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Although the October 16, 1995 legislative proposal purports to regulate “
computer pornography”, the proposal contains fatal flaws which render the
proposal at best counterproductive and at worst devastating to on-line
communications. First, it prohibits, but fails to define, “indecent” speech to
minors -- a dangerously vague, medium-specific, and, after decades of litigation,
still undefined concept, which may include mere profanity. This may tie up
successful prosecution of the law in courts for years to come, while courts
wrestle to divine a constitutional definition of “indecent” -- and while
companies are left with uncertain liability.
Second, the October 16 proposal may actually hold systems liable for
communications over which they have no specific knowledge or control. The
proposal purports to target those who “knowingly” send prohibited communications
-- itself a relatively low standard of liability that may not even require
actual intent or willfulness. Nevertheless, because the proposal i) defines the
elements of criminal liability in vague and contradictory terms, and ii)
eliminates safeharbors in the Senate bill that would define a clear standard of
care, it might hold systems liable for actions that don't reach even a “
knowingly” standard of liability. As a result, access providers, system
managers and operators, and employers may potentially be liable for actions of
users over which they have no specific knowledge, intent, or control.
For any company that communicates by computer, the proposal:
1) Creates liability for, but never defines, “indecent” speech, a dangerously
vague standard that could leave companies criminally liable for use of mere
2) Establishes vague and contradictory standards of liability that could leave
innocent companies vicariously liable for communications over which they have no
3) Strips workable affirmative defenses from the Senate bill, eliminating a
clear standard of care for companies.
Not only does the proposal endanger companies, it fails to protect
children. The indecency standard guarantees that enforcement will be tied up in
the courts for years to come. Companies will be particularly reticent to
identify and eradicate prohibited communications when they are incapable of
discerning which communications are “indecent” and when the company's consequent
knowledge of the communications may actually make them liable. At worst, the
proposal will either shut down systems entirely or will shut down any attempts
to constructively monitor and screen systems, as providers take a know-nothing
stance to avoid prosecution for purported knowledge.
II. The “Indecency” Standard and Uncertain and Conflicting Standards of
Culpability Implicate Innocent Companies But Fail To Protect Children.
A. The undefined “indecency” standard is possibly unenforceable and certainly
Although the October 16 proposal purports to regulate “computer
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“telecommunications device” (an undefined term that presumably includes
telephones and facsimiles) to persons under 18. Because the term “indecent” is
a medium-specific term that, after decades of litigation, remains undefined, it
is uncertain precisely what would be prohibited by this section. In the context
of broadcasting, the Supreme Court has defined mere expletives as indecent See
FCC v. Pacifica Foundation, 438 U.S. 726 (1978).: Would the use of an expletive
in a communication that is made available to a minor trigger a criminal felony?
An illustration. After this law passes, a 17-year old college freshman
is writing a paper on the “indecency”. He decides to look at Supreme Court cases
to determine what he is prohibited from seeing. The university librarian, who
believes the student looks young for a freshman, directs the student to the
Supreme Court Pacifica case, which defined “indecency” for the purpose of
broadcast media. If the librarian directs the student to the bound version of
the Supreme Court Reporter, she has done her job well. If she sends an
electronic version on-line, she goes to federal prison for 5 years. The
Pacifica case contains as an appendix a transcript of the George Carlin
monologue on “Seven Dirty Words”, which the Court found indecent for purposes of
The Supreme Court had no qualms about printing the case, because it was
in a different medium than broadcasting -- one requiring someone to access it
and requiring literacy. The October 16 proposal recognizes no such distinction
between media, however. Nor does it define “indecency”. Indeed, it treats all ”
indecency” as “pornography”. Would the Pacifica case be banned from on-line
access by our schools and libraries by the October 16 proposal? It would by any
normally prudent access provider who wanted to avoid the possibility of spending
5 years in federal prison.
Other examples: (i) a sender posts a message to a Bulletin Board that
contains an expletive or a medical or literary passage that is “indecent” and is
then read by a minor; (ii) a university provides on-line access to all students,
including some freshmen under the age of 18, to its library, including works
containing “indecent” passages; (iii) a company that employs a high school
senior as an intern knowingly posts a message from an employee that contains
some of the “Seven Dirty Words” on an employee bulletin board. Under a plain
language reading of the proposal, any of these actions might subject the sender
to a criminal felony conviction. Given such potential liability, companies may
be faced with avoiding liability by either shutting down screening of
communications, or shutting down systems entirely.
At best, the indecency provisions are simply unenforceable. In
regulating indecent speech, the courts have held that the government must take
into account the medium being regulated, must use the least restrictive means to
further its articulated interest, and may not curtail all adult discourse to
only what is fit for children. Sable Communications of California, Inc. v. FCC,
492 U.S. 115, 126, 128 (1989). The Department of Justice noted that the
language upon which Sec. (d) of the proposal is based raises constitutional
questions due to the lack of criminal intent required for the age element.
