Editing Communications Decency Act

{{short description|1996 attempt by the United States Congress to regulate Internet pornography}}
{{more citations needed|date=January 2012}}

The '''Communications Decency Act of 1996''' ('''CDA''') was the [[United States Congress]]'s first notable attempt to regulate [[pornography|pornographic]] material on the [[Internet]]. In the 1997 landmark case ''[[Reno v. ACLU]]'', the [[United States Supreme Court]] unanimously struck the act's anti-indecency provisions.

The Act is the short name of Title V of the [[Telecommunications Act of 1996]], as specified in Section 501 of the 1996 Act. Senators [[J. James Exon|James Exon]] and [[Slade Gorton]] introduced it to the [[United States Senate Committee on Commerce, Science and Transportation|Senate Committee of Commerce, Science, and Transportation]] in 1995.<ref>{{Cite web|url=https://www.congress.gov/bill/104th-congress/senate-bill/314/cosponsors|title=Cosponsors - S.314 - 104th Congress (1995-1996): Communications Decency Act of 1995|last=J.|first=Exon|date=1995-02-01|website=www.congress.gov|language=en|access-date=2018-03-25|archive-date=2021-10-30|archive-url=https://web.archive.org/web/20211030052243/https://www.congress.gov/bill/104th-congress/senate-bill/314/cosponsors|url-status=live}}</ref> The amendment that became the CDA was added to the Telecommunications Act in the Senate by an 81–18 vote on June 15, 1995.<ref>{{Cite web|url=https://www.senate.gov/legislative/LIS/roll_call_lists/roll_call_vote_cfm.cfm?congress=104&session=1&vote=00268|title=U.S. Senate: U.S. Senate Roll Call Votes 104th Congress - 1st Session|website=www.senate.gov|access-date=2018-03-25|archive-date=2021-06-30|archive-url=https://web.archive.org/web/20210630042752/https://www.senate.gov/legislative/LIS/roll_call_lists/roll_call_vote_cfm.cfm?congress=104&session=1&vote=00268|url-status=live}}</ref>

As eventually passed by Congress, Title V affected the Internet (and online communications) in two significant ways. First, it attempted to regulate both [[indecency]] (when available to children) and [[obscenity]] in [[cyberspace]]. Second, [[Section 230]] of title 47 of the U.S. Code, part of a codification of the [[Communications Act of 1934]] (Section 9 of the Communications Decency Act / Section 509 of the Telecommunications Act of 1996)<ref>{{Cite web|title=Section 230 of… what? – blake.e.reid|url=https://blakereid.org/section-230-of-what/|access-date=2020-09-05|language=en-US|archive-date=2021-12-25|archive-url=https://web.archive.org/web/20211225050437/https://blakereid.org/section-230-of-what/|url-status=live}}</ref> has been interpreted to mean that operators of Internet services are not [[publisher]]s and thus not [[Legal liability|legally liable]] for the words of third parties who use their services.

==Anti-indecency and anti-obscenity provisions==
The act's most controversial portions were those relating to indecency on the Internet. The relevant sections were introduced in response to fears that Internet pornography was on the rise. Indecency in TV and radio broadcasting had already been regulated by the [[Federal Communications Commission]]: broadcasting of offensive speech was restricted to hours of the day when minors were supposedly least likely to be exposed, and violators could be fined and lose their licenses. But the Internet had only recently been opened to commercial interests by the 1992 amendment to the [[National Science Foundation|National Science Foundation Act]] and thus had not been taken into consideration by previous laws. The CDA, which affected both the Internet and [[cable television]], marked the first attempt to expand regulation to these [[new media]].

