Congress looking at new vehicles for censorship

By Juan Antonio Osuna
CRA Staff

Censorship legislation was incorporated into a House telecommunications bill over the summer, which may win out over similar legislation in the Senate.

Shortly before the House adjourned August 4, an omnibus Manager's Amendment was incorporated into a landmark telecommunications bill by a vote of 256-149.

Among many additions was a provision making it illegal to "intentionally communicate by computer...to any person the communicator believes has not attained the age of 18 years any material that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs."

Although apparently narrower than Sen. James Exon's (D-NE) Communications Decency Act that was added to the Senate bill, the provision still has caused concern among civil liberties groups.

"This provision would effectively reduce all online content to that which is suitable only for children," the American Civil Liberties Union said. Because a conference committee will hash out differences between the House and Senate bills when Congress reconvenes in September, either piece of legislation could prevail.

The Communications Decency Act, included in the Senate bill, would criminalize any online traffic, including private e-mail, judged either "obscene, lewd, lascivious, filthy or indecent."

While the ACLU opposes any such government-mandated censorship, it approved the "general approach" of yet another amendment added to the House bill that would encourage online services to censor their own traffic. This amendment was offered in the context of the May 1995 New York Supreme Court ruling in the case of Stratton Oakmont v. Prodigy.

The court ruled that Prodigy, unlike many other online services, was liable for defamatory language contained in one of its forums because it had historically exercised control over content in an effort to market itself as a "family service."

In essence, the court deemed Prodigy a publisher of information rather than a distributor because of its efforts to censor sexual content. By exercising editorial control, Prodigy had exposed itself to greater liability than other online services that acted purely as distributors and paid no attention to content.

To remedy this apparently unfair situation, Reps. Christopher C. Cox (R-CA) and Ron Wyden (D-OR) added an amendment to the House telecommunications bill that protects online services against such liabilities.

The amendment states: "No provider or user of interactive computer services shall be held liable [i.e., considered a publisher of information] on account of action voluntarily taken in good faith to restrict access to material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing or otherwise objectionable, whether or not such material is constitutionally protected." The ACLU said it supported the general approach of the amendment because "it prohibits FCC [Federal Communications Commission] regulation of content on the Internet and generally supports private-sector initiatives, not government censorship, in cyberspace."

However, the ACLU added, "there are several ambiguities and some real problems with the Cox/Wyden amendment. The two sponsors have committed to working with us on resolving the problems."