Re: Effects of S.314 (Communications Decency Act)

>Can anyone confirm this S.314 thing?  It sounds an awful lot like
>the "modem tax" and other urban legends.

S 314 IS
104th CONGRESS
1st Session
To protect the public from the misuse of the telecommunications
network and telecommunications devices and facilities.
                 IN THE SENATE OF THE UNITED STATES
           February 1 (legislative day, January 30), 1995
Mr. Exon (for himself and Mr. Gorton) introduced the following
    bill; which was read twice and referred to the Committee on
    Commerce, Science, and Transportation
                               A BILL
To protect the public from the misuse of the telecommunications
network and telecommunications devices and facilities.
  Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
  This Act may be cited as the `Communications Decency Act of 1995'.
SEC. 2. OBSCENE OR HARASSING USE OF TELECOMMUNICATIONS FACILITIES
                  UNDER THE COMMUNICATIONS ACT OF 1934.
  (a) Offenses: Section 223 of the Communications Act of 1934 (47
U.S.C. 223) is amended--
      (1) in subsection (a)(1)--
          (A) by striking out `telephone' in the matter above
        subparagraph (A) and inserting `telecommunications device';
          (B) by striking out `makes any comment, request,
        suggestion, or proposal' in subparagraph (A) and inserting
        `makes, transmits, or otherwise makes available any
        comment, request, suggestion, proposal, image, or other
        communication';
          (C) by striking out subparagraph (B) and inserting the
        following:
          `(B) makes a telephone call or utilizes a
        telecommunications device, whether or not conversation or
        communications ensues, without disclosing his identity and
        with intent to annoy, abuse, threaten, or harass any person
        at the called number or who receives the communication;' and
          (D) by striking out subparagraph (D) and inserting the
        following:
          `(D) makes repeated telephone calls or repeatedly
        initiates communication with a telecommunications device,
        during which conversation or communication ensues, solely
        to harass any person at the called number or who receives
        the communication; or';
      (2) in subsection (a)(2), by striking `telephone facility'
    and inserting `telecommunications facility';
      (3) in subsection (b)(1)--
          (A) in subparagraph (A)--
              (i) by striking `telephone' and inserting
            `telecommunications device'; and
              (ii) inserting `or initiated the communication' and
            `placed the call', and
          (B) in subparagraph (B), by striking `telephone facility'
        and inserting `telecommunications facility'; and
      (4) in subsection (b)(2)--
          (A) in subparagraph (A)--
              (i) by striking `by means of telephone, makes' and
            inserting `by means of telephone or telecommunications
            device, makes, knowingly transmits, or knowingly makes
            available'; and
              (ii) by inserting `or initiated the communication'
            after `placed the call'; and
          (B) in subparagraph (B), by striking `telephone facility'
        and inserting in lieu thereof `telecommunications facility'.
  (b) Penalties: Section 223 of such Act (47 U.S.C. 223) is amended--
      (1) by striking out `$50,000' each place it appears and
    inserting `$100,000'; and
      (2) by striking `six months' each place it appears and