Letter from Kent Markus, Acting Assistant Attorney General, to Sen. Leahy (June
13, 1995), 141 Cong. Rec. S 8344. The Justice Department stated its concern
that “this subsection would consequently have the effect of regulating indecent
speech between consenting adults”. Such a holding by a court could render the
indecency standard constitutionally unenforceable.
The indecency standard is counterproductive. First, it ensures that
rather than effectively protecting children on the Internet, the law will be
caught up in fruitless litigation for years to come. The much less expansive
statutory limitations and subsequent FCC regulations on dial-a-porn engendered
ten years of litigation before a constitutional standard was established.
Second, companies are apt in the face of uncertain liability and an
undefined standard of “indecency” to abdicate any positive role in screening
rather than risk liability for discovered or imputed knowledge. Companies would
be particularly vulnerable during the years of litigation it would take to
establish a constitutional standard of “indecency” by computer communications.
At worst, the indecency provisions would shut down entire networks.
At the very least, the indecency standard establishes a separate
standard of liability for the Net, relegating it to second class citizenship
among all media. Information which is freely available in bookstores, libraries,
and record shops could be banned on the Internet. The electronic editions of
newspapers could at times be prevented from publishing stories appearing in the
In place of a nebulous indecency standard, children would be far better
protected by a “harmful to minors” standard that spells out explicitly what type
of material is prohibited. Such a standard is currently in place in all 50
states and in the District of Columbia and has been upheld consistently be the
B. Vague and contradictory standards of liability threaten innocent companies.
The dangerously vague “indecency” standard is compounded by vague and
contradictory criminal elements in the Title 18 and Title 47 offenses.
According to a former federal prosecutor in our firm, depending upon how courts
read such ambiguous elements, innocent companies might be left vicariously
liable for communications over which they have no specific knowledge or control.
This danger is particularly acute given the incredibly large amount of
information that flows over systems and the utter impossibility of companies to
screen, review, and remove all “indecent” communications -- even if they could
define such communications. Imagery and graphics are particularly troublesome,
as they can be screened only by the old fashioned way -- by human inspection,
conceivably necessitating an indecency inspector at every company using on-line
systems. 1. Vague and Contradictory Standards of Intent and Control Subsection
(d)(1) holds a person or company liable for “knowingly making available” any
prohibited communication, “regardless of whether the maker of such communication
placed the call or initiated the communication(s)”. Disturbingly, “knowingly”
and “makes available” are undefined. According to a former federal prosecutor at
our firm, “knowingly” is a relatively low standard of liability, that does not
require willfulness or intent.
The standard of duty to prevent communications once a company is on
notice that they exist is unclear. If notified that a potentially offending
communication exists on a bulletin board on the system, is the system manager
now culpable of “knowingly . . . making vailable” the communication? If
notified that an offending communication exists somewhere on a company's system,
is there then a duty to hunt for the material and delete it? Once given notice,
is there a duty to prevent retransmission? These problems are compounded
because even if a company is informed of the existence of an offending
communication, it may not know whether the communication is “indecent”. Indeed,
the company may be precluded by state, local, or federal privacy statutes or
other laws from interfering with or even reviewing the communication.
The Title 18 offense and the Sec. (d) offense lack crucial elements
provided in the Sec. (a) offense that are necessary to ensure that companies are
held liable only for communications that they exert control over and intend to
send. Specifically, Sec. (a) provides that a sender must knowingly both (i) “
make, create, solicit” and (ii) “purposefully make available” or “
initiate the transmission of” a communication in order to be held liable for
it. Courts would presumably attempt to reconcile the differences in identical
crimes in the same bill in a way that gives meaning to each word of the
legislation. Consequently, courts may read the lack of such elements in the
Title 18 and Sec. (d) offenses to implicate company-operated systems by
vicarious liability for the actions of users.
2. Vague and Contradictory Standards of Knowledge.
Furthermore, the Title 18 and Title 47 indecency to minors provisions
create vague and inexplicably conflicting standards of culpability as to the age
of a communication recipient. Both sections begin with a “knowingly”
requirement. The Title 18 provision, however, requires in addition that the
communicator or transmitter “believes” that the recipient has not attained the
age of 18, and “know(s)” that the communication “will be obtained by a person
believed to be under 18 years of age”. The Title 47 provision contains no such
The Title 18 offense itself is dangerously vague on whether specific or
general knowledge of the recipient is required. If a communication is posted to
a bulletin board to which the sender “believes” or “knows” that children have
access, is the sender in violation? Is the bulletin board operator? Is the
system upon which the bulletin board is located?
Even more disturbing is the discrepancy between the elements of
liability in Titles 18 and 47. Again, courts would presumably attempt to
reconcile discrepancies in identical crimes in the same bill in a way that gives
meaning to each word of the legislation. Consequently, courts may read the
statute to establish that the level of knowledge or belief required to establish
liability under the Title 18 provision is greater than the level required for
liability under the Title 47 provision. Thus, someone might be prosecuted under
Title 47 despite the fact that he does not believe the recipient of a
communication is a minor, and despite the fact that he does not know whether the
communication will actually be received by a minor. Such a reading would be
supported by the fact that the Title 18 offense is punishable by a longer term
(5 years) than the Title 47 offense (2 years).
