Communications Decency Act
Encyclopedia
The Communications Decency Act of 1996 (CDA) was the first notable attempt by the United States Congress
to regulate pornographic
material on the Internet
. In 1997, in the landmark cyberlaw case of Reno v. ACLU, the United States Supreme Court struck the anti-indecency provisions of the Act.
The Act
was Title V of the Telecommunications Act of 1996
. It was introduced to the Senate Committee of Commerce, Science, and Transportation
by Senators James Exon
(D-NE) and Slade Gorton
(R-WA) in 1995. The amendment that became the CDA was added to the Telecommunications Act in the Senate by an 84–16 vote on June 14, 1995.
As eventually passed by Congress, Title V affected the Internet (and online communications) in two significant ways. First, it attempted to regulate both indecency (when available to children) and obscenity
in cyberspace
. Second, Section 230 of the Act has been interpreted to say that operators of Internet services are not to be construed as publishers (and thus not legally liable for the words of third parties who use their services).
—broadcasting of offensive speech was restricted to certain hours of the day, when minors were supposedly least likely to be exposed. Violators could be fined and potentially lose their licenses. The Internet, however, had only recently been opened to commercial interests by the 1992 amendment to the National Science Foundation Act
and thus had not been taken into consideration by previous laws. The CDA, which affected the Internet and cable television
, marked the first attempt to expand regulation to these new media
.
Passed by Congress on February 1, 1996, and signed by President Bill Clinton
on February 8, 1996, the CDA imposed criminal sanctions on anyone who
It further criminalized the transmission of materials that were "obscene or indecent" to persons known to be under 18.
Free speech advocates, however, worked diligently and successfully to overturn the portion relating to indecent, but not obscene, speech. They argued that speech protected under the First Amendment
, such as printed novels or the use of the seven dirty words
, would suddenly become unlawful when posted to the Internet. Critics also claimed the bill would have a chilling effect on the availability of medical information. Online civil liberties
organizations arranged protests against the bill, for example the Black World Wide Web protest
which encouraged webmasters to make their sites' backgrounds black for 48 hours after its passage, and the Electronic Frontier Foundation
's Blue Ribbon Online Free Speech Campaign
.
on June 12, 1996, a panel of federal judges
blocked part of the CDA, saying it would infringe upon the free speech rights of adults. The next month, another US federal court in New York
struck down the portion of the CDA intended to protect children from indecent speech as too broad. On June 26, 1997, the Supreme Court
upheld the Philadelphia court's decision in Reno v. American Civil Liberties Union
, stating that the indecency provisions were an unconstitutional abridgement of the First Amendment
right to free speech because they did not permit parents to decide for themselves what material was acceptable for their children, extended to non-commercial speech, and did not define "patently offensive," a term with no prior legal meaning. (The New York case, Reno v. Shea
, was affirmed by the Supreme Court the next day, without a published opinion.)
In 2003, Congress amended the CDA to remove the indecency provisions struck down in Reno v. ACLU. A separate challenge to the provisions governing obscenity, known as Nitke v. Gonzales, was rejected by a federal court in New York in 2005. The Supreme Court summarily affirmed that decision in 2006.
Congress has made two narrower attempts to regulate children's exposure to Internet indecency since the Supreme Court overturned the CDA. Court injunction blocked enforcement of the first, the Child Online Protection Act
(COPA), almost immediately after its passage in 1998; the law was later overturned. While legal challenges also dogged COPA's successor, the Children's Internet Protection Act
(CIPA) of 2000, the Supreme Court upheld it as constitutional in 2004.
legislation, but was added in conference with the House
, where it had been separately introduced by Representatives
Christopher Cox (R-CA) and Ron Wyden
(D-OR) as the Internet Freedom and Family Empowerment Act and passed by a near-unanimous vote on the floor. It added protection for online service providers and users from actions against them based on the content of third parties, stating in part that "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider". Effectively, this section immunizes both ISPs and Internet users from liability for torts committed by others using their website or online forum, even if the provider fails to take action after receiving actual notice of the harmful or offensive content.
Through the so-called Good Samaritan provision, this section also protects ISPs from liability for restricting access to certain material or giving others the technical means to restrict access to that material.