Passed by Congress on February 1, 1996,<ref>{{Cite web|url=https://www.senate.gov/legislative/LIS/roll_call_lists/roll_call_vote_cfm.cfm?congress=104&session=2&vote=00008|title=U.S. Senate: U.S. Senate Roll Call Votes 104th Congress - 2nd Session|website=www.senate.gov|access-date=2018-03-25|archive-date=2018-07-24|archive-url=https://web.archive.org/web/20180724093145/https://www.senate.gov/legislative/LIS/roll_call_lists/roll_call_vote_cfm.cfm?congress=104&session=2&vote=00008|url-status=live}}</ref> and signed by President [[Bill Clinton]] on February 8, 1996,<ref>{{Cite web|url=https://www.congress.gov/bill/104th-congress/senate-bill/652/actions|title=Actions - S.652 - 104th Congress (1995-1996): Telecommunications Act of 1996|last=Larry|first=Pressler|date=1996-02-08|website=www.congress.gov|language=en|access-date=2018-03-25|archive-date=2018-05-15|archive-url=https://web.archive.org/web/20180515184232/https://www.congress.gov/bill/104th-congress/senate-bill/652/actions|url-status=live}}</ref><ref>{{cite magazine|title=Communications Decency Act Ruled Unconstitutional|magazine=[[GamePro]]|issue=96 |publisher=[[International Data Group|IDG]] |date=September 1996|page=21}}</ref> the CDA imposed criminal sanctions on anyone who

{{quote|knowingly (A) uses an interactive computer service to send to a specific person or persons under 18 years of age, or (B) uses any interactive computer service to 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.}}

It further criminalized the transmission of "obscene or indecent" materials to persons known to be under 18.

===Legal challenges===
On June 12, 1996, a panel of [[United States District Court for the Eastern District of Pennsylvania|federal judges]] in [[Philadelphia, Pennsylvania|Philadelphia]] blocked part of the CDA, saying it would infringe upon adults' free speech rights. The next month, another federal court in [[New York City|New York]] struck down the portion of the CDA intended to protect children from indecent speech as too broad. On June 26, 1997, the [[Supreme Court of the United States|Supreme Court]] upheld the Philadelphia court's decision in ''[[Reno v. American Civil Liberties Union]],'' stating that the indecency provisions were an unconstitutional abridgement of the First Amendment because they did not permit parents to decide for themselves what material was acceptable for their children, extended to non-commercial speech, and did not carefully define the words "indecent" and "offensive". (The Court affirmed the New York case, [[Joe Shea|''Reno v. Shea'']], the next day, without a published opinion.)

In 2003, Congress amended the CDA to remove the indecency provisions struck down in ''Reno v. ACLU''. A separate challenge to the provisions governing obscenity, known as [[Barbara Nitke#Nitke v. Gonzales|''Nitke v. Gonzales'']], was rejected by a federal court in New York in 2005. The Supreme Court summarily affirmed that decision in 2006.

Congress has made two narrower attempts to regulate children's exposure to Internet indecency since the Supreme Court overturned the CDA. Court injunction blocked enforcement of the first, the [[Child Online Protection Act]] (COPA), almost immediately after its passage in 1998; the law was later overturned. While legal challenges also dogged COPA's successor, the [[Children's Internet Protection Act]] (CIPA) of 2000, the Supreme Court upheld it as constitutional in 2004.

==Section 230==
{{Main|Section 230}}

Section 230 of title 47 of the U.S. Code, a codification of the Communications Act of 1934 (added by Section 9 of the Communications Decency Act / Section 509 of the Telecommunications Act of 1996) was not part of the original Senate legislation, but was added in conference with the [[United States House of Representatives|House]], where it had been separately introduced by [[United States House of Representatives|Representatives]] [[Christopher Cox]] and [[Ron Wyden]] as the Internet Freedom and Family Empowerment Act and passed by a near-unanimous vote on the floor. It added protection for online service providers and users from actions against them based on third-party content, stating in part, "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." Effectively, this section immunizes both ISPs and Internet users from liability for torts others commit on their websites or online forums, even if the provider fails to take action after receiving notice of the harmful or offensive content.<ref>
{{Citation
  | last=Myers
  | first=Ken S.
  | title=Wikimmunity: Fitting the Communications Decency Act to Wikipedia
  | newspaper=[[Harvard Journal of Law & Technology]]
  | volume=20
  | pages=163
  | date=Fall 2006
  | ssrn=916529}}
</ref>

Through the so-called Good Samaritan provision, this section also protects ISPs from liability for restricting access to certain material or giving others the technical means to restrict access to that material.

