======================================================================== CAMPAIGN TO STOP THE UNCONSTITUTIONAL EXON/GORTON/COATS COMMUNICATIONS DECENCY ACT (SEE THE LIST OF CAMPAIGN COALITION MEMBERS AT THE END) FREQUENTLY ASKED QUESTIONS (FAQ) ABOUT THE 1995 COMMUNICATIONS DECENCY ACT Updated: August 26, 1995 PLEASE WIDELY REDISTRIBUTE THIS DOCUMENT WITH THIS BANNER INTACT REDISTRIBUTE ONLY UNTIL January 1, 1996 REPRODUCE THIS FAQ ONLY IN RELEVANT FORUMS To get a copy of this document, please send mail to files@vtw.org with a subject line of "cdafaq" or check URL:http://www.vtw.org/ or via gopher at gopher.panix.com __________________________________________________________________________ TABLE OF CONTENTS Introduction Brief analysis Definitions Myths surrounding the CDA Typical questions asked by reporters Bill chronology Organizations opposing the CDA Where you can go for more information Credits __________________________________________________________________________ INTRODUCTION The following FAQ contains everything you need to know to argue about the Communications Decency Act. The subtleties are easily lost on most people who think they know these issues, so please take the time to digest this information. Next time you get a call from a reporter, or are asked to do a radio show, keep a copy of this handy. Changes/additions/corrections should be sent to vtw@vtw.org. __________________________________________________________________________ BRIEF ANALYSIS The Communications Decency Act (CDA) is a poorly thought-out piece of legislation intended to restrict the access of minors to indecent and obscene material on the Internet. It fails to meet those goals. It would, however, succeed in chilling free speech such that public discussions would be diluted to the level of that which is acceptable to children. Furthermore it's whole approach is to treat computer communications as a broadcast medium, which fails to take into account the unique possibilities for parental control and "self-filtering" that are available to us in this medium. Please watch these newsgroups and subscribe to vtw-announce@vtw.org if you want to stay abreast of these issues. __________________________________________________________________________ DEFINITIONS It's important when arguing that you're familiar with the terminology. This isn't an all-inclusive discussion of these issues; please refer to the relevant caselaw for more information. OBSCENITY Obscene material was determined as not deserving of Constitutional protection in _Miller_v._California_ (1973). In that decision, the Supreme Court provided a three-part test for determining if material was obscene. 1. Would the average person, applying contemporary standards of the state or local community find that the work, taken as a whole, appeals to the prurient interest? 2. Does the work depict or describe in a patently offensive way sexual conduct specifically defined by the applicable state law? 3. Does the work lack serious literary, artistic, political, or scientific value? If a work satisfies all three of these tests, then a court may determine it to be obscene. Notice that the three-part test above does not specify which media the work might be viewed, created, transmitted or stored in. This means that every time a new technology that allows expression is invented, the laws governing obscenity are automatically in force for it. INDECENCY Indecent material is sexually-explicit material which may be offensive to some or may be considered by some to be inappropriate for children, but which is protected by the First Amendment. In _Sable_Communications_ v._FCC_, the Court found that any regulation of indecent material must use the "least intrusive means" for accomplishing the government's goal of protecting children. The Court has stated that restrictions on indecency cannot have the effect that they "reduce the adult population to only what is fit for children." Given the existence of software and hardware that enable parents to block children's access to indecent material the regulation here does not constitute the "least restrictive means" requirement set out by the Supreme Court. What are some examples of "indecent" content? The most famous example probably is the George Carlin comedy monologue that was the basis of the Supreme Court case _FCC_v._Pacifica_Foundation_ (1978). In that monologue, Carlin discusses the "Seven Dirty Words" (i.e., certain profane language) that cannot be uttered in broadcast media. Other examples of "indecency" could include passages from John Updike or Erica Jong novels, certain rock lyrics, and Dr. Ruth Westheimer's sexual-advice column. Under the CDA, it would be criminal to "knowingly" publish such material on the Internet unless children were affirmatively denied access to it. It's as if the manager of a Barnes & Noble bookstore could be sent to jail simply because children were able to wander the store's aisles and search for the racy passages in a Judith Krantz or Harold Robbins novel. LEWD/FILTHY/LASCIVIOUS EXPRESSION OR SPEECH These are all also Constitutionally-protected expression, although there currently exists no legal definition for what constitutes this type of speech. PORNOGRAPHY Unless this is deemed as "obscene", this is Constitutionally protected as well. __________________________________________________________________________ MYTHS SURROUNDING THE (CDA) COMMUNICATIONS DECENCY ACT M = Myth, R = Reality CDA = the Communications Decency Act, aka the Exon bill, the Exon/Gorton bill, the Exon/Coats bill S 314, the Internet Censorship bill MYTHS ABOUT EXPRESSION AND ONLINE SYSTEMS (SUCH AS THE INTERNET) M: Obscene material is currently legal in electronic form. The CDA is needed to bring electronic