Click here to see the text of the bill as passed
Click here to see the statute with the proposed amendment
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:
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)
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.
o 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.
o 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 jberman@cdt.org
Daniel Weitzner djw@cdt.org
+1.202.637.9800
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