Cybertelecom Federal Internet Law & Policy An Educational Project

Communications Decency Act Article from 1996

Online Communications Law Update, FCBA Newsletter (March 1996)

See Content Restrictions for Interactive Computer Services Under the Telecommunications Act of 1996, which is a revision of this article.

Communications Decency Act

On February 1, 1996, Congress passed the Senator Exon's Communications Decency Act (CDA) as a part of the Telecommunications Act of 1996. On February 7, 1996, the ACLU announced that it would file suit to challenge the constitutionality of the CDA. The ACLU is utilizing section 561 of the Telecommunications Act which provides for expedited judicial review of constitutional challenges. One week later, U.S. District Judge Ronald Buckwalter of the Eastern District of Pennsylvania issued a temporary restraining order, enjoining enforcement of only a portion of the Communications Decency Act, § 223(a)(1)(B). The provision enjoined concerns indecency transmitted over "telecommunication devices" other than "interactive computer networks." A permanent injunction hearing will take place in the near future. The following is a summary of the requirements and liabilities for "interactive computer networks" under the CDA. See also H.R. Conf. Rep. No. 458, 104th Cong., 2nd Sess. § 502, 142 Cong. Rec. H1078 (daily ed. January 31, 1996) (further discussing CDA).

The CDA amended 47 USC § 223, which regulates obscene and harassing telephone calls. Pursuant to the CDA, it is 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.

§ 223(d)(1)(B). Congress intended to incorporate into the final version of the CDA the definition of "indecency" from FCC v. Pacifica, and apply this definition only to "interactive computer networks." This prohibition could be applied to computer networks as small as a LAN with two computers.

Critics point out that material posted in the open environment of the Internet is available to all users in all communities. An individual posting data will be liable for violations of the CDA wherever that data offends community standards. Therefore, the community which is most easily offended will dictate what material can be posted. Anyone anywhere on the network that violates the standards of the most conservative and restrictive community with access to that network is subject to liability pursuant to the CDA. Thus, all material an individual considers posting must be evaluated by "the lowest common denominator," the most conservative and restrictive standards applicable.

Service providers could be subject to liability if they knowingly permit their telecommunications facilities to be used in a manner that violates the CDA. Service providers would appear to have the responsibility of monitoring all activity that occurs on their service. Violations of § 223 can result in fines under title 18 and two years in prison.

The CDA includes three defenses. First, § 223(e)(1) provides a defense for service providers solely providing access to materials not under their control. Chris McLean of Senator Exon's office stated at the recent FCBA CLE seminar on online censorship that this means, for example, that America Online would not be liable for providing to a minor mere access to the Hustler Magazine World Wide Web site on the Internet. This broad defense substantially limits the reach of the CDA. The Internet is a network of thousands of "independent" computer networks. A service provider is generally providing only mere access to the other computers on the Internet. Since Hustler is on a separate computer, a service provider would not be held liable for a violation of the CDA if minors access the Hustler site via the service provider where the provider is providing "mere access to material not under its control." As long as a service provider is only providing an Internet connection, minors could download every piece of offensive material from every other computer on the Internet without the service provider incurring liability. This analysis changes, of course, if the service provider offers improved services beyond "mere access," which might include search engines, directories, USENET subscriptions, and other devices assisting users to gain access to the offensive material.

Section 223(e)(5) provides a good faith defense: it is a defense if individuals make a "good faith, reasonable, effective, and appropriate" effort to restrict the access of minors to offensive material. Given the volume of traffic over service providers' computers, these terms will be difficult to define. Good faith efforts may include blocking access to certain USENET groups (however, such blocks may not fall within the definition of "effective"), implementing or making available filtering software which restricts the access of minors to certain Internet sites, setting up special accounts for minors with restricted Internet access, and refusing to sell accounts to minors. In order to comply with the CDA, the service provider would have to develop means of reasonably and effectively monitoring the content on its own computers without violating the privacy of the users. Finally, this defense must be considered in light of the "mere access" defense; where the service provider is providing "mere access," the provider would appear to be under no duty to make any efforts to block access to material not under its control.

