Cybertelecom Federal Internet Law & Policy An Educational Project

The Communications Decency Act

It is no exaggeration to conclude that the Internet has achieved, and continues to achieve, the most participatory marketplace of mass speech that this country -- and indeed the world -- has yet seen. The plaintiffs in these actions correctly describe the "democratizing” effects of Internet communication: individual citizens of limited means can speak to a worldwide audience on issues of concern to them. Federalists and Anti-Federalists may debate the structure of their government nightly, but these debates occur in newsgroups or chat rooms rather than in pamphlets. Modern-day Luthers still post their theses, but to electronic bulletin boards rather than the door of the Wittenberg Schlosskirche. More mundane (but from a constitutional perspective, equally important) dialogue occurs between aspiring artists, or French cooks, or dog lovers, or fly fishermen. . . . [T]he Internet may fairly be regarded as a never-ending worldwide conversation. The Government may not, through the CDA, interrupt that conversation. As the most participatory form of mass speech yet developed, the Internet deserves the highest protection from governmental intrusion. -- ACLU v. Reno , 929 F.Supp. 825 (ED.Pa. 1996), aff'd, 521 U.S. 844 (1997)

On February 1, 1996, Congress passed Senator Exon's Communications Decency Act (CDA) as an amendment to the Telecommunications Act of 1996. On February 7, 1996, the ACLU challenged the constitutionality of the CDA. One week later, U.S. District Judge Ronald Buckwalter of the Eastern District of Pennsylvania issued a restraining order, enjoining enforcement of the CDA. The CDA had a short life, setting a precedent for a plethora of censorship proposals to come.

CDA as Passed

The CDA amended 47 USC § 223 which regulates obscene and harassing telephone calls. Pursuant to the CDA, it would have been illegal to knowingly use an "interactive computer service" to send to or display, in a manner available to a person under 18 years of age

any comment, request, suggestion, proposal, image, or other communication that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs, regardless of whether the user of such service placed the call or initiated the communication.

[47 U.S.C. § 223(d)(1)]. Congress intended to incorporate the definition of "indecency" from FCC v. Pacifica (a classic First Amendment case involving George Carlin's Seven Dirty Words monologue broadcast on Pacifica radio), and apply this definition to "interactive computer networks." Individuals would have been liable for posting or sending offensive material, but not for accessing or downloading it; it was the intent of Congress that the CDA punish content providers and not content recipients. The CDA would have been applied to computer networks of any size down to two computers.

Service providers could be subject to liability if they knowingly permit their facilities to be used in a manner that violates the CDA. [47 U.S.C. § 223(d)(2)]. Service providers appeared to have the responsibility of monitoring all activity that occurs on their service. Violations of § 223 could have resulted in fines and up to two years in prison. [47 U.S.C. § 223(d)].

Defenses Under the CDA

It was the goal of Congress to create an incentive for service providers and content providers to block childrens access to offensive content. Congress created a series of defenses to liability that created these incentives. Compare these defenses to those under COPA and the DMCA.

Access Provider Defense

The CDA provided a defense for service providers solely providing access to materials not under their control. [47 U.S.C. § 223(e)(1)]. Acme ISP, for example, would not be liable for providing to a minor Internet connectivity that ultimately provided access to the Playdude Magazine website. Simply carrying bits was insufficient for liability.

Good Faith Defenses

The CDA also created a series of affirmative actions that could be taken to shield a site from liability. [Sec. 223(e)(5)] If the content providers took measures to protect children from the content, the providers could be immune from prosecution under the CDA. These measures would have to be "[1] reasonable, [2] effective, and [3] appropriate" efforts to restrict the access of minors. Delineated examples in the CDA include restricting access to content through use of PINS, passwords, or credit card numbers. [47 U.S.C. § 223(e)(5)]. If a purveyor of pornography followed these measures, the purveyor could not be prosecuted under the CDA.

Good Faith Defense Against Other Liability

Congress wanted to encourage companies that sought to create safe spaces for children. However, at the time of the drafting of the CDA, one court had punished a service provider for exactly such behavior. In the case Stratton-Oakmont, Inc. v. Prodigy, Prodigy sought to create a safe place for children in chat rooms by providing monitors who had the ability to control whether content got posted. Prodigy advertised this kid-friendly service. Stratton-Oakmont was an investment firm confronting difficult times. An unknown individual, displeased with Stratton Oakmont, posted to a Prodigy chat room disfavorable information about Stratton Oakmont. Unable to determine the author of the content, Stratton Oakmont sued Prodigy. The lower court looked at Prodigy's efforts to create child safe spaces, determined that this was editorial behavior and that Prodigy was therefore acting in the role of a publisher. As a publisher, Prodigy could be liable for the content of a third party.

This did not stand well with Congress. As a part of the CDA, Congress included a defense declaring that computer networks are not republishers of data transmitted over their networks. In other words, online services are not liable for third party content over which their exert no control. [47 U.S.C. § 230(c)(1)] See Good Samaritan Defense. Furthermore, affirmative efforts to restrict access of minors to offensive material shall not subject an online service to civil or other liability. [47 U.S.C. § 223(f)(1)].

These federal defenses remain and have created an important shield for Internet network to liability for third party content. These defenses, however, may have provided service providers with unintended protection. Where ISPs seek to create kid friendly spaces, they may be immune from liability regardless of the inappropriateness of its actions. Where, for example, a service provider violates the privacy rights of a user, the service provider could arguably be protected from liability where the act was for the purpose of restricting the access of minors to offensive material.

Vicarious Liability Defense

The third defense, § 223(e)(4) removed some of the risk of vicarious liability to employers for activities of their employees.

There is No Private Right of Action to a Sec. 233 violation.

• ASHLAND HOSPITAL CORPORATION v. INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS LOCAL 575 , Dist. Court, ED Kentucky 2011 (" Precedent clearly establishes KDMC's harassment claim-as its premised on the statutory language of the CDA-is not a viable cause of action for private litigants in the civil arena. ")
• Sloan v. Truong, 573 F. Supp. 2d 823, 829 (S.D.N.Y. 2008) (there is no express or implied provision for a private remedy under § 223);
• Osborn v. Salter, No. 5:07CV00016, 2007 WL 1202848, at *1 (W.D. Va. April 23, 2007) ("[T]he authority to enforce the CDA lies with government authorities not with private citizens.");
Watson v. NCO Group, Inc., 462 F. Supp. 2d 641, 643 n.1 (E.D. Pa. 2006) (plaintiff withdrew CDA claim after conceding that 47 U.S.C. § 223 is a criminal statute that does not provide a private right of action)
• Universal Commc'n Sys., Inc. v. Lycos, Inc., No. 05-11172-REK, 2005 WL 5250032, at *4 (D. Mass. Dec. 21, 2005) ("Section 223 does not . . . provide a private right of action . . . so plaintiffs do not have a claim under this statute.").