    inserting `2 years'.
  (c) Prohibition on Provision of Access: Subsection (c)(1) of such
section (47 U.S.C. 223(c)) is amended by striking `telephone' and
inserting `telecommunications device.'
  (d) Conforming Amendment: The section heading for such section is
amended to read as follows:
`obscene or harassing utilization of telecommunications devices and
facilities in the district of columbia or in interstate or foreign
communications'.
SEC. 3. OBSCENE PROGRAMMING ON CABLE TELEVISION.
  Section 639 of the Communications Act of 1934 (47 U.S.C. 559) is
amended by striking `$10,000' and inserting `$100,000'.
SEC. 4. BROADCASTING OBSCENE LANGUAGE ON RADIO.
  Section 1464 of title 18, United States Code, is amended by
striking out `$10,000' and inserting `$100,000'.
SEC. 5. INTERCEPTION AND DISCLOSURE OF ELECTRONIC COMMUNICATIONS.
  Section 2511 of title 18, United States Code, is amended--
      (1) in paragraph (1)--
          (A) by striking `wire, oral, or electronic communication'
        each place it appears and inserting `wire, oral,
        electronic, or digital communication', and
          (B) in the matter designated as `(b)', by striking `oral
        communication' in the matter above clause (i) and inserting
        `communication'; and
      (2) in paragraph (2)(a), by striking `wire or electronic
    communication service' each place it appears (other than in the
    second sentence) and inserting `wire, electronic, or digital
    communication service'.
SEC. 6. ADDITIONAL PROHIBITION ON BILLING FOR TOLL-FREE TELEPHONE
                  CALLS.
  Section 228(c)(6) of the Communications Act of 1934 (47 U.S.C.
228(c)(6)) is amended--
      (1) by striking `or' at the end of subparagraph (C);
      (2) by striking the period at the end of subparagraph (D) and
    inserting a semicolon and `or'; and
      (3) by adding at the end thereof the following:
          `(E) the calling party being assessed, by virtue of being
        asked to connect or otherwise transfer to a pay-per-call
        service, a charge for the call.'.
SEC. 7. SCRAMBLING OF CABLE CHANNELS FOR NONSUBSCRIBERS.
  Part IV of title VI of the Communications Act of 1934 (47 U.S.C.
551 et seq.) is amended by adding at the end the following:
`SEC. 640. SCRAMBLING OF CABLE CHANNELS FOR NONSUBSCRIBERS.
  `(a) Requirement: In providing video programming unsuitable for
children to any subscriber through a cable system, a cable operator
shall fully scramble or otherwise fully block the video and audio
portion of each channel carrying such programming so that one not a
subscriber does not receive it.
  `(b) Definition: As used in this section, the term `scramble'
means to rearrange the content of the signal of the programming so
that the programming cannot be received by persons unauthorized to
receive the programming.'.
SEC. 8. CABLE OPERATOR REFUSAL TO CARRY CERTAIN PROGRAMS.
  (a) Public, Educational, and Governmental Channels: Section
611(e) of the Communications Act of 1934 (47 U.S.C. 531(e)) is
amended by inserting before the period the following: `, except a
cable operator may refuse to transmit any public access program or
portion of a public access program which contains obscenity,
indecency, or nudity'.
  (b) Cable Channels for Commercial Use: Section 612(c)(2) of the
Communications Act of 1934 (47 U.S.C. 532(c)(2)) is amended by
striking `an operator' and inserting `a cable operator may refuse
to transmit any leased access program or portion of a leased access
program which contains obscenity, indecency, or nudity.

