO IMPLEMENT SUCH OTHER MEASURES AS THE
COMMISSION MAY PRESCRIBE TO CARRY OUT THE PURPOSES OF THIS
PARAGRAPH. NOTHING IN THIS SECTION IN AND OF ITSELF SHOULD BE CONSTRUED TO
TREAT ENHANCED INFORMATION SERVICES AS COMMON CARRIAGE.
(4) INADDITION TO OTHER DEFENSES AUTHORIZED UNDER THIS
SECTION, IT SHALL BE A DEFENSE TO PROSECUTION UNDER SECTION (b) THAT A
DEFENDANT IS NOT ENGAGED IN A COMMERCIAL ACTIVITY THAT HAS AS A PREDOMINATE
PURPOSE AN ACTIVITY
SPECIFIED IN THAT SUBSECTION.
(5) NO CAUSE OF ACTION MAY BE BROUGHT IN ANY COURT OR ANY
ADMINISTRATIVE AGENCY AGAINST ANY PERSON ON ACCOUNT OF ANY ACTION 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. THE PRECEDING SENTENCE SHALL NOT
APPLY WHERE THE GOOD FAITH DEFENSES UNDER SUBSECTION (c)(2) APPLY.
(6) NO STATE OR LOCAL GOVERNMENT MAY IMPOSE ANY LIABILITY IN CONNECTION
WITH A VIOLATION DESCRIBED IN SUBSECTION (a)(2), (b)(1)(B), (b)(2)(B) 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.
(e) FOR PURPOSES OF SUBSECTION (a) AND (b), THE TERM 'KNOWINGLY'
MEANS AN INTENTIONAL ACT WITH ACTUAL KNOWLEDGE OF THE SPECIFIC CONTENT OF
THE COMMUNICATION SPECIFIED IN THIS SECTION TO ANOTHER PERSON.
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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:
General information on CDT can be obtained by sending mail to
www/ftp/gopher archives are currently under construction, and should be
up and running by the end of March.
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