United States Congress
The United States Congress is the bicameral legislature of the federal government of the United States, consisting of the Senate and the House of Representatives. The Congress meets in the United States Capitol in Washington, D.C....
to regulate pornographic
Pornography
Pornography or porn is the explicit portrayal of sexual subject matter for the purposes of sexual arousal and erotic satisfaction.Pornography may use any of a variety of media, ranging from books, magazines, postcards, photos, sculpture, drawing, painting, animation, sound recording, film, video,...
material on the Internet
Internet
The Internet is a global system of interconnected computer networks that use the standard Internet protocol suite to serve billions of users worldwide...
. In 1997, in the landmark cyberlaw case of Reno v. ACLU, the United States Supreme Court struck the anti-indecency provisions of the Act.
The Act
Act of Congress
An Act of Congress is a statute enacted by government with a legislature named "Congress," such as the United States Congress or the Congress of the Philippines....
was Title V of the Telecommunications Act of 1996
Telecommunications Act of 1996
The Telecommunications Act of 1996 was the first major overhaul of United States telecommunications law in nearly 62 years, amending the Communications Act of 1934. This Act, signed by President Bill Clinton, was a major stepping stone towards the future of telecommunications, since this was the...
. It was introduced to the Senate Committee of Commerce, Science, and Transportation
United States Senate Committee on Commerce, Science and Transportation
The United States Senate Committee on Commerce, Science, and Transportation is a standing committee of the United States Senate in charge of all senate matters related to the following subjects:* Coast Guard* Coastal zone management* Communications...
by Senators James Exon
J. James Exon
John James "Jim" Exon was an American Democratic politician. He served as the 33rd Governor of Nebraska from 1971 to 1979, and as a U.S. Senator from Nebraska from 1979 to 1997. Exon was a Nebraska Democrat who never lost an election, and the only Democrat to hold his Nebraska's Senate Class 2 seat...
(D-NE) and Slade Gorton
Slade Gorton
Thomas Slade Gorton III is an American politician. A Republican, he was a U.S. senator from Washington state from 1981 to 1987, and from 1989 to 2001. He held both of the state's Senate seats in his career and was narrowly defeated for reelection twice as an incumbent: in 1986 by Brock Adams, and...
(R-WA) in 1995. The amendment that became the CDA was added to the Telecommunications Act in the Senate by an 84–16 vote on June 14, 1995.
As eventually passed by Congress, Title V affected the Internet (and online communications) in two significant ways. First, it attempted to regulate both indecency (when available to children) and obscenity
Obscenity
An obscenity is any statement or act which strongly offends the prevalent morality of the time, is a profanity, or is otherwise taboo, indecent, abhorrent, or disgusting, or is especially inauspicious...
in cyberspace
Cyberspace
Cyberspace is the electronic medium of computer networks, in which online communication takes place.The term "cyberspace" was first used by the cyberpunk science fiction author William Gibson, though the concept was described somewhat earlier, for example in the Vernor Vinge short story "True...
. Second, Section 230 of the Act has been interpreted to say that operators of Internet services are not to be construed as publishers (and thus not legally liable for the words of third parties who use their services).
Anti-indecency and anti-obscenity provisions
The most controversial portions of the Act were those relating to indecency on the Internet. The relevant sections of the Act were introduced in response to fears that Internet pornography was on the rise. Indecency in TV and radio broadcasting had already been regulated by the Federal Communications CommissionFederal Communications Commission
The Federal Communications Commission is an independent agency of the United States government, created, Congressional statute , and with the majority of its commissioners appointed by the current President. The FCC works towards six goals in the areas of broadband, competition, the spectrum, the...
—broadcasting of offensive speech was restricted to certain hours of the day, when minors were supposedly least likely to be exposed. Violators could be fined and potentially lose their licenses. The Internet, however, had only recently been opened to commercial interests by the 1992 amendment to the National Science Foundation Act
National Science Foundation
The National Science Foundation is a United States government agency that supports fundamental research and education in all the non-medical fields of science and engineering. Its medical counterpart is the National Institutes of Health...
and thus had not been taken into consideration by previous laws. The CDA, which affected the Internet and cable television
Cable television
Cable television is a system of providing television programs to consumers via radio frequency signals transmitted to televisions through coaxial cables or digital light pulses through fixed optical fibers located on the subscriber's property, much like the over-the-air method used in traditional...