-----------------------------------------------------------------------+
Michael Sattler <msattler@jungle.com>       San Francisco, California  |
Digital Jungle Consulting Services     http://www.jungle.com/msattler/ |
                                                                       |
      You couldn't get a clue during the clue mating season in         |
 a field full of horny clues if you smeared your body with clue musk   |
           and did the clue mating dance. - Edward Flaherty            |

[As always, IANAL. This citizen likes to think he has a reasonable capability
and obligation to assess the laws to which he may be subjected, though.]

After perusing it a couple of times, I'm still not sure I understand why the
specific provisions of the CDA would provoke the extreme monitoring measures
mentioned here. I agree with Sam that it's rather odd that EPIC hasn't put it
on their list of privacy-related bills in the 104th Congress. 

As a start, I'll try to speculate on sore points and their possible
immediate implications. 

+ "This Act may be cited as the `Communications Decency Act of 1995'."

Who elected Miss Manners to Congress ?  Any bill with `decency' in its title
deserves to die in committee, IMNSHO.

+ SEC. 2. OBSCENE OR HARASSING USE OF TELECOMMUNICATIONS FACILITIES UNDER THE 
+ COMMUNICATIONS ACT OF 1934.
[...]
+ (B) by striking out `makes any comment, request, suggestion, or
+         proposal' in subparagraph (A) and inserting `makes, transmits, or
+         otherwise makes available any comment, request, suggestion, proposal,
+         image, or other communication';

I take this section to be extending the ban on harassing phone calls and such
to cover all forms of electronic communication. I'm further assuming that the
subparagraph (A) mentioned above attempts to enumerate possible linguistic and
technical means of conveying the harassing content. What disturbs me is the
phrase "or otherwise makes available". I'm reminded of the arrest in Florida
a few years back of a couple whose lovemaking had been witnessed through their
bedroom window by a neighbor's curious child. My lay understanding of this
language is that passively presented information, such as the contents of a
WWW page or .plan file, could be construed as illegally obscene or harassing
under this act.

+ SEC. 5. INTERCEPTION AND DISCLOSURE OF ELECTRONIC COMMUNICATIONS.
+ Section 2511 of title 18, United States Code, is amended--
[...]
+ (A) by striking `wire, oral, or electronic communication' each place it
+         appears and inserting `wire, oral, electronic, or digital
+         communication', and

Is this the crucial threatening passage ?  Adding electronic communication to
a list presumably subject to "interception and disclosure" sounds ominous.
Without seeing the original legislation, though, I can't tell whether this
totally overturns the ECPA and similar statutes, or does something less 
drastic.

BTW, what sort of "digital communication" is neither "wire communication" nor
"electronic communication" ?

+ SEC. 8. CABLE OPERATOR REFUSAL TO CARRY CERTAIN PROGRAMS.
[...]
+ `, except a cable operator may refuse to transmit
+   any public access program or portion of a public access program which
+   contains obscenity, indecency, or nudity'
[...]
+ `a cable operator may refuse to transmit any leased
+   access program or portion of a leased access program which contains
+   obscenity, indecency, or nudity.

The battle over "obscenity" has been fought long and hard.

"Indecency" seems a remarkably nebulous term (and, of course, ludicrously
Victorian). I'd be interested in seeing a legal definition, and alarmed if
there isn't one (yet).

Don't even get me started on the "nudity" portion. I'm sure Jesse Helms is
already licking his lips over this one.

-L. Futplex McCarthy

On Wed, 8 Feb 1995, L. McCarthy wrote:

> The battle over "obscenity" has been fought long and hard.
> 
> "Indecency" seems a remarkably nebulous term (and, of course, ludicrously
> Victorian). I'd be interested in seeing a legal definition, and alarmed if
> there isn't one (yet).

Last I heard, the Supreme Court had never made a ruling on this. They 
copped out and left it up to "Community Standards." This is partially why 
the AA bbs case was sucessfuly prosecuted in another state.

> Don't even get me started on the "nudity" portion. I'm sure Jesse Helms is
> already licking his lips over this one.

Under the new legislation, might this not be illegal? ;)

On another note, I mailed Stanton McClandish to find out what EFF's 
position is on this. I tried browsing their archives, but lots of stuff 
seems to have vanished from there.

Sam




Sam

> On Wed, 8 Feb 1995, L. McCarthy wrote:
> 
> > The battle over "obscenity" has been fought long and hard.
> > 
> > "Indecency" seems a remarkably nebulous term (and, of course, ludicrously
> > Victorian). I'd be interested in seeing a legal definition, and alarmed if
> > there isn't one (yet).
> 
> Last I heard, the Supreme Court had never made a ruling on this. They 
> copped out and left it up to "Community Standards." This is partially why 
> the AA bbs case was sucessfuly prosecuted in another state.

I beg to differ. Remember the "Seven Dirty Words Case"? (I think WBAI/Pacifica
v. US, year?...). WBAI-FM in NY played George Carlin's "Seven words you can't
say on television" skit and was taken to court. The court ruled that there
were some obscene things which could be censored, but other things were
indecent so could at most be relegated to late night hours (and they've
struck down laws banning indecency 24 hours... I think some stations are
suing with the claim that such relegation constitutes censorship).

Don't remember their exact formulation, which isn't very exact anyway.

