Communications Decency Act

The Communications Decency Act of 1996 (CDA) was the first notable attempt by the United States Congress to regulate pornographic material on the Internet. In 1997, in the landmark cyberlaw case of Reno v. ACLU, the United States Supreme Court struck the anti-indecency provisions of the Act.

The Act was Title V of the Telecommunications Act of 1996. It was introduced to the Senate Committee of Commerce, Science, and Transportation by Senators James Exon (D-NE) and Slade Gorton (R-WA) in 1995. The amendment that became the CDA was added to the Telecommunications Act in the Senate by an 84–16 vote on June 14, 1995.

As eventually passed by Congress, Title V affected the Internet (and online communications) in two significant ways. First, it attempted to regulate both indecency (when available to children) and obscenity in cyberspace. Second, Section 230 of the Act has been interpreted to say that operators of Internet services are not to be construed as publishers (and thus not legally liable for the words of third parties who use their services).

Anti-indecency and anti-obscenity provisions

The most controversial portions of the Act were those relating to indecency on the Internet. The relevant sections of the Act were introduced in response to fears that Internet pornography was on the rise. Indecency in TV and radio broadcasting had already been regulated by the Federal Communications Commission—broadcasting of offensive speech was restricted to certain hours of the day, when minors were supposedly least likely to be exposed. Violators could be fined and potentially lose their licenses. The Internet, however, had only recently been opened to commercial interests by the 1992 amendment to the National Science Foundation Act and thus had not been taken into consideration by previous laws. The CDA, which affected the Internet and cable television, marked the first attempt to expand regulation to these new media.

Passed by Congress on February 1, 1996, and signed by President Bill Clinton on February 8, 1996, the CDA imposed criminal sanctions on anyone who

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.

It further criminalized the transmission of materials that were "obscene or indecent" to persons known to be under 18.

Free speech advocates, however, worked diligently and successfully to overturn the portion relating to indecent, but not obscene, speech. They argued that speech protected under the First Amendment, such as printed novels or the use of the seven dirty words, would suddenly become unlawful when posted to the Internet. Critics also claimed the bill would have a chilling effect on the availability of medical information. Online civil liberties organizations arranged protests against the bill, for example the Black World Wide Web protest which encouraged webmasters to make their sites' backgrounds black for 48 hours after its passage, and the Electronic Frontier Foundation's Blue Ribbon Online Free Speech Campaign.

Legal challenges

In Philadelphia on June 12, 1996, a panel of federal judges blocked part of the CDA, saying it would infringe upon the free speech rights of adults. The next month, another US federal court in New York struck down the portion of the CDA intended to protect children from indecent speech as too broad. On June 26, 1997, the Supreme Court upheld the Philadelphia court's decision in Reno v. American Civil Liberties Union, stating that the indecency provisions were an unconstitutional abridgement of the First Amendment right to free speech because they did not permit parents to decide for themselves what material was acceptable for their children, extended to non-commercial speech, and did not define "patently offensive," a term with no prior legal meaning. (The New York case, Reno v. Shea, was affirmed by the Supreme Court the next day, without a published opinion.)

In 2003, Congress amended the CDA to remove the indecency provisions struck down in Reno v. ACLU. A separate challenge to the provisions governing obscenity, known as Nitke v. Gonzales, was rejected by a federal court in New York in 2005. The Supreme Court summarily affirmed that decision in 2006.

Congress has made two narrower attempts to regulate children's exposure to Internet indecency since the Supreme Court overturned the CDA. Court injunction blocked enforcement of the first, the Child Online Protection Act (COPA), almost immediately after its passage in 1998; the law was later overturned. While legal challenges also dogged COPA's successor, the Children's Internet Protection Act (CIPA) of 2000, the Supreme Court upheld it as constitutional in 2004.

Section 230

Main article: Section 230 of the Communications Decency Act

Section 230 of the Communications Decency Act was not part of the original Senate legislation, but was added in conference with the House, where it had been separately introduced by Representatives Christopher Cox (R-CA) and Ron Wyden (D-OR) as the Internet Freedom and Family Empowerment Act and passed by a near-unanimous vote on the floor. It added protection for online service providers and users from actions against them based on the content of third parties, stating in part that "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider". Effectively, this section immunizes both ISPs and Internet users from liability for torts committed by others using their website or online forum, even if the provider fails to take action after receiving actual notice of the harmful or offensive content.

Through the so-called Good Samaritan provision, this section also protects ISPs from liability for restricting access to certain material or giving others the technical means to restrict access to that material.

Executive Order by President Barack Obama Dated February 12, 2013

Pursuant to the Executive Order by President Barack Obama on February 12, 2013, and online legal interpretation thereon, internet companies, webhosts, and websites should act now to protect themselves from losses, including examining their insurance portfolios to ensure that adequate insurance coverage currently exists. If a company does not have stand-alone coverage for cyber risk, companies should highly consider acquiring cyberliability policies that can protect against either third-party or first-party losses, or both. Third-party cybersecurity policies may provide coverage for: liability for permitting access to identifying information of customers; transmitting a computer virus or malware to a third-party customer or business partner; failing to notify a third party of their rights under the relevant regulations in the event of a security breach; and potential “advertising injury,” i.e., harms through the use of electronic media, such as unauthorized use or infringement of copyrighted material, as well as libel, slander, and defamation claims. Furthermore, first-party cybersecurity policies may provide coverage for: the costs of providing notice to individuals whose identifying information was compromised; the costs associated with determining the scope of the breach and taking steps to stop the breach; public relations services to counteract the negative publicity that can be associated with a data investigation; the costs of responding to government investigations; the costs of replacing damaged hardware or software; the costs of responding to parties vandalizing the company’s electronic data; and business interruption costs. Moreover, with the imposition of this Executive Order, there likely will be increasing private litigation against companies that experience a cybersecurity incident, with the potential for significant losses resulting from governmental fines or damages awarded in litigation.

See also

• Electronic Frontier Foundation
• OCILLA portion of the DMCA, which contingently protects online service providers from liability for copyright infringement
• Right to pornography
• United States v. Playboy Entertainment Group

External links

• Legislative history of the Communications Decency Act.
• FCC text of the full act.
• Section 230
• Internet Library of Law and Court Decisions Court Decisions applying Section 230 of the Communications Decency Act
• Center for Democracy and Technology Overview of CDA. This refers only to the portion of the act which was struck down.
• Cybertelecom :: The Communications Decency Act and Sec. 230 Good Samaritan Defense
• EFF.org, bloggers on Section 230