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More on "Communications Decency Act"
From: David Farber <farber () central cis upenn edu>
Date: Thu, 9 Feb 1995 04:52:40 -0500
ANALYSIS S.314, The Communications Decency Act of 1995 Introduced by Sen. Jim Exon (D.-NE) Prepared for the ELECTRONIC MESSAGING ASSOCIATION by James T. Bruce and Richard T. Pfohl Wiley, Rein & Fielding February 7, 1995 I. Summary On February 2, Sen. Jim Exon (D-NE) introduced S. 314, The Communications Decency Act of 1995. Sen. Exon's bill, which contains provisions intended to curtail transmission of obscene, indecent, or harassing telecommunications, is identical to an amendment to the Senate telecommunications deregulation legislation which died last fall with the conclusion of the 103rd Congress. Although ostensibly extending existing federal prohibitions on obscene or harassing telephone calls to other telecommunications devices, these provisions could greatly expand prohibited conduct and would potentially make employers, service providers, and carriers liable for transmission of restricted communications. The likelihood of passage of the telecommunications deregulation legislation in the current Congress and the likelihood that Sen. Exon will attempt to again attach his language to such a vehicle makes the potential passage of the Exon language quite plausible. II. Analysis Sen. Exon's interest in the issues addressed in S. 314 was reportedly spurred by reports of electronic stalking on the Internet. Sen. Exon stated upon introduction of the legislation on February 2, "I want to keep the Information Superhighway from resembling a red light district. This legislation will help stop those who electronically cruise the digital universe to engage children in inappropriate communications . . . or electronically stalk users of computer networks." The Exon bill would address obscenity on radio and cable television, but of particular interest to EMA members are Section 2, on obscene or harassing use of telecommunications facilities, and Section 5, which extends the Electronic Communications Privacy Act (ECPA) to include digital communications. According to Sen. Exon's introductory statement, his legislation is intended to "extend and strengthen" the anti-harassment, decency, and anti-obscenity restrictions on telephone calls in current law to all telecommunications devices. The Exon bill would not, however, simply apply existing law to new telecommunications devices. Because of differences between existing telephone technology and telecommunications technology such as electronic messaging, the Exon bill would potentially prohibit a wide array of currently allowed electronic communications. Furthermore, the Exon bill would broaden existing law by subjecting transmitters, as well as the individuals who send obscene or harassing communications, to criminal liability. A. Restrictions on Nonconsensual Indecency and Harassment Current law, as codified in Sec. 223(a) of the Communications Act of 1934, prohibits any "obscene, lewd, lascivious, filthy, or indecent" communications by telephone.0 (Communications Act of 1934, Sec. 223(a) (47 U.S.C. 223(a))). Sec. 223(a) also prohibits intentional harassment by telephone, including by anonymous calls, repeated hang-ups, or repeated harassing calls. (47 U.S.C. 223(a)(1)(A - D)). Finally, Sec. 223(a)(2) prohibits knowingly permitting a telephone facility under one's control to be used for such purposes. The courts have interpreted Sec. 223(a) narrowly to apply only to non-consensual or unsolicited telephone calls. The Exon bill would make two fundamental changes in existing Sec. 223(a), with potentially wide-ranging, and possibly unintended, consequences. First, the Exon bill expands the prohibitions on obscene or indecent or harassing telephone calls to communication by all telecommunications devices. Second, the Exon bill extends the prohibition against making obscene or indecent communications to "transmit[ting] or otherwise mak[ing] available" any such communication. (S. 314 Sec. 2(a) (emphasis added)). In addition, the Exon bill would raise the penalty for such violations from the current up to $50,000 or six months in prison, to up to $100,000 or two years in prison. (S. 314 Sec. 2(b)). The Exon bill provisions would have a number of consequences for electronic messaging. First, unless the court-created limitation on the scope of the Sec. 223(a) anti-obscenity and indecency provisions to nonconsensual telephone calls is applied as well to all telecommunications, the provision would prohibit all "obscene, lewd, lascivious, filthy, or indecent" telecommunications, whether or not consensual. Services or carriers that transmit "or otherwise make[] available" such communications would be liable. Thus, the amended Communications Act would, on its face, prohibit indecent communications between consenting adults. This provision, unless limited to nonconsensual communications as the courts have done with regard to the existing prohibition on such telephone calls, is most likely unconstitutional. Nevertheless, the legislative history of this provision should clarify that the amended language is intended to apply only to nonconsensual communications.1 Second, the Exon bill restricts anyone from transmitting, "or otherwise mak[ing] available," "obscene, lewd, lascivious, filthy, or indecent" communications. (S. 314 Sec. 2(a)(1)(B)). This goes beyond and is in addition to the existing prohibition on knowingly permitting a telephone facility under one's control to be used for purposes prohibited by Sec. 223(a). The Exon bill expands the prohibition on knowing use of telephone facilities to knowing use of telecommunications facilities. (S. 314 Sec. 2(a)(2)). The latter provision may prove troublesome if service providers are deemed to "know" about the use of Bulletin Boards for or Electronic Mail for harassment or indecent remarks. These provisions could have a chilling effect on electronic message services, providers, carriers, or anyone else who could be deemed to "transmit[] or otherwise make[] available" prohibited electronic communications. Thus, for example, if someone sent an indecent electronic comment from a workstation, the employer, the e-mail service provider, and the carrier could all potentially be held liable, and subject to up to $100,000 in fines or up to 2 years in prison. This provision also has potentially chilling effects on electronic bulletin boards, discussion groups, and basic electronic mail communications. Although some service providers regularly screen bulletin boards to ensure that no obscene or indecent remarks appear upon them, the incredible proliferation of such bulletin boards makes comprehensive screening practically impossible.2 Bulletin Boards on the Internet, and, potentially, electronic messages, include numerous postings making racist remarks, arguing that the Holocaust never occurred, etc. All of these could conceivably be considered "indecent," or