World Wide Catalog 1995 Summer/World_Wide_Catalog_InfoMagic_Summer_1995.iso/pages/wwweff_b.org/pub/alerts/s314_hrt.ana

Text File | 1995-06-11 | 17KB | 323 lines

[NOTE: This analysis applies no longer to S.314, which was heavily
amended, then folded into the Senate telecom reform bill, S652, on Mar. 23,
1995. It does however apply to the House version of the bill, H.R.1004,
which  has not been amended and preserves the original text. -
[e-mail] 3/28/95]


ELECTRONIC FRONTIER FOUNDATION POLICY PAPER: THE EXON BILL, S. 314, 1995
------------------------------------------------------------------------

This is the first in a series of documents by EFF Policy Fellows.  While
they do not necessarily reflect the position of the EFF Board of
Directors, EFF feels these Policy Papers present interesting viewpoints,
worthy of consideration and study.


Electronic Frontier Foundation
Policy Paper: Exon Amendment (S. 314)
February 28, 1995

Contact:    David G. Post ([e-mail])
                EFF Policy Fellow

Summary of Proposed Changes

The changes proposed in Section 2 of the Exon Amendment (the
"Amendment") fall into 2 categories.

1. A number of the proposed changes would expand existing criminal
liability by making certain acts that are currently illegal if done
using the telephone illegal if done using a "telecommunications
device."

    A.  Current law makes it illegal to "make" an "obscene, lewd,
lascivious, filthy, or indecent" comment by means of a telephone.
The Amendment would extend criminal liability to anyone
performing such an act by means of a "telecommunications device."
Sec. 2(a)(1)(A).

    B.  Current law makes it illegal to "make" a telephone call
"without disclosing [your] identity" and "with intent to annoy, abuse,
threaten, or harass any person at the called number." The Amendment
would extend liability to anyone who performs a similar act
"utiliz[ing] a telecommunications device." Sec. 2(a)(1)(C).

    C.  Current law makes it illegal to "make repeated telephone
calls" to "harass any person at the called number." The Amendment
would extend criminal liability to anyone who "repeatedly initiates
communication with a telecommunications device" for that purpose.
Sec. 2(a)(1)(D).

    D.  Current law makes it illegal to "knowingly permit a
telephone facility under [your] control" to be used for any of the
above illegal purposes. The Amendment would extend liability to
anyone who knowingly permits a "telecommunications facility" to be
used for such purposes. Sec. 2(a)(2).


    E.  Current law makes it illegal to "make an indecent
communication for commercial purposes . . . available to any person
under 18 years of age" by means of a telephone. The Amendment
would extend criminal liability to those making such
communications available "by means of a telecommunications
device." Sec. 2(a)(4).

2. A number of the proposed changes would expand existing criminal
liability by making a new class of persons liable for the illegal acts
of others.

    A.  Current law makes it illegal to "make" an "obscene, lewd,
lascivious, filthy, or indecent" comment by means of a telephone.
The Amendment would extend criminal liability to anyone who
"transmits or otherwise makes available" such a comment. Sec.
2(a)(1)(B).

    B.  Current law makes it illegal to "make an indecent
communication for commercial purposes . . . available to any person
under 18 years of age" by means of a telephone. The Amendment
would extend criminal liability to anyone who "knowingly transmits
or knowingly makes available" such communications. Sec. 2(a)(4).

Objections to the Proposed Changes

    A.  The extension of liability to acts performed via
"other telecommunications devices" It may seem logical to propose
that a certain act that is now illegal if accomplished via a telephone
should be illegal if accomplished via electronic mail or other
telecommunications devices. It is a logic that breaks down on closer
examination.

        1.  Existing law embodies the principle that persons
should not be permitted to exploit the capability of this medium to
impose harmful or harassing communications on unwilling listeners.
By the same token, private, consensual communication is, simply,
none of the government's business (even if that communication
might otherwise be deemed "obscene, lewd, lascivious," etc.). The
telephone is both a point-to-point medium and an "intrusive"
medium. Calls are directed to individual recipients who are
generally unable (notwithstanding a measure of protection available
through Caller ID or similar technology), to avoid calls placed
directly to their telephone number, even if they are unwilling to
participate in the communication.

