Technology Law Column

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Published in the Chicago Daily Law Bulletin, April 13, 1995 at page 6.

Would he know IT when he downloads IT?

Copyright 1995 by David Loundy

The press has been giving a lot of attention lately to Senator James Exon's Communications Decency Act. The Nebraska Democrat's proposed changes to U. S. telecommunications laws (Title 47 of the U. S. Code) are aimed at outlawing communications that are "obscene, lewd, lascivious, filthy or indecent."

Unfortunately, critics have pointed out that Exon's vessel for change would treat the First Amendment as a certain other Exxon's vessel treated the Alaska coastline. Unfortunately, after his amendments were defeated last year, Senator Exon proposed nearly identical changes again this year, and there has been quite a bit of momentum behind them.

The Exon amendments have had enough momentum that - despite the opposition of almost every civil liberties group, many computer groups, and in the face of an on-line petition that gathered around 107,000 signatures - the bill has still moved quickly through Congressional committee. Even the conservative group "Morality in Media" called the the bill a "disservice to the American people" and "a giant step backwards" while pointing out a number of unconstitutional elements in the bill.

Exon has begun listening to some of his critics and has amended the bill to remove some of the worst provisions contained in his proposed legislation. While these changes remove some of the problems, they are not enough to make this a constitutional attempt at controlling media content.

Fortunately, another member of the legislature who has a history of showing more concern for the issues of the on-line community, has just moved to stop Exon's "Communications Decency Act."

Recently, (on April 8th) Senator Patrick Leahy (D - VT) proposed the "Child Protection, User Empowerment, and Free Expression in Interactive Media Study" bill (S. 714). His bill and accompanying statement recognize the concern about obscene and indecent materials available on computer systems, including the Internet, yet he also recognizes that "government regulation of the content of all computer and telephone communications, even private communications, in violation of the First Amendment is not the answer - it is merely a knee-jerk response."

Senator Leahy's bill calls for some responsible, and perhaps even necessary, moves. Leahy's bill calls for a study by the Attorney General to be completed within 150 days of the Act's passage. The study would evaluate whether:

(1) the current obscenity and child pornography laws apply adequately to interactive media;

(2) federal, state and local law enforcement resources are available to enforce our current laws; and

(3) the technical means exist which will enable parents to exercise control over the information their children receive, and enable other users to control their exposure to harassing, violent, sexually explicit, offensive, or otherwise unwanted material, yet still promote the free flow of information in the interactive media in compliance with "constitutional values."

The bill also calls for recommendations to encourage development and use of technical solutions that will allow parents to control which materials are accessible by their children, and for solutions that will allow anyone to screen out materials to which they do not wish to be subjected.

Senator Leahy's proposed study is a step in the right direction, unlike Exon's crude attempt to clean up Cyberspace's backwaters and tributaries. It has long been my contention that many of our current laws will adequately address the concerns raised by modern technology with a minimum of shaping and gap-filling.

Lance Rose, author of the new book "NetLaw" and co-author of the widely recognized text on Cyberspace Law "SysLaw," has proposed a number of changes to Exon's original legislation which would provide some of this shaping and gap filling.

Rose's first suggestion is to leave the laws concerned with "voice phone" harassment alone. These laws address a specific function, and they should not be stretched to cover modes of communication that, while similar in some ways, are widely divergent in others.

Another of Rose's suggestions is to provide a safe - harbor for system operators who try to run decent systems. He recommends that prosecutors be required to show that a system is "generally and obviously" illegal before imposing liability based simply on materials residing on an operator's system. Otherwise, liability should only be assigned when the system operator knew, or should have known, of the presence of illegal materials. This suggestion would address cases where a system operator claims that he or she was unaware that his or her system was being used to distribute illegal material, yet prevent the seizure of a system on which a relatively small amount of such material is present, unbeknownst to the system operator.

The safe-harbor would address cases in which system operators deny having knowledge that they are running pirate bulletin board systems. In the Playboy v. Frena case, (Playboy Enterprises, Inc. v. Frena, 839 F. Supp. 1552 (M.D. Fla. 1993)), for instance, the system operator denied knowing that material on his system was copyrighted, yet the court mentioned that the system operator had removed Playboy's name from the pictures at issue before allowing the pictures' distribution. (Note: this action, while stated as a fact by the court, was denied by the defendant in response to Playboy's motion for summary judgment.)

On the other hand, Rose's suggestion would protect system operators who try to keep their systems clear of illegal materials, yet are not able to screen out 100% of all illicit materials which may pass through their systems.

Rose's other suggestions address issues raised by the recent pornography conviction of a California bulletin board system operator in Tennessee (the Amateur Action BBS). Rose suggests preempting all state and local obscenity and indecency laws in favor of federal legislation in order to prevent local "obscenity speed traps" on the Information Superhighway.

Along the same lines, the law should define the relevant community when applying the community standards test for obscenity. He recommends, as many have advocated, that the first test a court should apply is to look and see if there is a relevant on-line community whose standards should be applied. For example, Prodigy, which prides itself on providing a family-oriented service, would not have the same standards for what is inappropriate as would the Amateur Action BBS, which advertises itself as "the nastiest place on earth."

Factored into this on-line community standard could be such factors as whether the on-line service requires age-verification before allowing access to adult-oriented files, as many services do. If there is no appropriate on-line community to look to, the courts should then look to the geographic community where the defendant based his or her operations, and only as a last resort should the community be looked at from which the material was accessed.

This process of determining the appropriate community would serve to avoid cases such as the Amateur Action conviction where someone calls up a system in a different part of the country, applies for an account, seeks out, finds, and requests transmission of adult material, and then has the operator hauled into court for distributing material which is obscene to a community thousands of miles away from where the defendant is running his business.

Along these lines, Rose also suggests that system operators should be prosecuted where the system operator runs his or her business, and should not be made to fight a costly battle in a state court on the other side of the country. This would help ensure that local community standards control in the event that a particular geographic community's obscenity standards were applied, if there is no relevant on - line community's standard to be applied.

Senator Leahy's study, if his bill is passed by Congress, would help to point out what legislation is really needed, and what is not. Rose's suggestions are well-reasoned starting points for legislation that would address some of the current regulatory shortfalls.

The world of on-line communications is of immense value. It is sad to think that Senator Exon believes that the on-line world is a place full of such evil that the government must step in to protect our children. If I had a child I wanted to prevent from accidentally straying into the red-light district, I'd buy the kid a map.

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