Communications Decency Act of 1996

General
The Communications Decency Act (abbreviated as "CDA") is Title V of the Telecommunications Act of 1996.

There are two sections of the Act which address significantly subject matter. One section attempted to control the content of the Internet by criminalizing “indecent” and “patently offensive” materials. That provision was struck down by the U.S. Supreme Court in Reno v. American Civil Liberties Union.

The other section of the CDA provides a “safe harbor” for Internet Service Providers against claims for defamation arising from messages posted on or passing through their equipment. That section has been upheld in numerous cases.

Challenge to “Indecency” and “Patently Offensive” Provisions
The CDA contains provisions that were either added in executive committee after the hearings were concluded or as amendments offered during floor debate on the legislation. An amendment offered in the Senate was the source of two statutory provisions described as the "indecent transmission" provision and the "patently offensive display" provision.

The first, 47 U.S.C.A. § 223(a) (Supp. 1997), prohibits the knowing transmission of obscene or indecent messages to any recipient under 18 years of age. It provides in pertinent part:

‘(a) Whoever --

(1) in interstate or foreign communications --. . . ..

(B) by means of a telecommunications device knowingly --

(i) makes, creates, or solicits, and

(ii) initiates the transmission of,

any comment, request, suggestion, proposal, image, or other communication which is obscene or indecent, knowing that the recipient of the communication is under 18 years of age, regardless of whether the maker of such communication placed the call or initiated the communication;. . ..

(2) knowingly permits any telecommunications facility under his control to be used for any activity prohibited by paragraph (1) with the intent that it be used for such activity, “shall be fined under Title 18, or imprisoned not more than two years, or both.’

The second provision, §223(d), prohibits the knowing sending or displaying of patently offensive messages in a manner that is available to a person under 18 years of age. It provides:

‘(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; or

(2) knowingly permits any telecommunications facility under such person’s control to be used for an activity prohibited by paragraph (1) with the intent that it be used for such activity,

shall be fined under Title 18, or imprisoned not more than two years, or both.’

The breadth of these prohibitions is qualified by two affirmative defenses. See §223(e)(5). One covers those who take ‘good faith, reasonable, effective, and appropriate actions’ to restrict access by minors to the prohibited communications. § 223(e)(5)(A). The other covers those who restrict access to covered material by requiring certain designated forms of age proof, such as a verified credit card or an adult identification number or code. § 223(e)(5)(B).”

Reno v. American Civil Liberties Union, 521 U.S. 844, 117 S. Ct. 2329, 2338-39 (1997).

Annotation. “In an attempt to limit the availability of certain materials in interactive computer services, Congress enacted a statute of unprecedented sweep: the new § 223(d) purports to regulate not only how commercial purveyors of obscene or pornographic materials may advertise and sell their products on line, but also how private individuals who choose to exchange certain constitutionally protected communications with one another can do so.”

Shea v. Reno, 930 F. Supp. 916, 922 (S.D.N.Y. 1996).

“It is clear from the face of the CDA and from its legislative history that Congress did not intend to limit its application to commercial purveyors of pornography.



“The scope of the CDA is not confined to material that has a prurient interest or appeal, one of the hallmarks of obscenity, because Congress sought to reach farther. Nor did Congress include language that would define ‘patently offensive’ or ‘indecent’ to exclude material of serious value.”

American Civil Liberties Union v. Reno, 929 F. Supp. 824, 855 (E.D. Pa. 1996), aff’d, Reno v. American Civil Liberties Union, 521 U.S. 844 (1997).

