Legislative Proposal For New Indecency Language In Essay

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Legislative Proposal For New Indecency Language In Telecom Bill

Legislative Proposal for New Indecency Language in Telecom Bill

I. Summary

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
profanity;

2) Establishes vague and contradictory standards of liability that could leave
innocent companies vicariously liable for communications over which they have no
control;

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
counterproductive.

Although the October 16 proposal purports to regulate "computer
pornography", it actually prohibits all "indecent" communications by computer or
"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
broadcasting.
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
printed version.
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
courts.

B. Vague and contradictory standards of liability threaten innocent companies.

The dangerously vague "indecency" standard is compounded by vague and
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