networks in line with telephone and broadcast media. R: Distribution of obscene material is already illegal in any medium, existing or in the future. No new legislation is needed. M: There's lot of ``dirty stuff'' on the Internet that's protected because current law doesn't work there. The CDA would fix that. R: Obscene material is already illegal on the net (or anywhere else). There's nothing for the CDA to fix. M: The government has the right to control all speech in any electronic media through the FCC (Federal Communications Commission). They have previously done the very same thing for television and radio. This is just an extension to a new medium. R: This is indeed a new medium. It is not a broadcast medium and should not be treated like the broadcast mediums the FCC currently is allowed to regulate. The government (and in particular the FCC) has only had content control over two specific types of media: (1) broadcasting media like TV and radio (and broadcasting-related technologies, such as cable TV), and (2) the narrow class of telephone-based commercial services that requires the assistance and support of government-regulated common carriers. (eg 900 chat lines) In all other communications media, the government has no constitutional authority to impose broad regulation of indecent content. M: The CDA is just an extension of the already Constitutional "Dial-A-Porn" statutes into this new medium. R: The Dial-A-Porn statutes were specifically written for telephone communications. They deal in a communications medium that is specifically point-to-point. Online communication on the other hand is many-to-many and cannot fit the same model. In particular, the Dial-A-Porn statutes do not criminalize speech between two adults in a non-commercial conversation, whereas the CDA does. M: The only effect the CDA will have is to stop obscene material on the net. R: Since the CDA would be a US law, and networks do not acknowledge geographical borders, it is unlikely that the CDA will stop anyone outside the US from sending lewd, lascivious, filthy, obscene, or indecent information into networks that traverse the United States. More importantly, the effect of the CDA will be to impose a chilling effect on speech on the net, where only that which is appropriate for children is acceptable in public. Any discussion of Shakespeare or safe sex would not be allowable except in private areas, where someone can be paid for the task of rigidly screening participants. M: There's no way to control what my child can see, and I cannot be bothered (nor am I capable) of monitoring them while they're using the computer. This is the only way. R: Several large service providers (such as America OnLine, Prodigy, and Compuserve) have special areas specifically for kids on their systems. In addition there are a growing number of products for restricting access to the Internet. Software that filters all forms of Internet content including World Wide Web, Gopher, News, and Email is already available for some platforms. M: The government is the best person to tell me what my child can see. R: Parents are the best people to evaluate what they want their children to see, whereas government censors are probably the least appropriate. In _Wisconsin_v._Yoder_ (1972), the Supreme Court acknowledged that the right of parents to determine what is appropriate for their children is Constitutionally protected. M: This will encourage other countries to extradite their citizenry back to the US, if the citizen violates this law. R: Non-US citizens will be theoretically liable if they commit any element of the crime in the United States (e.g., if the indecent content reaches a minor in the United States). Normally, this theoretical liability won't translate into an actual attempt at prosecution unless the defendant has a high Noriega Quotient. (There has to be strong political pressure backing the prosecution.) MYTHS ABOUT HARASSMENT M: The CDA simply makes it illegal to harass another person electronically ("knowingly makes transmissions that are indecent or obscene with the intent to threaten or harass another person") R: Obscene or harassing speech which "threatens", is not Constitutionally protected. However the CDA goes farther than that, prohibiting lewd, lascivious, filthy, obscene, or indecent speech even when it is intended to be ``annoying'' which is a Constitutionally-protected form of speech. For example, if you wrote a letter to your Senator about his or her poor vote on the Exon bill, you might intend to annoy him. MYTHS ABOUT LIABILITY OF SERVICE OR CONTENT PROVIDERS M: The CDA makes each individual sysop responsible for the content they carry and provide to their users. This is not unreasonable, as you should be responsible for the material you store on your disks. R: Even if a service provider took their entire staff and devoted them to reading all the email, news forums, and chat forums, that provider still could never be expected to keep up with the huge volume of information that travels the Internet every day. It is unreasonable to expect a service provider to be responsible for each piece of content that travels through or onto its systems. M: The CDA says you're liable only if you "knowingly transmit or make available" this information to a minor. If you ask everyone on your system their age, won't this keep you from being liable? R: No, it is a reasonable assumption that someone might not be telling you the truth. Simply asking age would not be strict enough measures. M: I can claim I don't know the content of the stuff on the net, because I can't possibly be required to read it all. Won't that protect me from ``knowingly' transmitting it to a minor? R: No, Senator Exon said he's found