, marked the first attempt to expand regulation to these new media
Media (communication)
In communications, media are the storage and transmission channels or tools used to store and deliver information or data...
.
Passed by Congress on February 1, 1996, and signed by President Bill Clinton
Bill Clinton
William Jefferson "Bill" Clinton is an American politician who served as the 42nd President of the United States from 1993 to 2001. Inaugurated at age 46, he was the third-youngest president. He took office at the end of the Cold War, and was the first president of the baby boomer generation...
on February 8, 1996, the CDA imposed criminal sanctions on anyone who
- 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.
It further criminalized the transmission of materials that were "obscene or indecent" to persons known to be under 18.
Free speech advocates, however, worked diligently and successfully to overturn the portion relating to indecent, but not obscene, speech. They argued that speech protected under the First Amendment
First Amendment to the United States Constitution
The First Amendment to the United States Constitution is part of the Bill of Rights. The amendment prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering...
, such as printed novels or the use of the seven dirty words
Seven dirty words
The seven dirty words are seven English language words that American comedian George Carlin first listed in 1972 in his monologue "Seven Words You Can Never Say on Television". The words include: shit, piss, fuck, cunt, cocksucker, motherfucker, and tits...
, would suddenly become unlawful when posted to the Internet. Critics also claimed the bill would have a chilling effect on the availability of medical information. Online civil liberties
Civil liberties
Civil liberties are rights and freedoms that provide an individual specific rights such as the freedom from slavery and forced labour, freedom from torture and death, the right to liberty and security, right to a fair trial, the right to defend one's self, the right to own and bear arms, the right...
organizations arranged protests against the bill, for example the Black World Wide Web protest
Black World Wide Web protest
On February 1, 1996, U.S. Congress passed the Telecommunications Act, a telecommunications reform bill containing the Communications Decency Act. Timed to coincide with President Bill Clinton's signing of the bill on February 8, 1996, a large number of web sites had their background color turned to...
which encouraged webmasters to make their sites' backgrounds black for 48 hours after its passage, and the Electronic Frontier Foundation
Electronic Frontier Foundation
The Electronic Frontier Foundation is an international non-profit digital rights advocacy and legal organization based in the United States...
's Blue Ribbon Online Free Speech Campaign
Blue Ribbon Online Free Speech Campaign
The Blue Ribbon Online Free Speech Campaign is an online advocacy campaign for intellectual freedom on the Internet, orchestrated by the Electronic Frontier Foundation . Web site owners are encouraged to place images of blue ribbons on their sites and link to EFF's campaign...
.
Legal challenges
In PhiladelphiaPhiladelphia, Pennsylvania
Philadelphia is the largest city in the Commonwealth of Pennsylvania and the county seat of Philadelphia County, with which it is coterminous. The city is located in the Northeastern United States along the Delaware and Schuylkill rivers. It is the fifth-most-populous city in the United States,...
on June 12, 1996, a panel of federal judges
United States District Court for the Eastern District of Pennsylvania
The United States District Court for the Eastern District of Pennsylvania is one of the original 13 federal judiciary districts created by the Judiciary Act of 1789...
blocked part of the CDA, saying it would infringe upon the free speech rights of adults. The next month, another US federal court in New York
New York City
New York is the most populous city in the United States and the center of the New York Metropolitan Area, one of the most populous metropolitan areas in the world. New York exerts a significant impact upon global commerce, finance, media, art, fashion, research, technology, education, and...
struck down the portion of the CDA intended to protect children from indecent speech as too broad. On June 26, 1997, the Supreme Court
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
upheld the Philadelphia court's decision in Reno v. American Civil Liberties Union
Reno v. American Civil Liberties Union
Reno v. American Civil Liberties Union, , is a United States Supreme Court case, in which all nine Justices of the Court voted to strike down anti-indecency provisions of the Communications Decency Act , finding they violated the freedom of speech provisions of the First Amendment. Two Justices...
