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** ** ** *** POLICY POST
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** ** ** *** May 4, 1995
** ** ** *** Number 11
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CENTER FOR DEMOCRACY AND TECHNOLOGY
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A briefing on public policy issues affecting civil liberties online
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CDT POLICY POST 5/4/95 Number 11
CONTENTS: (1) Justice Department Says CDA Threatens First Amendment and
Privacy Rights, Recommends Comprehensive Review
(2) Pro-Family Group says CDA is Flawed
(3) About the Center for Democracy and Technology
This document may be re-distributed freely provided it remains in its
entirety.
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SUBJECT: Justice Department Says CDA Threatens First Amendment and
Privacy Rights, Recommends Comprehensive Review.
The US Department of Justice, in a May 3, 1995 letter sent to Senator
Patrick Leahy (D-VT), has weighed in on the debate over the
Communications Decency Act, stating that it threatens first amendment
and privacy rights and would severely complicate ongoing efforts to
prosecute child pornogrophy cases. The Department instead recommended
a comprehensive review of current law and law enforcement resources,
as well as an investigation into the availablity of technical means to
empower parents and users to control the commercial and noncommercial
content they receive through interactive media. The full text of the
DOJ letter is available thru CDT's online archives (URL's below).
The Justice Department wrote:
"With respect to the communications Decency Act, while we understand
that section 402 is intended to provide users of online services the
same protection against obscene and harassing communications afforded
to telephone subscribers, this provision would not accomplish that
goal. Instead, it would significantly thwart enforcement of existing
laws regarding obscenity and child pornography, create several ways for
distributors and packages of obscenity and child pornography to avoid
criminal liability, and threaten important First Amendment and privacy
rights."
<...>
"Despite the flaws in these provisions, the Administration applauds the
primary goal of this legislation: prevent obscenity from being widely
transmitted over telecommunications networks to which minors have access.
However, the legislation raises complex policy issues that merit close
examination prior to Congressional action. We recommend that a
comprehensive review be undertaken of current laws and law enforcement
resources for prosecuting online obscenity and child pornography, and
the technical means available to enable parents and users to control
the commercial and non commercial communications they receive over
interactive telecommunications systems."
In addition, the Department raised specific concerns regarding the
constitutionality of the legislation:
"First, Section 402 of the bill would impose criminal sanctions on the
transmission of constitutionally protected speech. Specifically,
subsections 402(a)(1) and (b)(2) of the bill would criminalize the
transmission of indecent communications, which are protected by the
First Amendment. In _Sable Communications of Cal. v. FCC_, 492 U.S.
115 (1989), the Supreme Court ruled that any restrictions on the content
of protected speech in media other than broadcast media must advance a
compelling state interest and be accomplished by the "least restrictive
means." By relying on technology relevant only to 900 number services,
section 402 fails to take into account less restrictive alternatives
utilizing existing and emerging technologies which enable parents and
other adult users to control access to content."
"Nearly ten years of litigation, along with modifications of the
regulations, were necessary before the current statute as applied to
audiotext services, or "dial-a-porn" calling numbers, was upheld as
constitutional. See _Dial Information Services v. Thornburg_, 938 F.
2d 1535 (2d Cir. 1991). The proposed amendment in section 40-2 of
the bill would jeopardize the enforcement of the existing dial-a-porn
statute by inviting additional constitutional challenges, with the
concomitant diversion of law enforcement resources."
The Justice Department Letter represents an important development in
the fight to block the Communications Decency Act and the effort to
develop less restrictive technical alternatives. The Center For
Democracy and Technology commends the Justice Department for
recognizing the threat the Communications Decency Act poses to First
Amendment rights and for its leadership in this area. CDT is looking
forward to working with the Department to develop alternative prolicy
solutions which protect the First Amendment, privacy rights, and the
free flow of information in cyberspace.
The full text of the letter can be found at the following URL's:
http://www.cdt.org/speech/cda/950503doj_ltr.html
ftp://ftp.cdt.org/pub/cdt/policy/freespeech/doj_050395.ltr
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(2) SUBJECT: American Family Association Expresses Concern about CDA,
Says Defenses Must Be Axed, Current Law Sufficient.
The American Family Association, a conservative pro-family organization,
has sent a letter to Senators Exon (D-NE) and Pressler (R-SD) stating
that the Communications Decency Act as currently drafted would grant
those who distribute pornography on the Internet greater protection
than exists for current law. The American Family Assocaition reccomended
that the defenses to prosecution be removed from the legislation.
The letter states that, in its current form, "...the pro-family movement
will uniformly oppose your (Sen. Exon) bill and, if necessarry, the
telecommunications bill to which it is attached, unless significant
changes are made prior to a vote on the Senate floor."
The American Family Association stated that current law is sufficient
to address the concerns Senator Exon is attempting to address:
"... it is unnecessary to change that law as your bill would do,
unless you are seeking to clarify this point and add improvements
to the law. Also, it is my opinion, although this point may not be
as clear or settled as the first, that federal criminal law, s
pecifically Title 18 Sections 1462 and 1465 prohibits distribution of
obscenity via computer whether or not for commercial purpose.
Further, it is my opinion that a primary problem regarding computer
pornography is the lack of leadership and enforcement on this issue
by the Clinton Administration. While current laws could be improved,
the Administration could make substantial progress in protecting
children in particular from both obscenity and child pornography by
using existing law to prosecute illegal pornographers who use the
Internet if it had the will to do so."
The American Family Association is the second pro-family group to
publicly express concerns over the Communications Decency Act
(in March Morality In Media raised similar concerns).
The full text of the American Family Association Letter, as well as
the Morality In Media statement, can be found at the following URL's:
http://www.cdt.org/speech/cda/950404amfam_exon_ltr.html
http://www.cdt.org/speech/cda/950426amfam_pressler_ltr.html
http://www.cdt.org/speech/cda/950328mim_pr.html
ftp://ftp.cdt.org/policy/freespeech/amfam_exon.ltr
ftp://ftp.cdt.org/policy/freespeech/amfam_pressler.lt
ftp://ftp.cdt.org/policy/freespeech/mim_pr
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(3) ABOUT THE CENTER FOR DEMOCRACY AND TECHNOLOGY
The Center for Democracy and Technology is a non-profit public interest
organization. The Center's mission is to develop and advocate public
policies that advance constitutional civil liberties and democratic
values in new computer and communications technologies.
Contacting us:
General information on CDT can be obtained by sending mail to
info@cdt.org
CDT has set up the following auto-reply aliases to keep you informed
on the Communications Decency Act issue.
For information on the bill, including
CDT's analysis and the text of Senator
Leahy's alternative proposal and
information on what you can do to
help -- cda-info@cdt.org
For the current status of the bill,
including scheduled House and
Senate action (updated as events
warrant) -- cda-stat@cdt.org
World-Wide-Web:
http://www.cdt.org/
ftp:
ftp://ftp.cdt.org/pub/cdt/
gopher:
CDT's gopher site is still under construction and should be operational
soon.
voice: +1.202.637.9800
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