New indeceny rules proposed for all online services (900#s in cyberspace) -- from

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

Date: Fri, 19 Aug 1994 02:18:30 +0300
From: djw () eff org (Daniel J. Weitzner)


====================


I.      Overview


        During the final hours before the Senate telecommunications bill
(S.1822) was marked-up by the Senate Commerce Committee, a provision was
added which would expand the current FCC regulation on obscene and indecent
audiotext (900 number) services to virtually all electronic information
services, including commercial online service providers, the Internet, and
BBS operators.  This proposal, introduced by Senator Exon, would require
all information service providers and all other electronic communication
service providers, to take steps to assure that minors do not have access
to obscene or indecent material through the services offered by the service
provider.


        Placing the onus, and criminal liability, on the carrier, as
opposed to the originator of the content, threatens to limit the free flow
of all kinds of information in the online world.  If carriers are operating
under the threat of criminal liability for all of the content on their
services, they will be forced to pre-screen all messages and limit both the
privacy and free expression of the users of these services.  Senator Exon's
amendment raises fundamental questions about the locus on liability for
harm done from content in new digital communications media.  These
questions must be discussed in a way that assures the free flow of
information and holds content originators responsible for their actions.


II.     Summary of Exon Amendment


        The Exon amendment which is now part of S.1822, expands section 223
of the Communications Act to cover anyone who "makes, transmits, or
otherwise makes available" obscene or indecent communication.  It makes no
distinction between those entities which transmit the communications from
those which create, process, or use the communication.  This section of the
Communications Act was originally intended to criminalize harassment
accomplished over interstate telephone lines, and to require telephone
companies that offer indecent 900 number services to prevent minors from
having access to such services.  The 900 number portions are know as the
Helms Amendments, having been championed by Senator Jesse Helms.  These
sections have been the subject of extension constitutional litigation.


        If enacted into law, these amendments would require that anyone who
"makes, transmits, or otherwise makes available" indecent communication
take prescribed steps to assure that minors are prevented from having
access to these communications.  In the case of 900 numbers, acceptable
procedures include written verification of a subscriber's age, payment by
credit card, or use of a scrambling device given to the subscriber after
having verified his or her age.  Failure to do so would result in up to a
$100,000 fine or up to two years imprisonment.


III.    Carrier Liability and Threats to the Free Flow of Information


        These provisions raise serious First Amendment concerns. (Note that
we use the term 'carrier' here to refer to a wide range of information and
communication service providers.  This does not suggest that these entities
are, or should be, common carriers in the traditional sense of the term.)


*       Overbroad carrier liability forces carriers to stifle the free flow
of information on their systems and to act as private censors


        If carriers are responsible for the content of all information and
communication on their systems, then they will be forced to attempt to
screen all content before it is allowed to enter the system.  In many
cases, this would be simply impossible.  But even where it is possible,
such pre-screening can severely limit the diversity and free flow of
information in the online world.  To be sure, some system operators will
want to offer services that pre-screen content.  However, if all systems
were forced to do so, the usefulness of digital media as communication and
information dissemination systems would be drastically limited.  Where
possible, we must avoid legal structures which force those who merely carry
messages to screen their content.


*       Carriers are often legally prohibited from screening messages


        In fact, under the Electronic Communications Privacy Act of 1986,
electronic communication service providers are generally prohibited from
examining the contents of messages or information carrier from one
subscriber to another.


*       Extension of the 900 number rules to all electronic information
services may be unconstitutional


        The regulation of indecent 900 number programming was only
accomplished after nearly a decade of constitutional litigation, with rules
being overturned by the Supreme Court.  The regulations were finally found
constitutional only after being substantially narrowed to meet First
Amendment scrutiny.  Since the access methods offered by online service
providers are significantly different than simple telephone access to 900
services, we doubt that the same constitutional justifications would
support the newly expanded rules.  This issue requires considerable study
and analysis.


*       Content creators, or those who represent the content as their own,
should be responsible for liability arising out of the content


        In sum, it should be content originators, not carriers, who are
responsible for their content.  Any other approach will stifle the free
flow of information in the new digital media.


IV.     Next Steps


        Having only just received the language offered by Senator Exon, EFF
still needs to do further analysis, and consult with others in the online
community.  We also hope to speak with Senator Exon's staff to understand
their intent.  Another important hearing will be held on S.1822 in
mid-September by the Senate Judiciary Committee.  By that time, we hope to
have this issue resolved.  While we agree that these carrier liability
problems are in need of Congressional consideration, we do not believe that
the time is ripe to act.  Before any action is taken, hearings must be held
and careful evaluation of all the issues, not just indecency, must be
undertaken.


==================================================================
Daniel J. Weitzner                              <djw () eff org>
Deputy Policy Director                          +1 202-347-5400(v)
Electronic Frontier Foundation                  +1 202-393-5509(f)
1001 G St. NW Suite 950 East
Washington, DC 20001