Senate Proffer on Obscenity

NOVEMBER 17, 1995

TITLE IV -- OBSCENE, HARASSING, AND WRONGFUL UTILIZATION OF 
TELECOMMUNICATIONS FACILITIES.

SEC. 401. SHORT TITLE

        This title may be cited as the "Communications Decency Act of 
1995".

SEC. 402. OBSCENE OR HARASSING USE OF TELECOMMUNICATIONS FACILITIES 
UNDER THE COMMUNICATIONS ACT OF 1934.

(a) OFFENSES. section 223 (47 U.S.C. 223) is amended‹
    
        "(1) by striking subsection (a) and inserting in lieu thereof: 

"(a) Whoever‹
    "(1) in the District of Columbia or in interstate or foreign 
communications‹

         "(~) 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 
communications;    

         "(C) makes or causes the telephone of an other 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;     

  "(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."; and     

(2) by adding at the end the following new sub sections:    

 "(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, or 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 in tent 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 communication in any form 
including any 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 net work over which that person has no control, 
including related capabilities which are incidental to providing access 
or connection. This subsection shall not be applicable to a person who 
is owned or con trolled 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 employees or agent's 
conduct is within the scope of his employment or agency an(l the 
employer has knowledge of, authorizes, or ratifies the employee's or 
agent's conduct. 
                    
           "(3) It is a defense to prosecution under sub section (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 sub 
sections, 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 
administrative agency against any person on account of any activity 
which is not in violation of any law punishable by criminal or civil 
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, nonprofit 
libraries. elementary schools. secondary schools, or institutions of 
higher education in connection with an activity or action which 
constitutes a violation de scribed 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 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 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 service 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.". 

      SEC. 40~. OBSCENE PROGRAMMING ON CABLE TELEVISION.

    Section 639 (47 U.S.C. 569) is amended by striking 
"$10,000" and inserting "$100,000".

     SEC. 404. BROADCASTING OBSCENE LANGUAGE ON RADIO.
    Section 1464 of title 18, United States Code, is amended by striking 
out "$10,000" and inserting "$100,000". 

SEC.. 406. SEPARABILITY.

    (a) If any provision of this title, including amendments to this 
title or the application thereof to any person or circumstance is held 
inlaid, the remainder of this title and the application of such 
provision to other persons or circumstances shall not be afflicted 
thereby. 

SEC. 406. ADDITIONAL PROHIBITION ON BILLING FOR TOOL-FREE TELEPHONE 
CALLS.
    Section 228(c)(7) (47 U.S.C. 228(c)(7)) is amend

    (1) by striking "or" at the end of subparagraph

    (2) by striking the period at the end of sub paragraph (D) and 
inserting a semicolon and "or"; and 

   (3) by adding at the end thereof the following:     

        "(E) the calling party being assessed, by virtue of being asked 
to connect or otherwise transfer to a pay-per-call service, a charge for 
the call.". 

SEC. 407. SCRAMBLING OF CABLE CHANNELS FOR NONSUBSCRIBERS.

Part IV of title VI (~7 U.S. C. 551 et seq.) is amend 
 by adding at the end the following

"SEC. 640. SCRAMBLING OF CABLE CHANNELS FOR NONSUBSCRIBERS.

    "(a) REQUIREMENT. ~ providing video programming unsuitable for 
children to any subscriber through a cable system, a cable operator 
shall fully scramble or other wise fully block the video and audio 
portion of each channel carrying such programming upon subscriber re 
quest and without any charge so that one not a subscriber does not 
receive it.     

"(b) DEFINITION.‹As used in this section, the term 'scramble' means to 
rearrange the content of the signal of the programming so that the 
programming cannot be received by persons unauthorized to receive the 
programming". 

SEC. 408 SCRAMBLING OF SEXUALLY EXPLICIT ADULT VIDEO SERVICE PROGRAMMING

  (a) REQUIREMENT.‹Part IV of title VI (47 U.S.C. 551 et seq.), as 
amended by this Act, is further amended by adding at the end the 
following:. ~41. 

"SEC. 641 SCRAMBLING OF SEXUALLY EXPLICIT ADULT VIDEO SERVICE 
PROGRAMMING

  "(a) REQUIREMENT.‹In providing sexually explicit adult programming or 
other programming that is indecent and harmful to children on any 
channel of its service primarily dedicated to sexually-oriented 
programming a multichannel video programming distributor shall fully 
scramble or otherwise fully block the video and audio portion of such 
channel so that one not a subscriber to such channel or programming does 
not receive it.     

