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IP: Text of new Exon proposal
From: Dave Farber <farber () central cis upenn edu>
Date: Fri, 1 Dec 1995 21:53:25 -0500
NOVEMBER 17, 1995 TITLE IV -- OBSCENE, HARASSING, AND WRONGFUL UTILIZATION OF TELECOMMUNICATIONS FACILITIES. SEC. 401. SHORT TITLE This title may be cited as the "Communications Decency Act of 1995". SEC. 402. OBSCENE OR HARASSING USE OF TELECOMMUNICATIONS FACILITIES UNDER THE COMMUNICATIONS ACT OF 1934. (a) OFFENSES. section 223 (47 U.S.C. 223) is amended- "(1) by striking subsection (a) and inserting in lieu thereof: "(a) Whoever- "(1) in the District of Columbia or in interstate or foreign communications- "(~) by means of telecommunications device knowingly- "(i) makes, creates, or solicits, and "(ii) initiates the transmission of, any comment, request, suggestion, proposal, image, or other communication which is obscene, lewd, lascivious, filthy, or indecent, with intent to annoy, abuse, threaten, or harass another person; "(B) makes a telephone call or utilizes a telecommunications device, whether or not conversation or communication ensues, without disclosing his identity and with intent to annoy, abuse, threaten, or harass any person at the called number or who receives the communications; "(C) makes or causes the telephone of an other repeatedly or continuously to ring, with intent 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 telecommunications facility under his control to be used for any activity prohibited by paragraph (1) with the intent that it be used for such activity, shall be fined not more than $100,000 or imprisoned not more than two years, or both."; and (2) by adding at the end the following new sub sections: "(d) Whoever- "(1) knowingly within the United States or in foreign communications with the United States by means of telecommunications device makes or makes available any obscene communication in any form including any comment, request, suggestion, proposal, or image regardless of whether the maker of such communication placed the call or initiated the communications; or "(2) knowingly permits any telecommunications facility under such person's control to be used for an activity prohibited by subsection (d)~1) with the in tent that it be used for such activity; shall be fined not more than $100,000 or imprisoned not more than two years, or both. "(e) Whoever- "(1) knowingly within the United States or in foreign communications with the United States by means of telecommunications device makes or makes available any indecent communication in any form including any comment, request, suggestion, proposal, image, to any person under 18 years of age regardless of whether the maker of such communication placed the call or initiated the communication; or "(2) knowingly permits any telecommunications facility under such person's control to be used for an activity prohibited by paragraph (1) with the intent that it be used for such activity, shall be fined not more than $100,000 or imprisoned not more than two years, or both. "(f) DEFENSES TO THE SUBSECTIONS (A), (D), AND (E); RESTRICTIONS ON ACCESS; JUDICIAL REMEDIES RESPECTING RESTRICTIONS FOR PERSONS PROVIDING INFORMATION SERVICES AND ACCESS TO INFORMATION SERVICES. -- "(1) No person shall be held to have violated subsections (a), (d), or (e) solely for providing access or connection to or from a facility, system, or net work over which that person has no control, including related capabilities which are incidental to providing access or connection. This subsection shall not be applicable to a person who is owned or con trolled by, or a conspirator with, an entity actively involved in the creation, editing or knowing distribution of communications which violate this section. "(2) No employer shall be held liable under this section for the actions of an employee or agent unless the employees or agent's conduct is within the scope of his employment or agency an(l the employer has knowledge of, authorizes, or ratifies the employee's or agent's conduct. "(3) It is a defense to prosecution under sub section (a), (d)(2), or (e) that a person has taken reasonable, effective and appropriate actions in good faith to restrict or prevent the transmission of, or access to a communication specified in such sub sections, or complied with procedures as the Commission may prescribe in furtherance of this section. Until such regulations become effective, it is a defense to prosecution that the person has complied with the procedures prescribed by regulation pursuant to subsection (b)(3). Nothing in this subsection shall be construed to treat enhanced information services as common carriage. "(4) No cause of action may be brought in any court or administrative agency against any person on account of any activity which is not in violation of any law punishable by criminal or civil penalty, which activity the person has taken in good faith to implement a defense authorized under this section or otherwise to restrict or prevent the transmission of, or access to, a communication specified in this section. "(g) No State or local government may impose any liability for commercial activities or actions by commercial entities, nonprofit libraries. elementary schools. secondary schools, or institutions of higher education in connection with an activity or action which constitutes a violation de scribed in subsection (a)(2), (d)(2), or (e)(2) that is inconsistent with the treatment of those activities or actions under this section: Provided, however, That nothing herein shall preclude any State or local government from enacting and enforcing complementary oversight, liability, and regulatory systems, procedures, and requirements, so long as such systems, procedures, and requirements govern only intrastate services and do not result in the imposition of inconsistent rights, duties or obligations on the provision of interstate services. Nothing in this subsection shall preclude any