        Existing law thus criminalizes only those
communications that are non-consensual -- because only the sender
and the recipient are participants in the call (and no one will be in a
position to complain if the two participants consensually engage in
the communication). The ban in existing law on obscene telephone
calls, or repeated anonymous and "harassing" telephone calls,
protects the unwilling recipient from being subjected to
communication that he/she finds offensive and cannot avoid.

        2.  Any extension to the world of electronic
communication should sweep no more broadly than to cover
personally targeted, non-consensual, point-to-point electronic
communication, because only in that context does the concept of the
"unwilling listener" make sense.

        "Offensive" communications that appear in electronic
discussion groups, chat "rooms," Usenet groups, listservers, and the
like are not akin to personally directed telephone calls intruding
upon an unwilling listener. These contexts are more closely
analogous to voluntarily-entered communities, where the unwilling
listener can always exit -- avoiding exposure to the unwanted
communication -- if the communications are offensive or otherwise
annoying.

    B  The extension of liability to persons who "transmit or
otherwise make available" specific kinds of communications

        1.  The extension of liability to persons who "transmit
or otherwise make available" specific kinds of communications will
have a substantial and detrimental effect on robust communication
on individual networks and the Internet.

        The potential breadth of this aspect of the Amendment is
breath-taking, given the decentralized architecture of the Internet.
Any given message travelling over the Internet may be "transmitted
or otherwise made available" by dozens of intermediate networks;
the Amendment, on its face, would appear to make these
intermediate network administrators criminally liable for the
content of messages "transmitted" by their systems. Additionally,
any of the possibly thousands of network administrators who might
make an individual Usenet group available to network users would, it
appears, be liable should e.g., any "indecent" communication appear
in the communications within that group.

        The risks for network administrators under this regime
would be substantial even if it were possible to pre-screen all
communications prior to "making them available," and even if there
were clear definitional boundaries such that one could easily
determine ex ante what was, or was not, an "obscene, lewd,
lascivious, filthy, or indecent" communication. Given the virtual
impossibility of the former and the absence of the latter, the risks
are further exacerbated.

        It is inevitable that network administrators and others
in control of telecommunications facilities will take steps to
minimize these enormous risks, steps certain to include a refusal to
transmit communications from discussion groups or other Internet
sites that may contain material that may be deemed to fall into one
or more of the prohibited categories.

        This will necessarily chill the robust discussion that has
characterized the online environment up to this point by making
unavailable an enormous range of communication outside of the
prohibited categories -- communication squarely within the
protection of the First Amendment.

        2.  Imposition of liability only on those who "knowingly"
transmit or make available prohibited communications will not cure
this deficiency.

        The term "knowingly" does not consistently refer to a
single, well-defined scienter (mental state) standard. It is unclear,
and will continue to be unclear until courts give a definitive
construction to this term in this specific context, whether, for
example, (a) knowledge that a particular newsgroup is being made
available to network users, or (b) knowledge that the newsgroup is
being made available and is unmoderated, or (c) knowledge that the
newsgroup has carried prohibited communications (frequently?) in
the past, or (d) knowledge that a specific communication was
carried in the newsgroup, or (e) knowledge that the content of the
specific communication fell within the category of prohibited
communications, will be sufficient to impose liability on a network
administrator in the event that an "obscene" communication appears
among the many non-prohibited communications in the group.
Perhaps more significantly, a scienter standard for intermediaries
will, perversely, discourage precisely the kind of monitoring of
communication that offers users protection against being subjected
to unwanted communications. Network administrators will have the
incentive to avoid all monitoring or pre-screening of messages in
order to avoid being deemed to have "knowledge" of a specific
prohibited communication. Providers of transmission services
should instead be given maximum flexibility to set local standards
for the classes of messages they are willing to carry, to perform the
monitoring they deem appropriate to enforce those standards, and
incentives should be provided to encourage them to communicate the
nature and scope of those actions so as to enable users to make
informed decisions about the kind of communication to which they
wish to be exposed.

A Counter-Proposal

For all of its obvious and serious flaws, the Exon Amendment
provides those interested in the free flow of information in
electronic communities with the opportunity to re-think the
question of content regulation in those communities and to design
standards that will provide protection against harm to the unwilling
listener without sacrificing the vigorous debate that has come to
characterize those communities. We offer the following principles
that, if embodied in legislation, would better balance these
competing needs.