> > Don't even get me started on the "nudity" portion. I'm sure Jesse Helms is
> > already licking his lips over this one.
> 
> Under the new legislation, might this not be illegal? ;)
> 
> On another note, I mailed Stanton McClandish to find out what EFF's 
> position is on this. I tried browsing their archives, but lots of stuff 
> seems to have vanished from there.

Perhaps it was deemed too indecent to be on an archive site. Hell, they
cooperated plenty with the government on this.

It's a sad day when you might expect AT&T to stand up for your rights more
than the EFF...

> 
> Sam

Just my opinions,
  Rob

On Wed, 8 Feb 1995, Robert Rothenburg Walking-Owl wrote:

> > Last I heard, the Supreme Court had never made a ruling on this. They 
> > copped out and left it up to "Community Standards." This is partially why 
> > the AA bbs case was sucessfuly prosecuted in another state.
> 
> I beg to differ. Remember the "Seven Dirty Words Case"? (I think WBAI/Pacifica
> v. US, year?...). WBAI-FM in NY played George Carlin's "Seven words you can't
> say on television" skit and was taken to court. The court ruled that there
> were some obscene things which could be censored, but other things were
> indecent so could at most be relegated to late night hours (and they've
> struck down laws banning indecency 24 hours... I think some stations are
> suing with the claim that such relegation constitutes censorship).
> 
> Don't remember their exact formulation, which isn't very exact anyway.
> 

The question is: What is obsene? What the community in NYC considers 
obsene is sure a lot different than what the community in Elk River 
Minnesota considers obsene. (They've been trying to eject their one XXX 
bookstore for years now while NYC has the American Museum of Pornography 
at 42nd Street ;) ;) :) ) As you can see, obsenity depends where you are 
geographically located, at least according to our highest court. If 
community standards say it is obsene then it is. They never legally 
defined what constitutes something as being obsene or an obsenity.

Sam

> > I beg to differ. Remember the "Seven Dirty Words Case"? (I think WBAI/Pacifica
> > v. US, year?...). WBAI-FM in NY played George Carlin's "Seven words you can't
> > say on television" skit and was taken to court. The court ruled that there
> > were some obscene things which could be censored, but other things were
> > indecent so could at most be relegated to late night hours (and they've
> > struck down laws banning indecency 24 hours... I think some stations are
> > suing with the claim that such relegation constitutes censorship).
> > 
> > Don't remember their exact formulation, which isn't very exact anyway.
> > 
> 
> The question is: What is obsene? What the community in NYC considers 
> obsene is sure a lot different than what the community in Elk River 
> Minnesota considers obsene. (They've been trying to eject their one XXX 
> bookstore for years now while NYC has the American Museum of Pornography 
> at 42nd Street ;) ;) :) ) As you can see, obsenity depends where you are 
> geographically located, at least according to our highest court. If 
> community standards say it is obsene then it is. They never legally 
> defined what constitutes something as being obsene or an obsenity.

The definition is not entirely up to "community standards". I think the
court definied it loosely as 'material regarding sexual and excretory
functions' which appeals to "prurient interests".

Anyhw, they have enough of a national "standard" for the FCC to crack
down on broadcasters who breach the rules.

Of course geographic community standards are problematic too with
telecommunications since postal inspectors from Tennessee can call
up adult bulletin boards in California...

> 
> Sam
> 

Rob

# > > I beg to differ. Remember the "Seven Dirty Words Case"? (I think WBAI/Pacifica
# > > v. US, year?...). WBAI-FM in NY played George Carlin's "Seven words you can't

individual words can be "indecent", but not obscene.

obscene refers to the content of the work as a whole, and would
be very difficult to attain with a few dirty words.

# > > say on television" skit and was taken to court. The court ruled that there
# > > were some obscene things which could be censored, but other things were

All obscene things are censored on broadcast radio & TV.  
Massive penalties for broadcasting obscene material.

# > > indecent so could at most be relegated to late night hours (and they've
# > > struck down laws banning indecency 24 hours... I think some stations are
# > > suing with the claim that such relegation constitutes censorship).

