Communications Decency Act

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

Contents

The Act is the short name of Title V of the Telecommunications Act of 1996, as specified in Section 501 of the 1996 Act. Senators James Exon and Slade Gorton introduced it to the Senate Committee of Commerce, Science, and Transportation in 1995. [1] The amendment that became the CDA was added to the Telecommunications Act in the Senate by an 81–18 vote on June 15, 1995. [2]

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 title 47 of the U.S. Code, part of a codification of the Communications Act of 1934 (Section 9 of the Communications Decency Act / Section 509 of the Telecommunications Act of 1996) [3] has been interpreted to mean that operators of Internet services are not publishers (and thus not legally liable for the words of third parties who use their services).

Anti-indecency and anti-obscenity provisions

The act's most controversial portions were those relating to indecency on the Internet. The relevant sections 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 hours of the day when minors were supposedly least likely to be exposed, and violators could be fined and lose their licenses. But the Internet 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 both the Internet and cable television, marked the first attempt to expand regulation to these new media.

Passed by Congress on February 1, 1996, [4] and signed by President Bill Clinton on February 8, 1996, [5] [6] 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 "obscene or indecent" materials to persons known to be under 18.

Free speech advocates 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 online. 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, such as 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.

On June 12, 1996, a panel of federal judges in Philadelphia blocked part of the CDA, saying it would infringe upon adults' free speech rights. The next month, another 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 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 carefully define the words "indecent" and "offensive". (The Court affirmed the New York case, Reno v. Shea, 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

Section 230 of title 47 of the U.S. Code, a codification of the Communications Act of 1934 (added by Section 9 of the Communications Decency Act / Section 509 of the Telecommunications Act of 1996) 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 and Ron Wyden 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 third-party content, stating in part, "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 others commit on their websites or online forums, even if the provider fails to take action after receiving notice of the harmful or offensive content. [7]

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.

On July 23, 2013, the attorneys general of 47 states sent Congress a letter requesting that the criminal and civil immunity in section 230 be removed. The ACLU wrote of the proposal, "If Section 230 is stripped of its protections, it wouldn't take long for the vibrant culture of free speech to disappear from the web." [8]

FOSTA-SESTA

Ann Wagner introduced the Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA) in the U.S. House of Representatives in April 2017. Rob Portman introduced the similar Stop Enabling Sex Traffickers Act (SESTA) in the U.S. Senate in August 2017. The combined FOSTA-SESTA package passed the House on February 27, 2018, with a vote of 388–25 [9] and the Senate on March 21, 2018, with a vote of 97–2. [10] President Donald Trump signed the package into law on April 11, 2018. [11] [12]

The bill makes it illegal to knowingly assist, facilitate, or support sex trafficking, and amends the Communications Decency Act's section 230 safe harbors (which make online services immune from civil liability for their users' actions) to exclude enforcement of federal or state sex trafficking laws from immunity. The intent is to provide serious legal consequences for websites that profit from sex trafficking and give prosecutors tools to protect their communities and give victims a pathway to justice. [13]

The bills were criticized by pro-free speech and pro-Internet groups as a "disguised internet censorship bill" that weakens the section 230 safe harbors, places unnecessary burdens on internet companies and intermediaries that handle user-generated content or communications, with service providers required to proactively take action against sex trafficking activities, and requires lawyers to evaluate all possible scenarios under state and federal law (which may be financially unfeasible for smaller companies). [14] [15] [16] [17] [18] Online sex workers argued that the bill would harm their safety, as the platforms they use to offer and discuss their services (as an alternative to street prostitution) had begun to reduce their services or shut down entirely because of the bill's threat of liability. [19] [20] Since FOSTA-SESTA passed, sex workers have reported economic instability and increases in violence, as had been predicted. [21]

Failure-to-warn lawsuits

In Jane Doe No. 14 v. Internet Brands, Inc. , the plaintiff filed an action alleging that Internet Brands, Inc.'s failure to warn users of its modelmayhem.com networking website caused her to be a victim of a rape scheme. On May 31, 2016, the Court of Appeals for the Ninth Circuit ruled that the Communications Decency Act does not bar the plaintiff's failure to warn claim. [22]

See also

Related Research Articles

Reno v. American Civil Liberties Union, 521 U.S. 844 (1997), was a landmark decision of the Supreme Court of the United States, unanimously ruling that anti-indecency provisions of the 1996 Communications Decency Act violated the First Amendment's guarantee of freedom of speech. This was the first major Supreme Court ruling on the regulation of materials distributed via the Internet.

