The Communications Decency Act of 1996 (CDA) was the

United States Congress The United States Congress is the legislature of the federal government of the United States. It is bicameral, composed of a lower body, the House of Representatives, and an upper body, the Senate. It meets in the U.S. Capitol in Washing ...

's first notable attempt to regulate

pornographic Pornography (often shortened to porn or porno) is the portrayal of sexual subject matter for the exclusive purpose of sexual arousal. Primarily intended for adults,

material on the

Internet The Internet (or internet) is the global system of interconnected computer networks that uses the Internet protocol suite (TCP/IP) to communicate between networks and devices. It is a '' network of networks'' that consists of private, pub ...

. In the 1997 landmark case ''

Reno v. ACLU ''Reno v. American Civil Liberties Union'', 521 U.S. 844 (1997), was a landmark decision of the Supreme Court of the United States, unanimously ruling that anti-indecency provisions of the 1996 Communications Decency Act violated the First Amendme ...

'', the

United States Supreme Court The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that involve a point o ...

unanimously struck the act's anti-indecency provisions. The Act is the short name of Title V of the

Telecommunications Act of 1996 The Telecommunications Act of 1996 is a United States federal law enacted by the 104th United States Congress on January 3, 1996, and signed into law on February 8, 1996, by President Bill Clinton. It primarily amended Chapter 5 of Title 47 of ...

, as specified in Section 501 of the 1996 Act. Senators James Exon and

Slade Gorton Thomas Slade Gorton III (January 8, 1928 – August 19, 2020) was an American lawyer and politician who served as a United States Senator from Washington from 1981 to 1987 and again from 1989 until 2001. A member of the Republican Party, he hel ...

introduced it to the Senate Committee of Commerce, Science, and Transportation in 1995. The amendment that became the CDA was added to the Telecommunications Act in the Senate by an 81–18 vote on June 15, 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 Inappropriateness refers to standards or ethics that are typically viewed as being negative in a society. It differs from things that are illicit in that inappropriate behavior does not necessarily have any accompanying legal ramifications. C ...

(when available to children) and obscenity in cyberspace. Second,

Section 230 Section 230 is a section of Title 47 of the United States Code that was enacted as part of the United States Communications Decency Act and generally provides immunity for website platforms with respect to third-party content. At its core, Sect ...

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) has been interpreted to mean that operators of Internet services are not

publisher Publishing is the activity of making information, literature, music, software and other content available to the public for sale or for free. Traditionally, the term refers to the creation and distribution of printed works, such as books, newsp ...

s (and thus not 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 The Federal Communications Commission (FCC) is an independent agency of the United States federal government that regulates communications by radio, television, wire, satellite, and cable across the United States. The FCC maintains jurisdicti ...

: 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 Act The National Science Foundation (NSF) is an independent agency of the United States government that supports fundamental research and education in all the non-medical fields of science and engineering. Its medical counterpart is the National I ...

and thus had not been taken into consideration by previous laws. The CDA, which affected both the Internet and

cable television Cable television is a system of delivering television programming to consumers via radio frequency (RF) signals transmitted through coaxial cables, or in more recent systems, light pulses through fibre-optic cables. This contrasts with bro ...

, marked the first attempt to expand regulation to these

new media New media describes communication technologies that enable or enhance interaction between users as well as interaction between users and content. In the middle of the 1990s, the phrase "new media" became widely used as part of a sales pitch for ...

. Passed by Congress on February 1, 1996, and signed by President

Bill Clinton William Jefferson Clinton ( né Blythe III; born August 19, 1946) is an American politician who served as the 42nd president of the United States from 1993 to 2001. He previously served as governor of Arkansas from 1979 to 1981 and agai ...

on February 8, 1996, the CDA imposed criminal sanctions on anyone who It further criminalized the transmission of "obscene or indecent" materials to persons known to be under 18.

Free speech Freedom of speech is a principle that supports the freedom of an individual or a community to articulate their opinions and ideas without fear of retaliation, censorship, or legal sanction. The right to freedom of expression has been recog ...

advocates worked diligently and successfully to overturn the portion relating to indecent, but not obscene, speech. They argued that speech protected under the

First Amendment First or 1st is the ordinal form of the number one (#1). First or 1st may also refer to: *World record, specifically the first instance of a particular achievement Arts and media Music * 1$T, American rapper, singer-songwriter, DJ, and reco ...