"(b) IMPLEMENTATION.‹Until a multichamlel video programming distributor 
complies with the requirement set forth in subsection (a), the 
distributor shall limit the access of children to the programming 
referred to in that subsection by not providing such programming during 
the hours of the day (as determined by the Commission) when a 
significant number of children are likely to view it.      

"(C) DEFINITION.‹As used in this section, the term 'scramble' means to 
rearrange the content of the signal of the programming so that audio and 
video portions of the programming cannot be received by persons 
unauthorized to receive the programming.".      

(b) EFFECTIVE DATE.‹The amendment made by subsection (a) shall take 
effect 30 days after the date of the enactment of this Act. SEC. 40~. 
CABLE 

SEC. 409. CABLE OPERATOR REFUSAL TO CARRY CERTAIN PROGRAMS.

  (a) PUBLIC, EDUCATIONAL, AND GOVERNMENTAL CHANNELS. --Section 611(e) 
(47 U.S.C. 531(e)) is amended by inserting before the period the 
following: ", except a cable operator may refuse to transmit any public 
access program or portion of a public access program which contains 
obscenity, indecency, or nudity'.     

 (b) CABLE CHANNELS FOR COMMERCIAL USE Section 612(c)(2) (47 U.S.C. 
532(c)(2)) is amended by striking "an operator" and inserting "a cable 
operator may refuse to transmit any leased access program or portion of 
a leased access program which contains obscenity, indecency, or nudity".

SEC. 410. PROTECTION OF MINORS AND CLARIFICATION OF CURRENT LAWS 
REGARDING COMMUNICATION OF OBSCENE AND INDECENT MATERIALS THROUGH THE 
USE OF COMPUTERS.

(a) PROTECTION OF MINORS.‹

(1)GENERALLY. -- Section 1465 of title 18, United States Code, is 
amended by adding at the end the following: 

     "Whoever intentionally communicates by computer, in or affecting 
interstate or foreign commerce, to any per son the communicator believes 
has not attained the age of 18 years, any material that, in context, 
depicts or describes, in terms patently offensive as measured by 
contemporary community standards, sexual or excretory activities or 
organs, or attempts to do so, shall be fined under this title or 
imprisoned not more than five years, or both.".       .

 (2) CONFORMING AMENDMENTS RELATING TO FORFEITURE. --

    (A) Section 1467(a)(1) of title 18, United States Code, is amended 
by inserting "communicated," after "transported,". 

     (B) Section 1467 of title 18, United States Code, is amended in 
subsection (a)(1), by striking "obscene".      

(C) Section 1469 of title 18, United States Code, is amended by 
inserting "communicated," after "transported," each place it appears.     

(b)CLARIFICATION OF CURRENT LAWS REGARDING COMMUNICATION OF OBSCENE 
MATERIALS THROUGH THE USE OF COMPUTERS. --  

(1) IMPORTATION OR TRANSPORTATION. --  Section 1462 of title 18, United 
States Code, is amended

     (A) in the first undesignated paragraph, by inserting "(including 
by computer) after "there of"; and      

        (B) in the second undesignated paragraph‹ 

(i) by inserting "or receives," after "takes";
(ii) by inserting ", or by computer," after "common carrier"; and
(iii) by inserting "or importation" after "carriage".

       (2) TRANSPORTATION FOR PURPOSES OF DISTRIBUTION.‹The first 
undesignated paragraph of section 1465 of title 1~, United States
    Code, is amended‹
     
        (A) by striking "transports i~" and inserting "transports or 
travels in, or uses a facility or means of,";      
        (B) by inserting "(including a computer in or affecting such 
commerce)" after "foreign commerce" the first place it appears; and      
        (C) by striking ", or knowingly travels in" and all that follows 
through "obscene material in interstate or foreign commerce," and 
inserting "of". 

SEC. 411. ONLINE FAMILY EMPOWERMENT.

    Title II of the Communications Act of 1934 (47 U.S.C. 201 et seq.) 
is amended by adding at the end the following new section:                           

"SEC. 230. PROTECTION FOR PRIVATE BLOCKING AND SCREENING OF OFFENSIVE 
MATERIAL; FCC REGULATION OF COMPUTER SERVICES PROHIBITED.

