CDA

Legal

Communications Decency Act, a US law which says 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" and had provisions relating to letting children access pornography which were found to be unconstitutional.

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The Communications Decency Act (CDA) was arguably the first attempt by the United States Congress to regulate pornographic material on the Internet, in response to public concerns in 1996. In 1997, the U.S. Supreme Court partially overturned the law in one of its landmark rulings regarding the Internet.

The Act was Title V of the Telecommunications Act of 1996. It was introduced to the U.S. Senate Committee on Commerce, Science and Transportation|Senate Committee on Commerce, Science, and Transportation by Senators J. James Exon (D-NE) and Slade Gorton (R-WA) in 1995. The amendment that became the CDA was added to the Telecommunications Act in the Senate by an 84-16 vote on June 14, 1995.

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 the Act, authored by Representatives Christopher Cox (R-CA) and Ron Wyden (D-OR), declared that operators of Internet services were not to be construed as publishers (and thus legally liable for the words of third parties who use their services).

Anti-indecency and -obscenity provisions

The most controversial portions of the Act were those relating to indecency on the Internet. The relevant sections of the Act 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 certain hours of the day, when minors were supposedly least likely to be exposed. Violators could be fined and potentially lose their licenses. The Internet, however, had only recently been opened to commercial interests by the 1992 amendment to the National Science Foundation Act and thus was not considered by many previous laws. The CDA, which affected the Internet and cable television, marked the first attempt to expand regulation to this new sphere.

Passed by Congress on February 1, 1996, and signed by President Clinton on February 8, 1996, the CDA imposed criminal sanctions on anyone who

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 materials that were "obscene or indecent" to persons known to be under 18.

Free speech advocates, however, worked diligently and successfully to overturn the portion relating to indecent, but not obscene, speech. They 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.

Legal Challenges

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. The next month, another US federal court in New York City 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 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 right to free speech 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 define "patently offensive," a term with no prior legal meaning. (The New York case, Reno v. Shea, was affirmed by the Supreme Court 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 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

Section 230 of the Communications Decency Act was not part of the original United States Senate legislation, but was added in conference with the United States House of Representatives, where it had been separately introduced by Representatives Chris Cox (R-CA) and Ron Wyden (D-OR) as the Internet Freedom and Family Empowerment Act and passed by a near-unanimous vote on the floor. It 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". Effectively, this section immunizes ISPs and other service providers from torts committed by users over their systems. As a result of the John Seigenthaler Sr. Wikipedia biography controversy, and other incidents where individuals have been allegedly libeled by anonymous or judgment-proof parties, this section of the Act has come under fire, with numerous calls for revisions to the Act to restore service provider liability in some cases.

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.

Section 230(c)(2)

Section 230 is a piece of Internet legislation in the United States, passed into law as part of the Communications Decency Act (CDA) of 1996 (a common name for Title V of the Telecommunications Act of 1996), formally codified as Section 230 of the Communications Act of 1934 at 47 U.S.C. § 230.[a] Section 230 generally provides immunity for website publishers from third-party content. At its core, Section 230(c)(1) provides immunity from liability for providers and users of an "interactive computer service" who publish information provided by third-party users:

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.

The statute in Section 230(c)(2) further provides "Good Samaritan" protection from civil liability for operators of interactive computer services in the removal or moderation of third-party material they deem obscene or offensive, even of constitutionally protected speech, as long as it is done in good faith.

Section 230 was developed in response to a pair of lawsuits against Internet service providers (ISPs) in the early 1990s that had different interpretations of whether the service providers should be treated as publishers or distributors of content created by its users. After passage of the Telecommunications Act, the CDA was challenged in courts and ruled by the Supreme Court in Reno v. American Civil Liberties Union (1997) to be unconstitutional, though Section 230 was determined to be severable from the rest of the legislation and remained in place. Since then, several legal challenges have validated the constitutionality of Section 230.

Section 230 protections are not limitless, requiring providers to still remove material illegal on a federal level such as copyright infringement. In 2018, Section 230 was amended by the Stop Enabling Sex Traffickers Act (FOSTA-SESTA) to require the removal of material violating federal and state sex trafficking laws. In the following years, protections from Section 230 have come under more scrutiny on issues related to hate speech and ideological biases in relation to the power technology companies can hold on political discussions, and became a major issue during the 2020 United States presidential election. On December 23, 2020, President Donald Trump vetoed the William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021 in part because it did not repeal Section 230, but the veto was overridden.

Passed at a time when Internet use was just starting to expand in both breadth of services and range of consumers in the United States, Section 230 has frequently been referred to as a key law that has allowed the Internet to flourish, and has been called "the twenty-six words that created the Internet".

See also

• Online Copyright Infringement Liability Limitation Act {OCILLA} portion of the Digital Millennium Copyright Act (DMCA), which contingently protects online service providers from liability for copyright infringement

External links

• FCC text of the full act.
• Section 230
• Center for Democracy and Technology Overview of 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
• Nitke v. Gonzales overview
• Electronic Frontier Foundation FAQ on Section 230

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