As a corollary to § 223(e)(5) and in response to and in order to overrule the controversial holding in Stratton- Oakmont, Inc. v. Prodigy, § 223(f)(1) states that no individual who makes a good faith effort to restrict the access of minors to offensive material shall be subject to civil or other liability on account of that effort. Section 230(c)(1) also states that interactive computer services are not republishers of the data transmitted over their computers, protecting service providers from defamation claims. In Stratton, Prodigy, which held itself out as a monitor and censor of offensive material, was found liable for failing to censor defamatory material. This defense ensures that service providers are not exposed to liability when they seek to make their services safe for children. However, this defense may arguably provide a service provider with unintended protection. By overruling Stratton, Congress intended to protect service providers from liability for an omission (the failure to stop defamatory remarks). Congress, however, also granted protection for affirmative acts. Where, for instance, the service provider has violated the privacy rights of a user, an affirmative act on the part of the service provider, the service provider may be protected from liability. Thus service providers may now have the ability to break the law with impunity in the name of restricting access to offensive material.

The third defense, § 223(e)(4) removes the risk of vicarious liability to employers for activities of their employees.

Section 223(e)(6) states that the FCC "may describe measures which are reasonable, effective, and appropriate to restrict access to prohibited communications." The FCC otherwise has no role in enforcing of the CDA. The Telecommunications Bill further states that it is the policy of the Federal Government "to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation." Sec. 230(b)(2). Thus, Congress gave the FCC virtually no jurisdiction over online medium. Also, the CDA preempts state legislation, but only with respect to commercial entities, nonprofit libraries, or institutions of higher learning. § 223(f)(2).

Thomas v. United States

The Court of Appeals for the Sixth Circuit recently affirmed the conviction of two computer bulletin board system (BBS) operators in Thomas v. United States. The Court found that the Thomases had violated federal obscenity law by transmitting obscene materials from their BBS in California to a user in Tennessee. The BBS was a subscription, limited access service on which subscribers could access sexually explicit material. A user could access the material from anywhere using a modem. In order to gain access, users had to fill out an application, send it in, and receive a PIN number.

A United States Postal Inspector in Tennessee received a complaint concerning the Thomases' BBS. The Inspector, using an alias, filled out the application using a Tennessee address and phone number and mailed it in. The Thomases called the Inspector in Tennessee and gave him a PIN number (the Thomases also mailed video tapes to the Inspector's Tennessee address). The Inspector proceeded to download assorted material from the service. On this basis, the Thomases were arrested for violating federal obscenity law.

This case captured the attention of the online community for the issues raised about community standards. Obscenity is judged by community standards, but whose community? Is it the community of the individual posting the material, the situs of the computer where the material is stored, the community where the material is downloaded, or some other community, perhaps comprising citizens of Cyberspace? If it is the community where the material is downloaded, who is responsible: the individual who posted the material, or the user who downloaded and brought it into the community. Central to this issue is the unique nature of the medium; individuals posting material generally are unaware of and have no control over where the material will be downloaded. Material posted in California that is within the community standards there can be downloaded anywhere with the potential to offend different community standards. It is argued that this creates a substantial chill on free speech because a content provider seeking to avoid liability must apply the standards of the most conservative and restrictive community that might have access to the material.

The Sixth Circuit held that the community standards where the recipient of the material resided (Tennessee) were appropriate for determining obscenity. The Court was unpersuaded by the argument that the Thomases were unaware of the community in which their sexually explicit material was downloaded. The Court stated

This is not a situation where the bulletin board operator had no knowledge or control over the jurisdictions where materials were distributed for downloading or printing. Access to the Defendants' AABBS was limited. Membership was necessary and applications were submitted and screened before passwords were issued and materials were distributed. Thus, Defendants had in place methods to limit user access in jurisdictions where the risk of a finding of obscenity was greater than that in California. They knew they had a member in Memphis; the member's address and local phone number were provided on his application form. If Defendants did not wish to subject themselves to liability in jurisdictions with less tolerant standards for determining obscenity, they could have refused to give passwords to members in those districts, thus precluding the risk of liability.

Thus, the content provider, under the assumption that the provider is aware of all places with which the provider is doing business, is tasked with the requirement of knowing the community standards for all jurisdictions in which the provider does business. For a content provider wishing to distribute material via online communications, this burden can be substantial.

The implications of Thomas v. United States for online communications, however, seem limited. While the Sixth Circuit rejected the petitioners' argument concerning the application of community standards, it did so only in the narrow factual context where the content provider knows and has control over the communities which have access to the material. This holding is not applicable to an open environment, typical for the Internet and online services, where an individual posting material generally does not control the community to which the material is transmitted. Given this distinction, the holding in Thomas may have limited precedential value. These issues will, no doubt, arise again in the ACLU's legal challenge to the Communications Decency Act.