Freedom On Trial

So, why still an essay on the CDA, now that the courts have struck it down? Simple. Since the decision came from a circuit court, there will be appeals, probably until the Supreme Court rules on the case. In addition, since the law remains on the books, a future reversal of the court decision in whole or in part would reinstate the law. So, until the law is superceded with a bill limiting or eliminating the offending portions of the CDA, essays such as this will remain.
With the recent passage of the Telecommunications Reform Bill (HR1555), the telecommunications industry is further opened to competition, in the spirit of free enterprise that was the birthright of America. The 60+ year old law on the books, the Communications Act of 1934 (47 U.S.C. 151 et seq.), was badly in need of overhaul, given the advances in technology in the intervening decades, and this bill has paved the way for many changes that will, in the long run, be of great benefit to us all, and a few such as this which may not. (Why was I not surprised that a news article announcing the marriage of a phone and a cable company originally had a link that doesn't work? This corrected URL will get you the story. The broken link, incidentally, came directly off CNN's news page for 2/27/96).

However, buried within this law, in a subsection known as the Communications Decency Act, one of the central rights which our founding fathers gave their lives to bring to this nation is once again under attack. As is often the case with such issues, the debate is emotion-tinged and often strays from the central issues. A sensible place to begin, then, would be with an examination of the text of the law itself.

Let's rewind a little and begin at the beginning. Here, in its entirety, is the 1st Amendment of the Bill of Rights:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

So much packed into one short paragraph. Such were the laws of our young nation - to the point, and not cluttered with endless layers of interpretations, additions, clarifications and obfustications. It is wise to re-read these documents periodically, especially in the course of educating oneself on issues such as the on-line censorship debate. One may find that, like the Sistine Chapel restoration, stripping away the accumulated layers and years reveals a bold, colorful masterpiece far greater in vision and impact than the altered and adulterated version.

Now let's jump right to 1996, with an excerpt from the text of HR1555 which directly concerns this essay:


Section 223 (47 U.S.C. 223) is amended--
(1) by striking subsection (a) and inserting in lieu thereof:
 ``(a) Whoever--
   ``(1) in interstate or foreign communications--
     ``(A) by means of a 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) by means of a 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 or indecent, knowing that the recipient of the communication is
          under 18 years of age, regardless of whether the maker of such communication
          placed the call or initiated the communication;....and
(2) by adding at the end the following new subsections:
 ``(d) Whoever--
  ``(1) in interstate or foreign communications knowingly--
   ``(A) uses an interactive computer service to send to a specific person or
          persons under 18 years of age, or
   ``(B) uses any interactive computer service to display in a manner
          available to a person under 18 years of age,
     any comment, request, suggestion, proposal, image, or other communication that, in
     context, depicts or describes, in terms patently offensive as measured by contemporary
     community standards, sexual or excretory activities or organs, regardless of whether the
     user of such service 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 under title 18, United States Code, or imprisoned not more than two years, or both.

 ``(e) In addition to any other defenses available by law:
   ``(1) No person shall be held to have violated subsection (a) or (d) solely for
     providing access or connection to or from a facility, system, or network not under that
     person's control, including transmission, downloading, intermediate storage, access
     software, or other related capabilities that are incidental to providing such access or
     connection that does not include the creation of the content of the communication.
   ``(2) The defenses provided by paragraph (1) of this subsection shall not be
     applicable to a person who is a conspirator with an entity actively involved in the creation
     or knowing distribution of communications that violate this section, or who knowingly
     advertises the availability of such communications.

That is only a small part of the CDA; a few paragraphs dealing primarily with telephones have been omitted from the midsection (though even these could be applied to repeated email transmissions, I suppose), and nearly 400 more lines devoted to access controls (the infamous Vchip

for Virtual, of course!). The full text of the CDA may be viewed here.

Which law do you find easier to read and understand?

It is interesting to note that some defenders of free speech online have argued that "if it is legal in a bookstore or library, it should be legal in cyberspace." Since the CDA is a federal law, in section (a)(1) et al it explicitly notes its applicability to interstate or foreign communication. Later in the bill, in section (f)(2), individual states are given the right to enforce "complementary" law on intrastate communication, or indeed to enact and enforce more stringent legislation. This, in many ways, parallels the current restrictions on interstate traffic of printed material considered obscene. However, it is clearly ignorant of the geographically insensitive nature of the internet itself.

If a user in the US wants to put "patently obscene" material on the net, space could be rented on a server in another country, and the entire service housed outside US borders, but available to US citizens. Conversely, a user in a foreign country may post an image, which is considered under this law illegal, on a service hosted in the US, which becomes available via intrastate, interstate, and international systems. How is the law to be applied? Which of these actions, if either, is illegal?

In addition to the absurdity of defining internet geographic boundaries, let us ask, what indeed is "indecent?" Is it this? Probably most of what's on these pages is indecent to some folk, but it's not hosted in this country. Is searching for smut OK? Take a peek at this to see why any link could be a liability.

Examining section (d)(B) and (e)(2), it is clear that

I am in violation of section 1 of this law by including these links on this page, since it could be argued that I have "advertized the availability" of such material, as stated in the final sentence of e.2
My service provider, LinkLINE Internet Access, Inc., is in violation of section d.2 of this law by hosting this file. In order to comply with this law, my provider must both review all material before posting, and remove those deemed inappropriate which were posted before the CDA was enacted.
YOU are in violation of this law if you send an email flame across state or international boundaries, or post to any newsgroup, with something as patently offensive as Don't like my driving? Dial 1-800-EAT-SHIT. By all accounts, ingesting excrement would be a patently offensive description of excretory activities. It's OK to put it on your bumper, but not in your signature line.

This essay is linked as part of the 24 Hours of Democracy
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