In the U. S., you have a first ammendment right to indencent speech.

The question of a late-night "safe harbor" for indecent speech on the
air is about when children are likely to be listening.  First
ammendment rights apparently don't apply to children who are listening
to the radio.  

Right now there is a "safe harbor" from around 10pm (or is it 9pm?)
thru 6am, but this changes regularly, usually as a result of "case law"
(someone being prosecuted under next month's rules, not this month's)

				strick

[ .. ]

No disagreements with your reply. Of course the first amendment (or the rest
of the Bill of Rights) has stopped legislators from passing restrictive laws.

The line between indecency and obscenity is vague. Legal defense fees are
not... not are opportunistic prosecutors-- which is a real problem. Look at
what happened to Jello Biafra and the Dead Kennedys if you'd like an
example. I've heard that there were recently busts in Florida of some BBS
systems that carried the alt.sex* groups while universities in the area which
also carried them weren't touched.


The "safe harbor" is 10pm, but many radio stations (like WUSB here in Stony
Brook, where I do some radio programming) use midnight as a safe time and
give periodic warnings during shows in any indecent material is aired.

Problems with these vague and-or unenforcable "decency" laws is that they
allow for selective enforcement which is often motivated more by politics
and personal greed than by their alleged concerns for decency.

> 
> In the U. S., you have a first ammendment right to indencent speech.
> 
> The question of a late-night "safe harbor" for indecent speech on the
> air is about when children are likely to be listening.  First
> ammendment rights apparently don't apply to children who are listening
> to the radio.  
> 
> Right now there is a "safe harbor" from around 10pm (or is it 9pm?)
> thru 6am, but this changes regularly, usually as a result of "case law"
> (someone being prosecuted under next month's rules, not this month's)
> 
> 				strick
> 

Rob

On Thu, 9 Feb 1995, Robert Rothenburg Walking-Owl wrote:

> The line between indecency and obscenity is vague. Legal defense fees are
> not... not are opportunistic prosecutors-- which is a real problem. Look at
> what happened to Jello Biafra and the Dead Kennedys if you'd like an
> example. I've heard that there were recently busts in Florida of some BBS
> systems that carried the alt.sex* groups while universities in the area which
> also carried them weren't touched.

This is part of the danger. It to omse degree doesn't matter how 
restictive or "enforceable" the law might be, or even whether or not 
prosecutins will stick. Arrests and prosecutions will take a financial 
toll on those targetted, and will create a chillinf effect in the online 
community, meaning sysops and BBS operators will start policing 
themselves too severely in an effort to avoid politcial or legal scrutiny.

> The "safe harbor" is 10pm, but many radio stations (like WUSB here in Stony
> Brook, where I do some radio programming) use midnight as a safe time and
> give periodic warnings during shows in any indecent material is aired.

Unfortunately, this only works for media which operate within the old 
broadcast paradigm, while the online world operates within the network 
paradigm. There are no hours in which it is safe to broadcast because 
there is no "broadcast" in the tradition sense.

> Problems with these vague and-or unenforcable "decency" laws is that they
> allow for selective enforcement which is often motivated more by politics
> and personal greed than by their alleged concerns for decency.

And is also, as stated above, often motivated out of a desire to force 
the public to overly-police themselves to avoid prosecution.


- dog

> On Thu, 9 Feb 1995, Robert Rothenburg Walking-Owl wrote:
> 
> > The line between indecency and obscenity is vague. Legal defense fees are
> > not... not are opportunistic prosecutors-- which is a real problem. Look at
> > what happened to Jello Biafra and the Dead Kennedys if you'd like an

[ .. ]

> This is part of the danger. It to omse degree doesn't matter how 
> restictive or "enforceable" the law might be, or even whether or not 
> prosecutins will stick. Arrests and prosecutions will take a financial 
> toll on those targetted, and will create a chillinf effect in the online 
> community, meaning sysops and BBS operators will start policing 
> themselves too severely in an effort to avoid politcial or legal scrutiny.

