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Legislative Proposal For New Indecency Language In Telecom Bill

Legislative Proposal for New Indecency Language in Telecom Bill

I. Summary

Although the October 16, 1995 legislative proposal purports to regulate "
computer pornography", the proposal contains fatal flaws which render the
proposal at best counterproductive and at worst devastating to on-line
communications. First, it prohibits, but fails to define, "indecent" speech to
minors -- a dangerously vague, medium-specific, and, after decades of litigation,
still undefined concept, which may include mere profanity. This may tie up
successful prosecution of the law in courts for years to come, while courts
wrestle to divine a constitutional definition of "indecent" -- and while
companies are left with uncertain liability.
Second, the October 16 proposal may actually hold systems liable for
communications over which they have no specific knowledge or control. The
proposal purports to target those who "knowingly" send prohibited communications
-- itself a relatively low standard of liability that may not even require
actual intent or willfulness. Nevertheless, because the proposal i) defines the
elements of criminal liability in vague and contradictory terms, and ii)
eliminates safeharbors in the Senate bill that would define a clear standard of
care, it might hold systems liable for actions that don't reach even a "
knowingly" standard of liability. As a result, access providers, system
managers and operators, and employers may potentially be liable for actions of
users over which they have no specific knowledge, intent, or control.
For any company that communicates by computer, the proposal:

1) Creates liability for, but never defines, "indecent" speech, a dangerously
vague standard that could leave companies criminally liable for use of mere
profanity;

2) Establishes vague and contradictory standards of liability that could leave
innocent companies vicariously liable for communications over which they have no
control;

3) Strips workable affirmative...