First Amendment Rights and the CDA

On February 8th, 1996 President Clinton signed into law the bill known as the Telecommunications Act of 1996, technically S. 652/H.R. 1555. Most of the 200 page bill deals with various amendments and changes to the Telecommunications Act of 1934, but stuck away around page 150 is the section called Title V “OBSCENITY AND VIOLENCE SUBTITLE A–OBSCENE, HARASSING, AND¬† WRONGFUL UTILIZATION OF TELECOMMUNICATIONS FACILITIES” and within it Sec. 507 “Clarification of current laws regarding communication of obscene materials through the use of computers.” People who have followed the fortunes of Senator Exon’s proposed amendment to the Telecommunications Act, will find this section familiar. In fact Sec. 507 is the Exon amendment duly altered twice after uproars that arose last year. When the Communications Decency Act, (CDA) was proposed last year, it’s incorporation into the then in progress Telecommunications Bill was approved in the Senate by a vote of 84 to 16. Packaged within the much larger Telecommunications Act, the CDA has been signed into law. Perhaps this says something about the reality of politics, yet it’s a little too late to bother about that. Right now we must evaluate the possible effects of this bill.

A number of organizations have already looked closely at the CDA. The American Civil Liberties Union, the Electronic Privacy Information Center and a number of other civil liberties organizations including the Electronic Frontier Foundation filed a case with the District Court of Eastern Pennsylvania claiming the CDA is unconstitutional. On February 15th, Judge Buckwalter granted a partial Temporary Restraining Order to the ACLU and other plaintiffs in the case stating the law was “unconstitutionally vague”. The TRO will not prevent the prosecution of persons who place or provide “indecent” material on a computer network where a minor can read or view it. Undoubtedly, this is an important decision, but the TRO leaves standing other sections of the Act. Amidst all the gloom, we have a little to be thankful for, the CDA in its present form does not make service providers fully responsible for the content transmitted over their networks. This is a change from previous versions of the CDA which sought to make all computer network operators liable for anything and everything transmitted over their wires, perhaps in the hope that this would spur “voluntary” censorship. Even in its present form, however, the CDA will only exempt a computer network operator from liability if she is unaware of the activities of her users and or has “taken in good faith reasonable, effective and appropriate actions under the circumstances to restrict or prevent access by minors”. In effect, the operator of a computer network is not afforded the same immunity granted to a local telephone operator. Before she is free from liability under this law, the computer network operator has to take the extra step of verifying a user’s age. The network access provider is not given the protection a common carrier is afforded though it is acknowledged that she may have no editorial control.

A large proportion of the confusion in free speech law seems to stem from the form the communication takes, not its function or content. For instance, the “indecency” clause cannot be applied to the print media and a court cannot indict a newspaper for publishing material that may be “indecent” or “patently offensive as measured by contemporary community standards”. Yet, if the same article is made available over a computer network and the on-line newspaper is accessible to minors, the content provider can be fined and imprisoned for up to two years. This sounds Orwellian, but it is the case across a broad variety of media, teletext is not granted the same First Amendment protection as a newspaper, a radio broadcast is subject to much more regulation than a book, and cable TV is treated very differently from broadcast television. Some aspects of these differences in regulation do appear reasonable and others seem quite unreasonable. In particular, it has often been suggested that the appropriate paradigm for the Internet is a library and not the broadcast media. Similarly it has been held that electronic mail be granted the same protections surface mail is.

Part of the problem seems to be the search for paradigms, trying to find analogies for the new media, see what form of old media is closest to the new. The problem is that the new media may use a telephone or television wire to facilitate communication, yet perform the exact same function as a print publication does. At times it almost seems as if the law treats the “freedom of the press” as exactly that, the freedom of printing presses and nothing else. Laws it seems, must be refashioned with the advent of every new technology.

Some of the controversy surrounds the nature of the content and the definition of “community standards”. The suit filed by the ACLU relied, in part, on affidavits provided by a number organizations disemination information about AIDS over computer networks. The providers of such health and safety information are concerned that some of their material may be “indecent” and a number of them stated they “did not understand what indecent or ‘patently offensive’ meant”. It would indeed be quite unreasonable to demand that such services require all users to identify themselves and verify their age. Not only would this be contrary to the nature of the service, which demands anonymity, it would be quite expensive to impliment. This is just one example of how the CDA might affect speech we would consider valuable to protect; other instances range from silencing a forum on breast cancer to hounding writers distributing drafts of works in progress over computer networks.

It is abundantly clear that the federal government and indeed the Supreme Court itself are prone to deal with electronic and paper communication in very different ways. In 1928 the Supreme Court held that warrantless wiretapping was not unconstitutional because “[t]here was no searching [and there] was no seizure”. Apparently the Fourth Amendment was not applicable in the case of wiretaps since “[t]he United States takes no such care of telegraph or telephone messages as of mailed sealed letters” (Olmstead v. United States, 277 US 438, 464 [1928]). Apparently, if it’s electronic, it’s fair game. In 1967 (Katz v. United States, 389 US 347 [1967]), the Court had changed its views and now held that the Fourth Amendment “protects people not places”, consequently warrantless wiretapping was made illegal. We must now consider with all seriousness whether the CDA and indeed the government’s response to Computer Mediated Communication in general is not simply a rerun of the wiretapping case. The US federal government’s position on encryption technology and content on the Net would suggest that it is. If we are about to enter another era of unreasonable legislation we must be aware that this legislation will dramatically influence the evolution of the new media and might even stifle its development altogether. This is a serious question and the exponential growth of Computer Mediated Communication leads me to believe that many people will be affected by government policies pertaining to CMC in the future. Those among us who have not had the opportunity to use the new media will find themselves absorbed in it in a few years, it is then that the effects of these laws will becomes completely apparent.

The CDA was proposed by a retiring senator who was shocked at some of the material he found available on the Internet. He decided the best way to express his concern about the digital environment his grand-daughter would be to pass a broad bill to illegalize all “indecency” on the Net. The generations that are going to be most affected by these new laws have had no say in the matter, decisions have been made on their behalf by people who know very little about the new medium. Sen. James Exon (D-Neb) knows little about Computer Mediated Communication, at 75 it is unlikely that he will live to see the long-term effects of the CDA. The former governor of Nebraska retires from the Senate this year, but unless the law is repealed, he will have left behind as a legacy the Communications Decency Act of 1996, something future generations will have to grapple with for many years to come.

The most intrusive section of the CDA has been restrained, for the time being, but the rest of the act is still law. How is one expected to posit “contemporary community standards” on a network that spans the entire globe? Does that concept have any meaning at all in such a context? Where does the line between the political and the personal lie? Is a declaration of one’s sexual orientation “indecent”? How is one to function as an adult in a world which is by default restricted to content appropriate for a child?

These are questions we must answer, and answer fast. Unless there is a discourse beyond the rather narrow circle of dedicated computer users, we might see the medium shackled as it tries to hobble its way into the next century. The future of computer networks concerns each and everyone of us, very intimately. Almost every aspect of our lives is linked, or will soon be linked, to the new communication technologies. The Communications Decency Act of 1996 will have ramifications for all of us, if not tomorrow, then definitely next year.

This article draws heavily on Robert Corn-Revere’s paper “Lost on the Infobahn: The need for a Coherent First Amendment Approach”, presented at the 1994 Telecommunications Policy Research Conference.

Further references can be found at Electronic Frontier Foundation ; American Civil Liberties Union ; Cato Institute A paper by Robert Corn-Revere, “New Age Comstockery: Exon vs the Internet” can be viewed at