This standard is particularly troublesome for companies that operate
systems or bulletin boards that have the capacity of being accessed by minors,
as do nearly all systems or bulletin boards interconnected by the Internet. If
one need not know whether the recipient of a communication is a minor, or
whether a communication will actually be received by a minor, posting a
communication to a system potentially accessible by a minor, which in fact is
accessed by a minor, may render one liable, under such a reading, under the
Title 47 offense.
C. Sec. (d)(2) Protections for Companies Gutted.
As drafted, Sec. (d)(1) effectively guts the protections that Sec.
(d)(2) is intended to provide to businesses and other systems. Sec. (d)(2)
establishes protection against vicarious liability for system operators and
managers under Sec. (d)(1), by limiting liability for a “telecommunications
facilities” under one's control to where one has “knowingly permit(ted)” the
facility to be used for a prohibited Sec. (d)(1) purpose, “with the intent” that
it be so used. Sec. 223(d)(2). This protection is particularly important given
the recent court holding in Stratton Oakmont that systems may be liable for
every single communication sent over their network, regardless of their
knowledge of the nature of the communication. Stratton Oakmont Inc. v. Prodigy
Services Co., No. E31063/94 (N.Y. Sup. Ct. May 24, 1995).
The offense in Sec. (d)(1) is so broadly drawn, however, that it guts
this defense. Sec. (d)(1) holds liable anyone who “makes or makes available” a
prohibited communication, “regardless of whether the maker of such communication
placed the call or initiated the communication”. Sec. 223(d)(1). Any Sec.
(d)(2) offense would presumably entail a violation of this provision. Thus,
rather than being protected by a higher standard of liability, facilities could
be doubly liable, under Sec.s (d)(1) and (d)(2), for a prohibited message sent
by a user.
D. Affirmative Defenses Gutted.
Although the October 16 proposal's authors purport to hold liable only
systems or access providers that knowingly transmit prohibited communications --
itself a low threshold -- the proposal guts safeguards in the Senate-passed
telecommunications bill that would have ensured even that:
1. Mere Provision of Access.
First, the proposal strips a Senate defense that would protect access
providers against liability “solely for providing access” to a network or system
not under their control. (Subsec. 402(f)(1).) Given the uncertainties of
application of the “knowingly” standard, this defense is necessary to ensure
that access providers are not held liable for material of which they have no
knowledge or over which they have no ontrol.
2. Employer Defense.
Second, the proposal strips a Senate defense that would protect
employers from being held liable for the unauthorized actions of a rogue
employee. The Senate-passed bill established that employers shall not be held
liable for the actions of an employee or an agent such as a subcontractor unless
the employee or agent's conduct is “within the scope of his employment or agency
and the employer has knowledge of, authorizes, or ratifies the employees or
agent's conduct”. (Subsec. 402(f)(2)). A former federal prosecutor in our firm
indicates that absent this defense, a company might be held liable under a
theory of agency or vicarious liability for the actions of an employee whether
or not the company intended those actions.
3. Screening and Compliance With FCC Regulations.
The sole remaining affirmative defense, which provides protection from
prosecution under Sec. (d) for compliance with access restrictions and
subsequent FCC regulations, is worthless to companies. First, this defense is
meaningless without a comparable defense to prosecution under Title 18, for
which companies are liable for even higher penalties (5 years in prison vs. 2
years in prison) for the same behavior (an “indecent” communication to a minor).
The October 16 proposal provides no comparable Title 18 safeharbor, rendering
the Title 47 safeharbor worthless.
Second, the proposal prescribes restrictions with which companies must
comply until FCC regulations take effect, but the restrictions, lifted wholesale
from FCC dial-a-porn regulations, are inapplicable to most companies and would
be impossible to comply with. The interim restrictions require companies to
block or restrict access to any person under 18 through the use of a verified
credit card, adult access code, or adult personal identification number (PIN).
Such restrictions are workable for a dial-a-porn provider who provides
restricted access to a telephone number for a commercial charge. Such
restrictions are antithetical, however, to unrestricted, intentionally open
connections, such as within a company's computer network between systems.
Companies are required to comply with the interim restrictions until FCC
regulations become effective, which, because the proposal restricts
constitutionally protected indecent speech, could take a decade or more. The
dial-a-porn regulations on which the interim restrictions are based took ten
years for constitutionally sustainable regulations to finally take effect. Thus,
companies could be left without a defense for a decade or more, while the FCC
attempts to fashion constitutional regulations -- which may be nevertheless
prove useless to companies. Indeed, if the FCC regulations resemble the interim
restrictions in the proposal, they will in fact be useless to most companies.