An Analysis of the Communications Indecency Act of 1996

"The Internet is a powerful example of free speech and the free market in action; it is curious that the Net has alarmed the lawmakers of a nation founded on those principles." --Denise Caruso

Here are my opinions on the matter.

• Watch That Post!
• Gentlemen, Erase Your Pointers!
• Big Brother Incarnate . . .
• Religious Irons in the Fire . . .
• See No Evil . . .
• Abort that Thought!
• A Daily Constitutional . . .

Watch That Post!

Subsection (a)(1)(B)

Whoever . . .
(B) by means of a telecommunications device knowingly -

(i) makes, creates, or solicits, and
(ii) initiates the transmission of, any comment, request, suggestion, proposal, image, or other communication which is obscene or indecent knowing that the recipient of the communication is under 18 years of age regard less of whether the maker of such communication placed the call or initiated the communication;

Subsection (d):

(d) Whoever--
(1) in interstate or foreign communications knowingly--
(A) uses an interactive computer service to send to a specific person or persons under 18 years of age, or
(B) uses any interactive computer service to display in a manner available to a person under 18 years of age, any comment, request, suggestion, proposal, image, or other communication that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs, regardless of whether the user of such service placed the call or initiated the communication

You will notice that these two sections are quite repetitive and redundant. They in fact overlap and restate each other significantly, although each does add some small tidbit the other lacks. We will notice yet a third redundancy later on (please immediately report this to the Department of Redundancy Department immediately!) There are a couple of reasons for this:

1. Our erstwhile congressman are highly concerned about stopping smut in its tracks, but at the same time they don't really understand the internet. They may never have been on it personally.
2. As a result of this, they simply think "Well, the internet is like X", and then blindly adapt legislation intended for X to the internet. For instance, subsection (a) was originally written to address harassing and obscene telephone calls. By replacing the word "telephone" with the the words "telecommunications device" it now applies to email and all sorts of other communication over computer networks. This despite the fact that communication over the net is quite different from communication over the telephone. Further along in this document we will see a similar sort of adaptation of laws originally written to cover material sent by mail (!?!).

A good guess as to the meaning of the legislation can be realized by noticing that it is quite similar to wording already in place regulating broadcast TV and radio. This broadcast standard has been quite well defined over the years. Indecent but less-than-obscene material includes the "seven dirty words", Catcher in the Rye, Ulysses, sex and AIDs educational literature, photographic, sculpted, and painted images of nudes, rap lyrics, etc., etc., etc.

A work is indecent if:

1. taken as a whole, appeals to the prurient interest in nudity, sex, or excretion
2. depicts, represents or describes in patently offensive ways, ultimate sexual acts, normal or perverted, actual or simulated sadomasochistic acts or abuse; or lewd exhibition of the genitals, pubic area, buttocks, or post-pubertal female breasts.

Now what is the effect of these indecency provisions? Of course, they ban a lot of things you might expect. But they also ban a lot of things you might not expect.

The Bible, for instance, taken as a whole most certainly does not "appeal to the prurient interest". However, it most certainly does have many passages that "depict or describe, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs". It also contains many explicit references to the indecent items banned by the FCC (click on the links above to see specific examples).

Thus, the Bible is banned.

[Back to The Indecency Page.]

Gentlemen, Erase Your Pointers!

`(e) In addition to any other defenses available by law:
`(1) No person shall be held to have violated subsection (a) or (d) solely for providing access or connection to or from a facility, system, or network not under that person's control, including transmission, downloading, intermediate storage, access software, or other related capabilities that are incidental to providing such access or connection that does not include the creation of the content of the communication.
`(2) The defenses provided by paragraph (1) of this subsection shall not be applicable to a person who is a conspirator with an entity actively involved in the creation or knowing distribution of communications that violate this section, or who knowingly advertises the availability of such communications.

In other words, if all you do is provide access to everything (including no doubt some indecency) you cannot be prosecuted. But if you actively or knowingly are involved in the promulgation of indecent materials, or advertise their availability, you CAN be prosecuted. For instance, the owner of a WWW page that points to indecent materials AT OTHER SITES can be prosecuted, even though no indecency is actually available from his or her own site.

[Back to The Indecency Page.]

Big Brother Incarnate . . .

The phrase "knowingly advertises the availability of such communications" could be interpreted quite broadly--including, perhaps, having a listing of newsgroups that includes those with known indecent content. And "knowing distribution" certainly includes distributing newsgroups, if someone has informed you of their consistently indecent content.

