Telecommunications Act Imposes Controls on Indecent
and Obscene Content on the Internet and Online Services

By Neal J. Friedman

The newly-enacted Communications Decency Act of 1996 states that it is the policy of the United States to "promote the continued development of the Internet and other interactive computer services." But, for the first time, it puts the federal government in the business of regulating the Internet and online services. The legislation does not go as far as some had feared, but further than others had hoped.

The statute prohibits the use of interactive computer services to make or make available an indecent communication to minors. It defines indecency as: "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." This definition has been upheld in other cases involving the broadcast media. The bill's supporters expect that it will withstand the inevitable Constitutional challenge. Indeed, Congress provided that any challenge should first go to a special three-judge panel and then directly to the Supreme Court. The Conference Committee Report accompanying the bill argues that the new indecency prohibition will "pose no significant risk to the free-wheeling and vibrant nature of discourse or to serious literary, and artistic works that can be currently found on the Internet, and which is expected to continue and grow."

The language requires that the communication must be knowing and specifically exempts online service providers who merely provide access to the Internet. The Conference Report states that the intent is to focus on "bad actors and not those whose actions are equivalent to those of common carriers." This is good news for those service providers who only host content for others and exercise no control over the content. But, the legislation goes on to state specifically that it is not the intent of Congress to treat online services as common carriers or telecommunications carriers for other purposes. If the online services were to be considered as common carriers, they would be insulated from liability for any content on their systems. Thus, the question of liability of online services for defamation and copyright and trademark infringement remains unclear.

The legislation also provides a "Good Samaritan" defense for service providers who have taken "in good faith, reasonable, effective and appropriate actions under the circumstances to restrict or prevent access by minors" to prohibited communications or have restricted access to indecent content by means of a verified credit card, debit account, adult access code, or adult personal identification number.

The role of the Federal Communications Commission is restricted under the new law. The FCC is only permitted to describe measures that are reasonable, effective and appropriate to restrict access to prohibited communications, but it cannot give its approval to such measures nor can it penalize any service provider for failing to use the measures.

The new law also prohibits states from exercising control over content of online services. States can control content entirely within their borders so long as the control is not inconsistent with the federal law. Some state legislatures had, in reaction to publicity over alleged pornographic and indecent content online, considered bills that would have put tight restrictions on content.

The Conference Report together with the bill as enacted are now available. We are also making available the text of the floor debate as published in the Congressional Record. Each of these files is approximately 300K.

Copyright © 1996 Neal J. Friedman

Reproduced with permission of
Neal J. Friedman
[Return to CyberRisk]