EFF's formal analysis of final version of the Exon legislation. part 2 of 2

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

fundamentally different medium, those FCC-enforced procedures are not a
"least restrictive means" -- in fact, they are potentially among the most
restrictive.


The language that penalizes anyone who "makes or makes available" indecent
content to a minor would require an access provider like Netcom to cease
carrying the entire alt.sex.* hierarchy, the great majority of which is
First-Amendment-protected speech. Suppose Netcom tried to avail
itself of legal immunity for transmitting indecency by, say, limiting
subscriber access to the "indecent" Usenet newsgroups to Netcom
subscribers age 18 or over. Since Netcom, like all Internet access
providers, is also a Usenet distribution node, *the company would still be
liable*, since, by passing "indecent" Usenet traffic through, it would
"make available" that indecent content to minors elsewhere on the Net who
aren't Netcom customers.


Note: this analysis is not meant to imply that *no* government
regulation of computer communications would meet the "least restrictive
means." As a practical matter, this medium is *uniquely suited* to
measures that simultaneously protect sensitive users and children from
offensive content and allow the full range of constitutionally protected
speech on the Net. Since both the computers that users employ to read the
Net and those that providers use to administer the Net are highly
intelligent and programmable devices, it is relatively easy to design
tools that individuals can use to filter offensive content and that
parents can use to screen content for their children. The government's
promotion of the development and implementation of such tools, if done in
a way consistent with First Amendment guarantees, would likely qualify as
a "least restrictive means."


Furthermore, there are constitutional reasons for favoring policies that
empower individuals and families to make their own content choices. In
Wisconsin v. Yoder (1972), the Supreme Court acknowledged that the right of
parents to determine what is appropriate for their children is
constitutionally protected. Filtering tools could be the fundamental means
of preserving family values while exploring global computer networks.




ADULTS SHOULD NOT BE LIMITED TO ONLY WHAT IS APPROPRIATE FOR CHILDREN.


The effect of the CDA's provisions regarding indecent content and minors
would be both dramatic and disastrous. If enacted, the CDA would
effectively turn all the public areas of the Net -- and all of the distributed
global conferencing system known as Usenet -- into the equivalent of the
Children's Room at the public library. Traditionally, every large public
library has a Children's Room -- a confined area of the library with
content deemed safe for children. Outside of the Children's Room, the rest
of the library is geared toward, and available to, adults.


The Exon language would turn the Net as a whole into the *inverse* of the
public library -- the public spaces, including Usenet, would be regulated
as safe for children, while adults would have to talk about adult content
(detailed discussions of sexual content in the work of James Joyce,
explanations of Shakespeare's bawdy puns, or descriptions of proper
techniques for safe sex, to name some examples) in confined, nonpublic
(and probably non-global) subforums or "rooms." There would be no more
wide-ranging debates with the full set of potential international
participants about the merits of THE SATANIC VERSES -- after all, that
book has indecent content. We'd have to be content with the narrower range
of participants we could lure to an "adult" room on CompuServe or AOL -- a
small group of paying subscribers rather than a large population of
discussants from commercial and noncommercial systems alike. The CDA would
diminish and perhaps destroy the intellectual diversity and vibrancy of
the Net.




CONCLUSION


The CDA represents the kind of "top-down," government-centered attempt to
regulate the content that demonstrates a lack of understanding of the
nature of this new medium. Legislation like the CDA -- particular when
based on regulatory approaches for wholly different media -- are certain
to create more practical and constitutional problems than they solve. It
is especially ironic that the Exon amendment, which would chill the
development of online services and communities and "dumb down" the content
of the Net's public spaces to a grade-school level, has been attached to a
bill deregulating communications infrastructure. This deregulation
has been presented as a boost to the pace of development of the very
technology to support these services and communities.


EFF believes that parents, not Congress or the FCC, have the primary right
and responsibility to determine what is appropriate for their children to
see. Furthermore, it is clearly wrong for Congress to attempt to make
outlaws out of adults for engaging in public speech that may not be
suitable for minors.  As Supreme Court Justice Felix Frankfurter ruled in
Butler v. Michigan (1957):


"The State insists that, by thus quarantining the general reading public
against books not too rugged for grown men and women in order to shield
juvenile innocence, it is exercising its power to promote the general
welfare. Surely this is to burn the house to roast the pig. The incidence
of this enactment is to reduce the adult population of Michigan to
reading only what is fit for children."


And a legislative approach that was bad for the adult population of
Michigan nearly 40 years ago is surely just as bad for the adult
population of the Net today.






For More Information Contact:


Electronic Frontier Foundation


Mike Godwin  Shari Steele  (voice) +1.202.861.7700




 ******************************************************************


COMMUNICATIONS DECENCY AMENDMENT -- FULL TEXT OF FINAL LANGUAGE PASSED BY
THE U.S. SENATE ON JUNE 14, 1995


The text of the Communications Decency Amendment, sponsored by Sen. Jim
Exon (D-Nebraska).


This language was passed by the US Senate on June 14th.


 -------------------------------------------------------


This strikes all of Title IV of S. 652 and replaces it with the following:


Sec.___ OBSCENE OR HARASSING USE OF TELECOMMUNICATIONS FACILITIES UNDER
THE COMMUNICATIONS ACT OF 1934


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


        ``(A) 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
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 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; or


         ``(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 subsections:


      ``(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, 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 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.


        ``(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 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 network over which that person has no control, including
related capabilities which are incidental to providing access or
connection.  This subsection shall not be applicatable to an individual
controlled 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 employee's or agent's conduct
is within the scope of his employment or agency and the employer has
knowledge of, authorizes, or ratifies the employee's or agent's conduct.


        (3) It is a defense to prosecution under subsection (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 subsections, 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 any
administrative agency against any person on account of any action which in
not in violation of any law punishable by criminal 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 in connection with
an activity or action which constitutes a violation described 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 nothin 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 services 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. ____ OBSCENE PROGRAMMING ON CABLE TELEVISION.


        Section 639 (47 U.S.C> 559) is amended by striking "10,000" and
inserting "$100,000"


Sec. ___ BROADCASTING OBSCENE LANGUAGE ON THE RADIO.


        Section 1466 of Title 18, United States Code, is amended by
striking out "$10,00" and inserting "$100,000".


Sec. ___ SEPARABILITY


        "(a) If any provision of this Title, including amendments to this
Title or the application thereof to any person or circumstance is held
invalid, the remainder of this Title and the application of such provision
to other persons or circumstances shall not be affected thereby."