Online service provider law is a summary and case law tracking page for laws, legal decisions and issues relating to online service providers (OSPs), like the Wikipedia and Internet service providers, from the viewpoint of an OSP considering its liability and customer service issues. See Cyber law for broader coverage of the law of cyberspace.

Stratton Oakmont, Inc. v. Prodigy Services Co., 23 Media L. Rep. 1794, is a 1995 U.S. New York Supreme Court decision holding that online service providers could be held liable for the speech of their users. The ruling caused controversy among early supporters of the Internet, including some lawmakers, leading to the passage of Section 230 of the Communications Decency Act in 1996.

<i>Cubby, Inc. v. CompuServe Inc.</i>

Cubby, Inc. v. CompuServe Inc., 776 F. Supp. 135 was a 1991 court decision in the United States District Court for the Southern District of New York which held that Internet service providers were subject to traditional defamation law for their hosted content. The case resolved a claim of libel against CompuServe, an Internet service provider that hosted allegedly defamatory content in one of its forums. The case established a precedent for Internet service provider liability by applying defamation law, originally intended for hard copies of written works, to the Internet medium. The court held that although CompuServe did host defamatory content on its forums, CompuServe was merely a distributor, rather than a publisher, of the content. As a distributor, CompuServe could only be held liable for defamation if it knew, or had reason to know, of the defamatory nature of the content. As CompuServe had made no effort to review the large volume of content on its forums, it could not be held liable for the defamatory content.

The Turn the Web Black protest, also called the Great Web Blackout, the Turn Your Web Pages Black protest, and Black Thursday, was a February 8–9, 1996, online activism action, led by the Voters' Telecommunications Watch and the Center for Democracy and Technology, paralleling the longer-term Blue Ribbon Online Free Speech Campaign organized by the Electronic Frontier Foundation. It protested the Communications Decency Act (CDA), a piece of rider legislation for Internet censorship attached to the Telecommunications Act of 1996, and passed by the United States Congress on February 1, 1996. Timed to coincide with President Bill Clinton's signing of the bill on February 8, 1996, a large number of web sites had their background color turned to black for 48 hours to protest the CDA's perceived curtailment of freedom of expression. Thousands of websites, including a number of major ones, joined in the protest. The campaign was noted by major media outlets such as CNN, Time magazine and The New York Times.

<i>Zeran v. America Online, Inc.</i> 1997 United States court case

Zeran v. America Online, Inc., 129 F.3d 327, cert. denied, 524 U.S. 937 (1998), is a case in which the United States Court of Appeals for the Fourth Circuit determined the immunity of Internet service providers for wrongs committed by their users under Section 230 of the Communications Decency Act (CDA). Section 230(c)(1) of the CDA provides 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."

Ashcroft v. American Civil Liberties Union, 535 U.S. 564 (2002), followed by 542 U.S. 656 (2004), was a decision of the United States Supreme Court, ruling that the Child Online Protection Act (COPA) was unconstitutional as a violation of the First Amendment's guarantee of freedom of speech.

Randall Boe is the former General Counsel for AOL and has been involved in many notable cases regarding internet law. He was named the commissioner of the Arena Football League in March 2018. He was born in Ohio and grew up in Iowa City, Iowa. He attended the University of Wisconsin–Madison and graduated in 1983 with majors in political science and economics. He graduated from the University of Pennsylvania Law School in 1987. After graduation, he went to work at Arent, Fox, Kintner, Plotkin & Kahn in Washington, D.C. While at Arent Fox, Boe specialized in complex litigation and tried a wide variety of matters, including antitrust cases, white collar criminal matters and product liability matters.

In the United States, censorship involves the suppression of speech or public communication and raises issues of freedom of speech, which is protected by the First Amendment to the United States Constitution. Interpretation of this fundamental freedom has varied since its enshrinement. Traditionally, the First Amendment was regarded as applying only to the Federal government, leaving the states and local communities free to censor or not. As the applicability of states rights in lawmaking vis-a-vis citizens' national rights began to wane in the wake of the Civil War, censorship by any level of government eventually came under scrutiny, but not without resistance. For example, in recent decades, censorial restraints increased during the 1950s period of widespread anti-communist sentiment, as exemplified by the hearings of the House Committee on Un-American Activities. In Miller v. California (1973), the U.S. Supreme Court found that the First Amendment's freedom of speech does not apply to obscenity, which can, therefore, be censored. While certain forms of hate speech are legal so long as they do not turn to action or incite others to commit illegal acts, more severe forms have led to people or groups being denied marching permits or the Westboro Baptist Church being sued, although the initial adverse ruling against the latter was later overturned on appeal to the U.S. Supreme Court case Snyder v. Phelps.

