From: Mike Barker Subject: Position Paper: One Person's Opinion on the CDA (DRAFT) Date: Tue, 13 Feb 1996 00:23:26 EST Executive Summary The recently passed Communications Decency Act of 1995 includes four changes which affect interactive computer services. Two should not be of concern by MIT, one should not be a matter for concern at this time, and one clearly could raise significant challenges to the use of interactive computer services for academic instruction. I urge MIT to consider taking an official position in reference to 47 U.S.C. 223 (d) asking in the strongest possible language that adequate safeguards be added to this law. In the following, I describe briefly the problem, the four changes, what MIT may want to do, and finally provide more detailed references as to why I believe these four changes should be considered in this way. A. The Problem Early in February of 1996, Congress passed a Telecommunications Bill. Part of this bill is a set of amendments to existing provisions of the U.S. Code known as the Communications Decency Act of 1995. It was signed into law on Thursday, Feb. 8, 1996. As a professional in the field of computer communications, I have been concerned enough to spend time researching the act. While my conclusions may not be those of the legal profession, and court cases such as the ACLU vs. Reno case will make the final rulings, I do feel this issue is of such importance that I want to provide you with my observations. I believe there are only four main changes which affect interactive computer services. I have chosen to focus on those since they are the area I understand best and expect the most impact in. B. Summary of Changes The four areas of change are (I address them in slightly different order from that of the CDA): 1. (18 U.S.C. 1462) Adding interactive computer services to express companies and other common carriers as illegal for use in importing or transporting obscene materials. This should not be a cause for concern for MIT. 2. (18 U.S.C. 1465) Adding interactive computer services to express companies and other common carriers as illegal for use in importing or transporting obscene materials for sale or distribution. This should not be a cause for concern for MIT. 3. (18 U.S.C. 2422) The section which sets out penalties for persuasion, inducement, coercion or enticement of any individual to travel for the purpose of prostitution is amended to add a similar, but longer, penalty for such persuasion when used on a minor. This is laudable. However, the section also is amended to provide the same penalties for "attempts to" persuade, induce, coerce, or entice a minor to travel for the purpose of prostitution. The addition of "attempts to" persuade is quite worrying to me, since there is no definition of what would constitute an attempt to persuade someone. This should not be a cause for concern for MIT, although we must remain aware of suits concerning this section and observe carefully what definition case law develops regarding this. 4. The section (47 U.S.C. 223) dealing with obscene or harassing telephone calls is amended by adding a new subsection which makes it illegal to use an interactive computer service to send or display to a minor material which depicts or describes "in terms patently offensive" sexual or excretory activities or organs. I believe this new subsection should be a clear cause for concern by MIT. The subsection appears to lack several important safeguards which are implied by "obscenity," such as requirements that the material as a whole appeal to the prurient interest and that the material be lacking in artistic, literary, scientific, political, or social value. Further, despite the placement of the subsection, it does not explicitly include the question of "intent to annoy, abuse, threaten, or harass another person." This new subsection is the part of the CDA which appears most likely to be in conflict with the First Amendment. While MIT as a whole may be able to use several of the defenses outlined in the CDA, it is clear that minors (individuals under 18) do have access to much of the material placed on the networks by members of the MIT community. Further, the simple act of sending or displaying the verbatim transcript contained in FCC vs. Pacifica Foundation to such a minor would violate this subsection. For example, a professor sending out class materials dealing with legal issues of network communications could easily violate the law. As a member of the MIT community, I do not believe we can accept such a subsection lacking adequate safeguards. Our libraries, faculty, and students need to be able to use the interactive computer service without fear. In summary, I find the amendments to bar importing or transporting obscene materials, in particular for sale or distribution, acceptable. I find the amendment to increase punishment for coercion or enticement of a minor to prostitution to be laudable. I find the added breadth of prohibition of "attempts to" persuade, induce, coerce, or entice a minor to be frighteningly vague. I find the new subsection, intended to bar sending or displaying patently offensive material to a minor, lacking significant protections for our First Amendment rights. C. Should MIT take a stand? I firmly believe that there are several critical issues raised in this debate which MIT should participate in. For example, it is clear that our national legislature and other leaders are woefully ignorant of what the "information superhighway" consists of. Since no one has provided better information, they are attempting to develop regulations based on analogies to existing media, declaring the wide variety of network communications to be "like a common carrier" or "like a telephone" or even "like the mail." Even the difference between private email and public posting does not seem to be reflected in current legislative thinking. MIT can clearly take a leadership role here, providing analyses and descriptions--mental paradigms and models--of just what kinds of "strange byways" the legislatures are dealing with. Secondly, the legislators, lacking better assistance, are reduced to making vague references to unknown new technology and directing that the FCC recommend