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The Communications Decency Act 

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It is no exaggeration to conclude that the Internet has achieved, and continues to achieve, the most participatory marketplace of mass speech that this country -- and indeed the world -- has yet seen. The plaintiffs in these actions correctly describe the "democratizing” effects of Internet communication: individual citizens of limited means can speak to a worldwide audience on issues of concern to them. Federalists and Anti-Federalists may debate the structure of their government nightly, but these debates occur in newsgroups or chat rooms rather than in pamphlets. Modern-day Luthers still post their theses, but to electronic bulletin boards rather than the door of the Wittenberg Schlosskirche. More mundane (but from a constitutional perspective, equally important) dialogue occurs between aspiring artists, or French cooks, or dog lovers, or fly fishermen. . . . [T]he Internet may fairly be regarded as a never-ending worldwide conversation. The Government may not, through the CDA, interrupt that conversation. As the most participatory form of mass speech yet developed, the Internet deserves the highest protection from governmental intrusion. -- ACLU v. Reno , 929 F.Supp. 825 (ED.Pa. 1996), aff'd, 521 U.S. 844 (1997)

On February 1, 1996, Congress passed Senator Exon's Communications Decency Act (CDA) as an amendment to the Telecommunications Act of 1996. On February 7, 1996, the ACLU challenged the constitutionality of the CDA. One week later, U.S. District Judge Ronald Buckwalter of the Eastern District of Pennsylvania issued a restraining order, enjoining enforcement of the CDA. The CDA had a short life, setting a precedent for a plethora of censorship proposals to come.

CDA as Passed

The CDA amended 47 USC § 223 which regulates obscene and harassing telephone calls. Pursuant to the CDA, it would have been illegal to knowingly use an "interactive computer service" to send to or display, in a manner available to a person under 18 years of age

any comment, request, suggestion, proposal, image, or other communication that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs, regardless of whether the user of such service placed the call or initiated the communication.

[47 U.S.C. § 223(d)(1)]. Congress intended to incorporate the definition of "indecency" from FCC v. Pacifica (a classic First Amendment case involving George Carlin's Seven Dirty Words monologue broadcast on Pacifica radio), and apply this definition to "interactive computer networks." Individuals would have been liable for posting or sending offensive material, but not for accessing or downloading it; it was the intent of Congress that the CDA punish content providers and not content recipients. The CDA would have been applied to computer networks of any size down to two computers.

Service providers could be subject to liability if they knowingly permit their facilities to be used in a manner that violates the CDA. [47 U.S.C. § 223(d)(2)]. Service providers appeared to have the responsibility of monitoring all activity that occurs on their service. Violations of § 223 could have resulted in fines and up to two years in prison. [47 U.S.C. § 223(d)].

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