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Communications Decency Act

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The Communications Decency Act (CDA) was Title V of the United States' Telecommunications Act of 1996. It was introduced to the Senate Committee on Commerce, Science, and Transportation by senators James Exon (D-NE) and Slade Gorton (R-WA) in 1995. It was approved by an 84-16 vote on June 14, 1995. As passed by Congress, Title V affected the Internet (and online communications) in two signficant ways. First, it attempted to regulate both indecency (when available to children) and obscenity in cyberspace. Second, Section 230 of the Act declared that operators of Internet services were not to be construed as publishers (and thus legally liable for the words of third parties who use their services).

Anti-indecency and -obscenity provisions

The most controversial (in 1996) portions of the Act were those relating to indecency and obscenity on the Internet. The relevant sections of the Act were introduced response to fears that Internet pornography was on the rise. Indecency in (ground wave) 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 (broadcasters) 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 was not considered by many previous laws. The CDA, which affected the Internet and cable television, marked the first attempt to expand regulation to this new sphere.

Passed by the U.S. Congress on February 1, 1996, the CDA explicitly outlawed intentionally communicating “by computer in or affecting interstate or foreign commerce, to any person the communicator believes has not attained the age of 18 years, any material that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs.”

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 the site backgrounds black for 48 hours after the passing, and the Electronic Frontier Foundation's Blue Ribbon Online Free Speech Campaign.

In Philadelphia, Pennsylvania 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. Next month on July 29, a US federal court struck down the portion of the CDA intended to protect children from indecent speech as too broad. A year later, on June 26, 1997, the Supreme Court upheld the lower court's decision in Reno v. American Civil Liberties Union, stating that the portion concerned was an unconstitutional abridgement of the First Amendment right to free speech because it 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 standing.

The limitation on obscene speech was not overturned. Some consider this problematic because the legal definition of obscenity has previously used local community standards. This definition which does not work well with the Internet, where material published in one location is accessible from all. The ongoing case Nitke v. Gonzales (formerly Nitke v. Ashcroft) is challenging this obscenity portion of the act.

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 added valuable protection for online service providers and users from action against them for the actions of others, 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 ISPs and other service providers from torts committed by users over their systems. As a result of the John Seigenthaler Sr. Wikipedia biography controversy, and other incidents where individuals have been allegedly libeled by anonymous or judgement-proof parties, this section of the Act has come under fire, with numerous calls for revisions to the Act to restore service provider liability in some cases.

See also

  • OCILLA portion of the DMCA, which protects online service providers from liability to their customers if they take down material at the request of a copyright holder, and in other situations.
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