URGENT - What S.314 Would Do

[ Article crossposted from comp.org.cpsr.talk,comp.org.cpsr.talk,misc.legal.comp ]
[ Author was slowdog (slowdog@wookie.net) ]
[ Posted on 7 Feb 1995 14:56:15 GMT ]

The following is what Senator Exon's bill (S.314) would do to the 
Communicatons Act of 1934. The text in [brackets] is what is being 
deleted or changed. What exists as plain text outside those brackets is 
how the new law will look.

Read carefully. There are indeed implications for Internet service 
providers in terms of their responsibility under the law for the content 
of their systems and services.


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   47 USC Sec. 223
   
   TITLE 47
   CHAPTER 5
   SUBCHAPTER II
   
   
   Sec. 223. [Obscene or harassing telephone calls in the District of
   Columbia or in interstate or foreign communications] Obscene or
   harassing utilization of telecommunications devices and facilities
   in the District of Columbia or in interstate or foreign
   communications
   
   
   (a) Prohibited acts generally
   
   Whoever -
   
   (1) in the District of Columbia or in interstate or foreign
   communication by means of [telephone] telecommunications
   device -
   
   (A) [makes any comment, request, suggestion or proposal] 
   makes, transmits, or otherwise makes available any comment,
   request, suggestions, proposal, image, or other communication]
   which is obscene, lewd, lascivious, filthy, or indecent;

   (B) [makes a telephone call, whether or not conversation
   ensues, without disclosing his identity and with intent to
   annoy, abuse, threaten, or harass any person at the called
   number] makes a telephone call or utilizes a telecommunications
   device, whether or not conversation or communications ensues,
   without disclosing his identity with intent to annoy, abuse,
   threaten, or harass any person at the called number or who
   receives the communication;
   
   (C) makes or causes the telephone of another repeatedly or   
   continuously to ring, with intent to harass any person at the
   called number; or
   
   (D) [makes repeated telephone calls, during which conversation
   ensues, solely to harass any person at the called number; or]
   makes repeated telephone calls or repeatedly initiates
   communication with a telecommunications device, during which
   comversation or communication ensues, solely to harass any
   person at the called number of who receives the communication;
   or
   
   (2) knowingly permits any [telephone] telecommunications facility
   under his control to be used for any purpose prohibited by this
   section, shall be fined not more than [$50,000] $100,000 or
   imprisoned not more than [six months] 2 years, or both.
   
   (b) Prohibited acts for commercial purposes; defense to prosecution
   
   (1) Whoever knowingly -
   
   (A) within the United States, by means of [telephone], 
   telecommunications device makes (directly or by recording device)
   any obscene communication for commercial purposes to any person, 
   regardless of whether the maker of such communication [placed the
   call] placed the call or initiated the conversation; or
   
   (B) permits any [telephone] telecommunications facility under such 
   person's control to be used for an activity prohibited by
   subparagraph (A), shall be fined in accordance with title 18 or 
   imprisoned not more than two years, or both.
   
   (2) Whoever knowingly -
   
   (A) within the United States, [by means of telephone, makes]
   by means of telecommunications device, makes, knowingly
   transmits, or knowingly makes available (directly or by recording 
   device) any indecent communication for commercial purposes which is 
   available to any person under 18 years of age or to any other person 
   without that person's consent, regardless of whether the maker of
   such communication [placed the call] placed the call or
   initiated the communication; or
   
   (B) permits any [telephone] telecommunications facility under such 
   person's control to be used for an activity prohibited by subparagraph 
   (A), shall be fined not more than [$50,000] $100,000 or imprisoned not 
   more than [six months] 2 years, or both.
   
   (3) It is a defense to prosecution under paragraph (2) of this
   subsection that the defendant restrict access to the prohibited
   communication to persons 18 years of age or older in accordance
   with subsection (c) of this section and with such procedures as the
   Commission may prescribe by regulation.
   
   (4) In addition to the penalties under paragraph (1), whoever,
   within the United States, intentionally violates paragraph (1) or
   
   (2) shall be subject to a fine of not more than [$50,000]
   $100,000 for each violation. For purposes of this paragraph, each
   day of violation shall constitute a separate violation.
   
   (5)(A) In addition to the penalties under paragraphs (1), (2),
   and (5), whoever, within the United States, violates paragraph (1)
   or (2) shall be subject to a civil fine of not more than [$50,000]
   $100,000 for each violation. For purposes of this paragraph, each
   day of violation shall constitute a separate violation.
   