lewd, lascivious, filthy, indecent, and obscene material on the Internet during his investigation for the bill. If a Senator has noticed this, then you, an Internet Service Provider, should have too. M: I don't actively send any data out, I simply leave it on a Web page for people to pick up. Therefore neither I nor my service provider are liable if a minor gets access to my web page and decides it is lewd, lascivious, filthy, indecent, and obscene. R: The statute clearly states that you are responsible if you "make available" such information. You don't even have to be aware it is being downloaded to be liable. M: If I'm providing a Fidonet or netnews relay for someone else, and I don't examine all the content, will I still be liable if someone downstream from me provides indecent content (that I carried for a time, however brief) to a minor? R: Probably yes, though the statute leaves some room for interpretation. __________________________________________________________________________ TYPICAL QUESTIONS ASKED BY REPORTERS This section is currently being completed. Please be patient. __________________________________________________________________________ BILL CHRONOLOGY No more actions have been scheduled as of June 27, 1995. Jun 21, '95 Several prominent House members publicly announce their opposition to the CDA, including Rep. Newt Gingrich (R-GA), Rep. Chris Cox (R-CA), and Rep. Ron Wyden (D-OR). Jun 14, '95 The Senate passes the CDA as attached to the Telecomm reform bill (S 652) by a vote of 84-16. The Leahy bill (S 714) is not passd. May 24, '95 The House Telecomm Reform bill (HR 1555) leaves committee in the House with the Leahy alternative attached to it, thanks to Rep. Ron Klink of (D-PA). The Communications Decency Act is not attached to it. Apr 7, '95 Sen. Leahy (D-VT) introduces S.714, an alternative to the Exon/Gorton bill, which commissions the Dept. of Justice to study the problem to see if additional legislation (such as the CDA) is necessary. Mar 23, '95 S314 amended and attached to the telecommunications reform bill by Sen. Gorton (R-WA). Language provides some provider protection, but continues to infringe upon email privacy and free speech. Feb 21, '95 HR1004 referred to the House Commerce and Judiciary committees Feb 21, '95 HR1004 introduced by Rep. Johnson (D-SD) Feb 1, '95 S314 referred to the Senate Commerce committee Feb 1, '95 S314 introduced by Sen. Exon (D-NE) and Gorton (R-WA). __________________________________________________________________________ ORGANIZATIONS OPPOSING THE CDA In order to use the net more effectively, several organizations have joined forces on a single Congressional net campaign to stop the Communications Decency Act. The following list of groups are coordinating to stop the Communications Decency Act. American Civil Liberties Union * American Communication Association * American Council for the Arts * Arts & Technology Society * Association of Alternative Newsweeklies * biancaTroll productions * Californians Against Censorship Together * Center For Democracy And Technology * Centre for Democratic Communications * Center for Public Representation * Citizen's Voice - New Zealand * Computer Communicators Association * Computer Professionals for Social Responsibility * Cross Connection * Cyber-Rights Campaign * CyberQueer Lounge * Dutch Digital Citizens' Movement * Electronic Frontier Canada * Electronic Frontier Foundation * Electronic Frontier Foundation - Austin * Electronic Frontiers Australia * Electronic Frontiers Houston * Electronic Frontiers New Hampshire * Electronic Privacy Information Center * Feminists For Free Expression * First Amendment Teach-In * Florida Coalition Against Censorship * Friendly Anti-Censorship Taskforce for Students * Hands Off! The Net * Human Rights Watch * Inland Book Company * Inner Circle Technologies, Inc. * Inst. for Global Communications * Internet On-Ramp, Inc. * Joint Artists' and Music Promotions Political Action Committee * The Libertarian Party * Marijuana Policy Project * Metropolitan Data Networks Ltd. * MindVox * National Bicycle Greenway * National Campaign for Freedom of Expression * National Coalition Against Censorship * National Gay and Lesbian Task Force * National Public Telecomputing Network * National Writers Union * Oregon Coast RISC * Panix Public Access Internet * People for the American Way * Rock Out Censorship * Society for Electronic Access * The Thing International BBS Network * The WELL * Voters Telecommunications Watch __________________________________________________________________________ WHERE YOU CAN GO FOR MORE INFORMATION Web Sites URL:http://www.vtw.org/ URL:http://epic.org/ URL:http://www.eff.org/pub/Alerts/ URL:http://www.cdt.org/cda.html FTP Archives URL:ftp://ftp.cdt.org/pub/cdt/policy/freespeech/00-INDEX.FREESPEECH URL:ftp://ftp.eff.org/pub/Alerts/ Gopher Archives: URL:gopher://gopher.panix.com/11/vtw/exon URL:gopher://gopher.eff.org/11/Alerts Email: vtw@vtw.org (put "send help" in the subject line) cda-info@cdt.org (General CDA information) cda-stat@cdt.org (Current status of the CDA) __________________________________________________________________________ CREDITS Significant legal input came from Mike Godwin (mnemonic@eff.org) and Shari Steele (ssteele@eff.org) of the Electronic Frontier Foundation and Jonah Seiger (jseiger@cdt.org) and Danny Weitzner (djw@cdt.org) from the Center for Democracy and Technology. Several coalition members contributed large amounts of text and suggestions to the document, including Andy Oram (CPSR Cyber Rights campaign), Bob Bickford (Libertarian Party), Anne Beeson (ACLU), Steven Cherry (Voters Telecommunications Watch) and Stanton McCandlish (EFF). ==========================================================================