In the United States, internet censorship is the suppression of information published or viewed on the Internet in the United States. The First Amendment of the United States Constitution protects freedom of speech and expression against federal, state, and local government censorship.

<span class="mw-page-title-main">Section 230</span> US federal law on website liability

Section 230 is a section of Title 47 of the United States Code that was enacted as part of the Communications Decency Act of 1996, which is Title V of the Telecommunications Act of 1996, and generally provides immunity for online computer services with respect to third-party content generated by its users. At its core, Section 230(c)(1) provides immunity from liability for providers and users of an "interactive computer service" who publish information provided by third-party users:

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.

<i>Doe v. MySpace, Inc.</i>

Doe v. MySpace, Inc., 528 F.3d 413 (2008), is a 2008 Fifth Circuit Court of Appeals ruling that MySpace was immune under Section 230 of the Communications Decency Act of 1996 from liability for a sexual assault of a minor that arose from posts on the MySpace platform.

Thomas Dart, Sheriff of Cook County v. Craigslist, Inc., 665 F. Supp. 2d 961, is a decision by the United States District Court for the Northern District of Illinois in which the court held that Craigslist, as an Internet service provider, was immune from wrongs committed by their users under Section 230 of the Communications Decency Act (CDA). Sheriff Thomas Dart had sought to hold Craigslist responsible for allegedly illegal content posted by users in Craigslist's erotic services section, but Section 230(c)(1) of the CDA provides 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."

<i>Barnes v. Yahoo!, Inc.</i>

Barnes v. Yahoo!, Inc., 570 F.3d 1096, is a United States Court of Appeals for the Ninth Circuit case in which the Ninth Circuit held that Section 230 of the Communications Decency Act (CDA) rules that Yahoo!, Inc., as an Internet service provider cannot be held responsible for failure to remove objectionable content posted to their website by a third party. Plaintiff Cecilia Barnes made claims arising out of Defendant Yahoo!, Inc.'s alleged failure to honor promises to remove offensive content about the plaintiff posted by a third party. The content consisted of a personal profile with nude photos of the Plaintiff and her contact information. The United States District Court for the District of Oregon had dismissed Barnes' complaint.

<i>Fair Housing Council of San Fernando Valley v. Roommates.com, LLC</i>

Fair Housing Council of San Fernando Valley v. Roommates.com, LLC, 521 F.3d 1157, is a case in which the United States Court of Appeals for the Ninth Circuit, sitting en banc, held that immunity under Section 230 of the Communications Decency Act (CDA) did not apply to an interactive online operator whose questionnaire violated the Fair Housing Act. However, the court found that Roommates.com was immune under Section 230 of the CDA for the “additional comments” portion of the website. This case was the first to place a limit on the broad immunity that Section 230(c) gives to service providers that has been established under Zeran v. AOL (1997).

<span class="mw-page-title-main">Backpage</span> Defunct classified advertising website

Backpage.com was a classified advertising website founded in 2004 by the alternative newspaper chain New Times Inc./New Times Media as a rival to Craigslist.

<i>Jane Doe No. 14 v. Internet Brands, Inc.</i>

Jane Doe No. 14 v. Internet Brands, Inc., 767 F.3d 894 (2014), is a 2014 ruling at the Ninth Circuit Court of Appeals over the legal liability of an Internet service provider for criminal offenses committed by its users. The ultimate ruling in the case has caused confusion over the amount of liability faced by service providers during such incidents.

Hassell v. Bird was a case heard within the California court system related to a court-ordered removal of a defamatory user review of a law firm from the Yelp website. The case, first heard in the California Court of Appeals, First District, Division Four, unanimously ruled in favor of the law firm, ordering Yelp to remove the review in 2016. Yelp refused to remove the review and appealed the decision. In July 2018, the California Supreme Court reversed the order in a closely divided 4-3 decision, stating that Yelp's position fell within Section 230 of the Communications Decency Act as a publisher of user material, and was not required to comply with the trial court's removal order. However, the part of the trial court's decision that ordered the reviewer to remove the defamatory review and pay a monetary judgement were left intact. The Supreme Court of the United States denied to hear the appeal, leaving the California Supreme Court's decision.