, stating that the indecency provisions were an unconstitutional abridgement of the First Amendment
First Amendment to the United States Constitution
The First Amendment to the United States Constitution is part of the Bill of Rights. The amendment prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering...
right to free speech because they did not permit parents to decide for themselves what material was acceptable for their children, extended to non-commercial speech, and did not define "patently offensive," a term with no prior legal meaning. (The New York case, Reno v. Shea
Joe Shea
Joe Shea is editor-in-chief of The American Reporter, the first daily Internet newspaper, started on April 10, 1995...
, was affirmed by the Supreme Court the next day, without a published opinion.)
In 2003, Congress amended the CDA to remove the indecency provisions struck down in Reno v. ACLU. A separate challenge to the provisions governing obscenity, known as Nitke v. Gonzales, was rejected by a federal court in New York in 2005. The Supreme Court summarily affirmed that decision in 2006.
Congress has made two narrower attempts to regulate children's exposure to Internet indecency since the Supreme Court overturned the CDA. Court injunction blocked enforcement of the first, the Child Online Protection Act
Child Online Protection Act
The Child Online Protection Act was a law in the United States of America, passed in 1998 with the declared purpose of restricting access by minors to any material defined as harmful to such minors on the Internet...
(COPA), almost immediately after its passage in 1998; the law was later overturned. While legal challenges also dogged COPA's successor, the Children's Internet Protection Act
Children's Internet Protection Act
The Children's Internet Protection Act requires that K-12 schools and libraries in the United States use Internet filters and implement other measures to protect children from harmful online content as a condition for the receipt of certain federal funding...
(CIPA) of 2000, the Supreme Court upheld it as constitutional in 2004.
Section 230
Section 230 of the Communications Decency Act was not part of the original SenateUnited States Senate
The United States Senate is the upper house of the bicameral legislature of the United States, and together with the United States House of Representatives comprises the United States Congress. The composition and powers of the Senate are established in Article One of the U.S. Constitution. Each...
legislation, but was added in conference with the House
United States House of Representatives
The United States House of Representatives is one of the two Houses of the United States Congress, the bicameral legislature which also includes the Senate.The composition and powers of the House are established in Article One of the Constitution...
, where it had been separately introduced by Representatives
United States House of Representatives
The United States House of Representatives is one of the two Houses of the United States Congress, the bicameral legislature which also includes the Senate.The composition and powers of the House are established in Article One of the Constitution...
Christopher Cox (R-CA) and Ron Wyden
Ron Wyden
Ronald Lee "Ron" Wyden is the senior U.S. Senator for Oregon, serving since 1996, and a member of the Democratic Party. He previously served in the United States House of Representatives from 1981 to 1996....
(D-OR) as the Internet Freedom and Family Empowerment Act and passed by a near-unanimous vote on the floor. It added protection for online service providers and users from actions against them based on the content of third parties, stating in part that "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider". Effectively, this section immunizes both ISPs and Internet users from liability for torts committed by others using their website or online forum, even if the provider fails to take action after receiving actual notice of the harmful or offensive content.
Through the so-called Good Samaritan provision, this section also protects ISPs from liability for restricting access to certain material or giving others the technical means to restrict access to that material.
See also
- Electronic Frontier FoundationElectronic Frontier FoundationThe Electronic Frontier Foundation is an international non-profit digital rights advocacy and legal organization based in the United States...
- OCILLAOnline Copyright Infringement Liability Limitation ActThe Online Copyright Infringement Liability Limitation Act is United States federal law that creates a conditional safe harbor for online service providers and other Internet intermediaries by shielding them for their own acts of direct copyright infringement as well as...
portion of the DMCADigital Millennium Copyright ActThe Digital Millennium Copyright Act is a United States copyright law that implements two 1996 treaties of the World Intellectual Property Organization . It criminalizes production and dissemination of technology, devices, or services intended to circumvent measures that control access to...
, which contingently protects online service providers from liability for copyright infringement - Right to pornography
External links
- Legislative history of the Communications Decency Act.
- FCC text of the full act.
- Section 230
- Internet Library of Law and Court Decisions Court Decisions applying Section 230 of the Communications Decency Act
- Center for Democracy and Technology Overview of CDA. This refers only to the portion of the act which was struck down.
- Cybertelecom :: The Communications Decency Act and Sec. 230 Good Samaritan Defense
- EFF.org, bloggers on Section 230