“The evidentiary record in this case compels the conclusion that, given the current state of technology, most adult content providers wishing to engage in constitutionally protected indecent speech will be unable to avail themselves of these affirmative defenses. Only a limited subset of on-line content providers, commercial providers on the World Wide Web, can avail themselves of the defense set out in § 223(e)(5)(B), leaving both non-commercial providers of Web content and content providers using all other modes of on-line communication unprotected. The evidence further demonstrates that content providers’ ability to comply with the terms of the second defense-the so called good-faith defense-depends on the actions of third parties, such as software manufacturers, whose cooperation is not required under the CDA or otherwise mandated. There is no feasible means, with our current technology, for someone to provide indecent content on line with any certainty that even his best efforts at shielding the material from minors will be ‘effective,’ as the language of the good-faith defense requires.

“Because neither of the affirmative defenses set out in § 223(e)(5) can, with our current technology, effectively protect adult content providers wishing to engage in constitutionally protected indecent communication, we reach the inescapable conclusion that § 223(d) will serve to chill protected speech. We therefore find that the plaintiff has demonstrated a likelihood of success on the merits of his claim that § 223(d) is unconstitutionally overbroad.



“In setting aside the challenged provisions, we do not question the legitimacy of the government’s interest in safeguarding children from exposure to certain materials available on line nor suggest that other legislation on another day, carefully tailored to technological realities, may not pass constitutional muster. We also do not consider, nor attempt to delineate, the range of circumstances, if any, in which Congress could now or in the future constitutionally impose content-based restrictions upon communications in the developing medium we explore here.”

Shea v. Reno, 930 F. Supp. 916, 923 (S.D.N.Y. 1996).

“Safe Harbor” Provisions Against Defamation Claims

“In February of 1996, Congress made an effort to deal with some of these challenges in enacting the Communications Decency Act of 1996. While various policy opinions were open to Congress, it chose to ‘promote the continued development of the Internet and other interactive computer services and other interactive media’ and ‘to preserve the vibrant and competitive free market’ for such service, largely ‘unfettered by Federal or State regulation. . . .’ 47 U.S.C. 230(b)(1) and (2). Whether wisely or not, it made the legislative judgment to effectively immunize providers of interactive computer services from civil liability in tort with respect to material disseminated by them but created by others. In recognition of the speed with which information may be disseminated and the near impossibility of regulating information content, Congress decided not to treat providers of interactive computer services like other information providers such as newspapers, magazines or television and radio stations, all of which may be held liable for publishing or distributing obscene or defamatory material written by others. While Congress could have made a different policy choice, it opted not to hold interactive computer services liable for their failure to edit, withhold or restrict access to offensive materials disseminated through their medium.

Blumenthal v. Drudge, 992 F. Supp. 44, 49 (D.D.C. 1998).

“By its plain language, sec. 230 creates a federal immunity to any cause of action that would make service providers liable for information originating with a third-party user of the service. Specifically, sec. 230 precludes courts from entertaining claims that would place a computer service provider in a publisher’s role. Thus, lawsuits seeking to hold a service liable for its exercise of a publisher’s traditional editorial functions -- such as deciding whether to publish, withdraw, postpone or alter content --- are barred.

“The purpose of this statutory immunity is not difficult to discern. Congress recognized the threat that tort-based lawsuits pose to freedom of speech in the new and burgeoning Internet medium. The imposition of tort liability on service providers for the communications of others presented, for Congress, simply another form of intrusive government regulation of speech. Section 230 was enacted, in part, to maintain the robust nature of Internet communication and, accordingly, to keep government interference in the medium to a minimum.

“None of this means, of course, that the original culpable party who posts defamatory messages would escape accountability. While Congress acted to keep government regulation of the Internet to a minimum, it also found it to be the policy of the United States ‘to ensure vigorous enforcement of Federal criminal laws to deter and punish trafficking in obscenity, stalking, and harassment by means of computer.’ Id. sec. 230(B)(5). Congress made a policy choice, however, not to deter harmful online speech through the separate route of imposing tort liability on companies that serve as intermediaries for other parties’ potentially injurious messages.”

Zeran v. America Online, Inc., 129 F.3d 327, 330-31 (4th Cir. 1997).

