More on "Communications Decency Act"

[David Farber <farber () central cis upenn edu>]

                                     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.