Taxation with representation ain't so hot either. ~ Gerald Barzan


This analysis provided by the Center for Democracy and Technology, a non-profit public interest organization. CDT's mission is to develop and advocate public policies that advance Constitutional civil liberties and democratic values in new computer and communications technologies. For more information on CDT, ask Jonah Seiger [email protected]

CDT POLICY POST 2/9/95
SENATOR EXON INTRODUCES ONLINE INDECENCY LEGISLATION

A. OVERVIEW

Senators Exon (D-NE) and Senator Gorton (R-WA) have introduced legislation to expand current FCC regulations on obscene and indecent audiotext to cover *all* content carried over all forms of electronic communications networks. If enacted, the "Communications Decency Act of 1995" (S. 314) would place substantial criminal liability on telecommunications service providers (including telephone networks, commercial online services, the Internet, and independent BBS's) if their network is used in the transmission of any indecent, lewd, threatening or harassing messages. The legislation is identical to a proposal offered by Senator Exon last year which failed along with the Senate Telecommunications reform bill (S. 1822, 103rd Congress, Sections 801 - 804). The text the proposed statute, with proposed amendment, is appended at the end of this document.

The bill would compel service providers to chose between severely restricting the activities of their subscribers or completely shutting down their email, Internet access, and conferencing services under the threat of criminal liability. Moreover, service providers would be forced to closely monitor every private communication, electronic mail message, public forum, mailing list, and file archive carried by or available on their network, a proposition which poses a substantial threat to the freedom of speech and privacy rights of all American citizens.

S. 314, if enacted, would represent a tremendous step backwards on the path to a free and open National Information Infrastructure. The bill raises fundamental questions about the ability of government to control content on communications networks, as well as the locus of liability for content carried in these new communications media.

To address his threat to the First Amendment in digital media, CDT is working to organize a broad coalition of public interest organizations including the ACLU, People For the American Way, and Media Access Project, along with representatives from the telecommunications, online services, and computer industries to oppose S. 314 and to explore alternative policy solutions that preserve the free flow of information and freedom of speech in the online world. CDT believes that technological alternatives which allow individual subscribers to control the content they receive represent a more appropriate approach to this issue.

B. SUMMARY AND ANALYSIS OF S. 314

S. 314 would expand current law restricting indecency and harassment on telephone services to all telecommunications providers and expand criminal liability to *all* content carried by *all* forms of telecommunications networks. The bill would amend Section 223 of the Communications Act (47 U.S.C. 223), which requires carriers to take steps to prevent minors from gaining access to indecent audiotext and criminalizes harassment accomplished over interstate telephone lines. This section, commonly known as the Helms Amendment (having been championed by Senator Jesse Helms), has been the subject of extended Constitutional litigation in recent years.

* CARRIERS LIABLE FOR CONDUCT OF ALL USERS ON THEIR NETWORKS

S. 314 would make telecommunication carriers (including telephone companies, commercial online services, the Internet, and BBS's) liable for every message, file, or other content carried on its network -- including the private conversations or messages exchanged between two consenting individuals.

Under S. 314, anyone who "makes, transmits, or otherwise makes available any comment, request, suggestion, proposal, image, or other communication" which is "obscene, lewd, lascivious, filthy, or indecent" using a "telecommunications device" would be subject to a fine of $100,000 or two years in prison (Section (2)(a)).

In order to avoid liability under this provision, carriers would be forced to pre-screen all messages, files, or other content before transmitting it to the intended recipient. Carriers would also be forced to prevent or severely restrict their subscribers from communicating with individuals and accessing content available on other networks.

Electronic communications networks do not contain discrete boundaries. Instead, users of one service can easily communicate with and access content available on other networks. Placing the onus, and criminal liability, on the carrier as opposed to the originator of the content, would make the carrier legally responsible not only for the conduct of its own subscribers, but also for content generated by subscribers of other services.

This regulatory scheme clearly poses serious threats to the free flow of information throughout the online world and the free speech and privacy rights of individual users. Forcing carriers to pre-screen content ould not only be impossible due to the sheer volume of messages, it would also violate current legal protections.

* CARRIERS REQUIRED TO ACT AS PRIVATE CENSOR OF ALL PUBLIC FORUMS AND ARCHIVES

S. 314 would also expand current restrictions on access to indecent telephone audiotext services by minors under the age of 18 to cover similar content carried by telecommunications services (such as America Online and the Internet). (Sec (a)(4)).

As amended by this provision, anyone who, "by means of telephone or telecommunications device, makes, transmits, or otherwise makes available (directly or by recording device) any indecent communication for commercial purposes which is available to any person under the age of 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 initiated the communication" would be subject of a fine of $100,000 or two years in prison.