Of course, if this applies to newsgroups, it applies in spades to everything else--WWW sites, FTP sites, gopher sites and so on. Service providers will have to check them or be liable. It will scarcely be a believable defense in court, that the service provider didn't know what was on a site on their own machine, when thousands of outside people can seemingly find it (thousands always do find those naughty sites, you know ;) without any trouble.

In addition, this provision could have a BIG effect on WWW indexes. Lycos, for instance, certainly knows that they have links to indecent sites (they have links to EVERYTHING, for heaven's sake), and they are certainly "advertising" their existence--advertising the existence of sites is the reason Lycos exists.

[Back to The Indecency Page.]

Religious Irons in the Fire . . .

The irony is that the Religious Right pushed hard for these indecency provisions and is more than willing to go after ISPs to get their way. This will force ISPs to monitor many transactions and come up with ways to verify the identities of and track people using their systems, so that they can verify with certainty who is 18 years old.

So the Religious Right's own actions are going to be the strongest force in bringing about the apocalypse they most fear. Go figure.

Another religious irony: The Religious Right in general abhors government regulation. Yet their efforts have just made the internet the communications medium most heavily regulated by the government.

[Back to The Indecency Page.]

Off The Hook . . .

"(5) It is a defense to a prosecution under sub section (a) or (d) that a person -

. . .

"(B) has restricted access to such communication by requiring use of a verified credit card, debit account, adult access code, or adult personal identification number.

I have elsewhere made a detailed analysis of this provision. Suffice it to say here that this paragraph displays a profound misunderstanding of the internet, the way it works, and what drives people to use it and provide information on it. Evidently our esteemed legislators were thinking of "Dial-a-porn" when they wrote this paragraph. Now--Dial-a-porn=Internet. There's a brilliantly insightful comparison if ever I saw one.

[Back to The Indecency Page.]

See No Evil . . .

SEC. 507. CLARIFICATION OF CURRENT LAWS REGARDING COMMUNICATION OF OBSCENE MATERIALS THROUGH THE USE OF COMPUTERS.

(a) IMPORTATION OR TRANSPORTATION. Section 1462 of title 18, United States Code, is amended to read:

§ 1462. Importation or transportation of obscene matters

Whoever brings into the United States, or any place subject to the jurisdiction thereof, or knowingly uses any express company or other common carrier or interactive computer service (as defined in section 230(f)(2) of the Communications Act of 1934), for carriage in interstate or foreign commerce -
(a) any obscene, lewd, lascivious, or filthy book, pamphlet, picture, motion-picture film, paper, letter, writing, print, or other matter of indecent character; or
(b) any obscene, lewd, lascivious, or filthy phonograph recording, electrical transcription, or other article or thing capable of producing sound; or
(c) any drug, medicine, article, or thing designed, adapted, or intended for producing abortion, or for any indecent or immoral use; or any written or printed card, letter, circular, book, pamphlet, advertisement, or notice of any kind giving information, directly or indirectly, where, how, or of whom, or by what means any of such mentioned articles, matters, or things may be obtained or made; or Whoever knowingly takes or receives from such express company or other common carrier or interactive computer service (as defined in section 230(f)(2) of the Communications Act of 1934) any matter or thing the carriage or importation of which is herein made unlawful -

Shall be fined not more than $5,000 or imprisoned not more than five years, or both, for the first such offense and shall be fined not more than $10,000 or imprisoned not more than ten years, or both, for each such offense thereafter.

(b) TRANSPORTATION FOR PURPOSES OF SALE OR DISTRIBUTION.

Section 1465 of title 18, United States Code, is amended to read -

§ 1465. Transportation of obscene matters for sale or distribution

Whoever knowingly transports or travels in, or uses a facility or means of interstate or foreign commerce, or an interactive computer service (as defined in section 230(f)(2) of the Communications Act of 1934) in or affecting such commerce for the purpose of sale or distribution of any obscene, lewd, lascivious, or filthy book, pamphlet, picture, film, paper, letter, writing, print, silhouette, drawing, figure, image, cast, phonograph recording, electrical transcription or other article capable of producing sound or any other matter of indecent or immoral character, shall be fined not more than $5,000 or imprisoned not more than five years, or both.