annoying, abusive or harassing, any of which could subject employers, services, and carriers to liability. It is questionable whether the prohibition on obscene or indecent communications, even if limited to nonconsensual communications, can be accomplished in electronic communications without chilling the First Amendment. Electronic bulletin boards and discussion groups blur the concept of intent: anyone perusing bulletin boards or discussion groups on the Internet has the potential to stumble, as if accidently stumbling into an X-rated movie theater, upon indecent material.3 Such an encounter may not be "consensual." The Internet practice of "flaming" fellow users very frequently involves use of indecency. Any such flame, which is by definition nonconsensual,4 would subject anyone who "makes available" the communication (again, potentially including an employer, service provider, common carrier, etc.) to full liability under this section. B. Restrictions on Commercial Obscenity The Exon bill would amend current law which is intended to restrict consensual obscene or indecent telephone calls, such as dial-a-porn. Current law prohibits use of the telephone to make obscene communications for commercial purposes, regardless of whether the maker of such communications placed the call (i.e., regardless of consent). (47 U.S.C. 223(b)(1)). Current law also prohibits making indecent communications available to persons under age 18. (47 U.S.C. 223(b)(2)). Current law allows common carriers to avoid liability under the provision limiting indecent material to persons over 18 by complying with F.C.C. rules5and by offering subscribers the right to block access to indecent material. The Exon bill would extend these prohibitions to all telecommunications. (S. 314 Sec. 2(a)(3)). By simply applying existing telephone provisions to telecommunications, the Exon bill would again create problems due to the unique nature of non-telephone telecommunications. For example, may a service or provider be liable if it does not check the ages of all members of a household, and allow a family to block access to members under the age of 18? Numerous electronic bulletin boards on line contain indecent material,6 and indecent material may spring up in any discussion group, or even when a rap artist discusses his lyrics, or a record company puts a new release on line, as has been done in recent months. Because subscribers are required to pay a commercial fee (beyond their basic subscription fee, which would presumably be analogous to a telephone common carrier fee) to access these services, indecent material on these services may subject providers to liability.7 C. Expansion of ECPA The Electronic Communications Privacy Act (ECPA), codified in the U.S. Code at Title 18, generally prohibits unauthorized electronic surveillance, such as wiretapping of employees. (18 U.S.C. 2511. See Alderman v. U.S., 394 U.S. 165 (1969)). The Exon bill would add conforming language which amends the prohibition on surveillance to ensure that it covers all electronic communications, including digital communications. (S. 314 Sec. 5). ECPA has been amended before to account for the evolution of technology. When passed in 1968, ECPA prohibited surveillance only of wire or oral communications. ECPA was amended in 1986 to prohibit as well surveillance of electronic communications. Sec. 5 of S. 314 would ensure that all electronic communications, including digital communications, are covered. III. Status The Exon language is substantively identical to the amendment to S. 1822, Senate telecommunications deregulation legislation in the last congress. It is anticipated that Sen. Exon will again offer his language as an amendment to telecommunications deregulation legislation which is expected to be introduced by mid-February. Sen. Pressler, Chairman of the Senate Commerce Committee, has indicated his eagerness to address the legislation. Sen. Exon is a member of the Senate Commerce Committee. IV. Prognosis Last year, Sen. Exon's language was adopted as an amendment to the telecommunications deregulation legislation even though many thought it hastily drafted and poorly thought out. Nevertheless, this language could be adopted as part of the telecommunications bill in a matter of weeks or potentially added to any legislation pending on the Senate floor. A coalition of groups assembled last fall to address the threat to online services created by the Exon provisions. The coalition included representatives of the ACLU, the Electronic Frontier Foundation (EFF), America Online, Prodigy, ANS, CompuServe, and the Interactive Services Association. The will of Senators to oppose such "morality" legislation, regardless of how technically flawed, is always in short supply; in the more conservative atmosphere of the 104th Congress, such legislation stands an even greater chance of passage. ENDNOTES 0 Courts have not defined precisely what constitutes indecency, although they have held that mere offensiveness is insufficient. 1 Sec. 7 of Sen. Exon's bill, which requires that cable channels "unsuitable for children" be fully scrambled for nonsubscribers, suggests that he does not intend to prohibit indecent, non-obscene, consensual communications. Sec. 7 does not prohibit such "indecent" programming as the Playboy Channel, but merely ensures that it will be limited to consenting adults. 2 This problem is compounded by the indefiniteness of the definition of indecency. 3 The proliferation of such material on the Internet is evident in the proliferation of bulletin boards devoted solely to sexual topics. According to a newsgroup list compiled by Digital Equipment Corp., the most popular bulletin board on the Internet, after a bulletin board providing rules for new users, is alt.sex.stories, which half a million Internet users log on to each month. The next most popular category is alt.binaries.pictures.erotica, followed by the alt.sex discussion group. 4 One could argue, however, that the practices of logging on to the Internet or entering a discussion group or bulletin board, constitutes "consent," or waiver of the right to object, to whatever communications may ensue. The unresolved issue of consent demonstrates the difficulty of simply applying existing obscenity or anti-harassment law governing telephones to all telecommunications. 5 For example, F.C.C. rules require that companies require a credit card for provision of services. 6 See supra note 4. 7 Although it might be argued that the basic subscription fee of on-line services is analogous to a telephone common carrier fee, in this case the carrier (the service provider) is providing both the basic communications and the information services (i.e., the Bulletin Board). Thus the electronic telecommunications carrier is analogous to both the telephone company and the dial-a-porn operator for enforcement purposes.
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- More on "Communications Decency Act" David Farber (Feb 09)