State or local government from governing conduct not covered by this section. "(h) Nothing in subsection (a), (d), (e), or (f) or in the defenses to prosecution under (a), (d), or (e) shall be construed to affect or limit the application or enforcement of any other Federal law. "(i) The use of the term 'telecommunications device' in this section shall not impose new obligations on (one way) broadcast radio or (one-way) broadcast television operators licensed by the Commission or (one-way) cable service registered with the Federal Communications Commission and covered by obscenity and indecency provisions elsewhere in this Act. "(J) Within two years from the date of enactment and every two years thereafter, the Commission shall report on the effectiveness of this section.". SEC. 40~. OBSCENE PROGRAMMING ON CABLE TELEVISION. Section 639 (47 U.S.C. 569) is amended by striking "$10,000" and inserting "$100,000". SEC. 404. BROADCASTING OBSCENE LANGUAGE ON RADIO. Section 1464 of title 18, United States Code, is amended by striking out "$10,000" and inserting "$100,000". SEC.. 406. SEPARABILITY. (a) If any provision of this title, including amendments to this title or the application thereof to any person or circumstance is held inlaid, the remainder of this title and the application of such provision to other persons or circumstances shall not be afflicted thereby. SEC. 406. ADDITIONAL PROHIBITION ON BILLING FOR TOOL-FREE TELEPHONE CALLS. Section 228(c)(7) (47 U.S.C. 228(c)(7)) is amend (1) by striking "or" at the end of subparagraph (2) by striking the period at the end of sub paragraph (D) and inserting a semicolon and "or"; and (3) by adding at the end thereof the following: "(E) the calling party being assessed, by virtue of being asked to connect or otherwise transfer to a pay-per-call service, a charge for the call.". SEC. 407. SCRAMBLING OF CABLE CHANNELS FOR NONSUBSCRIBERS. Part IV of title VI (~7 U.S. C. 551 et seq.) is amend by adding at the end the following "SEC. 640. SCRAMBLING OF CABLE CHANNELS FOR NONSUBSCRIBERS. "(a) REQUIREMENT. ~ providing video programming unsuitable for children to any subscriber through a cable system, a cable operator shall fully scramble or other wise fully block the video and audio portion of each channel carrying such programming upon subscriber re quest and without any charge so that one not a subscriber does not receive it. "(b) DEFINITION.-As used in this section, the term 'scramble' means to rearrange the content of the signal of the programming so that the programming cannot be received by persons unauthorized to receive the programming". SEC. 408 SCRAMBLING OF SEXUALLY EXPLICIT ADULT VIDEO SERVICE PROGRAMMING (a) REQUIREMENT.-Part IV of title VI (47 U.S.C. 551 et seq.), as amended by this Act, is further amended by adding at the end the following:. ~41. "SEC. 641 SCRAMBLING OF SEXUALLY EXPLICIT ADULT VIDEO SERVICE PROGRAMMING "(a) REQUIREMENT.-In providing sexually explicit adult programming or other programming that is indecent and harmful to children on any channel of its service primarily dedicated to sexually-oriented programming a multichannel video programming distributor shall fully scramble or otherwise fully block the video and audio portion of such channel so that one not a subscriber to such channel or programming does not receive it. "(b) IMPLEMENTATION.-Until a multichamlel video programming distributor complies with the requirement set forth in subsection (a), the distributor shall limit the access of children to the programming referred to in that subsection by not providing such programming during the hours of the day (as determined by the Commission) when a significant number of children are likely to view it. "(C) DEFINITION.-As used in this section, the term 'scramble' means to rearrange the content of the signal of the programming so that audio and video portions of the programming cannot be received by persons unauthorized to receive the programming.". (b) EFFECTIVE DATE.-The amendment made by subsection (a) shall take effect 30 days after the date of the enactment of this Act. SEC. 40~. CABLE SEC. 409. CABLE OPERATOR REFUSAL TO CARRY CERTAIN PROGRAMS. (a) PUBLIC, EDUCATIONAL, AND GOVERNMENTAL CHANNELS. --Section 611(e) (47 U.S.C. 531(e)) is amended by inserting before the period the following: ", except a cable operator may refuse to transmit any public access program or portion of a public access program which contains obscenity, indecency, or nudity'. (b) CABLE CHANNELS FOR COMMERCIAL USE Section 612(c)(2) (47 U.S.C. 532(c)(2)) is amended by striking "an operator" and inserting "a cable operator may refuse to transmit any leased access program or portion of a leased access program which contains obscenity, indecency, or nudity". SEC. 410. PROTECTION OF MINORS AND CLARIFICATION OF CURRENT LAWS REGARDING COMMUNICATION OF OBSCENE AND INDECENT MATERIALS THROUGH THE USE OF COMPUTERS. (a) PROTECTION OF MINORS.- (1)GENERALLY. -- Section 1465 of title 18, United States Code, is amended by adding at the end the following: "Whoever intentionally communicates by computer, in or affecting interstate or foreign commerce, to any per son the communicator believes has not attained the age of 18 years, any material that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs, or attempts to do so, shall be fined under this title or imprisoned not more than five years, or both.". . (2) CONFORMING AMENDMENTS RELATING TO FORFEITURE. -- (A) Section 1467(a)(1) of title 18, United States Code, is amended by inserting "communicated," after "transported,". (B) Section 1467 of title 18, United States Code, is amended in subsection (a)(1), by striking "obscene". (C) Section 1469 of title 18, United States Code, is amended by inserting "communicated," after "transported," each place it appears. (b)CLARIFICATION OF CURRENT LAWS REGARDING COMMUNICATION OF OBSCENE MATERIALS THROUGH THE USE OF COMPUTERS. -- (1) IMPORTATION OR TRANSPORTATION. -- Section 1462 of title 18, United States Code, is amended (A) in the first undesignated paragraph, by inserting "(including by computer) after "there of"; and (B) in the second undesignated paragraph- (i) by inserting "or receives," after "takes"; (ii) by inserting ", or by computer," after "common carrier"; and (iii) by inserting "or importation" after "carriage". (2) TRANSPORTATION FOR PURPOSES OF DISTRIBUTION.