The CDT position on the Exon bill

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

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  **         **      **       ***               POLICY POST
  **         **      **       ***
  **         **      **       ***               February 9, 1995
  **         **      **       ***               Number 1
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   CENTER FOR DEMOCRACY AND TECHNOLOGY
------------------------------------------------------------------------
  A briefing on public policy issues affecting civil liberties online
------------------------------------------------------------------------
 The Center for Democracy and Technology is a non-profit public interest
  organization. The Center's mission is to develop and advocate public
   policies that advance constitutional civil liberties and democratic
    values in new computer and communications technologies.
------------------------------------------------------------------------
CDT POLICY POST 2/9/95


SUBJECT:     SENATOR EXON INTRODUCES ONLINE INDECENCY LEGISLATION
------------------------------------------------------------------------


A.      OVERVIEW


Senators Exon (D-NE) and Senator Gorton (R-WA) have
introduced legislation to expand current FCC regulations on
obscene and indecent audiotext to cover *all* content carried
over all forms of electronic communications networks.  If
enacted, the "Communications Decency Act of 1995" (S. 314)
would place substantial criminal liability on
telecommunications service providers (including telephone
networks, commercial online services, the Internet, and
independent BBS's) if their network is used in the
transmission of any indecent, lewd, threatening or harassing
messages.  The legislation is identical to a proposal offered
by Senator Exon last year which failed along with the Senate
Telecommunications reform bill (S. 1822, 103rd Congress,
Sections 801 - 804). The text the proposed statute, with proposed
amendment, is appended at the end of this document.


The bill would compel service providers to chose between
severely restricting the activities of their subscribers or
completely shutting down their email, Internet access, and
conferencing services under the threat of criminal liability.
Moreover, service providers would be forced to closely
monitor every private communication, electronic mail message,
public forum, mailing list, and file archive carried by or
available on their network, a proposition which poses a
substantial threat to the freedom of speech and privacy
rights of all American citizens.


S. 314, if enacted, would represent a tremendous step
backwards on the path to a free and open National Information
Infrastructure.  The bill raises fundamental questions about
the ability of government to control content on
communications networks, as well as the locus of liability
for content carried in these new communications media.


To address this threat to the First Amendment in digital
media, CDT is working to organize a broad coalition of public
interest organizations including the ACLU, People For the
American Way, and Media Access Project, along with
representatives from the telecommunications, online services,
and computer industries to oppose S. 314 and to explore
alternative policy solutions that preserve the free flow of
information and freedom of speech in the online world.  CDT
believes that technological alternatives which allow
individual subscribers to control the content they receive
represent a more appropriate approach to this issue.




B.      SUMMARY AND ANALYSIS OF S. 314


S. 314 would expand current law restricting indecency and
harassment on telephone services to all telecommunications
providers and expand criminal liability to *all* content
carried by *all* forms of telecommunications networks.  The
bill would amend Section 223 of the Communications Act (47
U.S.C. 223), which requires carriers to take steps to prevent
minors from gaining access to indecent audiotext and
criminalizes harassment accomplished over interstate
telephone lines.  This section, commonly known as the Helms
Amendment (having been championed by Senator Jesse Helms),
has been the subject of extended constitutional litigation in
recent years.


*       CARRIERS LIABLE FOR CONDUCT OF ALL USERS ON THEIR
        NETWORKS


S. 314 would make telecommunication carriers (including
telephone companies, commercial online services, the
Internet, and BBS's) liable for every message, file, or other
content carried on its network -- including the private
conversations or messages exchanged between two consenting
individuals.


Under S. 314, anyone who "makes, transmits, or otherwise
makes available any comment, request, suggestion, proposal,
image, or other communication" which is "obscene, lewd,
lascivious, filthy, or indecent" using a "telecommunications
device" would be subject to a fine of $100,000 or two years
in prison (Section (2)(a)).


In order to avoid liability under this provision, carriers
would be forced to pre-screen all messages, files, or other
content before transmitting it to the intended recipient.
Carriers would also be forced to prevent or severely restrict
their subscribers from communicating with individuals and
accessing content available on other networks.


Electronic communications networks do not contain discrete
boundaries.  Instead, users of one service can easily
communicate with and access content available on other
networks.  Placing the onus, and criminal liability, on the
carrier as opposed to the originator of the content, would
make the carrier legally responsible not only for the conduct
of its own subscribers, but also for content generated by
subscribers of other services.


This regulatory scheme clearly poses serious threats to the
free flow of information throughout the online world and the
free speech and privacy rights of individual users.  Forcing
carriers to pre-screen content would not only be impossible
due to the sheer volume of messages, it would also violate
current legal protections.


*       CARRIERS REQUIRED TO ACT AS PRIVATE CENSOR OF ALL
        PUBLIC FORUMS AND ARCHIVES


S. 314 would also expand current restrictions on access to
indecent telephone audiotext services by minors under the age
of 18 to cover similar content carried by telecommunications
services (such as America Online and the Internet).  (Sec
(a)(4)).