The transportation as aforesaid of two or more copies of any publication or two or more of any article of the character described above, or a combined total of five such publications and articles, shall create a presumption that such publications or articles are intended for sale or distribution, but such presumption shall be rebuttable.

First of all, I must say that all of this is blatantly unconstitutional, except as narrowly applied to "obscene" material. Many supreme court rulings make this abundantly clear. Apparently this entire law (Title 18 U.S. Code Sections 1464 and 1465), except as narrowly applied to obscene material, is considered "dead letter". That is to say, it hasn't been specifically struck down by the Supreme Court, but it is widely known to be unconstitutional and so it is not enforced.

Now that these "dead letter" aspects have been re-iterated by Congressional action, it is unclear what their status is. Perhaps they will continue to be dead letter, only now a more widely applicable dead letter. Perhaps they will be challenged and struck down. No one really knows for sure.

But taking the congresscritters at their word, I will critique the section as though it were really being passed into law and enforced:

Now if you noticed that some of this is redundant with previous sections that we have discussed--well, you're right. This little gem was snuck in right before the bill passed conference committee, and phrased in such an obtuse manner (insert these two words here, strike these three words there, etc.), that unless a person took the time to piece the whole thing together (took me about an hour just now to look up the relevant sections and figure it out), he or she wouldn't have the faintest idea what the bill was talking about. The simple fact is, most of those who voted for this provision didn't understand just what it was doing.

Basically, it does four things:

1. Makes it a crime to VIEW an obscene, lewd, lascivious, filthy, or indecent site. The other sections had only made the person who posted the site liable; now anyone who views the site is a criminal, too.
2. Provides a whole laundry list of obscene, indecent, etc. things that are banned.
3. Removes the rationale given in other parts of the legislation that the reason for regulating the indecency is to protect children. This section has no age limits. Anyone, of any age, who provides or views "lewd, lascivious, or filthy" items or "other material of indecent character" is liable to be prosecuted.
4. Bans certain things related to abortion (see the following section for more details).

It's not hard to imagine some eager-beaver prosecutor setting up a phony porno site and then arresting everybody who downloads from it. All our friendly neighborhood prosecutor has to do is put a big title CLICK HERE TO VIEW OBSCENELY LEWD AND LASCIVIOUS FILTH and the arrest everyone who has thus knowingly downloaded illegal material (and my advertising for The Indecency Page has proven beyond a doubt that thousands of people will click on a link that says "click here to check out some indecency"--but don't worry . . . I'm not reporting you [heh, heh, heh]).

Well--1984, twelve years late.

[Back to The Indecency Page.]

Abort That Thought!

Charles Levendosky, in a New York Times column, notes that the abortion provisions of Section 1462 have up until now been considered a dead letter. That is, although they have not been formally challenged and struck down, everyone realizes that they are unconstitutional and so they are not enforced. It will be interesting to see exactly what will happen now that Congress has, in a last minute conference committee amendment, resurrected this "dead letter."

[Back to The Indecency Page.]

A Daily Constitutional . . .

The first amendment of the U.S. Constitution guarantees freedom of the speech and of the press. Although the courts have held that other forms of expression are protected, historically they have given a greater degree of protection to the spoken and printed word. In particular, newspapers have been given the widest possible latitude and allowed only the most minimal sort of regulation. This has not been tested yet in court, but I believe that electronic publishing is essentially the same as paper publishing and is deserving of the same protection. Electronic publishing and paper publishing are produced by a very similar process (especially now that printing presses are computer operated) and the end result is the same--the printed word with illustrations. The similarity is underlined by the proliferation of on-line newspapers, many of which are substantially identical to their print counterpart.

If electronic publishing is indeed granted the same degree of protection that, say, newspapers are, then the CDA is quite clearly unconstitutional and will certainly be struck down.

Many people feel, however, that the internet is more like broadcast media in that it is broadcast from one place to many (actually many places to many--a crucial distinction) and in that it comes directly into the privacy of our homes. The courts have held that broadcast media may be regulated. But the conditions under which it may be regulated are quite strict. In particular, regulation may be used to protect children from indecency. However, the regulation must use the least restrictive means available to do so.

The CDA clearly fails the least restrictive means test. The least restrictive means is, in fact, to do nothing. Parents can walk into any major computer software dealer today and for a minimal price buy a program that will allow their children to browse only approved sites. By the same token, the user can simply sign up with American On Line or some other provider that provides filtered and approved content.