“Because it has the right to exercise editorial control over those with whom it contracts and whose words it disseminates, it would seem only fair to hold AOL to the liability standards applied to a publisher or, at least, like a book store owner or library, to the liability standard applied to a distributor. But Congress has made a different policy choice by providing immunity even where the interactive service provider has an active, even aggressive role in making available content prepare by others. In some sort of tacit quid pro quo arrangement with the service provider community, Congress has conferred immunity from tort liability as an incentive to Internet service providers to self-police the Internet for obscenity and other offensive material, even where the self-policing is unsuccessful or not even attempted.

“In Section 230(c)(2) of the Communications Decency Act, Congress provided:

“No provider or user of an interactive computer service shall be held liable on account of --

(A) Any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected: or

(B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1).

“47 U.S.C. sec. 230(C)(2). As the Fourth Circuit stated in Zeran: ‘Congress enacted sec. 230 to remove. . . disincentives to self-regulation. . . . Fearing that the specter of liability would. . . deter service providers from blocking and screening offensive material. . . sect. 230 forbids the imposition of publisher liability on a service provider for the exercise of its editorial and self-regulatory functions.’”

Blumenthal v. Drudge, 992 F. Supp. 44, 51-52 (D.D.C. 1998).

“Congress made a policy choice. . . not to deter harmful online speech through the separate route of imposing tort liability on companies that serve as intermediaries for other parties’ potentially injurious messages.”

Zeran v. America Online, Inc., 129 F.3d 327, 330-31 (4th Cir. 1997).

“[T]his section provides ‘Good Samaritan’ protections from civil liability for providers or users of an interactive computer service for actions to restrict or enable restriction of access to objectionable online material. . . . [O]ne of the specific purposes of [section 230] is to overrule Stratton-Oakmont [Stratton Oakmont] v. Prodigy and any other similar decisions which have treated such providers and users as Publishers or speakers of content that is not their own because they have restricted access to objectionable material.”

Doe v. America Online, Inc., 783 So.2d 1010, 1012 (Fla. 2001) (quoting S. Conf. Rep. No. 104-230, at 435 (1996)).

Related issues. “We. . . find that section 230 does preempt Florida law as to such a cause of action based upon alleged negligence. * * * The importance of this certified question is obvious in light of the current explosive growth in worldwide use of the Internet. The fundamental issue here is whether companies that provide access to the Internet are subject to common-law civil tort causes of action based upon the laws of each of the fifty states or whether Congress has acted to make ISPs immune from such common-law civil actions.”

Id.

“Thus, the preemption issue reduces to the question whether a state cause of action for negligent distribution of defamatory material directly conflicts with the CDA's prohibition against treating an Internet provider as a ‘publisher or speaker.’ Put another way, the question is whether imposing common law distributor liability on AOL amounts to treating it as a publisher or speaker. If so, the state claim is preempted.”

Id. at 1015.

“Section 230(e)(2) unambiguously constrains the Court to construe Section 230(c)(1) in a manner that would neither ‘limit or expand any law pertaining to intellectual property.’ Thus, the inquiry involves the application of existing intellectual property law. Under existing intellectual property law, publishers may, under certain circumstances, be held liable for infringement. Moreover, the United States Supreme Court has held, under the doctrine of contributory infringement, that ‘if a manufacturer or distributor. . . continues to supply its product to one whom it knows or has reason to know is engaging in trademark infringement,’ the manufacturer or distributor itself may held be liable for infringement. Immunizing Mindspring from Plaintiff's claims, therefore, would ‘limit’ the laws pertaining to intellectual property in contravention of § 230(c)(2). The plain language of Section 230(e)(2) precludes Mindspring’s claim of immunity.”

Gucci America, Inc. v. Hall & Assocs., 135 F. Supp. 2d 409, 413, 60 U.S.P.Q.2d (BNA) 1714 (S.D.N.Y. 2001) (citations omitted).