Penalties in the Communications Decency Act

by Ronald Golini

A legislative history paper submitted on July 8, 1997, at the Southern New England School of Law in partial fulfillment of the requirements of the course, Advanced Electronic Research, conducted by Professor Gordon Russell.

In a landmark decision issued on June 26, 1997, the United States Supreme Court Decision affirmed the lower court decision and held that the Communications Decency Act violates the First Amendment guarantee of freedom of speech. The court's opinion was written by Justice John Paul Stevens and rejects censorship of the on-line medium of communication and establishes the fundamental principles that will guide judicial consideration of the Internet for the twenty-first century.

In researching the topic of penalties in the Communications Decency Act I have produced the following legislative history. It spans a three years period of development to date, and has not stopped with the Court's decision. In keeping with the order of research suggested in our classroom presentation, I have retrieved legislative history elements 1) free through Internet access from a myriad of legal sites on the World Wide Web and 2) by a service fee from Westlaw.

• S. 314, 104th congress, 1st session, 2-1-95: the original bill was introduced by Senators Exon (D-NE) and Gordon (R-WA) as the "Communications Decency Act of 1995," 1 amending the Communications Act of 1934. 2

Section 2 of the 1995 Act provides the following:

"(b) Penalties: Section 223 of such act (47 U.S.C 223) is amended-
by striking out '$50,000" each place it appears and inserting '$100,000'; and
by striking six months' each place it appears and inserting '2 years'."
The bill was read twice and referred to the Senate Committee on Commerce, Science and Transportation.

• H.R 1004, 104th Congress, 1st session, 2-21-95: essentially the same bill with the same name 3 was introduced in the House of Representatives by Representative Johnson (D-SD) also providing:

"(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'."
This bill was also referred to the Committee on Commerce.

• S. 714, 4-7-95: Senator Leahy (D-VT) introduced an alternative 4 to the Exon/Gorton bill which commissions the Department of Justice to study the problem and ascertain whether additional legislation (such as the CDA) is necessary. The bill contains no reference to "penalties."
  
• 5-3-95: The House voted to attach a Managers Amendment to H.R. 1555 introduced by Representative Bliley, containing reference to criminal penalties for speech online and merely makes reference to:

"(5) ensure vigorous enforcement of criminal laws to deter and punish trafficking in obscenity, stalking, and harassment by means of computer."5

• H.R. 1555, 5-24-95: the House Telecomm Reform bill 6 leaves committee and is presented to the House. It contains no penalty stipulation.
  
• S. 652, 6-14-95: the Senate passed the CDA as attached to the Telecomm reform bill.7 It is known as the Telecommunications Act of 1996 and sent to the President. The Leahy bill is not passed.
  
• S. 892: 6-7-95: Senator Grassley introduced a bill 8 to amend section 1464 of title 18, United States Code, to punish transmission by computer of indecent material to minors. Akin to the CDA, it contained the following penalty provision:

"(3) PERMITTING ACCESS TO TRANSMIT INDECENT MATERIAL TO A MINOR- Any remote computer facility operator, electronic communications service provider, or electronic bulletin board service provider who willfully permits a person to use a remote computing service, electronic communications service, or electronic bulletin board service that is under the control of that remote computer facility operator, electronic communications service provider, or electronic bulletin board service provider, to knowingly or recklessly transmit indecent material from another remote computing service, electronic communications service, or electronic bulletin board service, to a person under 18 years of age, shall be fined not more than $10,000, imprisoned not more than 2 years, or both."

• H.R 1978: 8-4-95: Representatives Cox and Wyden introduced a bill 9 known as the "Internet Freedom and Family Empowerment Act" to encourage and protect private sector initiatives that improve user control over computer information services. The bill makes no specific mention of "penalties."

• 2-1-96: Communications Decency Act is enacted by the U.S. Congress.10

• 2-8-96: Remarks by the President in the Signing Ceremony for the Telecommunications Act. There is no mention of "penalties."

• S. 1567, 2-9-96: Senator Leahy's bill 11 to repeal the effects of the CDA. There is no reference to "penalties." Mr. Leahy's floor statement makes no mention 12 of "penalties" per se, but indicates that

"The new law will punish with 2-year jail terms someone using one of the "seven dirty words" in a message to a minor or for sharing with a minor material containing indecent passages. . . The new law will make it a crime 'to display in a manner available to' a child any message or material 'that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs...'"

• 2-9-96: U.S. District Court Judge Ronald Buckwalter delayed a ruling on a request for a temporary restraining order blocking new provisions against indecency on the Internet.13

• 2-22-96: The U.S. Department of Justice reached an agreement14 with the ACLU and other plaintiffs to defer enforcement of the provisions of the CDA. Penalties provided for in the Act would be withheld pending a decision on ACLU v. Reno.

• 6-12-96: Civil action No. 96-963 before the District Court for the Eastern District of Pennsylvania: American Civil Liberties Union et al. V. Janet Reno and American Library Assoc. et al. v. U. S. Dept. of Justice, et al.15 A special three-judge court ruled that the Communications Decency Act is an unconstitutional abridgment of rights protected by the First and Fifth Amendments.

Reference is made to "penalties" in the opinion of Chief Judge Sloviter:

"As noted in Part I, Introduction, the plaintiffs' motion for a preliminary injunction is confined to portions of two provisions of the Communications Decency Act of 1996, Sec. 223(a) and Sec. 223(d), which they contend violate their First Amendment free speech and Fifth Amendment due process rights. To facilitate reference, I set forth those provisions in full. Section 223(a), the "indecency" provision, subjects to criminal penalties of imprisonment of no more than two years or a fine or both anyone who:

1) in interstate or foreign communications . . .by means of a telecommunications device knowingly --

(i) makes, creates, or solicits, and

(ii) initiates the transmission of, 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, regardless of whether the maker of such communication placed the call or initiated the communication; . . .