As amended by this provision, anyone who, "by means of
telephone or telecommunications device, makes, transmits, or
otherwise makes available (directly or by recording device)
any indecent communication for commercial purposes which is
available to any person under the age of 18 years of age or
to any other person without that person's consent, regardless
of whether the maker of such communication placed the call or
initiated the communication" would be subject of a fine of
$100,000 or two years in prison.


This would force carries to act as private censors of all
content available in public forums or file archives on their
networks.   Moreover, because there is no clear definition of
indecency, carriers would have to restrict access to any
content that could be possibly construed as indecent or
obscene under the broadest interpretation of the term. Public
forums, discussion lists, file archives, and content
available for commercial purposes would have to be
meticulously screened and censored in order to avoid
potential liability for the carrier.


Such a scenario would severely limit the diversity of content
available on online networks, and limit the editorial freedom
of independent forum operators.


ADDITIONAL NOTABLE PROVISIONS


* AMENDMENT TO ECPA


Section (6) of the bill would amend the Electronic
Communications Privacy Act (18 USC 2511) to prevent the
unauthorized interception and disclosure of "digital
communications" (Sec. 6).  However, because the term "digital
communication" is not defined and 18 USC 2511 currently
prevents unauthorized interception and disclosure of
"electronic communications" (which includes electronic mail
and other forms of  communications in digital form), the
effect of this provision has no clear importance.


* CABLE OPERATORS MAY REFUSE INDECENT PUBLIC ACCESS
  PROGRAMMING


Finally, section (8) would amend sections 611 and 612 of the
Communications Act (47 USC 611 - 612) to allow any cable
operator to refuse to carry any public access or leased
access programming which contains "obscenity, indecency, or
nudity".


C.      ALTERNATIVES TO EXON: RECOGNIZE THE UNIQUE USER CONTROL
        CAPABILITIES OF INTERACTIVE MEDIA


Government regulation of content in the mass media has always
been considered essential to protect children from access to
sexually-explicit material, and to prevent unwitting
listeners/views from being exposed to material that might be
considered extremely distasteful.  The choice to protect
children has historically been made at the expense of the First
Amendment ban on government censorship.  As Congress moves to
regulate new interactive media, it is essential that it
understand that interactive media is different than mass
media.  The power and flexibility of interactive media offers
a unique opportunity to enable parents to control what
content their kids have access to, and leave the flow of
information free for those adults who want it.  Government
control regulation is simply not needed to achieve the
desired purpose.


Most interactive technology, such as Internet browsers and
the software used to access online services such as America
Online and Compuserve, already has the capability to limit
access to certain types of services and selected information.
Moreover, the electronic program guides being developed for
interactive cable TV networks also provide users the
capability to screen out certain channels or ever certain
types of programming.  Moreover, in the online world, most
content (with the exception of private communications
initiated by consenting individuals) is transmitted by
request.  In other words, users must seek out the content
they receive, whether it is by joining a discussion or
accessing a file archive.  By its nature, this technology
provides ample control at the user level.  Carriers (such as
commercial online services, Internet service providers) in
most cases act only as "carriers" of electronic transmissions
initiated by individual subscribers.


CDT believes that the First Amendment will be better served
by giving parents and other users the tools to select which
information they (and their children) should have access to.
In the case of criminal content the originator of the
content, not the carriers, should be responsible for their
crimes.  And, users (especially parents) should be empowered
to determine what information they and their children have
access to.  If all carriers of electronic communications are
forced restrict content in order to avoid criminal liability
proposed by S. 314, the First Amendment would be threatened
and the usefulness of digital media for communications and
information dissemination would be drastically limited.




D.      NEXT STEPS


The bill has been introduced and will next move to the Senate
Commerce Committee, although no Committee action has been
scheduled.   Last year, a similar proposal by Senator Exon
was approved by the Senate Commerce committee as an amendment
to the Senate Telecommunications Bill (S. 1822, which died at
the end of the 103rd Congress).  CDT will be working with a
wide range of other interest groups to assure that Congress
does not restrict the free flow of information in interactive
media.


--------------
For more information contact:


Jerry Berman,    CDT Executive Director <jberman () cdt org>
Daniel Weitzner, CDT Deputy Director <djw () cdt org>


+1.202.637.9800
--------------


TEXT OF 47 U.S.C. 223 AS AMENDED BY S. 314


**NOTE:         [] = deleted
                ALL CAPS = additions


47 USC 223 (1992)


Sec. 223.  [Obscene or harassing telephone calls in the District
of Columbia or in interstate or foreign communications]


OBSCENE OR HARASSING UTILIZATION OF TELECOMMUNICATIONS
DEVICES AND FACILITIES IN THE DISTRICT OF COLUMBIA OR IN
INTERSTATE OR FOREIGN COMMUNICATIONS"


   (a) Whoever--


   (1) in the District of Columbia or in interstate or foreign
communication by means of [telephone] TELECOMMUNICATIONS
DEVICE--


   (A) [makes any comment, request, suggestion or proposal]
MAKES, TRANSMITS, OR OTHERWISE MAKES AVAILABLE ANY COMMENT,REQUEST,
SUGGESTION, PROPOSAL, IMAGE, OR OTHER COMMUNICATION which is
obscene, lewd, lascivious, filthy, or indecent;


