Censorship and the Communications Decency Act

On February 1, 1996, both houses of the U.S. Congress passed a telecommunications reform act, which was signed by President Clinton on February 8. The act was widely reported in the media as deregulating the telecommunications industry, allowing local phone, long-distance phone, cable TV, radio, etc. companies to compete directly. But while removing regulatory burdens from industry, the act added numerous regulatory burdens to every individual who uses the Internet.

To pick one example, Section 502 of the bill outlawed a wide variety of computer communications, including "display[ing] in a manner available to a person under 18 years of age, any ... image, or other communication" that, by virtue of sexual or excretory content, is "offensive as measured by contemporary community standards". Since ftp, gopher, and Web browsers contain no provision for checking and proving the age of the user, and since the law did not make clear what constitutes the "community", this might mean that if your file is "offensive" to any community in the U.S, it cannot be legally posted on any ftp or Web site, nor any Usenet newsgroup, nor any email list whose membership is not screened for age. For example, imagine that the Center for Disease Control, in trying to prevent the spread of AIDS, set up a Web page explaining the proper use of condoms. Since this explanation would almost certainly offend some communities in the U.S, any CDC staff involved in setting up the Web page could be prosecuted under that community's standards, and could go to jail for two years. For another example, Usenet newsgroups that serve as homosexual support groups might become illegal to carry at any U.S. site, because their content would offend some community somewhere.

I hasten to point out that even if the law were interpreted in such a Draconian manner, it would not significantly reduce the availability of on-line pornography to minors, since the law presumably only applies to sites in the U.S. Outlawing Net traffic based on its content is like banning sharks from U.S. coastal waters: the sharks don't know they've been banned, and they don't know where U.S. coastal waters are, so they'll keep coming until you block off the whole U.S. coastline, keeping out not only sharks but tuna, salmon, commercial shipping, etc. Such laws are by their nature unenforceable. Many civil-liberties groups have proposed an alternate approach to shielding minors from pornography: give parents (who presumably pay for the net access) software to block access from their home computers to particular sites and newsgroups that those parents find objectionable. (For numerous examples of this approach, see the NetParents page.) This approach allows parents to limit what their own children see, rather than allowing the most conservative communities in the country to limit what everyone, child or adult, sees. No doubt ingenious kids will find ways around such software; I see no way to avoid that without either a worldwide ban or a complete cutoff of U.S. computers from the rest of the world.

Even if the law were not enforced strictly, uncertainty about the law would cause many individuals, non-profit organizations, and Internet service providers to censor their material "just in case", especially since the Telecommunications Reform Act offered service providers immunity from prosecution for any actions they take to self-censor. For example, America Online scans the "profiles" or self-descriptions its users write for language which might expose AOL to charges of transmitting indecent or obscene material over the Net. In January, 1996, AOL found and deleted a user profile that contained the word "breast". AOL later apologized and reinstated the profile when it learned that the user was a survivor of breast cancer, looking for others like her to form a support group. Such overzealous self-censorship is as grave a danger as explicit governmental censorship.

(One detail I didn't notice on first reading the bill: in conjunction with the 123-year-old Comstock Act, it specifically outlawed sending or receiving, via any interactive computer service, any information on how to get an abortion, or how to make or obtain abortifacient drugs.)

On June 12, 1996, a panel of three Federal judges found several clauses of the Communications Decency Act unconstitutional and granted an injunction against its enforcement. The Justice Department appealed to the Supreme Court, which agreed that much of the Communications Decency Act was unconstitutional. Follow this link for more information.

After the demise of parts of the CDA, Congress tried to address the Constitutional concerns with the Children's Online Protection Act (which targets commercial Web content-providers) and the Children's Internet Protection Act (which requires public libraries to install blocking software). The ACLU and other organizations immediately challenged these laws in court, and the cases went through a series of appeals. In particular, lower courts held that COPA, by applying the same "community standards" to everyone on the Internet regardless of actual geography, was unconstitutionally overbroad. The Supreme Court disagreed, but left open the question of whether it was overbroad for other reasons.

In June, 2003, the Supreme Court ruled 6-3 that CIPA is Constitutional. The Bush Administration's argument for it suggests, among other things, that

... a library system that wanted to offer unimpeded access to the Internet could set up a separate computer system that did not rely on Federal money.
In other words, giving the public free access to public information is an option, open to those library systems that have enough spare cash to buy and maintain two separate public-access computer systems (and presumably two sets of technical support staff, lest anybody paid with Federal money accidentally fix an un-censored computer).

As of June, 2003, COPA is still awaiting the outcome of its second appeal to the Supreme Court.

See Sex, Censorship, and the Internet, a discussion of Internet censorship issues, particularly as they relate to Universities and University students.

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Last modified: Tue Jan 28 12:05:58 EST 2003
Stephen Bloch / sbloch@adelphi.edu
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