"(a) FINDINGS.‹The Congress finds the following:

     "(1) The rapidly developing array of Internet  and other 
interactive computer services available to    individual Americans 
represent an extraordinary advance in the availability of educational 
and informational resources to our citizens.     
 
     "(2) These services offer users a great degree of control over the 
information that they receive, as well as the potential for even greater 
control in the future as technology develops.    

     "(3) The Internet and other interactive computer services offer a 
forum for a true diversity of political discourse, unique opportunities 
for cultural development, and myriad avenues for intellectual activity.   
 
    "(4) The Internet and other interactive computer services have 
flourished, to the benefit of all Americans with a minimum of government 
regulation.     
 
    "(5) Increasingly Americans are relying on interactive media for a 
variety of political, educational, cultural, and entertainment services. 

"(b) POLICY.‹It is the policy of the United States

    "(1) promote the continued development of the Internet and other 
interactive computer services and other interactive media;     

      "(2) preserve the vibrant and competitive free market that 
presently exists for the Internet and other interactive computer 
services, unfettered by State or Federal regulation;      

       "(3) encourage the development of technologies which maximize 
user control over the information received by individuals, families, and 
schools who use the Internet and other interactive computer services;     

      "(4) remove disincentives for the development and utilization of 
blocking and filtering technologies that empower parents to restrict 
their children's access to objectionable or inappropriate online 
material; and     

     "(5) ensure vigorous enforcement of criminal laws to deter and 
punish trafficking in obscenity, stalking, and harassment by means of 
computer. 

    "(C) PROTECTION FOR 'GOOD .SAMARITAN' BLOCKING AND SCREENING OF 
OFFENSIVE MATERIAL. --No provider or user of interactive computer 
services shall be treated as the publisher or speaker of any information 
provided by an information content provider. No provider or user of 
interactive computer services shall be held liable on account of‹     

 "(1) any action voluntarily taken in good faith to restrict access to 
material that the provider or user considers to be obscene, lewd, 
lascivious, filthy, excessively violent, harassing, or otherwise 
objection able, whether or not such material is constitutionally 
protected; or     

"(2) any action taken to make available to in formation content 
providers or others the technical means to restrict access to material 
described in paragraph (1).     

"(d) FCC REGULATION OF THE INTERNET AND OTHER INTERACTIVE COMPUTER 
SERVICES  PROHIBITED.‹Nothing in this Act shall be understood or 
construed to give the Commission the power of censorship over the 
content of the Internet or other interactive computer services. Nothing 
in this act shall be understood or construed to give the Commission the 
power to regulate the prices or rates of interactive computer services.     

"(e) EFFECT ON OTHER  Laws.

    "(1) NO EFFECT ON CRIMINAL LAW.‹Nothing in this section shall be 
construed to impair the enforcement of section 223 of this act, chapter 
71 (relating to obscenity) or 110 (relating to sexual exploitation of 
children) of title 18, United States Code, or any other Federal criminal 
statute.   

  "(2) NO EFFECT ON INTELLECTUAL PROPERTY LAW.‹Nothing in this section 
shall be construed to limit or expand any law pertaining to intellectual     
property.

    "(3) IN GENERAL.‹Nothing in this section shall be construed to 
prevent 
any State from enforcing any State law that is consistent with this 
section. 

"(f) DEFINITIONS.‹As used in this section:

    "(1) INTERNET.‹The term 'Internet' means the international computer 
network of both Federal and non-Federal interoperable packet switched 
data networks.     

"(2) INTERACTIVE COMPUTER SERVICE.‹The term 'interactive computer 
service' means any information service that provides computer access to 
multiple users via modem to a remote computer server, including 
specifically a service that provides access to the Internet.     

" (3 ) INFORMATION CONTENT PROVIDER.‹The term 'information content 
provider' means any per son or entity that is responsible, in whole or 
in part, for the creation or development of information provided by the 
Internet or any other interactive computer service, including any person 
or entity that creates or develops blocking or screening software or 
other techniques to permit user control over offensive material. 
    

"(4) INFORMATION SERVICE.‹The term 'information service' means the 
offering of a capability for generating, acquiring, storing, 
transforming, processing, retrieving, utilizing, or making available in 
formation via telecommunications, and includes electronic publishing, 
but does not include any use of any such capability for the management, 
control, or operation of a telecommunications system or the management 
of a telecommunications service.".