-The first undesignated paragraph of section 1465 of title 1~, United States Code, is amended- (A) by striking "transports i~" and inserting "transports or travels in, or uses a facility or means of,"; (B) by inserting "(including a computer in or affecting such commerce)" after "foreign commerce" the first place it appears; and (C) by striking ", or knowingly travels in" and all that follows through "obscene material in interstate or foreign commerce," and inserting "of". SEC. 411. ONLINE FAMILY EMPOWERMENT. Title II of the Communications Act of 1934 (47 U.S.C. 201 et seq.) is amended by adding at the end the following new section: "SEC. 230. PROTECTION FOR PRIVATE BLOCKING AND SCREENING OF OFFENSIVE MATERIAL; FCC REGULATION OF COMPUTER SERVICES PROHIBITED. "(a) FINDINGS.-The Congress finds the following: "(1) The rapidly developing array of Internet and other interactive computer services available to individual Americans represent an extraordinary advance in the availability of educational and informational resources to our citizens. "(2) These services offer users a great degree of control over the information that they receive, as well as the potential for even greater control in the future as technology develops. "(3) The Internet and other interactive computer services offer a forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity. "(4) The Internet and other interactive computer services have flourished, to the benefit of all Americans with a minimum of government regulation. "(5) Increasingly Americans are relying on interactive media for a variety of political, educational, cultural, and entertainment services. "(b) POLICY.-It is the policy of the United States "(1) promote the continued development of the Internet and other interactive computer services and other interactive media; "(2) preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by State or Federal regulation; "(3) encourage the development of technologies which maximize user control over the information received by individuals, families, and schools who use the Internet and other interactive computer services; "(4) remove disincentives for the development and utilization of blocking and filtering technologies that empower parents to restrict their children's access to objectionable or inappropriate online material; and "(5) ensure vigorous enforcement of criminal laws to deter and punish trafficking in obscenity, stalking, and harassment by means of computer. "(C) PROTECTION FOR 'GOOD .SAMARITAN' BLOCKING AND SCREENING OF OFFENSIVE MATERIAL. --No provider or user of interactive computer services shall be treated as the publisher or speaker of any information provided by an information content provider. No provider or user of interactive computer services shall be held liable on account of- "(1) any action voluntarily taken in good faith to restrict access to material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objection able, whether or not such material is constitutionally protected; or "(2) any action taken to make available to in formation content providers or others the technical means to restrict access to material described in paragraph (1). "(d) FCC REGULATION OF THE INTERNET AND OTHER INTERACTIVE COMPUTER SERVICES PROHIBITED.-Nothing in this Act shall be understood or construed to give the Commission the power of censorship over the content of the Internet or other interactive computer services. Nothing in this act shall be understood or construed to give the Commission the power to regulate the prices or rates of interactive computer services. "(e) EFFECT ON OTHER Laws. "(1) NO EFFECT ON CRIMINAL LAW.-Nothing in this section shall be construed to impair the enforcement of section 223 of this act, chapter 71 (relating to obscenity) or 110 (relating to sexual exploitation of children) of title 18, United States Code, or any other Federal criminal statute. "(2) NO EFFECT ON INTELLECTUAL PROPERTY LAW.-Nothing in this section shall be construed to limit or expand any law pertaining to intellectual property. "(3) IN GENERAL.-Nothing in this section shall be construed to prevent any State from enforcing any State law that is consistent with this section. "(f) DEFINITIONS.-As used in this section: "(1) INTERNET.-The term 'Internet' means the international computer network of both Federal and non-Federal interoperable packet switched data networks. "(2) INTERACTIVE COMPUTER SERVICE.-The term 'interactive computer service' means any information service that provides computer access to multiple users via modem to a remote computer server, including specifically a service that provides access to the Internet. " (3 ) INFORMATION CONTENT PROVIDER.-The term 'information content provider' means any per son or entity that is responsible, in whole or in part, for the creation or development of information provided by the Internet or any other interactive computer service, including any person or entity that creates or develops blocking or screening software or other techniques to permit user control over offensive material. "(4) INFORMATION SERVICE.-The term 'information service' means the offering of a capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available in formation via telecommunications, and includes electronic publishing, but does not include any use of any such capability for the management, control, or operation of a telecommunications system or the management of a telecommunications service.". -- Stanton McCandlish mech () eff org Electronic Frontier Foundation Online Activist
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