   [(B) makes a telephone call, whether or not conversation ensues,
without disclosing his identity and with intent to annoy, abuse,
threaten, or harass any person at the called number;]




"(B) MAKES A TELEPHONE CALL OR UTILIZES A TELECOMMUNICATIONS
DEVICE, WHETHER OR NOT CONVERSATION OR COMMUNICATIONS
ENSUES,WITHOUT DISCLOSING HIS IDENTITY AND WITH INTENT TO ANNOY,
ABUSE, THREATEN, OR HARASS ANY PERSON AT THE CALLED NUMBER OR WHO
RECEIVES THE COMMUNICATION;




   (C) makes or causes the telephone of another repeatedly or
continuously to ring, with intent to harass any person at the
called number; or


   [(D) makes repeated telephone calls, during which conversation
ensues, solely 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 [telephone facility]
TELECOMMUNICATIONS FACILITY under his control to be used
for any purpose prohibited by this section, shall be fined not more
than $[50,000]100,000 or imprisoned  not more than [six months] TWO
YEARS, or both.


   (b)(1) Whoever knowingly--


   (A) within the United States, by means of [telephone]
TELECOMMUNICATIONS DEVICCE, makes (directly or by recording device)
any obscene communication for commercial purposes to any person,
regardless of whether the maker of such communication placed the
call or INITIATED THE COMMUNICATION; or


  (B) permits any [telephone facility] TELECOMMUNICATIONS
FACILITY under such person's control to be used for an activity
prohibited by subparagraph (A), shall be fined in accordance with
title 18, United States Code, or imprisoned not more than two
years, or both.


   (2) Whoever knowingly--


   (A) within the United States, [by means of telephone],
makes BY MEANS OF TELEPHONE OR TELECOMMUNICATIONS DEVICE, MAKES,
TRANSMITS, OR MAKES AVAILABLE(directly or by recording device) any
indecent communication for commercial purposes which is available
to any person under 18 years of age or to any other person without
that person's consent, regardless of whether the maker of such
communication placed the call OR INITIATED THE COMMUNICATION; or




   (B) permits any [telephone facility] TELECOMMUNICATIONS
FACILITY under such person's control to be used for an activity
prohibited by subparagraph (A), shall be fined not more than
$[50,000] 100,000 or imprisoned not more than [six months]
TWO YEARS, or both.




   (3) It is a defense to prosecution under paragraph (2) of this
subsection that the defendant restrict access to the prohibited
communication to persons 18 years of age or older in accordance
with subsection (c) of this section and with such procedures as the
Commission may prescribe by regulation.


   (4) In addition to the penalties under paragraph (1), whoever,
within the United States, intentionally violates paragraph
(1) or (2) shall be subject to a fine of not more than $[50,000]
100,000 for each violation. For purposes of this paragraph, each
day of violation shall constitute a separate violation.


   (5)(A) In addition to the penalties under paragraphs (1), (2),
and (5), whoever, within the United States, violates paragraph (1)
or (2) shall be subject to a civil fine of not more than $[50,000]
100,000 for each violation. For purposes of this paragraph, each
day of violation shall constitute a separate violation.


   (B) A fine under this paragraph may be assessed either--


   (i) by a court, pursuant to civil action by the Commission or
any attorney employed by the Commission who is designated by the
Commission for such purposes, or


   (ii) by the Commission after appropriate administrative
proceedings.


   (6) The Attorney General may bring a suit in the appropriate
district court of the United States to enjoin any act or practice
which violates paragraph (1) or (2). An injunction may be granted
in accordance with the Federal Rules of Civil Procedure.


   (c)(1) A common carrier within the District of Columbia or
within any State, or in interstate or foreign commerce, shall not,
to the extent technically feasible, provide access to a
communication specified in subsection (b) from the
telephone of any subscriber who has not previously requested in
writing the carrier to provide access to such communication if the
carrier collects from subscribers an identifiable charge for such
communication that the carrier remits, in whole or in part, to the
provider of such communication.


   (2) Except as provided in paragraph (3), no cause of action may
be brought in any court or administrative agency against any common
carrier, or any of its affiliates, including their officers,
directors, employees, agents, or authorized representatives on
account of--


   (A) any action which the carrier demonstrates was taken in good
faith to restrict access pursuant to paragraph (1) of this
subsection; or


   (B) any access permitted--


   (i) in good faith reliance upon the lack of any representation
by a provider of communications that communications provided by
that provider are communications specified in subsection (b), or


   (ii) because a specific representation by the provider did not
allow the carrier, acting in good faith, a sufficient period to
restrict access to communications described in subsection (b).


   (3) Notwithstanding paragraph (2) of this subsection, a provider
of communications services to which subscribers are denied access
pursuant to paragraph (1) of this subsection may bring an action
for a declaratory judgment or similar action in a court. Any such
action shall be limited to the question of whether the
communications which the provider seeks to provide fall within
the category of communications to which the carrier will provide
access only to subscribers who have previously requested such
access.


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