Communications Decency Act Becomes Law

ACLU, Others, File Suit; Enforcement Temporarily Prohibited

by Andrew Kantor

On February 8, President Clinton signed into law the Telecommunications Act of 1996, which included the controversial - and likely unconstitutional - Communications Decency Act (CDA). The CDA prohibits U.S. citizens from transmitting over any form of electronic network "any comment, request, suggestion, proposal, image, or other communication which is obscene or indecent knowing that the recipient of the communication is under 18 years of age." (Because Web pages and Usenet newsgroups are public, the law would apply to any material in these venues.) The CDA imposes fines of up to $200,000 and jail terms of up to two years for violators.

Within hours of the bill's being signed, the American Civil Liberties Union (ACLU) - representing Planned Parenthood, ClariNet, the Electronic Frontier Foundation, itself, and 16 other organizations - filed a lawsuit in federal district court in Philadelphia seeking a temporary restraining order against the indecency provisions of the bill. Unlike "obscenity," a clear standard for indecency has never been established. In addition, the bill outlaws discussions of "where, how, or of whom, or by what means any drug, medicine, article, or thing designed, adapted, or intended for producing abortion . . . may be obtained or made," effectively outlawing any Web pages or e-mail or Usenet discussions about birth control, planned parenthood, or abortion.

Later that day, Judge Ronald Buckwalter did prohibit the government from enforcing the indecency provision of the bill until it filed a brief defending the wording, but allowed prosecutions under the law's anti-obscenity clause. A three-judge panel in Philadelphia was scheduled to consider the ACLU's request for a permanent injunction in mid-March.

Attorney General Janet Reno said the government would not enforce the provisions prohibiting discussions of abortion. In a letter sent to vice president Al Gore on February 9, she wrote, "The Department of Justice will not defend the constitutionality of the abortion-related speech provision of the CDA. . . because [it is] unconstitutional under the First Amendment."

Immediately after the signing, hundreds of Internet users turned their World Wide Web pages black in a prearranged protest against "second-class treatment" for online speech, pointing out that material protected by the First Amendment in print form was prohibited when online.

On February 23, the U.S. government agreed not to initiate investigations or prosecute under either the "indecency" or "patently offensive" censorship provisions of the CDA until the three-judge panel heard the case, extending the initial protection granted by Judge Buckwalter.

On February 26, a second lawsuit was filed on the same grounds as the ACLU's, this time by groups including America Online, the American Library Association, the Commercial Internet Exchange (CIX), Compuserve Information Service, Microsoft, Netcom, and Prodigy.

On the legislative front, Sen. Patrick Leahy (D-Vt.), and others are attempting to have the CDA removed from the Telecommunications Act. Said Leahy, "Americans should be taking the high ground to protect the future of our home-grown Internet, and to fight these censorship efforts that are springing up around the globe."

In related news, CompuServe announced that it had reinstated all but five of the Usenet newsgroups it had removed under pressure from the German government. This was as a victory for free expression by many Net users.

From the Internet News column in the May 1996 issue of Internet World.

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