use of something just as soon as there is something available to use. Again, MIT can take a leadership role, providing clear identification and delineation of the available technologies and their limitations. Third, the new subsection 47 U.S.C. 223 (d) appears fatally flawed to me, and I believe it poses a serious challenge to the intellectual freedom necessary for academic excellence. It is incumbent upon us as academic leaders to make it clear that we cannot accept this limitation on the right to free speech, so fundamental to the pursuit and expression of academic knowledge. D. Detailed References 1. The current law (18 U.S.C. 1462) against importing or interstate transportation of obscene materials via express companies or other common carriers is amended to include interactive computer services. In FCC vs. Pacifica Foundation, the phrase "obscene, lewd, lascivious, or filthy" material in this section of the code is cited as being reduceable to "obscene" material, which must be measured using the Miller tests. (The Miller tests set out that to be obscene, the material, "taken as a whole," must: * Appeal to a prurient [typified by obsessiveness] interest in sex; * Contain "patently offensive depictions or descriptions of specific sexual conduct," as judged by a local grand jury in light of the contemporary standards in the affected community; and * On the whole, have "no serious literary, artistic, political or scientific value." Miller v. California, 1973) 2. The current law (18 U.S.C. 1465) against importing or interstate transportation of obscene materials for purposes of sale or distribution via express companies or other common carriers is extended to include interactive computer service. Again, in FCC vs. Pacifica Foundation, the phrase "obscene, lewd, lascivious, or filthy" material in this section of the code is cited as being reduceable to "obscene" material, which must be measured using the Miller tests. 3. The current law (18 U.S.C. 2422) which prescribes penalties for anyone who "knowingly persuades, induces, entices, or coerces any individual to travel...to engage in prostitution, or in any sexual activity for which any person can be charged with a criminal offense" is extended so that doing this with "any individual who has not attained the age of 18 years" "or attempts to do so" can be punished with up to ten years imprisonment. The previous maximum for coercion and enticement was five years. This section has been altered to raise the period of punishment for coercion or enticement of a minor into prostitution to ten years. It also has been altered to allow prosecution of "attempts to" coerce or entice a minor into prostitution. I have no quarrel with raising the period of punishment in this section. I am, however, quite worried by addition of the phrase "attempts to" in the overall context of this act. For example, while I doubt that anyone would ordinarily take such an action, it could be argued that a fictional novel depicting the life of a teenage runaway who becomes a prostitute, thereby getting drugs, money, or other benefits--that novel is clearly an attempt to persuade minors to travel to engage in prostitution. If I understand correctly, many of our recent movies, popular fiction, even daytime dramas have used such a plot. Again, I would hope that court cases will quickly clarify and define some of these points. I would like to think that this section will require: 1. intentional attempts 2. to use force, bribery, drugs, or other physical means 3. on a specific minor 4. to get them to travel 5. to engage in prostitution or other illegal sexual activities 4. 47 U.S.C. 223 is amended by adding several parts. The one I believe could affect us the most is: (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; ... I believe the emphasis here is on the individual using an interactive computer service to send or display to a minor "any comment, request, suggestion, proposal, image, or other communication..." I.e., I would hope that the courts will eventually determine that one must show: a. intentional sending or display to a specific minor or minors b. the purpose of the communication must be to request, suggest or propose c. the use of terms that are patently offensive as measured by contemporary community standards d. depiction or description of sexual or excretory activities or organs However, at present we do not have case law concerning this section because it is new. It is notable that this subsection appears to be written to deliberately avoid two parts of the Miller tests--it does not mention "appeal to the prurient interest" nor does it include the "escape hatch" of material that has a serious literary, artistic, scientific, political, or social value. I also note that while this subsection has been included in the section 223 dealing with obscene or harassing telephone calls, it does not explicitly include the question of "intent to annoy, abuse, threaten, or harass another person." The fear is that this subsection could be interpreted to mean that anyone who sent or displayed materials on the networks that were patently offensive to some group was in violation, since it is clear that minors do have access to the networks. I find little to stop such an interpretation, which would have an extremely chilling effect on communications on the networks. 5. Definitions (taken from the CDA) (2) INTERACTIVE COMPUTER SERVICE.-The term 'interactive computer service' means an information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions. (3) INFORMATION CONTENT PROVIDER.-The term 'information content provider' means any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service. 6. For further information First, I have provided copies of the CDA and these four parts of the U.S. Code as amended which can be accessed by: http://web.mit.edu/mbarker/www/cda/cda.html Second, there are many web sites available which can provide information about the CDA. I consider http://www.aclu.org to be relatively useful and well-reasoned in their approach to the issues. They also are leading the legal initiative to test the CDA in a suit labeled ACLU vs. Reno. -+=-+=-+=-+=-+=-+=-+=-+=-+=-+=-+=-+=-+=-+=-+=-+=-+=-+=-+=-+=-+=-+=-+=