On July 23, 2013, the attorneys general of 47 states sent Congress a letter requesting that the criminal and civil immunity in section 230 be removed. The ACLU wrote of the proposal, "If Section 230 is stripped of its protections, it wouldn't take long for the vibrant culture of free speech to disappear from the web."<ref>{{cite web|url=https://www.aclu.org/blog/free-speech-national-security-technology-and-liberty/new-proposal-could-singlehandedly-cripple|title=New Proposal Could Singlehandedly Cripple Free Speech Online|publisher=American Civil Liberties Union|access-date=2016-12-04|archive-date=2015-04-01|archive-url=https://web.archive.org/web/20150401120427/https://www.aclu.org/blog/free-speech-national-security-technology-and-liberty/new-proposal-could-singlehandedly-cripple|url-status=live}}</ref>

===FOSTA-SESTA===

[[Ann Wagner]] introduced the [[Stop Enabling Sex Traffickers Act|Allow States and Victims to Fight Online Sex Trafficking Act]] (FOSTA) in the U.S. House of Representatives in April 2017. [[Rob Portman]] introduced the similar [[Stop Enabling Sex Traffickers Act]] (SESTA) in the U.S. Senate in August 2017. The combined FOSTA-SESTA package passed the House on February 27, 2018, with a vote of 388–25<ref>{{cite news|url=https://www.washingtonpost.com/news/true-crime/wp/2018/02/27/house-passes-anti-online-sex-trafficking-bill-allows-targeting-of-websites-like-backpage-com/|title=House passes anti-online sex trafficking bill, allows targeting of websites like Backpage.com|first=Tom|last=Jackman|date=February 27, 2018|newspaper=The Washington Post|access-date=April 9, 2018|archive-date=April 7, 2018|archive-url=https://web.archive.org/web/20180407182535/https://www.washingtonpost.com/news/true-crime/wp/2018/02/27/house-passes-anti-online-sex-trafficking-bill-allows-targeting-of-websites-like-backpage-com/|url-status=live}}</ref> and the Senate on March 21, 2018, with a vote of 97–2.<ref>{{cite web|url=https://www.senate.gov/legislative/LIS/roll_call_lists/roll_call_vote_cfm.cfm?congress=115&session=2&vote=00060|title=U.S. Senate: U.S. Senate Roll Call Votes 115th Congress - 2nd Session|website=www.senate.gov|access-date=2018-04-09|archive-date=2018-04-13|archive-url=https://web.archive.org/web/20180413151009/https://www.senate.gov/legislative/LIS/roll_call_lists/roll_call_vote_cfm.cfm?congress=115&session=2&vote=00060|url-status=live}}</ref> President [[Donald Trump]] signed the package into law on April 11, 2018.<ref>{{Cite news |url=https://www.nytimes.com/2018/04/11/us/backpage-sex-trafficking.html?&moduleDetail=section-news-3&action=click&contentCollection=Politics&region=Footer&module=MoreInSection&version=WhatsNext&contentID=WhatsNext&pgtype=article |title=Trump Signs Bill Amid Momentum to Crack Down on Trafficking |author=Elizabeth Dias |work=New York Times |date=2018-04-11 |access-date=2018-04-11 |language=en |archive-date=2018-04-12 |archive-url=https://web.archive.org/web/20180412003103/https://www.nytimes.com/2018/04/11/us/backpage-sex-trafficking.html?&moduleDetail=section-news-3&action=click&contentCollection=Politics&region=Footer&module=MoreInSection&version=WhatsNext&contentID=WhatsNext&pgtype=article |url-status=live }}</ref><ref>{{Cite news |url=https://www.forbes.com/sites/larrymagid/2018/04/06/doj-seizes-backpage-com-weeks-after-congress-passes-sex-trafficking-law/#6e55a89750ba |title=DOJ Seizes Backpage.com Weeks After Congress Passes Sex Trafficking Law |author=Larry Magid |work=Forbes |date=2018-04-06 |access-date=2018-04-08 |language=en |archive-date=2018-04-08 |archive-url=https://web.archive.org/web/20180408051549/https://www.forbes.com/sites/larrymagid/2018/04/06/doj-seizes-backpage-com-weeks-after-congress-passes-sex-trafficking-law/#6e55a89750ba |url-status=live }}</ref>

The bill makes it illegal to knowingly assist, facilitate, or support sex trafficking, and amends the Communications Decency Act's section 230 safe harbors (which make online services immune from civil liability for their users' actions) to exclude enforcement of federal or state sex trafficking laws from immunity. The intent is to provide serious legal consequences for websites that profit from sex trafficking and give prosecutors tools to protect their communities and give victims a pathway to justice.<ref>{{cite web |url=https://www.congress.gov/bill/115th-congress/house-bill/1865 |title=H.R.1865 - 115th Congress (2017-2018): Allow States and Victims to Fight Online Sex Trafficking Act of 2017 |first=Wagner |last=Ann |date=March 21, 2018 |website=www.congress.gov |access-date=April 9, 2018 |archive-date=April 8, 2018 |archive-url=https://web.archive.org/web/20180408082712/https://www.congress.gov/bill/115th-congress/house-bill/1865 |url-status=live }}</ref>

