[This is a draft amendment to the Exon/Gorton Communications Decency legislation buried in the Senate telecom bill, S652. This draft is being floated by Exon, the Justice Dept., which has loud objections to the language as it currently stands in May 1995, and by certain (unidentified, but rumored to include Prodigy and others) online service providers. The revision attempts to patch several holes pointed out by DoJ, none of said revisions improving the free speech problems with this legislation. Language "protecting" (that is, criminalizing slightly less) system operators has been inserted, but in EFF's opinion, the bill is really no better than it was, and must still be opposed as an unconstitutional trampling of free expression online. It's unclear whether or not this draft is meant to replace all of the Comms. Decency language in S652, or only to amend parts of it. The latter is more likely.] [A note about markup: Material that is underlined in the original - mostly additions and interpolations - _is_marked_up_like_this_, while material that was stricken-through, apparently intended to be removed from the bill, ~is~ ~marked~up~like~this~. Interpolated notes by the bill editor(s) that do not appear to be part of the bill text itself {are marked up with squiggle- brackets, like this}. The doubled-S-like "Section" symbol has been replaced with the word "Section". Editorial comments by transcriber are enclosed in square brackets, just like the current note you are reading.] _Dated_May_19,_1995_ Section 223. Obscene or harassing utilization of telecommunications devices and facilities in the District of Columbia or in interstate or foreign communications. (a) Whoever -- (1) in the District of Columbia or in interstate or foreign communications by means of telecommunications device (A) 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) 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; (C) makes or causes the telephone of another repeatedly or continuously to ring, with intent to harass any person at the called number; or (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) knowingly ~and~willfully~ permits any telecommunications facility under his control to be used for any _activity_ ~purpose~ prohibited by this subsection with the intent that it be ~so~ used _for _such_activity_, shall be fined not more than $100,000 or imprisoned not more than two years, or both. {NO CHANGES TO CURRENT LAW FOR SEC. (b) & (c) "DIAL-A-PORN" Statute.} (d) Whoever -- (1) knowingly within the United States by means of telecommunications device (A) makes, creates, _or_ solicits, and (B) initiates the transmission of or purposefully makes available any comment, request, suggestion, proposal, image, or other communication which is obscene, regardless of whether the maker of such communication placed the call or initiated the communications, or (2) knowingly ~and~willfully~ permits any telecommunication facility under such person's control be used for an activity prohibited by subparagraph (d)(1) with the intent that it be so used _for_such_ _activity_, __[underlined whitespace]__ shall be fined not more than $100,000 or imprisoned not more than two years or both. (e) Whoever, -- (1) knowingly within the United States by means of telecommunications device (A) makes, creates, _or_ solicits, and (B) initiates the transmission of, or purposely makes available, any indecent comment, request, suggestion, proposal, image, or other communication ~which~is~available~ to any person under 18 years of age ~or~to~any~person~18~years~of~age~or~older~without~that~person's~consent,~ regardless of whether the maker of such communication placed the call or initiated the communications, or (2) knowingly ~and~willfully~ permits any telecommunications facility under such person's control be used for an activity prohibited by subparagraph (e)(1) with the intent that it will be used _for_such_ _activity_, shall be fined more than $100,000 or imprisoned not more than two years or both. (f) Defenses to the subsections (a)~(2)~, (d), and (e) restrictions on access, judicial remedies respecting restrictions for persons providing carriage or information services-- (1) _The_provision_of_access_ _by_a_ person ~including~ transmission, [apparent resulting grammatical error here is in the original, and is not a typo of the transcribers] downloading, storage, or navigational tools, and related capabilities which are incidental to the transmission of communications, and not involving the creation or alteration of the content of the communications, for another person's communications to or from a service, facility, system, or network not under _the_access_ _provider's_ ~that~first~person's~ control _shall_by_itself_not_be_a_ _violation_of_subsection_(a),_(d)_or_(e)._ ~This~defense~shall~not~be~ ~available~to~a~defendant~who~is~owned~or~controlled~by~a~conspirator~ ~with~an~entity~actively~involved~in~the~creation,~alteration~or~knowing~ ~distribution~of~communications~which~violate~this~section~or~to~an~ ~entity~which~exists~for~the~creation,~alteration~or~knowing~distribution~ ~of~communications~which~violate~this~section.~ (2) It is a defense to prosecution under subsections (a)(2), (d)(2) or (e)(2) that a defendant _did_not_have_editorial_controll_[sic] _over_the_ ~lacked~the~capability~of~exercising~editorial~control~over~the~ communication specified in this section. This defense shall not be available to a defendant who has ceded editorial control to an entity which the defendant knows or ~has~substantial~ _had_ reason to know intends to engage in conduct that is likely to violate this section. (3) It is a defense to prosecution under subsections (a); (d)(2) or (e)(2) that a defendant has taken good faith, reasonable steps, to restrict or prevent the transmission of, or access to communications described in ~this~section~ _such_provisions_ according to such procedures as the Commission may prescribe by regulation. _Such_steps_and_FCC_ _procedures_may_include_enabling_the_user_to_restrict_or_prevent_access_to_ _communication_described_in_this_section_. Nothing in this subsection ~in~and~of~itself~ shall be construed to treat enhanced information services as common carriage. (4) No cause of action may be brought in any court or administrative agency against any person on account of any ~otherwise~ ~lawful~ action _not_in_violation_of_any_law_punishable_by_criminal_penalty_ which the person has taken in good faith to implement a defense authorized under this section or otherwise to restrict or prevent the transmission of, or access to, a communication specified in this section. (g) No State or local government may impose any liability for commercial activities or actions by commercial entities in connection with a violation described in subsection (a)(2), (d)(2), or (e)(2) that is inconsistent with the treatment of those violations under this section provided, however, that nothing herein shall preclude any State or local government from enacting and enforcing complementary oversight, liability, and regulatory systems, procedures, and requirements, so long as such systems, procedures, and requirements govern only intrastate services and do not result in the imposition of inconsistent obligations on the provision of interstate services. Furthermore, nothing in this subsection shall preclude any State or local government from governing conduct not covered by this section. (h) Nothing in this subsection (a), (d) or (e) or in the defenses to prosecution under (a), (d), or (e) shall be construed to affect or limit the application or enforcement of any other federal law.