Of course, any of these restrictions can be overcome by clever children, who could then view naughty pictures. But the restrictions in place for print and broadcast media can also be overcome by clever children. It's just that rummaging around in the back of Uncle Frank's coat closet is replaced by rummaging around in the back-places of Uncle Frank's computer. No one can stop children who really want to, from viewing indecency. The best you can do is make it more difficult (heck, if they really want to see something indecent they can just pull down their own pants, and no one has figured out how to stop them from doing that).

A slightly more restrictive means would be to require browsers and other internet tools to allow for rating of internet sites and posts. The user could then set up the browser to allow only sites with those ratings the user wishes to see. Under this system, sites would not be required to rate themselves--browsers could simply be configured to ignore all unrated sites if the user so wishes. Thus, protective parents could setup their children's browsers to allow only G-rated sites and to disallow all sites that are unrated. Perfect protection--minimal restriction. But I must add that there is no reason to legislate this solution BECAUSE IT IS ALREADY AVAILABLE! May I reiterate that? IT IS ALREADY AVAILABLE!!

IT IS ALREADY AVAILABLE!!!

And it is worth mentioning that this filtering filtering technology is still in its infancy. The World-Wide Web has gone from nothing but a gleam in Mark Andreeson's eye to become a highly sophisticated mega-world-wide conglomerate in a little over two years. Filtering technology is a little behind the rest of the web in developing (no one saw a reason for it until the WWW had at least a reasonable start), but withing a year or two, filtering programs will be highly sophisticated, too, and undoubtedly just as widespread and inexpensive as Web browsers are now. So the stated intent of the CDA will be accomplished WITHOUT ANY GOVERNMENT REGULATION AT ALL!

SO WHY DO WE NEED TO HAVE A WHOLE LOT OF GOVERNMENT INTERFERENCE AND REGULATION OF A MEDIUM WHEN IT IS NOT NEEDED AT ALL?

Now "obscenity" isn't what you might think. Playboy and Penthouse, for instance, are not obscene. As far as I know, the written word alone has never been determined to be legally obscene.

At any rate, Playboy, Penthouse, and many other "pornographic" magazines are sent through the interstate mail system. So section 1462 does not apply to them, whether sent by mail or "interactive computer service". Or does it? Originally when it was passed in the late 1865, section 1462 was indeed intended to ban pornographic materials such as Playboy and Penthouse. They are "lewd, lascivious, filthy" and "indecent"--why else would anyone buy them? Senator Comstock, who authored the original legislation, went around the country confiscating naughty pictures of the Playboy and Penthouse sort or even milder, and towards the end of his life claimed that he had rounded up and destroyed boxcarloads of them.

However, over the years the courts have narrowed down Section 1462's application considerably. They have held that, according to the Constitution, only the hardest-core obscenity may be restricted. And since the courts when interpreting a law generally try their damndest to make it constitutional if at all possible, they have interpreted Section 1462 to apply only to obscenity.

This sounds bizarre, but it is the court's legally binding interpretation.

Section 1462(c), banning discussion of abortion, is another matter. It is widely understood to be unconstitutional, but has never been officially challenged and struck down. No one knows exactly what will be the outcome now that Congress has re-iterated this unconstitutional section. Most probably it will take an extended and expensive court challenge before it is once again held to be unconstitutional.

[Back to The Indecency Page.]

A Critique

Consumer advocates continued to criticize the bill, particularly provisions that would immediately end most cable television price regulations in small markets and permit cable television and telephone companies to merge in markets with fewer than 50,000 people.

"Cable rates are going to go up in small towns immediately and could rise significantly in three years across the country," said Gene Kimmelman, co-director of the Consumers Union's Washington office.

Civil liberties groups quickly vowed a court battle over provisions that would block the transmission of smut over computer networks.

"The Internet has been given second-class speech rights, and we are going to take them to court over it," said Jerry Berman, director of the Center for Democracy and Technology, a nonprofit group in Washington focused on Internet issues.

Know Your Indecency . . .

The Cato Institute has a fine analysis of the whole indecency/obscenity issue. It covers the history of censorship in the U.S. including judicial decisions, legislative efforts to control expression, and the regulatory maze that has ensued.

Harry Erwin has powerfully expressed his views about why the CDA was passed and whether we should protest against it.

Join the Blue Ribbon Anti-Censorship Campaign!