The bills were criticized by pro-free speech and pro-Internet groups as a "disguised internet censorship bill" that weakens the section 230 safe harbors, places unnecessary burdens on internet companies and intermediaries that handle user-generated content or communications, with service providers required to proactively take action against sex trafficking activities, and requires lawyers to evaluate all possible scenarios under state and federal law (which may be financially unfeasible for smaller companies).<ref>{{Cite news|url=https://www.aclu.org/letter/aclu-letter-opposing-sesta|title=ACLU letter opposing SESTA|work=American Civil Liberties Union|access-date=2018-03-25|language=en|archive-date=2018-03-24|archive-url=https://web.archive.org/web/20180324175718/https://www.aclu.org/letter/aclu-letter-opposing-sesta|url-status=live}}</ref><ref>{{cite news|url=http://www.new.swopusa.org/2017/08/11/call-to-actionpress-release-swop-usa-stands-in-direct-opposition-of-disguised-internet-censorship-bill-sesta-s-1963-call-your-state-representatives-and-tell-them-to-fight/|title=SWOP-USA stands in opposition of disguised internet censorship bill SESTA, S. 1963|publisher=Sex Workers Outreach Project|access-date=2017-10-23|language=en-US|archive-url=https://web.archive.org/web/20171024095814/http://www.new.swopusa.org/2017/08/11/call-to-actionpress-release-swop-usa-stands-in-direct-opposition-of-disguised-internet-censorship-bill-sesta-s-1963-call-your-state-representatives-and-tell-them-to-fight/|archive-date=2017-10-24|url-status=dead}}</ref><ref>{{cite news|url=https://www.theverge.com/2017/11/11/16637774/wikipedia-sesta-serious-concerns-section-230-internet|title=Wikipedia warns that SESTA will strip away protections vital to its existence|work=The Verge|access-date=2018-03-08|archive-date=2018-03-09|archive-url=https://web.archive.org/web/20180309054413/https://www.theverge.com/2017/11/11/16637774/wikipedia-sesta-serious-concerns-section-230-internet|url-status=live}}</ref><ref name="verge-proxyfight">{{cite news|url=https://www.theverge.com/2017/9/14/16308066/sex-trafficking-bill-sesta-google-cda-230|title=Sex trafficking bill is turning into a proxy war over Google|work=The Verge|access-date=2017-09-20|archive-date=2017-09-21|archive-url=https://web.archive.org/web/20170921045757/https://www.theverge.com/2017/9/14/16308066/sex-trafficking-bill-sesta-google-cda-230|url-status=live}}</ref><ref name=":1">{{cite news|url=http://www.washingtonexaminer.com/tech-community-fighting-online-sex-trafficking-bill-over-fears-it-will-stifle-innovation/article/2634402|title=Tech community fighting online sex trafficking bill over fears it will stifle innovation|last=Quinn|first=Melissa|work=Washington Examiner|access-date=2017-09-20|language=en|archive-date=2017-09-19|archive-url=https://web.archive.org/web/20170919142831/http://www.washingtonexaminer.com/tech-community-fighting-online-sex-trafficking-bill-over-fears-it-will-stifle-innovation/article/2634402|url-status=live}}</ref>  Online sex workers argued that the bill would harm their safety, as the platforms they use to offer and discuss their services (as an alternative to [[street prostitution]]) had begun to reduce their services or shut down entirely because of the bill's threat of liability.<ref>{{Cite magazine|url=https://www.rollingstone.com/politics/features/controversial-anti-sex-trafficking-bill-screw-over-sex-workers-w518323|title=How a New Senate Bill Will Screw Over Sex Workers|magazine=Rolling Stone|access-date=2018-03-25|archive-date=2018-03-24|archive-url=https://web.archive.org/web/20180324180235/https://www.rollingstone.com/politics/features/controversial-anti-sex-trafficking-bill-screw-over-sex-workers-w518323|url-status=live}}</ref><ref>{{Cite news|url=https://www.thedailybeast.com/sex-workers-fear-for-their-future-how-sesta-is-putting-many-prostitutes-in-peril|title=Sex Workers Fear for Their Future: How SESTA Is Putting Many Prostitutes in Peril|last=Zimmerman|first=Amy|date=2018-04-04|work=The Daily Beast|access-date=2018-04-07|language=en|archive-date=2018-04-07|archive-url=https://web.archive.org/web/20180407080216/https://www.thedailybeast.com/sex-workers-fear-for-their-future-how-sesta-is-putting-many-prostitutes-in-peril|url-status=live}}</ref> Since FOSTA-SESTA passed, sex workers have reported economic instability and increases in violence, as had been predicted.<ref>{{cite web |last1=Blunt |first1=Danielle |title=Erased: The Impact of FOSTA/SESTA and the Removal of Backpage |url=https://hackinghustling.org/wp-content/uploads/2020/02/Erased_Updated.pdf |archive-url=https://web.archive.org/web/20200308114239/https://hackinghustling.org/wp-content/uploads/2020/02/Erased_Updated.pdf |archive-date=2020-03-08 |url-status=live |publisher=Hacking-Hustling |access-date=August 5, 2020}}</ref>