, such as printed novels or the use of the "

seven dirty words The seven dirty words are seven English-language curse words that American comedian George Carlin first listed in his 1972 "Seven Words You Can Never Say on Television" monologue. The words, in the order Carlin listed them, are: "shit", "piss", " ...

", would suddenly become unlawful when posted online. Critics also claimed the bill would have a

chilling effect In a legal context, a chilling effect is the inhibition or discouragement of the legitimate exercise of natural and legal rights by the threat of legal sanction. A chilling effect may be caused by legal actions such as the passing of a law, the ...

on the availability of medical information. Online civil liberties organizations arranged protests against the bill, such as the

Black World Wide Web protest The Turn the Web Black protest, also called the Great Web Blackout, the Turn Your Web Pages Black protest,Electronic Frontier Foundation's

Blue Ribbon Online Free Speech Campaign The Blue Ribbon Online Free Speech Campaign (officially the Blue Ribbon Campaign for Online Freedom of Speech, Press and Association) is an online advocacy campaign for intellectual freedom on the Internet, orchestrated by the Electronic Frontier ...

Legal challenges

On June 12, 1996, a panel of

federal judges Federal judges are judges appointed by a federal level of government as opposed to the state/provincial/local level. United States A US federal judge is appointed by the US President and confirmed by the US Senate in accordance with Article 3 of ...

Philadelphia Philadelphia, often called Philly, is the List of municipalities in Pennsylvania#Municipalities, largest city in the Commonwealth (U.S. state), Commonwealth of Pennsylvania, the List of United States cities by population, sixth-largest city i ...

blocked part of the CDA, saying it would infringe upon adults' free speech rights. The next month, another federal court in 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 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, ''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 ''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 The Children's Internet Protection Act (CIPA) is one of a number of bills that the United States Congress proposed to limit children's exposure to pornography and explicit content online. Background Both of Congress's earlier attempts at restri ...

(CIPA) of 2000, the Supreme Court upheld it as constitutional in 2004.

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 House, where it had been separately introduced by 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. 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."

FOSTA-SESTA

Ann Wagner Ann Louise Wagner (née Trousdale, September 13, 1962) is an American politician and diplomat serving as the U.S. representative for Missouri's 2nd congressional district. A member of the Republican Party, she was the United States ambassador t ...

introduced the 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 and the Senate on March 21, 2018, with a vote of 97–2. President

Donald Trump Donald John Trump (born June 14, 1946) is an American politician, media personality, and businessman who served as the 45th president of the United States from 2017 to 2021. Trump graduated from the Wharton School of the University of P ...

signed the package into law on April 11, 2018. 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. 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). 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. Since FOSTA-SESTA passed, sex workers have reported economic instability and increases in violence, as had been predicted.

Failure-to-warn lawsuits

In ''

Jane Doe No. 14 v. Internet Brands, Inc. ''Jane Doe No. 14 v. Internet Brands, Inc.'', 767 F.3d 894 (2014), is a 2014 ruling at the Ninth Circuit Court of Appeals over the legal liability of an Internet service provider for criminal offenses committed by its users. The ultimate ruling ...

'', 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

Court of Appeals for the Ninth Circuit The United States Court of Appeals for the Ninth Circuit (in case citations, 9th Cir.) is the U.S. federal court of appeals that has appellate jurisdiction over the U.S. district courts in the following federal judicial districts: * District ...

ruled that the Communications Decency Act does not bar the plaintiff's failure to warn claim.

References

External links

Legislative history of the Communications Decency Act before amendment

FCC text of the full act

Text of FOSTA-SESTA bill that was Presidentially signed into law as Pub.L. 115-164PDF
(authoritative))
Internet Library of Law and Court Decisions
Court decisions applying section 230 of the Communications Decency Act
Center for Democracy and Technology Overview of CDA
This refers only to the portion of the act which was struck down.

an

EFF.org
bloggers on section 230 {{Authority control Acts of the 104th United States Congress Internet censorship in the United States United States federal computing legislation Obscenity law