<span class="mw-page-title-main">FOSTA-SESTA</span> U.S. Senate and House bills that clarify the countrys sex trafficking law

The FOSTA and SESTA are the U.S. Senate and House bills that became law on April 11, 2018. They clarify the country's sex trafficking law to make it illegal to knowingly assist, facilitate, or support sex trafficking, and amend the Section 230 safe harbors of the Communications Decency Act to exclude enforcement of federal or state sex trafficking laws from its immunity. Senate sponsor Rob Portman had previously led an investigation into the online classifieds service Backpage, and argued that Section 230 was protecting its "unscrupulous business practices" and was not designed to provide immunity to websites that facilitate sex trafficking.

<span class="mw-page-title-main">EARN IT Act</span> Proposed US legislation

The EARN IT Act is proposed legislation first introduced in 2020 in the United States Congress. It aims to amend Section 230 of the Communications Act of 1934, which allows operators of websites to remove user-posted content that they deem inappropriate, and provides them with immunity from civil lawsuits related to such posting. Section 230 is the only surviving portion of the Communications Decency Act, passed in 1996.

References

  1. ↑ J., Exon (1995-02-01). "Cosponsors - S.314 - 104th Congress (1995-1996): Communications Decency Act of 1995". www.congress.gov. Retrieved 2018-03-25.
  2. ↑ "U.S. Senate: U.S. Senate Roll Call Votes 104th Congress - 1st Session". www.senate.gov. Retrieved 2018-03-25.
  3. ↑ "Section 230 of… what? – blake.e.reid" . Retrieved 2020-09-05.
  4. ↑ "U.S. Senate: U.S. Senate Roll Call Votes 104th Congress - 2nd Session". www.senate.gov. Retrieved 2018-03-25.
  5. ↑ Larry, Pressler (1996-02-08). "Actions - S.652 - 104th Congress (1995-1996): Telecommunications Act of 1996". www.congress.gov. Retrieved 2018-03-25.
  6. ↑ "Communications Decency Act Ruled Unconstitutional". GamePro . No. 96. IDG. September 1996. p. 21.
  7. ↑ Myers, Ken S. (Fall 2006), "Wikimmunity: Fitting the Communications Decency Act to Wikipedia", Harvard Journal of Law & Technology , vol. 20, p. 163, SSRN   916529
  8. ↑ "New Proposal Could Singlehandedly Cripple Free Speech Online". American Civil Liberties Union.
  9. ↑ Jackman, Tom (February 27, 2018). "House passes anti-online sex trafficking bill, allows targeting of websites like Backpage.com". The Washington Post.
  10. ↑ "U.S. Senate: U.S. Senate Roll Call Votes 115th Congress - 2nd Session". www.senate.gov.
  11. ↑ Elizabeth Dias (2018-04-11). "Trump Signs Bill Amid Momentum to Crack Down on Trafficking". New York Times. Retrieved 2018-04-11.
  12. ↑ Larry Magid (2018-04-06). "DOJ Seizes Backpage.com Weeks After Congress Passes Sex Trafficking Law". Forbes. Retrieved 2018-04-08.
  13. ↑ Ann, Wagner (March 21, 2018). "H.R.1865 - 115th Congress (2017-2018): Allow States and Victims to Fight Online Sex Trafficking Act of 2017". www.congress.gov.
  14. ↑ "ACLU letter opposing SESTA". American Civil Liberties Union. Retrieved 2018-03-25.
  15. ↑ "SWOP-USA stands in opposition of disguised internet censorship bill SESTA, S. 1963". Sex Workers Outreach Project. Archived from the original on 2017-10-24. Retrieved 2017-10-23.
  16. ↑ "Wikipedia warns that SESTA will strip away protections vital to its existence". The Verge. Retrieved 2018-03-08.
  17. ↑ "Sex trafficking bill is turning into a proxy war over Google". The Verge. Retrieved 2017-09-20.
  18. ↑ Quinn, Melissa. "Tech community fighting online sex trafficking bill over fears it will stifle innovation". Washington Examiner. Retrieved 2017-09-20.
  19. ↑ "How a New Senate Bill Will Screw Over Sex Workers". Rolling Stone. Retrieved 2018-03-25.
  20. ↑ Zimmerman, Amy (2018-04-04). "Sex Workers Fear for Their Future: How SESTA Is Putting Many Prostitutes in Peril". The Daily Beast. Retrieved 2018-04-07.
  21. ↑ Blunt, Danielle. "Erased: The Impact of FOSTA/SESTA and the Removal of Backpage" (PDF). Hacking//Hustling. Archived (PDF) from the original on 2020-03-08. Retrieved August 5, 2020.
  22. ↑ "Jane Doe No. 14 v Internet Brands" (PDF). United States Court of Appeals for the 9th Circuit. Archived (PDF) from the original on 2022-10-09. Retrieved 18 September 2016.
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