Click here to see the text of the statute as amended by the proposed legislation.
Click here to see the text of the bill as passed by the Commerce Committee.
CDT ANALYSIS OF REVISED EXON INDECENCY LEGISLATION
I. OVERVIEW
A revised version of the Communications Decency Act (S.314) was
In simple terms, the Communications Decency Act would enshrine in
The Center for Democracy and Technology (CDT) remains actively
II. ANALYSIS OF CURRENT PROPOSAL
The Exon/Gorton bill was introduced to promote the important
1. SECOND CLASS FIRST AMENDMENT RIGHTS FOR USERS AND CONTENT
2. FEDERAL COMMUNICATIONS COMMISSION JURISDICTION OVER
3. CRIMINALIZATION OF BOTH PUBLIC AND PRIVATE MESSAGES THAT
4. IMPERMISSIBLY INTRUSIVE MEANS OF ACHIEVING LEGITIMATE
5. FAULTY ANALOGY TO BROADCAST MEDIA: Proponents of the Act
6. INVASION OF PRIVACY: By criminalizing the content of
Alternative means of achieving the goal of protecting minors from
1. FEDERAL LEGISLATION ESSENTIAL TO PROTECT FREE SPEECH ON
2. MAXIMUM RELIANCE ON TECHNOLOGY TO EMPOWER PARENTS:
3. CLEAR PROTECTION FOR CONSTITUTIONALLY-PERMISSIBLE SPEECH:
4. EMPHASIS ON ENFORCEMENT OF EXISTING STATUTES: Federal
5. CODIFICATION SEPARATELY FROM EXISTING DIAL-A-PORN
The regulation of speech, commerce, and privacy rights in new
For More Information Contact:
Center for Democracy and Technology
Jerry Berman
added to the Senate telecommunications reform legislation.
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.)
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.
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 theInteractive Working Group (an ad hoc coalition
of public interest organizations, and computer, communication,
and publishing firms) to develop alternatives.
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:
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.
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.
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.
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.
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.
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.
access to material considered inappropriate by their parents
would include:
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.
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.
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.
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).
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 legislation 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.
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.
Daniel Weitzner
(voice) +1.202.637.9800
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 erson, 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 > Transfer interrupted!
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 withinthe 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
NOT