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

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

Date: Thu, 25 Aug 1994 14:32:40 -0600
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 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 known 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, Deputy Policy Director, Electronic Frontier Foundation,
1001 G St. NW Suite 950 East, Washington, DC 20001 +1 202-347-5400(v)