This would force carries to act as private censors of all content available in public forums or file archives on their networks. Moreover, because there is no clear definition of indecency, carriers would have to restrict access to any content that could be possibly construed as indecent or obscene under the broadest interpretation of the term. Public forums, discussion lists, file archives, and content available for commercial purposes would have to be meticulously screened and censored in order to avoid potential liability for the carrier.

Such a scenario would severely limit the diversity of content available on online networks, and limit the editorial freedom of independent forum operators.

ADDITIONAL NOTABLE PROVISIONS

* AMENDMENT TO ECPA

Section (6) of the bill would amend the Electronic Communications Privacy Act (18 USC 2511) to prevent the unauthorized interception and disclosure of "digital communications" (Sec. 6). However, because the term "digital communication" is not defined and 18 USC 2511 currently prevents unauthorized interception and disclosure of "electronic communications" (which includes electronic mail and other forms of communications in digital form), the effect of this provision has no clear importance.

* CABLE OPERATORS MAY REFUSE INDECENT PUBLIC ACCESS PROGRAMMING

Finally, section (8) would amend sections 611 and 612 of the Communications Act (47 USC 611 - 612) to allow any cable operator to refuse to carry any public access or leased access programming which contains "obscenity, indecency, or nudity".

C. ALTERNATIVES TO EXON: RECOGNIZE THE UNIQUE USER CONTROL CAPABILITIES OF INTERACTIVE MEDIA

Government regulation of content in the mass media has always been considered essential to protect children from access to sexually- explicit material, and to prevent unwitting listeners/views from being exposed to material that might be considered extremely distasteful. The choice to protect children has historically been made at the expense of the First Amendment banon government censorship. As Congress moves to regulate new interactive media, it is essential that it understand that interactive media is different than mass media. The power and flexibility of interactive media offers a unique opportunity to enable parents to control what content their kids have access to, and leave the flow of information free for those adults who want it. Government control regulation is simply not needed to achieve the desired purpose.

Most interactive technology, such as Internet browsers and the software used to access online services such as America Online and Compuserve, already has the capability to limit access to certain types of services and selected information. Moreover, the electronic program guides being developed for interactive cable TV networks also provide users the capability to screen out certain channels or ever certain types of programming. Moreover, in the online world, most content (with the exception of private communications initiated by consenting individuals) is transmitted by request. In other words, users must seek out the content they receive, whether it is by joining a discussion or accessing a file archive. By its nature, this technology provides ample control at the user level. Carriers (such as commercial online services, Internet service providers) in most cases act only as "carriers" of electronic transmissions initiated by individual subscribers.

CDT believes that the First Amendment will be better served by giving parents and other users the tools to select which information they (and their children) should have access to. In the case of criminal content the originator of the content, not the carriers, should be responsible for their crimes. And, users (especially parents) should be empowered to determine what information they and their children have access to. If all carriers of electronic communications are forced restrict content in order to avoid criminal liability proposed by S. 314, the First Amendment would be threatened and the usefulness of digital media for communications and information dissemination would be drastically limited.

D. NEXT STEPS

The bill has been introduced and will next move to the Senate Commerce Committee, although no Committee action has been scheduled. Last year, a similar proposal by Senator Exon was approved by the Senate Commerce committee as an amendment to the Senate Telecommunications Bill (S. 1822, which died at the end of the 103rd Congress). CDT will be working with a wide range of other interest groups to assure that Congress does not restrict the free flow of information in interactive media.

TEXT OF 47 U.S.C. 223 AS AMENDED BY S. 314

NOTE: [] = deleted
ALL CAPS = additions

47 USC 223 (1992)

Sec. 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 DSTRICT 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] MAKES, TRANSMITS, OR OTHERWISE MAKES AVAILABLE 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;]

"(B) MAKES A TELEPHONE CALL OR UTILIZES A TELECOMMUNICATIONS DEVICE, WHETHER OR NOT CONVERSATION OR COMMUNICATIONS 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, during which conversation ensues, solely 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 [telephone facility] 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] TELECOMMUNICATIONS DEVICCE, 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 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 BY MEANS OF TELEPHONE OR TELECOMMUNICATIONS DEVICE, MAKES, TRANSMITS, OR MAKES AVAILABLE(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 without that person's consent, 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 not more than $[50,000] 100,000 or imprisoned not more than [si 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 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 subscibers 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.

***

NOTE: This version of the text shows the actual text of current law as it would be changed. For the bill itself, which consists of unreadable text See: ftp.eff.org, /pub/EFF/Legislation/Bills_new/s314.bill gopher.eff.org, 1/EFF/Legislation/Bills_new, s314.bill http://www.eff.org/pub/EFF/Legislation/Bills_new/s314.bill

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