Communications
Decency Act of 1996Communications
Decency Act of 1996
On February 8, 1996, President Clinton signed into law the Telecommunications Reform Act of 1996, with the Communications Decency Act of 1996 (“Decency Act,” "CDA" or “Act”) among its provisions. On the same day, the Decency Act was challenged in federal court in Philadelphia by the ACLU, EFF, EPIC and a host of other plaintiffs on the grounds that the Act was vague, overbroad, underinclusive, and violated rights of privacy (among others).
On February 15, 1996, the court granted a temporary restraining order enjoining enforcement of one of the Act’s provisions: the telecommunications device provision in Section 223 (a)(1)(B) as it relates to “indecency” but not as to “obscenity” (the “indecency” provisions). The court denied the application for a temporary restraining order regarding the interactive computer service provisions in Section 223 (d) related to materials involving sexual or excretory activities or organs that would be patently offensive by contemporaray community standards (the “patently offensive” provisions).
The TRO was dissolved on February 21, 1996. The Justice Department and the plaintiffs in this case entered into a temporary agreement on February 23, 1996 that will last until March 21, 1996, the date on which a three judge panel will begin to hear arguments on the plaintiffs' injunction motion. In accordance with the temporary agreement, the Justice Department will not initiate investigations or prosecute under the "indecency" or "patently offensive" provisions.
On Monday, February 26, 1996, the Citizens Internet Empowerment Coalition ("CIEC"), a coalition that includes libraries, book publishers, newspaper publishers, editors, advertisers, commercial online service providers, ISP's, non-profit groups, civil liberties advocates, and many higher education organizations, filed suit in Philadelphia as well. CIEC has filed a motion for a preliminary injunction and its arguments will be heard at the same time as the ACLU's arguments. The CIEC petition is particularly well written and includes an excellent description of how the Internet works to demonstrate why the CDA will not be effective to achieve its stated ends.
Many have hypothesized about the implications of the Act for freedom of speech and I commend their writings to you; but at this time, with the decision on the preliminary injunction still in the future, it is just too early to predict which part, if any, of the Act will pass Constitutional muster and thus survive to affect our policies and procedures.
The Act is Title V of the Telecommunications Reform Act of 1996. It’s full title is Broadcast Obscenity and Violence, indicating one of the problems with the Act: it applies broadcast standards to the Internet.
Title V contains 9 parts, Sections 501 through 509. Section 502 is the part that contains the provisions that have caused so much concern. Specifically, it replaces old Section 223 (a) with a new one and adds new Sections 223 (d), (e), (f), (g) and (h).
Section 223 (a) (1) (B) contains prohibitions against the use of a telecommunications device to expose a minor to indecency. The terms telecommunications device and indecency are not defined in the Communications Act of 1934, nor in the entire Telecommunications Reform Act of 1996, except to say that a telecommunications device is not an interactive computer service. It appears, however, that this section deals with what used to be obscene and harassing phone calls that are now made using a wider range of telecommunications devices than telephones.
New Section 223 (d) prohibits the use of an interactive computer service, including but not limited to the Internet, to display patently offensive materials to minors.
Both Sections (a) and (d) make actors, those who actually do the actions prohibited, and service providers, those who permit facilities under their control to be used by the actors, criminally liable for offenses.
Section 223 (e) (1) of the Act purports to give service providers some protection, but the provision is vague and not clearly applicable to us because we have control over our computer systems.
Section 223 (e) (4) of the Act gives employers some relief from the acts of employees outside the scope of their employment unless the employer knows of the employee’s conduct, authorizes or ratifies it or recklessly disregards it.
Section 223 (e) (5) of the Act purports to provide a defense to actors, that is, those responsible for the materials described in Sections (a) and (d), if they take actions to effectively restrict access by minors to their materials. This provision was taken from the dial-a-porn context where it is more reasonable to expect an individual service provider to restrict access.
Section 223 (f) purports to prevent civil actions against “persons” for legal actions taken to comply with the Act but the defense is vague and not clearly applicable to State institutions with civil liability for First Amendment violations. It is supposed to supplement the Good Samaritan provision discussed below.
Finally, in Section 509, entitled Online Family Empowerment, the Act adds a new Section 230 called Protection for Private Blocking and Screening of Offensive Material. This new Section includes subpart (c) Protection for Good Samaritan Blocking and Screening of Offensive Material that appears to overule Prodigy. It states that
The actual language of this section goes much further than just overturning Prodigy. It could be interpreted to provide complete immunity even where a service provider knows of the defamatory content of third party information and knows it is false and not privileged. The interaction between this provision and the liability provisions of Section 502 is unclear.
There are many Web sites containing primary source materials and analyses:
Electronic Frontier Foundation
Electronic Privacy Information Center
Other Web sites contain only analyses:
Computers and Academic Freedom
American Communication Association
There is also an analysis distributed by NASULGC and ACE that is not available online: Memorandum of Kenneth D. Salomon and Todd D. Gray, Dow, Lohnes & Albertson regarding the Implications of Telecommunications Act of 1996 for Colleges and Universities
While all of the above-referenced materials make very interesting reading, until we can predict with more certainty which parts of the Act will survive Constitutional challenge, I do not recommend that we make any policy decisions based on the Act as signed into law.
One of the arguments against enforcement of the Decency Act is that it is unnecessary because the U. S. Justice Department already has all the authority it needs to prosecute the very activities that the Act purportedly seeks to prevent, but without vagueness and overbreadth. If this is so, then we certainly need to look closely at the criminal laws regarding obscenity and harassment, since this is primarily what the Act attempts to address, and determine whether our policies are sufficient to protect us from liability under those laws.
Subsequently, if enforcement of the Act is not enjoined, Sections 223 (a) (1) (B) and 223 (d) may require all University of Texas System component institutions to take actions to avoid criminal liability that are impractical in, and many would say inimical to, the goals and objectives of an academic institution. The law's vagueness, one of its most troubling aspects, would make any attempt to comply with the law very difficult. Depending upon how one construes the law's requirements and defenses, compliance may require that we:
remove it because we “know” that minors are out there and they might access it.
Indecent and patently offensive do not equate with obscenity: neither term takes into consideration whether the material has redeeming social value (for example, artistic, medical or literary value) nor does evaluation under these terms require that the material appeal to the prurient interest, as obscenity must under Miller v. California. Thus, the Act could require us to remove materials that are protected by the First Amendment. As a practical matter, the Act could force us to remove facilities like chat rooms, newsgroups, and student homepages that support highly personal, spontaneous interactions and other personal expression in public spaces on the Internet, since we would be unable to evaluate the volume of material generated in these spaces in a timely or economic fashion. Ironically, given the vagueness of the Act, it may be impossible to know what would subject us to liability and thus impossible to remove materials unless they clearly violate some other law.
Copyright Management Center Homepage | Intellectual Property Section Homepage
Stratton Oakmont, Inc. v. Prodigy Services Company, 1995 WL 323710 (N.Y.Sup. May 1995).
Miller v. California[citation].
University of Texas System Office of General Counsel