1.    The Internet -- and, increasingly, individual constituent
networks -- are global in scope, presenting difficult jurisdictional
questions concerning the proper law to apply in particular instances.
Although federal legislation cannot alone solve these conflict-of-
laws questions, a properly drafted federal statute that expressly
pre-empts conflicting state legislation could be an important first
step towards relieving network administrators and others
responsible for the Internet infrastructure of the burden of
complying with overlapping and mutually inconsistent State law.

2.    The principle of individual responsibility for harmful acts
initiated by the individual should be a centerpiece of any legislative
initiative in this area. Legal remedies for any harm resulting from
electronic communications -- for copyright infringement,
harassment, defamation, or the like -- should focus upon the person
or persons responsible for initiating the communication. In order to
preserve the free flow of information within and across electronic
communities, persons who do no more than transmit or forward
messages should be immune from liability. Only if such persons take
affirmative steps to solicit, sponsor, promote, or adopt the
communication in question as their own, or if, by their actions, they
make it more difficult for the recipient to identify the originator of
the offending communication, should liability attach to their
actions.

The following language, broadly adopted from the draft of an
Electronic Communications Forwarding Act proposed by EFF (and
others) several years ago, would be a useful starting point for
legislative action:

    Any person who, using an instrumentality of
    interstate commerce, forwards or transfers such
    electronic communication between the originating
    party and authorized recipients, not be subject to
    criminal or civil penalty nor liable to any other
    person for damages or equitable relief of any kind,
    provided that such person does not solicit, sponsor,
    promote, or adopt such communication as its own,
    and provided further that such person does not
    alter the identifiability of the sender of such
    communication.

3.    The free flow of information in electronic communities can
and should accommodate adequate protection for the unwilling
listener against intrusive, personally targeted, non-consensual,
point-to-point electronic communication, and we support the
development of uniform standards in this area. Such standards
should be based upon the principle that message recipients can avoid
exposure to any such offending messages, but only if the messages
are properly labelled and their originator(s) properly identified;
hence liability should attach only where the sender takes
affirmative steps to shield the recipient from information about the
identity of the sender, or to mislabel or misrepresent message
content, in such a way as to make it unreasonably difficult for the
recipient to avoid communication that he or she deems offensive.


4.    The means by which definitional questions regarding the
boundaries of communications deemed "obscene" or otherwise
unlawful must respect the right of communities to self-
determination and self-governance to the maximum extent possible.
Outside of the electronic context, reference to prevailing
"community standards" in making these determinations attempts to
balance the right of residents in specific communities to exercise
control over the material that enters their communities, against the
right of creators and distributors of diverse material to operate
freely in those communities where that material is not offensive to
prevailing standards, so as to encourage diversity of expression and
to prevent imposition of a uniform, "lowest common denominator"
standard across different communities.

    The world of electronic communication uniquely offers
individuals the ability to associate into virtual communities with
others who share their sensibilities regarding material that other
communities might deem indecent, obscene, lascivious, or lewd. The
"boundaries" between these online communities are passwords and
warning screens, that enable the nature of the communications
permitted (and prohibited) in the community in question to be
clearly communicated to all those who wish to join the community
in question. Accordingly, we believe that the best source of a
definition regarding what constitutes "obscenity", for purposes of
determining when the law should intervene to prohibit electronic
distribution of materials, is the standard set by the users who,
collectively, set the rules applicable to any particular online
community. Where the nature of the materials is clearly disclosed on
warning screens encountered as the users access the BBS system,
those who sign on -- who voluntarily join the community - - have
already determined that the materials in question do not violate
their own sensibilities. If the operators of a BBS system were to
post materials that violated the collective standards of that
user community, the community in question could quickly correct
things by voting with their modems to go elsewhere.

5.    One problem, ostensibly addressed by the Amendment, remains:
how to insure that adult-oriented material does not find its way
into the hands of minors? This problem can arise in two broad
contexts in the online environment: membership-restricted forums
(e.g., adults-only BBSs) and open, unrestricted forums (e.g., WWW
sites). Regarding the former, EFF supports imposition of a duty on
system administrators to take reasonable steps to collect
information concerning the age of persons attempting to access the
material, analogous to the duties of operators of "900" telephone
services to obtain similar information regarding callers. Regarding
the latter, we believe that parental control over minors' access can
best be achieved through a combination of standardized header codes
and "warning labels" in conjunction with software-based filtering
devices, and we will continue to support efforts by the online
community itself to develop and implement such standards.