Technology Law Column

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Published in the Chicago Daily Law Bulletin, September 26, 1994 at page 6.

Senate Proposal Takes Wrong Turn on Info Highway

Copyright 1994 by David Loundy

The Senate, in the course of trying to make the country safe from obscene phone calls, may be about to put a speed trap on the information superhighway. A trap that will catch both the guilty and the unlucky.

Senator James Exon (D, Neb.) has proposed amendments to the Communications Act of 1994, which are being discussed as possible revisions to the current Communications Act (the Communications Act of 1934). These amendments to the portion of the Communications Act governing obscene and harassing telephone calls, as well as "Dial-a-porn," are intended, as Senator Exon said in the Congressional Record on July 20, "to foster the further development of the Nation's Telecommunications Infrastructure and protection of the public interest." The amendments are intended to update the Act to account for digital technology. The amendments to the Act are small - mostly just replacing a few "telephones" with a few telecommunications devices" and doubling (or more) the penalties.

As an example illustrating the need for these changes, Senator Exon read into the Congressional Record a somewhat inaccurate and sensationalized newspaper article concerning the recent discovery at the Lawrence Livermore National Laboratory of an illicit Internet site used to distribute hard-core pornography.

Unfortunately, a telecommunications device is not just the twenty-first-century replacement for the telephone. Senator Exon states in the Record that he is merely updating the Act's "critical public protections . . . for the digital world of the future." However, his view is too simplistic. Exon is, in essence, comparing a fishing boat to a navy - both involve boats, but the scale and purpose is not the same.

The old law (47 U.S.C. Section 223), in part, holds liable "[w]hoever . . . in interstate or foreign communication by means of telephone . . . makes any comment, request, suggestion, or proposal which is obscene, lewd, lascivious, filthy or indecent." The section as amended would hold liable "[w]hoever . . . in interstate or foreign communication by means of telecommunications device . . . makes, transmits, or otherwise makes available any comment, request, suggestion, proposal, image, or other communication which is obscene, lewd lascivious, filthy or indecent."

As it currently reads, the law applies to people making phone calls that are used to, if you will, spew lewd data. If revised, however, the law would apply to more than just people who use modems to transfer the digital equivalent to this data. The new version of the section covers not just people who make offensive comments, as the current law does, but it also applies to anyone who transmits or makes available such comments. This portion of the statute would contain no intent or knowledge requirements.

Everyone knows what a telephone is, as covered by the existing law, but let us look at some examples of telecommunications devices which either transmit or make available communications, as covered by the proposed version. Telephones. Fax machines. Computer modems. Computer networks. Networked computers that passively forward electronic mail on its way to its destination. Telephone switchboards and PBXes (Private Branch Exchanges, such as phone systems where you need to dial "9" to get an outside telephone line). Voice mail and answering machines.

Here is an extreme hypothetical application of the law as it could be used, once amended: An attorney at the firm of Pasiv, Unaware & Gilty calls his or her spouse, currently on a trip out of state, and makes comments which could be considered indecent. The law firm, owner of the telephone PBX (a telecommunications device), has just transmitted an indecent comment in interstate communication, and could face penalties of up to $100,000 and someone at the firm could spend two years in prison. The same result could occur if the firm "makes available" the obscene comments of an angry client on the firm's voice mail system.

Clearly, this is not the result Senator Exon seeks to achieve with his "Communications Decency" amendments. Exon probably meant to try and put a stop to modems and networks being used to transmit dirty pictures, as illustrated in his newspaper article about the pictures that were found being distributed over the Internet from the Lawrence Livermore labs. However, the new amendments do not address the problem of lewd data directly (much of which is already covered under other laws). Rather, if the amendments are adopted, the law would trap both the people responsible for the transmission of the material, and everyone else involved at any point in the distribution chain, regardless of intent or knowledge.

Due to the way the Internet (which is becoming synonymous with the Information Superhighway) is set up, an E-mail message may pass through dozens of computers and network routers on its way from the message sender to the recipient. The operators of these intermediate computers, many of which are run by the government or universities, or other non-profit entities, may have no easy way of knowing what "data packets" are flowing passively through their systems - yet they could be held liable for this data.

Some people argue, in fact, that examination of the data flowing through the system to look for indecent material is arguably against the spirit of and is prohibited by the Electronic Communications Privacy Act (18 U.S.C. Section 2510). This Act allows only the examination of private communications by the system operator if the examination is "necessary incident to the rendition of his service or to the protection of rights or property of the provider of that service" or for quality control checks.

Exon's proposed amendments are already creating a certain amount of panic, and rightfully so, among computer operators who fear the amendments may become law any day now. While it is not very likely that a corporation would be held liable for its employee's comments over the corporation's private phone system, it is not so far fetched to imagine a commercial Internet access provider being held liable for giving a kid access, who then uses that access to get files from a hard-core porn site instead of from the Louvre's picture archives.

These commercial information providers likely will be given a bit more lee-way by falling under the "Dial-a-porn" portion of section 223, which applies to entities which transmit "any indecent communication for commerical purposes." Unlike a university which may be unknowingly transmitting this material without trying to make a profit, commercial providers are isolated from some liability by making sure that minors are not given access to indecent material. The isolation comes from following the F.C.C.'s Dial-a-porn regulations. Presumably for-profit organizations which do not make their profits from transmitting communications would also not receive these protections.

Access providers make up the on-ramp to the Information Superhighway. If they are held liable for material passing through their systems which they are unaware of, (or are not even supposed to be able to look for) they may think twice before either providing or continuing to provide access. Commercial providers will have to make sure kids don't get licenses to drive on the Information Superhighway. Potential network users may also be deterred from using the network if they know that all of their communications must be read.

Of course, access providers will have to prohibit encryption to insure that the communications can be read to ensure compliance with the law. The price of access to this electronic information stream will have to increase to pay the salaries of the extra system monitors necessary to ensure compliance. These sorts of burdens have resulted in the telephone companies being given common carrier status to avoid the requirement to listen to everyone's telephone calls.

The potential snare created by Senator Exon's amendments is probably simply a result of good intentions, but is the result of poor drafting and a poor understanding of the technology involved. However, the amendments are indicative of a larger problem.

Reactionary responses to sensationalized accounts of inappropriate activities should not guide our lawmaking. Computer technology may be relatively new, but many of the issues involved are not so new. For centuries this country's laws have protected against obscenity, defamation, copyright violations, and other issues now affecting the Cyberspace Community. However, we have always given a certain amount of protection to the postal workers, phone companies and other messengers charged with carrying our communications. As this country updates its communications infrastructure, wouldn't it make sense to update the protections as well as the penalties?

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