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 defenses from the Senate bill, eliminating a clear standard of care for companies.
Not only does the proposal endanger companies, it fails to protect children. The indecency standard guarantees that enforcement will be tied up in the courts for years to come. Companies will be particularly reticent to identify and eradicate prohibited communications when they are incapable of discerning which communications are "indecent" and when the company's consequent knowledge of the communications may actually make them liable. At worst, the proposal will either shut down systems entirely or will shut down any attempts to constructively monitor and screen systems, as providers take a know-nothing stance to avoid prosecution for purported knowledge.
II. The "Indecency" Standard and Uncertain and Conflicting Standards of Culpability Implicate Innocent Companies But Fail To Protect Children.
A. The undefined "indecency" standard is possibly unenforceable and certainly counterproductive.
Although the October 16 proposal purports to regulate "computer pornography", it actually prohibits all "indecent" communications by computer or "telecommunications device" (an undefined term that presumably includes telephones and facsimiles) to persons under 18. Because the term "indecent" is a medium-specific term that, after decades of litigation, remains undefined, it is uncertain precisely what would be prohibited by this section. In the context of broadcasting, the Supreme Court has defined mere expletives as indecent See FCC v. Pacifica Foundation, 438 U.S. 726 (1978).: Would the use of an expletive in a communication that is made available to a minor trigger a criminal felony?
An illustration. After this law passes, a 17-year old college freshman is writing a paper on the "indecency". He decides to look at Supreme Court cases to determine what he is prohibited from seeing. The university librarian, who believes the student looks young for a freshman,...