CDT ANALYSIS OF REVISED EXON INDECENCY LEGISLATION I. OVERVIEW A revised version of the Communications Decency Act (S. 314) was added to the Senate telecommunications reform legislation as the reform bill was reported out of the Senate Commerce Committee. In an important improvement over the original version, several exemptions have been created to limit criminal liability of online service providers where they exercise no control over content. However, despite this significant change, the bill is still an unconstitutional intrusion on the free speech and privacy rights of Internet users and all content providers in interactive media. (The complete text of the bill interleaved into the current statute is attached at the end of this Policy Post). In simple terms, the Communications Decency Act would enshrine in statute a sharp distinction between the print medium and new interactive media. The bill subjects interactive media to the same weak First Amendment protections that have evolved for mass media. Moreover, it places all speech that occurs on the Internet and elsewhere in cyberspace under the jurisdiction of the Federal Communications Commission. Both the interactive media and the print media are arenas in which individuals and organizations exercise core First Amendment free speech rights. Thus, new interactive media -- which includes not only email and Internet service, but also interactive TV, video on demand and distance learning -- must be protected by the First Amendment. The Center for Democracy and Technology (CDT) remains actively opposed to this bill. With the help of Senator Leahy and other civil liberties advocates in Congress, we will fight to keep it from being enacted and continue to search for alternatives to this dangerous legislation. CDT believes that federal legislation is needed to solidify free speech rights and clarify online service provider liability. Without such legislation, a series of state legislative proposals as bad or worse than the Exon/Gorton bill will proliferate. Restrictive proposals are already under consideration in states such as Maryland, Oregon, and Washington must be pre-empted. We will work with concerned legislators and the Interactive Working Group (an ad hoc coalition of public interest organizations, and computer, communications, and publishing firms) to develop alternatives. II. ANALYSIS OF CURRENT PROPOSAL The Exon/Gorton Bill was introduced to promote the important purpose of protecting minors from access to controversial and inappropriate sexually explicit material in interactive media including the Internet, other commercial online services, and electronic bulletin board services (BBS's). However, because the proposed statute is grafted onto a twenty five year- old provision of the Communications Act, which was designed for a centralized monopoly telephone environment, instead of a diverse, decentralized interactive media, it both fails to accomplish its goal and is unconstitutional on its face. In spite of the changes made by Senator Exon, the bill still suffers the following critical defects from the standpoint of users and content providers: 1. SECOND-CLASS FIRST AMENDMENT RIGHTS FOR USERS AND CONTENT PROVIDERS ON THE NET AND ALL INTERACTIVE MEDIA: Even thought many laud cyberspace as the new electronic gutenberg printing press accessible to all, the Exon bill treats the Internet, interactive television, and video dialtone system as if they were one big radio station whose broadcasts are constantly assaulting unwilling listeners. Those who use these new technologies know that this is not the case. However, viewing interactive media as an extension of broadcasting diminishes the First Amendment rights of all who use these systems and create content for them. For example, though an individual is allowed to go into a bookstore and buy a sexually-explicit magazine or a "lewd" work of art, one would not be able to access the identical information over the Internet if this legislation is enacted. 2. FEDERAL COMMUNICATIONS COMMISSION JURISDICTION OVER ONLINE SPEECH: The defenses to prosecution established in the new version of the bill gives the Federal Communications Commission jurisdiction to establish rules governing distribution of content online. This will have a dramatic chilling effect on online activity and squelch the development of interactive media. Regulation of indecency in this new medium is a bad precedent for all kinds of speech in the interactive world. 3. CRIMINALIZATION OF BOTH PUBLIC AND PRIVATE MESSAGES THAT ARE NOT OBSCENE: The Act criminalizes not only obscene, but also "lewd, lascivious, filthy, or indecent" communications, all of which are protected by the First Amendment and cannot be banned. 4. IMPERMISSIBLY INTRUSIVE MEANS OF ACHIEVING LEGITIMATE GOAL: First Amendment jurisprudence requires that restrictions on speech adopt the "least restrictive means" available for achieving a compelling purpose. Relying on technological assumptions applicable only to 900 number services and a centrally-controlled telephone system, the Act fails to account for the fact that government restriction on content is unnecessary in interactive media, where parents can control the content that their children access. 5. FAULTY ANALOGY TO BROADCAST MEDIA: Proponents of the Act have justified the constitutionality by improper reliance on content restrictions found acceptable in broadcast media. These arguments fail to recognize that while broadcast media may "assault" unwilling listeners, who may be in need of government protection, interactive media enables users to control the information that they receive. 6. INVASION OF PRIVACY: By criminalizing the content of private, non-obscene messages, the Act would force an invasion of the realm of private electronic communications and end the individual's ability to control the content of information he or she chooses to access in private. Alternative means of achieving the goal of protecting minors from access to material considered inappropriate by their parents would include: 1. FEDERAL LEGISLATION ESSENTIAL TO PROTECT FREE SPEECH ON THE NET: CDT Believes that there must be federal legislation to solidify free speech rights and clarify carrier liability which pre-empts state legislation in this area. Otherwise, a series of state legislative proposals as bad or worse than Exon/Gorton will proliferate. 2. MAXIMUM RELIANCE ON TECHNOLOGY TO EMPOWER PARENTS: Interactive media offers parents and other users the ability to filter certain kinds of content. Instead of relying on government censorship, or even government-imposed rating systems, parents should be able to block the delivery of certain information to their children on the basis of their own individual tastes and preferences. 3. CLEAR PROTECTION OF CONSTITUTIONALLY-PERMISSIBLE SPEECH: Any alternative legislation must provide affirmative protection for constitutionally- permissible speech, even if it is lewd, filthy or otherwise controversial. The First Amendment demands that offensive or disturbing speech must be treated separately than that which is clearly obscene or unprotected. 4. EMPHASIS ON ENFORCEMENT OF EXISTING STATUTES: Federal, and state law already prohibits transportation of obscenity, child pornography, as well as, in many instances, threats, stalking and harassment. To the extent that there are obstacles to enforcing these laws in the new on- line environment, Congress should examine whether new law is required, or whether more resources for enforcement (including training for law enforcement in interactive services and cooperative efforts with the industry). 5. CODIFICATION SEPARATELY FROM EXISTING DIAL-A- PORN STATUTE: Modification of the existing ¤ 223, originally written for the analog telephone system, to regulate new interactive media causes unnecessary confusion, both for the treatment of the new technology and with respect to the stability of the regulation of audiotext services. If new legislation is written, it should consider which elements properly belong in the Communications Act and which in the Criminal Code. The regulation of speech, commerce, and privacy rights in new interactive communications systems raises many difficult issues of public policy and constitutional law. Before proceeding with legislation, Congress must provide the opportunity for public hearings to identify clearly the problems that exist, and to identify solutions that are appropriate to the new technology. Failure to do so will result in ineffective policy, years of constitutional litigation, and a disastrous chilling effect on the development and growth of a very promising new communications medium. For more information contact: Center For Democracy and Technology Jerry Berman Danny Weitzner (v) +1.202.637.9800