   (B) A fine under this paragraph may be assessed either -
   
   (i) by a court, pursuant to civil action by the Commission or
   any attorney employed by the Commission who is designated by the
   Commission for such purposes, or
   
   (ii) by the Commission after appropriate administrative
   proceedings.
   
   (6) The Attorney General may bring a suit in the appropriate
   district court of the United States to enjoin any act or practice
   which violates paragraph (1) or (2). An injunction may be granted
   in accordance with the Federal Rules of Civil Procedure.
   
   (c) Restriction on access to subscribers by common carriers;
   judicial remedies respecting restrictions
   
   (1) A common carrier within the District of Columbia or within
   any State, or in interstate or foreign commerce, shall not, to the
   extent technically feasible, provide access to a communication
   specified in subsection (b) of this section from the [telephone]
   telecommunications device of any subscriber who has not previously 
   requested in writing the carrier to provide access to such 
   communication if the carrier collects from subscribers an identifiable 
   charge for such communication that the carrier remits, in whole or in 
   part, to the provider of such communication.
   
   (2) Except as provided in paragraph (3), no cause of action may
   be brought in any court or administrative agency against any common
   carrier, or any of its affiliates, including their officers,
   directors, employees, agents, or authorized representatives on
   account of -
   
   (A) any action which the carrier demonstrates was taken in good
   faith to restrict access pursuant to paragraph (1) of this
   subsection; or
   
   (B) any access permitted -
   
   (i) in good faith reliance upon the lack of any
   representation by a provider of communications that
   communications provided by that provider are communications
   specified in subsection (b) of this section, or
   
   (ii) because a specific representation by the provider did
   not allow the carrier, acting in good faith, a sufficient
   period to restrict access to restrict access to communications
   described in subsection (b) of this section.
   
   (3) Notwithstanding paragraph (2) of this subsection, a provider
   of communications services to which subscribers are denied access
   pursuant to paragraph (1) of this subsection may bring an action
   for a declaratory judgment or similar action in a court. Any such
   action shall be limited to the question of whether the
   communications which the provider seeks to provide fall within the
   category of communications to which the carrier will provide access
   only to subscribers who have previously requested such access.

On 7 Feb 1995, slowdog wrote:

>    Whoever -
>    
>    (1) in the District of Columbia or in interstate or foreign
>    communication by means of [telephone] telecommunications
>    device -
>    
>    (A) [makes any comment, request, suggestion or proposal] 
>    makes, transmits, or otherwise makes available any comment,
>    request, suggestions, proposal, image, or other communication]
>    which is obscene, lewd, lascivious, filthy, or indecent;

Ding...Ding...Ding... We have a winner here. Goodbye binaries and sex groups.
Please note the "whoever" at the top of the paragraph. No "knowingly." 
The question is: "Is obsene speech, protected speech? Does this negate 
the first ammendment?

> 
>    (B) [makes a telephone call, whether or not conversation
>    ensues, without disclosing his identity and with intent to
>    annoy, abuse, threaten, or harass any person at the called
>    number] makes a telephone call or utilizes a telecommunications
>    device, whether or not conversation or communications ensues,
>    without disclosing his identity with intent to annoy, abuse,
>    threaten, or harass any person at the called number or who
>    receives the communication;

Ding...Ding...Ding... We have another winner. Goodbye remailers. Probably 
90% of remailer traffic violates this one. Well boys and girls we'd 
better get lots more offshore...soon.

Date: Wed, 8 Feb 1995 02:18:27 -0600 (CST)
    From: Samuel Kaplin <skaplin@mirage.skypoint.com>

    . . .

    >    (B) [makes a telephone call, whether or not conversation
    >    ensues, without disclosing his identity and with intent to
    >    annoy, abuse, threaten, or harass any person at the called
    >    number] makes a telephone call or utilizes a telecommunications
    >    device, whether or not conversation or communications ensues,
    >    without disclosing his identity with intent to annoy, abuse,
    >    threaten, or harass any person at the called number or who
    >    receives the communication;
    
    Ding...Ding...Ding... We have another winner. Goodbye remailers. Probably 
    90% of remailer traffic violates this one. Well boys and girls we'd 
    better get lots more offshore...soon.

Actually, unless the quote dropped important context, this part
doesn't seem to outlaw remailers, but rather certain classes of
remailer use (``makes a call'', ``utilizes...'').  It is the user, not
the provider that this seems to address.

--
Rick Busdiecker <rfb@lehman.com>      Please do not send electronic junk mail!
  Lehman Brothers Inc.
  3 World Financial Center  "The more laws and order are made prominent, the
  New York, NY  10285-1100   more thieves and robbers there will be." --Lao Tzu