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Communications Decency Act of 1995
``` Date: Sun, 12 Feb 95 14:15 PST From: privacy@vortex.com (PRIVACY Forum) Subject: PRIVACY Forum Digest V04 #04
PRIVACY Forum Digest Sunday, 12 February 1995 Volume 04 : Issue 04
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Date: Tue, 07 Feb 1995 20:57:00 EST From: overlord@megalith.miami.fl.us (Carlos Amezaga) Subject: Special Alert! Unreasonable Network Policing Proposed
-> EMA ALERT <- News For and About the Members of the ELECTRONIC MESSAGING ASSOCIATION
February 3, 1995 -- Number 18
SPECIAL ALERT
* Congress to consider making all system operators liable for messaging content. Bill would force employers to monitor message content. ACTION NEEDED NOW!
UNREASONABLE NETWORK POLICING PROPOSED
Yesterday, Senator Jim Exon (D-NE) introduced S.314, the Communications Decency Act of 1995, in the United States Senate. In an effort to stamp out digital pornography, it makes all telecommunications providers doing business in the United States (from the telephone companies all the way down to offices that use LANs) liable for the content of anything sent over their networks. To avoid the possibility of tens of thousands of dollars in fines and up to two years in jail, business owners would be forced to police their networks and monitor in advance all messages sent over them.
WITHOUT ACTION - COULD BE LAW IN MONTHS
This bill is substantially the same as the one he put forward last year. He will offer it as an amendment to the pending telecommunications deregulation legislation in the U.S. Senate, which is expected to be enacted by July. Last year, his amendment was adopted even though many thought it hastily drafted and poorly thought out. Fortunately, the telecommunications deregulation legislation died. This year, a more conservative U.S. Congress may be even more reluctant to challenge a "morality" amendment; and its legislative vehicle, the telecommunications deregulation legislation, stands a much better chance of passage this year.
ACTION NEEDED NOW
Action by the business community is needed now. Please notify your corporate government affairs office and/or your legal counsel. This measure could be adopted as an amendment to the telecommunications bill IN A MATTER OF WEEKS (or potentially added to any legislation pending on the U.S. Senate floor), if business does not mobilize against it. S.314 will not stop digital pornography, but it could devastate the messaging business. If you are interested in further information or are able to participate in lobbying efforts over the next few weeks, contact Sarah Reardon at EMA (see below).
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EMA ALERT is published and copyrighted (1995) by the Electronic
Messaging Association. Permission to reproduce and/or redistribute
with attribution is hereby given to all EMA members. For more
information about anything in EMA ALERT, contact EMA via e-mail - use
either X.400 (S=info; O=ema; A=mci; C=us) or Internet (info@ema.org)
address, facsimile (1-703-524-5558), or telephone (1-703-524-5550).
Any EMA staff member can be addressed directly via e-mail by using,
for X.400, G=
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Date: Sun, 12 Feb 95 11:48 PST From: lauren@vortex.com (Lauren Weinstein; PRIVACY Forum Moderator) Subject: Some thoughts on S.314
Greetings. The previous messages expresses (possibly well-founded) alarm at Senate Bill S.314. However, the bill contains a number of provisions that could be subject to varying interpretations, so I thought it would be worthwhile if we could spend a bit of time on the details of the bill itself. I've included the entire text (it's not very long) at the end of this message.
Since the bill is written mainly as modifications to the 1934 Communications Act, it would be useful to refer back to that Act for reference, but I think the salient points should still be clear.
The part of S.314 that appears to be causing the most alarm in the network community is actually fairly simple--it seems to simply extend the prohibitions against obscene/harrassing communications from the telephone to the broader category of "telecommunications devices", presumably to bring email and similar communications under its jurisdiction. On the face of it, this seems quite sensible--there is no obvious reason why someone should be able to conduct the same sorts of harrassments via, for example, email, that are prohibited as a phone call. Some problems come up, however, in the interpretation of this prohibition. There are a number of points to consider:
-- Is the prohibition meant to apply strictly to obscene/harrassing communications? Would materials openly discussed in some of the more controversial network newsgroups fall under the prohibition, even though they are not harrassing in nature? What definition of obscenity would be used? How does the nature of the audience (for messages being sent to a group, rather than an individual) enter into the mix?
-- Is the prohibition truly to be interpreted as making the service providers responsible for the messages sent by their subscribers or users? Would services be responsible for helping to track down offenders when violating messages were sent from their systems, or are they also expected to take steps to prevent such messages from being sent in the first place? The latter would imply the need for active message monitoring, which would be in direct conflict with other existing laws, regulations, and rulings. What would happen in the case of systems providing anonymous access? Should such anonymous accounts be usable as a shield for harrassing communications without any form of control? If not, how can they be controlled? How does this compare with the use of payphones for making obscene calls and telephone company responsibilities in such cases? Is there a reasonable middle ground that can be found?
-- What impact, if any, would there be on intermediate sites carrying such communications?
-- How would email service providers' responsibilities differ from those of telephone common carriers? Would common carriers offering email services have a different level of responsibility? It's worth noting that in general, common carriers are pretty well protected from responsibility for materials sent over their systems (there have, however, been a number of exceptions to this, pretty rare and sometimes bizarre but present nonetheless).
It's also important to note that many email service providers, though they may believe they are operating as "common carriers", may not fit the strict legal definition of common carrier. Until there is case law addressing such situations, there's no way to know how they might fare in these sorts of situations.
