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Hal Berghel's Digital Village....

The Communications Decency Act, Informal Logic and the Wapnerization of Cyberspace

Just a few weeks ago as this column was written, the Communications Decency Act (CDA) was brought before the Supreme Court. This stirred supporters and critics alike to produce a delightful potpourri of argumentation, good and bad. I'll weave some of this argumentation into some general observations about the CDA in this column. My interest in this topic is admittedly technological, and I confess to a slight propensity for the cynical and tongue-in-cheek. I do not do this to detract from the discussion of an important technological and social issue, but to encourage fellow-technologists to help raise the quality and level of this important, ongoing discussion.

To begin, the following two positions seem to define the spectrum of positions to be found in the CDA debate:

  1. indecency on the Internet is a case of what Mike Godwin of the Electronic Frontier Foundation calls a "Cyburban Myth" - there is no real problem.
  2. indecency in the Internet flourishes and puts our children at risk of being exposed to and harmed by pornography (among other things).

While there are more extreme variations of these positions, like

  1. * any attempt to legislate morality - in this case decency - either on or off the networks, is misguided. Similar prohibitions with print media have been a failure.
  2. * The Internet gives children convenient access to all of the world's electronic "dirty" bookstores,

the hyperbole and sweeping generalizations seems to have diminished their influence on the American public. So far as I can tell, most of the debate on the CDA falls within the first two core, opposing views. We'll return to the debate shortly.


The Communications Decency Act of 1996 (Title V of the 1996 Telecommunications Act, aka "the Exon Amendment") is legislation which, among other things,

In addition to these prohibitions, the CDA also establishes a defense for content providers who take "...reasonable, effective and appropriate actions, in good faith, to deny minors access to indecent and obscene material..." either by using current technology or by restricting access by "credit card verification, debit accounts, adult access codes or adult personal identification number...."

Thus, the CDA targets content providers, and not service providers, for criminal prosecution. Violations of the CDA carry penalties of up to 2 years in prison and fines up to $100,000. The passage of CDA galvanized many first amendment advocates, including, but not limited to, the ACLU, the National Writers Union, Human Rights Watch, the Electronic Frontier Foundation, the Electronic Privacy Information Center, Computer Professionals for Social Responsibility, the American Association of University Professors, the American Library Association, and Planned Parenthood, into petitioning a Federal court for a temporary restraining order and preliminary injunction against the Justice Department to prevent CDA's enforcement (A.C.L.U. v. Reno, 1996).

Figures 1 and 2.Two (of many) Internet kiosk homepages which cover the CDA - in this case for EPIC and EFF.


Obscenity has been determined to be outside the realm of first amendment protection. In the landmark 1973 case of Miller v. California, the Supreme Court declared that something was obscene if

  1. average people, applying contemporary community standards, would find that it appealed to prurient interests,
  2. it depicted or described, in a patently offensive way, sexual conduct, and
  3. taken as a whole, the work lacked serious literary, artistic, political or scientific value.

Attorneys and constitutional scholars have been interpreting phrases like "contemporary community standards," "prurient interests," etc. ever since, but the Supreme Court's ruling still stands.,

On the other hand, indecency has not been determined to be outside the purview of the first amendment. In fact, the opposition to the CDA includes positions such as these:

<> Indecency is a first amendment right. Indecent works may have socially redeeming characteristics, and may even pass the Miller v. California test,

<> The vagueness of the terms of CDA - especially with regard to the term, indecent - are Constitutionally problematic, and enforcement may therefore violate the principle of due process, and

<> some of the provisions of CDA, e.g. restricting access by credit card verification, etc., may not satisfy the "least restrictive means test" and thus be non-compliant with the first amendment.

The first-round results are in. The three-judge, U.S. District Court for Eastern Pennsylvania affirmed that: