Home » Communications Decency Act (CDA), not so decent

Communications Decency Act (CDA), not so decent

The Communications Decency Act (CDA) which is not so decent, protects Internet service providers from some forms of liability for third party prosecutions in all cases, for example where the website operator fails to act after being warned that illegal content is present or in cases here website operators contribute to the creation or development of injurious or tortious content.  However, “…..the CDA does not provide immunity from prosecution in all cases, for example where the website operator fails to act after being warned that illegal content is present or in cases where website operators contributed to the creation or development of injurious of tortious content.”  Fair Hous,. Council v Roommates.com, LLC, 521 F.3d 1157, 1174 (9th Cir.2008) (holding that CDA immunity does not protect website operators who “directly participate in developing” illegal content; Jones v. Dirty Word Entm’t Recording, LLC, 766 F. Supp. 2d 828, 836 (E.D. Ky. 2011) (“The immunity afforded by the CDA is not absolute and may be forfeited if the site owner invites the posting of illegal materials or makes actionable postings itself.”)

Communications Decency Act

Enacted by the U.S. Congress on February 1, 1996

SECTION 1. SHORT TITLE; REFERENCES.
(a) Short Title.–This Act may be cited as the “Telecommunications Act of 1996”.
(b) References.–Except as otherwise expressly provided, whenever in this Act an
amendment or repeal is expressed in terms of an amendment to, or repeal of, a section or other
provision, the reference shall be considered to be made to a section or other provision of the
Communications Act of 1934 (47 U.S.C. 151 et seq.).

….
TITLE V–OBSCENITY AND VIOLENCE
Subtitle A–Obscene, Harassing, and Wrongful Utilization of
Telecommunications Facilities

SEC. 501. SHORT TITLE.
This title may be cited as the “Communications Decency Act of 1996”.

SEC. 502. OBSCENE OR HARASSING USE OF TELECOMMUNICATIONS
FACILITIES UNDER THE COMMUNICATIONS ACT OF 1934.
Section 223 (47 U.S.C. 223) is amended–
(1) by striking subsection (a) and inserting in lieu thereof:
“(a) Whoever–
“(1) in interstate or foreign communications–
“(A) by means of a telecommunications device knowingly–
“(i) makes, creates, or solicits, and
“(ii) initiates the transmission of,
any comment, request, suggestion, proposal, image, or other communication
which is obscene, lewd, lascivious, filthy, or indecent, with intent to annoy, abuse,
threaten, or harass another person;
“(B) by means of a telecommunications device knowingly–
“(i) makes, creates, or solicits, and
“(ii) initiates the transmission of,
any comment, request, suggestion, proposal, image, or other communication
which is obscene or indecent, knowing that the recipient of the communication is
under 18 years of age, regardless of whether the maker of such communication
placed the call or initiated the communication;
“(C) makes a telephone call or utilizes a telecommunications device,
whether or not conversation or communication ensues, without disclosing his
identity and with intent to annoy, abuse, threaten, or harass any person at the
called number or who receives the communications;
“(D) makes or causes the telephone of another repeatedly or continuously
to ring, with intent to harass any person at the called number; or
“(E) makes repeated telephone calls or repeatedly initiates communication
with a telecommunications device, during which conversation or communication
ensues, solely to harass any person at the called number or who receives the
communication; or
“(2) knowingly permits any telecommunications facility under his control to be
used for any activity prohibited by paragraph (1) with the intent that it be used for such
activity,
shall be fined under title 18, United States Code, or imprisoned not more than two years, or
both.”; and
(2) by adding at the end the following new subsections:
“(d) Whoever–
“(1) in interstate or foreign communications 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, regardless of whether the
user of such service placed the call or initiated the communication; or
“(2) knowingly permits any telecommunications facility under such person’s
control to be used for an activity prohibited by paragraph (1) with the intent that it be
used for such activity,
shall be fined under title 18, United States Code, or imprisoned not more than two years, or both.
“(e) In addition to any other defenses available by law:
“(1) No person shall be held to have violated subsection (a) or (d) solely for
providing access or connection to or from a facility, system, or network not under that
person’s control, including transmission, downloading, intermediate storage, access
software, or other related capabilities that are incidental to providing such access or
connection that does not include the creation of the content of the communication.
“(2) The defenses provided by paragraph (1) of this subsection shall not be
applicable to a person who is a conspirator with an entity actively involved in the creation
or knowing distribution of communications that violate this section, or who knowingly
advertises the availability of such communications.
“(3) The defenses provided in paragraph (1) of this subsection shall not be
applicable to a person who provides access or connection to a facility, system, or network
engaged in the violation of this section that is owned or controlled by such person.
“(4) No employer shall be held liable under this section for the actions of an
employee or agent unless the employee’s or agent’s conduct is within the scope of his or
her employment or agency and the employer (A) having knowledge of such conduct,
authorizes or ratifies such conduct, or (B) recklessly disregards such conduct.
“(5) It is a defense to a prosecution under subsection (a)(1)(B) or (d), or under
subsection (a)(2) with respect to the use of a facility for an activity under subsection
(a)(1)(B) that a person–
“(A) has taken, in good faith, reasonable, effective, and appropriate
actions under the circumstances to restrict or prevent access by minors to a
communication specified in such subsections, which may involve any appropriate
measures to restrict minors from such communications, including any method
which is feasible under available technology; or
“(B) has restricted access to such communication by requiring use of a
verified credit card, debit account, adult access code, or adult personal
identification number.
“(6) The Commission may describe measures which are reasonable, effective,
and appropriate to restrict access to prohibited communications under subsection (d).
Nothing in this section authorizes the Commission to enforce, or is intended to provide
the Commission with the authority to approve, sanction, or permit, the use of such
measures. The Commission shall have no enforcement authority over the failure to utilize
such measures. The Commission shall not endorse specific products relating to such
measures. The use of such measures shall be admitted as evidence of good faith efforts
for purposes of paragraph (5) in any action arising under subsection (d). Nothing in this
section shall be construed to treat interactive computer services as common carriers or
telecommunications carriers.
“(f)(1) No cause of action may be brought in any court or administrative agency against
any person on account of any activity that is not in violation of any law punishable by criminal or
civil penalty, and that the person has taken in good faith to implement a defense authorized under
this section or otherwise to restrict or prevent the transmission of, or access to, a communication
specified in this section.
“(2) No State or local government may impose any liability for commercial activities or
actions by commercial entities, nonprofit libraries, or institutions of higher education in
connection with an activity or action described in subsection (a)(2) or (d) that is inconsistent with
the treatment of those activities or actions under this section: Provided, however, That nothing
herein shall preclude any State or local government from enacting and enforcing complementary
oversight, liability, and regulatory systems, procedures, and requirements, so long as such
systems, procedures, and requirements govern only intrastate services and do not result in the
imposition of inconsistent rights, duties or obligations on the provision of interstate services.
Nothing in this subsection shall preclude any State or local government from governing conduct
not covered by this section.
“(g) Nothing in subsection (a), (d), (e), or (f) or in the defenses to prosecution under (a)
or (d) shall be construed to affect or limit the application or enforcement of any other Federal
law.
“(h) For purposes of this section–
“(1) The use of the term `telecommunications device’ in this section–
“(A) shall not impose new obligations on broadcasting station licensees
and cable operators covered by obscenity and indecency provisions elsewhere in
this Act; and
“(B) does not include an interactive computer service.
“(2) The term `interactive computer service’ has the meaning provided in section
230(e)(2).
“(3) The term `access software’ means software (including client or server
software) or enabling tools that do not create or provide the content of the communication
but that allow a user to do any one or more of the following:
“(A) filter, screen, allow, or disallow content;
“(B) pick, choose, analyze, or digest content; or
“(C) transmit, receive, display, forward, cache, search, subset, organize,
reorganize, or translate content.
“(4) The term `institution of higher education’ has the meaning provided in
section 1201 of the Higher Education Act of 1965 (20 U.S.C. 1141).
“(5) The term `library’ means a library eligible for participation in State-based
plans for funds under title III of the Library Services and Construction Act (20 U.S.C.
355e et seq.).”.  For more information: https://epic.org/free_speech/cda/cda.html

Section 230 of the Communications Decency Act was not part of the original Senate legislation, but was added in conference with the House, where it had been separately introduced by Representatives Christopher 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 protection for online service providers and users from actions against them based on the content of third parties, 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 both ISPs and Internet users from liability for torts committed by others using their website or online forum, even if the provider fails to take action after receiving actual notice of the harmful or offensive content.[1]

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 a letter to Congress 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.”  For more information: http://en.wikipedia.org/wiki/Communications_Decency_Act

One has to wonder whose side the ACLU is on, vulnerable populations that reap the harms from pornography and advertisers profiteers who sell women, i.e., the pornographers and pimps?  I think the later. 

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