There are other interesting aspects to S.314 as well. One facet that seems particularly questionable is the lumping together of nudity, indecency, and obscenity into one category for certain decision-making purposes. U.S. Supreme Court decisions have clearly drawn separations between these categories--trying to clump them back together again may well be subject to reversal. It's hard enough trying to pin down the definition of obscenity. There have been conflicting court decisions on how "community standards" should or can affect national publications and national broadcasters.
And finally, there are aspects of S.314 that could have significant financial effects as well. The clause requiring the scrambling or blocking of both video and audio of cable services not meant for children could require the wholesale replacement of the set-top boxes used by many cable systems, since many systems currently only scramble video and not audio, leaving the audio accessible to those with cable-ready televisions capable of tuning the appropriate channels. At a time when Congress is looking at already repealing the hardly dry cable industry re-regulation rules, some more big cable rate increases could be in the near future.
Overall, S.314 seems to have some valid ideas, but like so much of the legislation (much of it highly "ideological" in nature) now flowing through the pipe, the details and effects would seem to need a good deal more thought and/or elaboration. Whether we're talking about telecommunications law or a balanced budget, the devil is in the details. To push through laws just so that the folks back home can be told that "something was done", and leaving the details to be thrashed out in the future with unknown impacts, does not seem like the best way to proceed.
--Lauren--
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S 314 IS 104th CONGRESS 1st Session To protect the public from the misuse of the telecommunications network and telecommunications devices and facilities. IN THE SENATE OF THE UNITED STATES February 1 (legislative day, January 30), 1995 Mr. Exon (for himself and Mr. Gorton) introduced the following bill; which was read twice and referred to the Committee on Commerce, Science, and Transportation A BILL To protect the public from the misuse of the telecommunications network and telecommunications devices and facilities. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, SECTION 1. SHORT TITLE. This Act may be cited as the `Communications Decency Act of 1995'. SEC. 2. OBSCENE OR HARASSING USE OF TELECOMMUNICATIONS FACILITIES UNDER THE COMMUNICATIONS ACT OF 1934. (a) Offenses: Section 223 of the Communications Act of 1934 (47 U.S.C. 223) is amended-- (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 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;' and (D) by striking out subparagraph (D) and inserting the following: `(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) in subsection (a)(2), by striking `telephone facility' and inserting `telecommunications facility'; (3) in subsection (b)(1)-- (A) in subparagraph (A)-- (i) by striking `telephone' and inserting `telecommunications device'; and (ii) inserting `or initiated the communication' and `placed the call', and (B) in subparagraph (B), by striking `telephone facility' and inserting `telecommunications facility'; and (4) in subsection (b)(2)-- (A) in subparagraph (A)-- (i) by striking `by means of telephone, makes' and inserting `by means of telephone or telecommunications device, makes, knowingly transmits, or knowingly makes available'; and (ii) by inserting `or initiated the communication' after `placed the call'; and (B) in subparagraph (B), by striking `telephone facility' and inserting in lieu thereof `telecommunications facility'. (b) Penalties: Section 223 of such Act (47 U.S.C. 223) is amended-- (1) by striking out `$50,000' each place it appears and inserting `$100,000'; and (2) by striking `six months' each place it appears and inserting `2 years'. (c) Prohibition on Provision of Access: Subsection (c)(1) of such section (47 U.S.C. 223(c)) is amended by striking `telephone' and inserting `telecommunications device.' (d) Conforming Amendment: The section heading for such section is amended to read as follows: `obscene or harassing utilization of telecommunications devices and facilities in the district of columbia or in interstate or foreign communications'. SEC. 3. OBSCENE PROGRAMMING ON CABLE TELEVISION. Section 639 of the Communications Act of 1934 (47 U.S.C. 559) is amended by striking `$10,000' and inserting `$100,000'. SEC. 4. 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. 5. INTERCEPTION AND DISCLOSURE OF ELECTRONIC COMMUNICATIONS. Section 2511 of title 18, United States Code, is amended-- (1) in paragraph (1)-- (A) by striking `wire, oral, or electronic communication' each place it appears and inserting `wire, oral, electronic, or digital communication', and (B) in the matter designated as `(b)', by striking `oral communication' in the matter above clause (i) and inserting `communication'; and (2) in paragraph (2)(a), by striking `wire or electronic communication service' each place it appears (other than in the second sentence) and inserting `wire, electronic, or digital communication service'. SEC. 6. ADDITIONAL PROHIBITION ON BILLING FOR TOLL-FREE TELEPHONE CALLS. Section 228(c)(6) of the Communications Act of 1934 (47 U.S.C. 228(c)(6)) is amended-- (1) by striking `or' at the end of subparagraph (C); (2) by striking the period at the end of subparagraph (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. 7. SCRAMBLING OF CABLE CHANNELS FOR NONSUBSCRIBERS. Part IV of title VI of the Communications Act of 1934 (47 U.S.C. 551 et seq.) is amended by adding at the end the following: `SEC. 640. SCRAMBLING OF CABLE CHANNELS FOR NONSUBSCRIBERS. `(a) Requirement: In providing video programming unsuitable for children to any subscriber through a cable system, a cable operator shall fully scramble or otherwise fully block the video and audio portion of each channel carrying such programming 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. 8. CABLE OPERATOR REFUSAL TO CARRY CERTAIN PROGRAMS. (a) Public, Educational, and Governmental Channels: Section 611(e) of the Communications Act of 1934 (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) of the Communications Act of 1934 (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.
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End of PRIVACY Forum Digest 04.04
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