A Question of System Operator's Liability
by James T. Bruce and Richard T. Pfohl, Wiley, Rein & Fielding
In an effort to stamp out digital pornography, legislation has been introduced in the U.S. Congress that makes all telecommunications providers (from the telephone companies all the way down to offices that use LANs) liable for the content of anything sent over their networks. To avoid the possibility of tens of thousands of dollars in fines and up to two years in jail, business owners would be forced to police their networks and monitor in advance all messages sent over them.
As drafted, S. 314 could greatly expand potential liability for employers, service providers, and carriers who transmit or otherwise make available restricted communications. Sen. Exon's staff has indicated a willingness to work with industry and users to substantively amend the legislation to address their concerns. Nevertheless, it remains unclear just how far the Senator is prepared to move away from the imposition of liability or other obligations on service providers, as opposed to the originators of prohibited communications.
EMA members can assist by urging the House and Senate Commerce Committees (chaired by Sen. Larry Pressler (R-SD) and Rep. Thomas J. Bliley Jr. (R-VA)) to hold hearings prior to the consideration of this legislation.
Contacting your Congressperson
S. 314 also addresses obscenity on radio and cable television. Of particular interest to EMA members are Section 2, prohibiting obscene, indecent, or harassing use of telecommunications facilities, and Section 5, which would extend the Electronic Communications Privacy Act (ECPA) to include digital communications.
According to Sen. Exon's introductory statement, S. 314 is intended to "extend and strengthen" anti-harassment, anti-indecency, and anti-obscenity restrictions in current law regarding telephone calls to transmissions by all telecommunications devices, including computers and modems. However, because of differences between existing telephone technology and telecommunications technology such as electronic messaging, S. 314 as drafted could pose a serious obstacle to the provision of a wide array of electronic communications services by expanding the categories of prohibited transmissions. It could subject transmitters, as well as the individuals who send obscene, indecent, or harassing communications, to criminal liability. As a result of concerns raised, Sen. Exon has indicated a willingness to work with industry to attempt to at least in part modify these provisions.
S. 314 as introduced would make two fundamental changes in existing law, with potentially wide-ranging, and possibly unintended, consequences. First, S. 314 expands the prohibitions on obscene or indecent or harassing telephone calls to communication by all telecommunications devices. Second, S. 314 extends the prohibition against making obscene or indecent communications to "transmit[ting] or otherwise mak[ing] available" any such communication. (S. 314 Sec. 2(a)(1)(B) (amending 47 U.S.C. 223(a)(1)(A) (emphasis added)). In addition, S. 314 raises the limits on penalties for such violations from the current $50,000 or six months in prison, to up to $100,000 or two years in prison. (Sec. 2(b)).
As drafted, S. 314 would have a number of consequences for electronic messaging. First, unless the court-created limitation on the scope of existing anti-obscenity and indecency provisions to nonconsensual telephone calls is applied as well to all telecommunications, the provision would prohibit all "obscene, lewd, lascivious, filthy, or indecent" telecommunications, whether or not consensual. Services or carriers that transmit "or otherwise make available" such communications would be liable. Thus, the amended Communications Act would, on its face, prohibit indecent communications between consenting adults. This provision, unless limited to nonconsensual communications as the courts have done with regard to the existing prohibition on such telephone calls, is most likely unconstitutional. Nevertheless, this provision should be clarified to indicate that the amended language is intended to apply only to nonconsensual communications.
Staff has indicated that Sen. Exon had intended to modify this prohibition to restrict only "knowingly" transmitting or making available such communications.[2] This approach suggests that Sen. Exon intends, quite properly, to exclude providers or networks from responsibility for transmitted data or messages over which they would have no knowledge. Although the proposed change would be helpful, it would still leave unresolved liability in such cases as provider or Local Area Network control over electronic messages, Bulletin Board Services, and other data.
Second, S. 314 as drafted restricts anyone from transmitting, "or otherwise mak[ing] available," "obscene, lewd, lascivious, filthy, or indecent" communications. (S. 314 Sec. 2(a)(1)(B)). This goes beyond and is in addition to the existing prohibition on knowingly permitting a telephone facility under one's control to be used for purposes prohibited by Sec. 223(a). In addition, S. 314 expands the prohibition on knowing use of telephone facilities to knowing use of telecommunications facilities. (S. 314 Sec. 2(a)(2)). The latter provision may prove troublesome if service providers are deemed to "know" about the use of bulletin boards or electronic mail for harassment or indecent remarks, or if the service provider has any sort of screening policy that might make them liable for such information.
As drafted, these provisions could have a chilling effect on electronic message services, providers, carriers, or anyone else whocould be deemed to "transmit or otherwise make available" prohibited electronic communications. Thus, for example, if someone sent an indecent electronic comment from a workstation, the employer, the e-mail service provider, and the carrier could all be potentially held liable and subject to up to $100,000 in fines or up to two years in prison.
S. 314, as drafted, might place employers in a "catch-22" situation. Although, as is noted above, employers would be criminally liable for transmitting or otherwise making available obscene or indecent communications, the ECPA amendment could prohibit employers from, for example, screening incoming electronic messages to ensure that nothing unlawful is being transmitted, if the communications are personal. The ECPA amendment could prohibit the interception of communications for other legitimate concerns as well, such as the practice of local area networks that automatically screen electronic communications of graphics to prevent copyright violations. Thus, under S. 314 as drafted, employers could essentially be required to screen incoming communications to comply with Section 2, but prohibited by Section 5 from engaging in such screening of personal communications.
[1] Courts have not defined precisely what constitutes indecency, although they have held that mere offensiveness is insufficient. [2] The word "knowingly" was apparently inadvertently inserted into another section of the bill, (Sec. 2(a)(4)(A)(i) (affecting commercial obscenity)), where it is redundant, because the word "knowingly" already exists in the section of the Communications Act which that provision modifies. (47 U.S.C. 223(b)(2).)