IP: Text of new Exon proposal

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

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