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
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