Well guys I thought I d make an attempt to do something truly useful with my membership in Eden There s been a lot of rumors and bullshit flying around about the so-called Communications Decency Act so I decided to see if I could dredge up some actual information As usual the EFF came through So here s their bulletin on it (No this really isn t a lit but it is just SORTA FUCKING IMPORTANT so I decided to throw it in anyways ) grendel eden 95 ALERT S314 Online Decency Act Threatens All Online Providers --------------------------------------------------------------- Feb 10 1995 EFF is working with the Electronic Messaging Association and others to oppose the Exon bill S314 the Communications Decency Act of 1995 We believe policy makers should take into account the ability of those using the net to avoid materials they find offensive There will likely be increased use of labels and headers to help people avoid unwanted materials and guide their childrens use of the net in the future Meanwhile it is simply a bad idea to make it a crime to transmit offensive material especially when the transmitter is passive and not monitoring the content of transmission This bill would perpetrate the online equivalent of making anyone who builds a street liable for the fact that you can go to the red light district on it This bill if passed into law will gravely chill the free flow of information online and inappropriately criminalize sysops and sysadmins for wrongdoing over which they have no control It is clear from recent discussions with Sen Exon and his staff that the sponsors of the bill were apparently unaware that the bill as written criminalizes essentially everyone involved in networking with the sole exception of govt -decreed common carriers like telephone companies The possibility of a re-write was being considered as of Feb 8 Contact David Johnson Sr Policy Fellow djohnson@eff org +1 202 861 7700 * Analysis and text of the bill This analysis provided by the Center for Democracy and Technology a non-profit public interest organization CDT s mission is to develop and advocate public policies that advance constitutional civil liberties and democratic values in new computer and communications technologies For more information on CDT ask Jonah Seiger jseiger@cdt org CDT POLICY POST 2 9 95 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 to 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 ********************************************* NOTE This version of the text shows the actual text of current law as it would be changed For the bill itself which consists of unreadable text such as (1) in subsection (a)(1)-- (A) by striking out telephone in the matter above subparagraph (A) and inserting telecommunications device (B) by striking out makes any comment request suggestion or proposal in subparagraph (A) and inserting makes transmits or otherwise makes available any comment request suggestion proposal image or other communication (C) by striking out subparagraph (B) and inserting the following (B) makes a telephone call or utilizes a See ftp eff org pub EFF Legislation Bills_new s314 bill gopher eff org 1 EFF Legislation Bills_new s314 bill http www eff org pub EFF Legislation Bills_new s314 bill