Exactly. It's already happening. I've noticed on local BBS's they are afraid
of conversation about controversial subjects or files having to do with
things like do-it-yourself-birth control methods, drug legalization, or
crypto... some of the networks like RIME are also jittery about certain
topics like crypto or how telephones work.

> > The "safe harbor" is 10pm, but many radio stations (like WUSB here in Stony

[ message accidentally zapped ]

> broadcast paradigm, while the online world operates within the network 
> paradigm. There are no hours in which it is safe to broadcast because 
> there is no "broadcast" in the tradition sense.

Yes, I was discussing broadcasting. Scary thought is that because networks
are different they will try to outright ban everything.

What boggles my mind is how that hypothetical ratings system(s) the WSJ
article mentioned would operate... let alone who would rate content (very
controversial in movie ratings here in the US).

> > Problems with these vague and-or unenforcable "decency" laws is that they
> > allow for selective enforcement which is often motivated more by politics
> > and personal greed than by their alleged concerns for decency.

> And is also, as stated above, often motivated out of a desire to force 
> the public to overly-police themselves to avoid prosecution.

And "voluntarily" comply with their sense of values.

> - dog

Rob.

On Thu, 9 Feb 1995, Robert Rothenburg Walking-Owl wrote:

> > prosecutins will stick. Arrests and prosecutions will take a financial 
> > toll on those targetted, and will create a chillinf effect in the online 
> > community, meaning sysops and BBS operators will start policing 
> > themselves too severely in an effort to avoid politcial or legal scrutiny.
> 
> Exactly. It's already happening. I've noticed on local BBS's they are afraid
> of conversation about controversial subjects or files having to do with
> things like do-it-yourself-birth control methods, drug legalization, or
> crypto... some of the networks like RIME are also jittery about certain
> topics like crypto or how telephones work.

Which might the time is ripe for a sort of user-to-user and 
sysop-to-sysop outreach effort, an attempt to create a sort of solidarity 
amongst users of the various extant networks to stand together in 
supporting the free exchange of information.

> > broadcast paradigm, while the online world operates within the network 
> > paradigm. There are no hours in which it is safe to broadcast because 
> > there is no "broadcast" in the tradition sense.
> 
> Yes, I was discussing broadcasting. Scary thought is that because networks
> are different they will try to outright ban everything.

I wonder though sometimes if it's even occurred to lawmakers that they 
can't apply the safe harbor notion for indency to computer networks.


- dog

> On Thu, 9 Feb 1995, Robert Rothenburg Walking-Owl wrote:

[ .. ]

> > > broadcast paradigm, while the online world operates within the network 
> > > paradigm. There are no hours in which it is safe to broadcast because 
> > > there is no "broadcast" in the tradition sense.
> > 
> > Yes, I was discussing broadcasting. Scary thought is that because networks
> > are different they will try to outright ban everything.
> 
> I wonder though sometimes if it's even occurred to lawmakers that they 
> can't apply the safe harbor notion for indency to computer networks.
> 

The lawmakers have been trying to eliminate indecency (not just obscenity)
altogether... they don't want a safe harbor--that's something that came down
from the courts.

> 
> - dog
> 

Rob

On Wed, 8 Feb 1995, L. McCarthy wrote:

> 
> BTW, what sort of "digital communication" is neither "wire communication" nor
> "electronic communication" ?

If I stick my middle finger up at you, isn't that non-electronic digital 
communication? (Injected for comic relief on a VERY serious topic. No 
flames please.)

Sam

> BTW, what sort of "digital communication" is neither "wire communication" nor
> "electronic communication" ?

Depending on how you take the word "digital", flipping someone off?  :)

/****************************************************************************
* Anthony Ortenzi * ortenzi@interactive.net * ortenzi@vivarin.pc.cc.cmu.edu *
*---------------------------------------------------------------------------*
*                 * http://www.interactive.net/~ortenzi/ *                  *
****************************************************************************/