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1995-06-11
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9KB
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174 lines
[This is a draft amendment to the Exon/Gorton Communications Decency
legislation buried in the Senate telecom bill, S652. This draft is being
floated by Exon, the Justice Dept., which has loud objections to the language
as it currently stands in May 1995, and by certain (unidentified, but
rumored to include Prodigy and others) online service providers. The
revision attempts to patch several holes pointed out by DoJ, none of said
revisions improving the free speech problems with this legislation.
Language "protecting" (that is, criminalizing slightly less) system
operators has been inserted, but in EFF's opinion, the bill is really no
better than it was, and must still be opposed as an unconstitutional
trampling of free expression online. It's unclear whether or not this
draft is meant to replace all of the Comms. Decency language in S652, or
only to amend parts of it. The latter is more likely.]
[A note about markup:
Material that is underlined in the original - mostly additions and
interpolations - _is_marked_up_like_this_, while material that was
stricken-through, apparently intended to be removed from the bill, ~is~
~marked~up~like~this~. Interpolated notes by the bill editor(s) that do
not appear to be part of the bill text itself {are marked up with squiggle-
brackets, like this}. The doubled-S-like "Section" symbol has been
replaced with the word "Section". Editorial comments by transcriber are
enclosed in square brackets, just like the current note you are reading.]
_Dated_May_19,_1995_
Section 223. Obscene or harassing utilization of telecommunications devices
and facilities in the District of Columbia or in interstate or
foreign communications.
(a) Whoever --
(1) in the District of Columbia or in interstate or foreign
communications by means of telecommunications device
(A) knowingly
(i) makes, creates, _or_ solicits, and
(ii) initiates the transmission of,
any comment, request, suggestion, proposal, image, or other communication
which is obscene, lewd, lascivious, filthy, or indecent, with intent to
annoy, abuse, threaten or harass another person;
(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;
(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 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) knowingly ~and~willfully~ permits any telecommunications
facility under his control to be used for any _activity_ ~purpose~
prohibited by this subsection with the intent that it be ~so~ used _for
_such_activity_,
shall be fined not more than $100,000 or imprisoned not
more than two years, or both.
{NO CHANGES TO CURRENT LAW FOR SEC. (b) & (c)
"DIAL-A-PORN" Statute.}
(d) Whoever --
(1) knowingly within the United States by means of
telecommunications device
(A) makes, creates, _or_ solicits, and
(B) initiates the transmission of or purposefully makes
available
any comment, request, suggestion, proposal, image, or other communication
which is obscene, regardless of whether the maker of such communication
placed the call or initiated the communications, or
(2) knowingly ~and~willfully~ permits any telecommunication
facility under such person's control be used for an activity prohibited
by subparagraph (d)(1) with the intent that it be so used _for_such_
_activity_,
__[underlined whitespace]__ shall be fined not more than $100,000 or
imprisoned not more than two years or both.
(e) Whoever, --
(1) knowingly within the United States by means of
telecommunications device
(A) makes, creates, _or_ solicits, and
(B) initiates the transmission of, or purposely makes
available,
any indecent comment, request, suggestion, proposal, image, or other
communication ~which~is~available~ to any person under 18 years of age
~or~to~any~person~18~years~of~age~or~older~without~that~person's~consent,~
regardless of whether the maker of such communication placed the call or
initiated the communications, or
(2) knowingly ~and~willfully~ permits any telecommunications
facility under such person's control be used for an activity prohibited
by subparagraph (e)(1) with the intent that it will be used _for_such_
_activity_,
shall be fined more than $100,000 or imprisoned not more
than two years or both.
(f) Defenses to the subsections (a)~(2)~, (d), and (e) restrictions on
access, judicial remedies respecting restrictions for persons providing
carriage or information services--
(1) _The_provision_of_access_ _by_a_ person ~including~ transmission,
[apparent resulting grammatical error here is in the original, and is not
a typo of the transcribers] downloading, storage, or navigational tools,
and related capabilities which are incidental to the transmission of
communications, and not involving the creation or alteration of the
content of the communications, for another person's communications to or
from a service, facility, system, or network not under _the_access_
_provider's_ ~that~first~person's~ control _shall_by_itself_not_be_a_
_violation_of_subsection_(a),_(d)_or_(e)._ ~This~defense~shall~not~be~
~available~to~a~defendant~who~is~owned~or~controlled~by~a~conspirator~
~with~an~entity~actively~involved~in~the~creation,~alteration~or~knowing~
~distribution~of~communications~which~violate~this~section~or~to~an~
~entity~which~exists~for~the~creation,~alteration~or~knowing~distribution~
~of~communications~which~violate~this~section.~
(2) It is a defense to prosecution under subsections (a)(2),
(d)(2) or (e)(2) that a defendant _did_not_have_editorial_controll_[sic]
_over_the_ ~lacked~the~capability~of~exercising~editorial~control~over~the~
communication specified in this section. This defense shall not be
available to a defendant who has ceded editorial control to an entity
which the defendant knows or ~has~substantial~ _had_ reason to know intends
to engage in conduct that is likely to violate this section.
(3) It is a defense to prosecution under subsections (a); (d)(2)
or (e)(2) that a defendant has taken good faith, reasonable steps, to
restrict or prevent the transmission of, or access to communications
described in ~this~section~ _such_provisions_ according to such procedures
as the Commission may prescribe by regulation. _Such_steps_and_FCC_
_procedures_may_include_enabling_the_user_to_restrict_or_prevent_access_to_
_communication_described_in_this_section_. Nothing in this
subsection ~in~and~of~itself~ shall be construed to treat enhanced
information services as common carriage.
(4) No cause of action may be brought in any court or
administrative agency against any person on account of any ~otherwise~
~lawful~ action _not_in_violation_of_any_law_punishable_by_criminal_penalty_
which the person has taken in good faith to implement a defense
authorized under this section or otherwise to restrict or prevent the
transmission of, or access to, a communication specified in this section.
(g) No State or local government may impose any liability for commercial
activities or actions by commercial entities in connection with a
violation described in subsection (a)(2), (d)(2), or (e)(2) that is
inconsistent with the treatment of those violations under this section
provided, however, that nothing herein shall preclude any State or local
government from enacting and enforcing complementary oversight,
liability, and regulatory systems, procedures, and requirements, so long
as such systems, procedures, and requirements govern only intrastate
services and do not result in the imposition of inconsistent obligations
on the provision of interstate services. Furthermore, nothing in this
subsection shall preclude any State or local government from governing
conduct not covered by this section.
(h) Nothing in this subsection (a), (d) or (e) or in the defenses to
prosecution under (a), (d), or (e) shall be construed to affect or limit
the application or enforcement of any other federal law.