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Free Speech Issues |
| First Amendment > Communications Decency Act |
For Interactive Computer Services
in the Telecommunications Act of 1996
Version 1.3 Updated: March 14, 1996
by Robert Cannon, Esq.
© Copyright 1996, Robert Cannon. May be copied in whole. Acknowledgment to author
must be retained. No fee may be charged in relation to the distribution of this document.
- Documents associated with this online article
- Excerpts from Telecommunications Act of 1996 (Communications Decency Act, Online Family Empowerment Act, Hyde Amendment)
- Excerpts from Conference Report
- 18 U.S.C. § 1462 As Amended
- 18 U.S.C. § 1465 As Amended
- 18 U.S.C. § 2510
- Topic Headings
1 The Communications Decency Act
On February 1, 1996, Congress passed Senator Exon's Communications Decency Act (CDA) as a part of the Telecommunications Act of 1996. The ACLU announced on February 7, 1996, that it would file suit challenging the constitutionality of the CDA. The ACLU is utilizing section 561 of the Telecommunications Act which provides expedited judicial review for 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 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" (using these terms as defined by Congress, the Internet is composed of both "telecommunication devices" and "interactive computer networks"; the distinction which Congress seeks to make between the two is, at times, strained in both the CDA and the Conference Report). A permanent injunction hearing will take place in the near future. See ACLU Press Release (February 15, 1996). The following is a summary of the requirements and liabilities for "interactive computer networks" under the CDA. This analysis assumes the constitutionality of the Act. For an analysis of the constitutionality of the CDA, see plaintiff's brief in ACLU v. Reno.
1.1 Liability and Responsibility Under the 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 ageany 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). The conferees intended to incorporate into the final version of the CDA the definition of "indecency" from FCC v. Pacifica, and apply this definition to "interactive computer networks." Violators would be liable for each act of posting or sending the offensive material and not each act of accessing or downloading. It is the intent of the Congressional conferees that the CDA punish content providers and not those accessing the content. The CDA could be applied to computer networks as small as a two computer LAN (Local Area Network).
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. § 223(d)(2). 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 of the United States Code and up to two years in prison. § 223(d).
1.2 Defenses Provided Under the CDA
1.2.1 Access Provider Defense
Section 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 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, and other devices assisting users to gain access to the offensive material.1.2.2 Good Faith Defenses
1.2.2.1 Defense Against Liability Under CDA
Section 223(e)(5) provides the good faith defense: it is a defense if an individual makes, in good faith, a "[1] reasonable, [2] effective, and [3] appropriate" effort to restrict the access of minors to offensive material (each of the three elements must be present). These terms will be difficult to define. Good faith efforts may include- restricting access to internet sites through use of PINS, passwords, or credit card numbers; § 223(e)(5)(B)
- systematically and periodically reviewing all material on a server;
- requiring all subscribers to sign contracts agreeing not to "send" or "display" offensive material;
- blocking access to certain USENET groups;
- implementing or making available filtering software which restricts the access of minors to certain Internet sites (See § 230(b)(3) (encouraging the development of filtering software));
- placing warning notices on material that might be considered of an adult nature;
- setting up special accounts for minors with restricted Internet access; and
- refusing to sell accounts to minors.
- Some of the methods of implementing the "good faith" defense may lead to legal violations, including violations of privacy and First Amendment rights.
- Such efforts may fit under the definition of one term but not under another term of the defense. In other words, an effort may be reasonable but far from effective.
- Efforts to monitor the content of e-mail may run afoul of the Electronic Communications Privacy Act. 18 USC § 2510.
1.2.2.2 Good Faith Defense Against Other Liability: The Stratton Defense
As a corollary to § 223(e)(5) 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 child safe by monitoring and censoring offensive material, was found liable for failing to censor defamatory material posted by a third party. The Judge in Stratton concluded that the act of monitoring its service in order to protect children had made Prodigy a "republisher" of the defamatory material. The CDA good faith defense ensures that service providers are not exposed to such liability when they seek to make their services safe for children. This defense, however, 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.
1.2.3 Vicarious Liability Defense
The third defense, § 223(e)(4) removes some of the risk of vicarious liability to employers for activities of their employees. Employers could be liable for the conduct of their employees, acting within the scope of their employment, when the employer authorizes, ratifies, or recklessly disregards such conduct.1.3 Government Jurisdiction Over the Internet
Section 223(e)(6) states that the FCC "may describe measures which are reasonable, effective, and appropriate to restrict access to prohibited communications." This authority for jurisdiction over the "interactive computer networks" is to be narrowly construed and the FCC otherwise has no role in enforcing of the CDA. Even with this limited authority, the FCC has announced that it will, in the third quarter of 1996, issue a Notice of Inquiry concerning promulgation of a rule implementing the Communications Decency Act. See FCC Announcement.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." § 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).
2 The Hyde Amendment
In the midst of the final debate of the House's version of the Telecommunications Bill, Congressman Hyde slipped a surprise through the back door. Entitled "Clarification of Current Laws Regarding Communication of Obscene Materials Through the Use of Computers," Sec. 507 of the Telecommunications Act expands the reach of the federal obscenity laws to cover "interactive computer services. "See18 U.S.C. § 1462 as amended; 18 U.S.C. § 1465 as amended.. The amendment of § 1462 has received substantial attention. According to 18 U.S.C. § 1462(c), it would be illegal to transmit any material over online communications concerning abortion. See Congressional Record (comments by Representative Hyde on restriction of abortion communications). On February 9, 1996, Attorney General Janet Reno informed Vice President Gore that Rep. Hyde's amendment to § 1462 is an unconstitutional violation of the First Amendment; the Department of Justice will not defend the constitutionality of the amendment. See Letter From Attorney General Janet Reno to V.P. Gore (February 9, 1996); ACLU Press Release (February 15, 1996).