==Failure-to-warn lawsuits==

In ''[[Jane Doe No. 14 v. Internet Brands, Inc.]]'', the plaintiff filed an action alleging that Internet Brands, Inc.'s failure to warn users of its modelmayhem.com networking website caused her to be a victim of a rape scheme. On May 31, 2016, the [[United States Court of Appeals for the Ninth Circuit|Court of Appeals for the Ninth Circuit]] ruled that the Communications Decency Act does not bar the plaintiff's [[duty to warn|failure to warn]] claim.<ref>{{cite web|title=Jane Doe No. 14 v Internet Brands|url=https://cdn.ca9.uscourts.gov/datastore/opinions/2016/05/31/12-56638.pdf |archive-url=https://ghostarchive.org/archive/20221009/https://cdn.ca9.uscourts.gov/datastore/opinions/2016/05/31/12-56638.pdf |archive-date=2022-10-09 |url-status=live|publisher=United States Court of Appeals for the 9th Circuit|access-date=18 September 2016|language=en}}</ref>

==See also==
{{Portal|Internet|Law|Erotica and pornography|United States}}
*[[Online Copyright Infringement Liability Limitation Act]] portion of the [[Digital Millennium Copyright Act]], which contingently protects online service providers from liability for copyright infringement
*''[[Stanley v. Georgia]]''
*''[[United States v. Playboy Entertainment Group, Inc.]]''

==References==
{{Reflist}}

==External links==
{{Wikisource}}
* [https://web.archive.org/web/20110727003223/http://pdfcast.org/pdf/the-communications-decency-act-a-legislative-history Legislative history of the Communications Decency Act before amendment].
* [http://transition.fcc.gov/Reports/tcom1996.txt FCC text of the full act].
* [http://www4.law.cornell.edu/uscode/47/230.html Section 230]
* [https://www.congress.gov/bill/115th-congress/house-bill/1865/text Text of FOSTA-SESTA bill that was Presidentially signed into law as Pub.L. 115-164] ([https://www.congress.gov/115/bills/hr1865/BILLS-115hr1865enr.pdf PDF] (authoritative))
* [http://www.internetlibrary.com/topics/comm_decency_act.cfm Internet Library of Law and Court Decisions] Court decisions applying section 230 of the Communications Decency Act
* [http://www.cdt.org/speech/cda/ Center for Democracy and Technology Overview of CDA]. This refers only to the portion of the act which was struck down.
* [http://www.cybertelecom.org/cda/cda-up.htm Cybertelecom :: The Communications Decency Act] and [http://www.cybertelecom.org/cda/samaritan.htm Sec. 230 Good Samaritan Defense]
* [https://www.eff.org/issues/bloggers/legal/liability/230 EFF.org], bloggers on section 230

{{Federal Communications Commission}}
{{Presidency of Bill Clinton}}
{{Authority control}}

[[Category:Communications Decency Act| ]]
[[Category:Acts of the 104th United States Congress]]
[[Category:Internet censorship in the United States]]
[[Category:United States federal computing legislation]]
[[Category:Obscenity law]]