Communications Decency Act

The Communications Decency Act (CDA) was Title V of the United States' Telecommunications Act of 1996. Passed by the U.S. Congress on February 1, 1996, its primary aim was regulating internet pornography. Free speech advocates, however, worked diligently and successfully to overturn the portion relating to indecent, but not obscene, speech.

With those portions invalidated, the net result was an act which enhanced free speech by making it unnecessary for ISPs and other service providers to unduly restrict customers' actions for fear of being found legally liable for customers' conduct. The 1995 decision in Stratton Oakmont, Inc. v. Prodigy Services Co. tended to have that effect.

Still having some chilling effect is the limitation on obscene speech, which was not overturned. The problem here is that the legal definition of obscenity has previously used local community standards, a definition which does not work well with the internet, where material published in one location is accessible from all. The ongoing case Nitke v. Ashcroft is challenging this obscenity portion of the act.

Indecency in (ground wave) TV and radio broadcasting had already been regulated by the Federal Communications Commission - broadcasting of offensive speech was restricted to certain hours of the day, when minors were supposedly least likely to be exposed. Violators (broadcasters) could be fined and potentially lose their licenses.

The CDA contained a number of provisions criminalizing the display or transmission to a minor of material of a violent or sexual nature. The media affected by this act were the Internet and cable television. In Philadelphia, Pennsylvania on June 12, 1996 a panel of federal judges blocked part of the CDA, saying it would infringe upon the free speech rights of adults.

Next month on July 29, a US federal court struck down the portion of the CDA intended to protect children from indecent speech as too broad. A year later, on June 26, 1997, the Supreme Court upheld the lower court's decision in Reno v. American Civil Liberties Union, stating that the portion concerned was an unconstitutional abridgement of the First Amendment right to free speech.

The CDA was criticized for prohibiting the posting of "indecent" or "patently offensive" material in public forums on the Internet, which many felt was too ambiguous and could easily be misconstrued. Opponents argued that speech protected under the First Amendment, such as printed novels or the use of the seven dirty words, would suddenly become unlawful when posted to the Internet.

Critics also claimed the bill would have a chilling effect on the availability of medical information. Online civil liberties organizations arranged protests against the bill, for example the Black World Wide Web protest which encouraged webmasters to make the site backgrounds black for 48 hours after the passing, and the Electronic Frontier Foundation's Blue Ribbon Online Free Speech Campaign.

A narrower version of this act relating to the internet was later restated in the Child Online Protection Act (COPA). COPA was overturned in lower courts in January 1999 based on case law established when much of the CDA was invalidated. Appeals in that case continue.

Section 230

Section 230 of the act added valuable protection for online service providers and users from action against them for the actions of others, stating in part that "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider". This portion of the Act remains in force.

It is controversial because several courts have interpreted it as providing complete immunity for Internet service providers with regard to the torts committed by their users over their systems. See, e.g., Zeran v. AOL, 129 F.3d 327, 330 (4th Cir. 1997), cert. denied, 524 U.S. 937 (1998), which held that Section 230 “creates a federal immunity to any cause of action that would make service providers liable for information originating with a third-party user of the service.”

Courts across the country have upheld Section 230 immunity in a variety of factual contexts. Batzel v. Smith, 333 F.3d 1018 (9th Cir. 2003) (website operator immune for distributing email sent to listserv); Carafano v. Metrosplash.com, 339 F.3d 1119 (9th Cir. 2003) (Internet dating service provider was entitled to Section 230 immunity from liability stemming from third party’s submission of false profile); Ben Ezra, Weinstein & Co. v. America Online, 206 F.3d 980, 984-985 (10th Cir. 2000), cert. denied, 531 U.S. 824 (2000) (no liability for posting of incorrect stock information); Blumenthal v. Drudge, 982 F. Supp. 44, 49-53 (D.D.C. 1998) (AOL has Section 230 immunity from liability for content of independent contractor’s news reports, despite agreement with contractor allowing AOL to modify or remove such content); Gentry v. eBay, Inc., 99 Cal.App.4th 816, 830 (2002) (Section 230 “immunizes providers of interactive computer services . . . and their users from causes of action asserted by persons alleging harm caused by content provided by a third party.”); Kathleen R. v. City of Livermore, 87 Cal.App.4th 684, 692 (2001) (city immune under § 230 from liability for public library’s providing computers allowing access to pornography); Doe v. America Online, 783 So.2d 1010, 1013-1017 (Fl. 2001), cert. denied, 122 S.Ct. 208 (2000) (§ 230 immunizes AOL for negligence).

Immunity under Section 230 requires that: (1) the defendant is a provider or user of an interactive computer service; (2) the cause of action treat the defendant as a publisher or speaker of information; and (3) the information at issue be provided by another information content provider.

This rule effectively protects online forums but has been criticised for leaving victims with no hope of relief where the true tortfeasors cannot be identified or are judgment-proof.

Section 230’s coverage is not complete: it excepts federal criminal liability and intellectual property law. 47 U.S.C. §§ 230(e)(1) (criminal) and (e)(2) (intellectual property); see also Gucci America, Inc. v. Hall & Associates, 135 F. Supp. 2d 409 (S.D.N.Y. 2001) (no immunity for contributory liability for trademark infringement); Perfect 10, Inc. v CCBill LLC (No. CV 02-7624 LGB) (C.D. Cal. June 22, 2004) (state right of publicity claim is not covered by Section 230); cf. Carfano, 339 F.3d 1119 (dismissing, inter alia, right of publicity claim under Section 230 without discussion).

Cases relying on the CDA include:

• Zeran v. AOL (1997)
• Carafano v. Metrosplash.com (2003) (the Star Trek actress case)

See also

• OCILLA portion of the DMCA, which protects online service providers from liability to their customers if they take down material at the request of a copyright holder, and in other situations.

External links

• FCC text of the full act (http://www.fcc.gov/Reports/tcom1996.txt).
• Section 230 (http://www4.law.cornell.edu/uscode/47/230.html)
• Center for Democracy and Technology Overview of CDA (http://www.cdt.org/speech/cda/). Caution: this refers to the struck down portion. Do not be misled into thinking that the whole of the act was struck down.
• Cybertelecom :: The Communications Decency Act (http://www.cybertelecom.org/cda/cda-up.htm)
• Nitke v. Ashcroft (http://www.wireniusreport.net/overview.html) overviewde:Communications Decency Act