(2) knowingly permits any telecommunications facility under his control to be used for any activity prohibited by paragraph (1) with the intent that it be used for such activity."

• 6-26-96: The Department of Justice filed an appeal with the U.S. Supreme Court, which heard oral arguments in the case: Reno v. ACLU.16 The Court recounted that:

"Chief Judge Sloviter began her opinion by emphasizing that the CDA was not simply a regulatory scheme; instead, "we are dealing with criminal provisions, subjecting violators to substantial penalties."

In addition:

"Even though the §10(b) restriction was far less draconian than the criminal penalties under the CDA, it was unconstitutional because the government had not met its burden of demonstrating that mandated scrambling was the least burdensome means available to accomplish its goal of protecting minors."17

And finally:

"Every online speaker in the publicly accessible areas of cyberspace (including the World Wide Web, newsgroups, mailing lists, and chat rooms) would have to reduce his or her speech to that which is suitable only for minors in order to avoid criminal penalties under any of the provisions."18

• 6-26-97: Statement by the President to study the Supreme Court's opinion closely. There is no mention of "penalties," but rather a stance of protectionism:19

"We can and must develop a solution for the Internet that is as powerful for the computer as the v-chip will be for the television, and that protects children in ways that are consistent with America's free speech values."

• S. 900, 105th Congress, 6-26-97: Senator Feingold introduced legislation 20 to increase criminal penalties for individuals who use computers and the Internet to commit crimes of sexual abuse and exploitation against children.

• 7-1-97: President's Message to Internet Users 21 makes no reference to "penalties, " but calls upon all Internet users to join in seeking total global consensus. In releasing his report A Framework for Global Electronic Commerce, 22 he acknowledges that the Internet is emerging as a global marketplace. "The legal framework supporting commercial transactions on the Internet should be governed by consistent principles across state, national, and international borders that lead to predictable results regardless of the jurisdiction in which a particular buyer or seller resides." Each item on his list of legal issues contains its own provision for "penalty" or sanction: Uniform Commercial Code for electronic commerce, intellectual property protection and privacy/security.23

Notes

1 S. 314. (visited 7-7-97). http://thomas.loc.gov/cgi-bin/query/z?c104:S.314:.

2 47 U.S.C. 223. (visited 7-7-97). http://www.law.cornell.edu/uscode/47/223.shtml.

3 H.R. 1004. (visited 7-7-97). http://thomas.loc.gov/cgi-bin/query/z?c104:H.R.1004:.

4 S. 714. (last visited 7-7-97). http://thomas.loc.gov/cgi-bin/query/z?c104:S.714:.

5 (last visited 7-7-97). http://thomas.loc.gov/cgi-bin/query/z?c104:H.R.1978:.

6 H.R. 1555. (last visited 7-7-97). http://thomas.loc.gov/cgi-bin/query/1?c104:./temp/~c1046gFx::.

7 S. 652. (last visited 7-7-97). http://thomas.loc.gov/cgi-bin/query/z?c104:S.652.ENR:.

8 S. 892. (last visited 7-7-97). http://thomas.loc.gov/cgi-bin/query/z?c104:S.892:.

9 H.R 1798 to amend Title II of the Communications Act of 1934 (47 U.S.C. 201 et seq.). (last visited 7-7-97. http://thomas.loc.gov/cgi-bin/query/z?c104:H.R.1978:.

10 (last visited 7-7-97). http://www.access.digex.net/~epic/final_bill.txt.

11 S. 1567. (last visited 7-7-97). http://www.epic.org/cda/repeal.html .

12 (last visited 7-7-97). http://www.epic.org/cda/s1657_statement.html

13 (last visited 7-7-97). http://www.newsbytes.com/nbcgi-bin/udt/SHOW.NB.NEW?ID=70677.

14 (last visited 7-7-97). http://www.newsbytes.com/nbcgi-bin/udt/SHOW.NB.NEW?ID=71008.

15 (last visited 7-7-97). http://www.access.digex.net/~epic/cda/cda_opinion.html.

16 Slip opinion: 521 U.S. (last visited 7-7-97). http://www.epic.org/free_speech/CDA/lawsuit /affirm_motion_10_31.html.

17 116 S.Ct. at 2390-2394 (plurality opinion); id. at 2396-97 (Kennedy & Ginsburg, JJ., concurring in part and dissenting in part). (last visited 7-7-97). http://www.epic.org/free_speech/CDA/lawsuit/ affirm_motion_10_31.html.

18 Specifically, §223(d)(1)(A) makes it a crime to "knowingly use an interactive computer service to send to a specific person or persons under 18 years of age" any material that is "patently offensive." (last visited 7-7-97). http://www.epic.org/free_speech/CDA/lawsuit/affirm_motion_10_31.html.

19 (last visited 7-7-97). http://www.epic.org/cda/clinton_cda_decision.html.

20 S. 900: (last visited 7-7-97). http://www.ciec.org/SC_appeal/970626_Feingold.html.

21 (last visited 7-7-97). http://www.cdt.org/digi_infra/970701_clinton.txt.

22 (last visited 7-7-97). http://www.iitf.nist.gov/eleccomm/ecomm.htm.

23 Ibid.