GVPT333: Group Community
Kimberly Carter, Dave Dobin, Tim Hammond, Chris Rushing

The CDA: The Beginning of Community Standards?

The Communications Decency Act was developed to allow censorship of the Internet, as its intent was to keep the Internet safe for children. Before the CDA's creation in 1996 the FBI reported that the Internet and BBS systems were becoming new tools for distribution of child pornography. Not only was the Internet a good place to find child pornography but also child molesters were finding that email was a perfect tool for luring away unsuspecting children to secret meetings. After this became apparent to the public, the Senate quickly drafted up the CDA and passed it as part of the larger Telecommunications Act of 1996. The main focus of the CDA was to protect children by punishing anyone who published anything "obscene" or "indecent" on the Internet. Not only did this act provide punishment for the party who published the said materials but also any other parties who enabled the child to access these forbidden materials such as internet service providers (ISPs). There have been so many problems with the CDA since its passage in 1996 that it has been extremely ineffective in its attempt to protect children and censor the Internet.

Let us start with perhaps the most important problem with the CDA and that is its blatant abuse of the First Amendment rights to freedom of speech, "Congress shall make no law… abridging the freedom of speech, or of the press…" The CDA essentially was just this, a law that would prevent people from expressing their thoughts through speech on the Internet. The law attempted to avoid this conflict by focusing on keeping this "indecent" information away from minors. It did not anywhere say that this information is not allowed on the Internet, it just states that anyone who makes this information available to minors is punishable by $100,000 fine and up to two years in prison. Companies like AOL would then be liable for having indecent material and allowing minors to view it. Where are these companies to draw the line in order to protect themselves from prosecution when this law would require them to act to block this information from children? How are they to know whether it is a child or an adult accessing this information?

The CDA in this case moved the burden of censoring from the government onto the private industry. They forced the ISPs, such as AOL, to censor their service in order to comply with the CDA or face prosecution and legal sanctions. The government really showed no desire to attack those that are actually publishing the questionable information. They seemed to have adopted a top-down approach to this problem. Rather than deal with censorship themselves they let the companies weed it out as opposed to going after the publishers of indecent materials, leading to chaos in the Internet industry. The industry fought back by saying that they would potentially have to invade users privacy to screen emails to be sure they are not sending indecent information back and forth through email on their service since they can now be liable for it. This raised many problems for the ACLU, as no one wants their mail read by someone else. Privacy concerns coupled with the sheer volume of email and web chat postings would require software filters to filter out certain words or phrases, and to disallow access to anything that could be considered indecent.

With no clear guidelines as to what is and is not indecent or obscene, service providers had no way of knowing what to censor and what not to censor. The guidelines set by Miller vs. California as stated above were extremely ineffective and still are. Those guidelines were very vague and mainly turned to other sources such as state law or community standards for advice on how to interpret indecency. What would be needed in order for the CDA to properly work would be clear-cut distinct guidelines as to what is considered indecent. During their struggle to protect themselves from potential prosecution AOL included the word "breast" in their list of words banned from user profiles. Within a week the company was under protest and ridicule by breast cancer patients. Similar incidents occurred with the filtering of email and other postings. Opponents to the CDA claimed that sections of the Bible, some of Shakespeare's plays, and serious sexual discussions such as those involving AIDS should also be blocked if the CDA were to be followed to the letter. Of course this appears insane that these serious discussions could be blocked by the CDA, but some people may consider them to be unacceptable for minors to read due to the amount of sexual content contained in them. Many of the supporting groups of the CDA, such as many conservative religious groups, thought that it was ridiculous for the Bible to be considered indecent for minors, but given the lack of standard guidelines the CDA could easily be read to exclude nearly anything.

The courts, of course, would eventually have to enter the fray and determine whether the CDA was constitutional and if so what guidelines would be associated with it to allow proper enforcement. In a case similar to this, the Supreme Court struck down a Michigan law that made it illegal to sell materials that could be damaging to minors. Justice Frankfurter said, "The state may not reduce the adult population of Michigan to reading only what is fit for children." By applying this precedent to the CDA case, as age cannot be determined over the Internet this would essentially be the same case and then the CDA would be declared unconstitutional for attempting to lower the general population of the United States to the level of children. The CDA has never really been able to be enforced as it has been in and out of the courts constantly since its inception.

This particular law has been protested multiple times by groups, such as the ACLU, for breach of the First Amendment as discussed above. Johnson vs. ACLU (1998) helped lead up to the later cases against the CDA. This case was decided much like the other decision of the Supreme Court over state law that prevented adults from speaking freely on the Internet as children may access that information. These cases have struck down the "harmful to minors" concept of regulation of the Internet in order to allow free speech of adults in an environment such as the Internet. This has led up to a great deal of confusion which the Supreme Court had a tough time arguing against, when the appeals finally made it to the Supreme Court in 1997. In the case of Reno vs. ACLU the CDA was declared to be unconstitutional due to its vagueness with respect to what is considered indecent. They stated that to protect children the current laws against obscenity and indecency should still apply to the Internet. The courts said that it is still illegal to possess pornographic pictures of children whether it is emailed or actual pictures. If the material in question is child pornography then it is still subject to the child pornography laws and not subject to the first amendment even on the Internet. But sexual expressions are still covered under the first amendment as long as they do not break any of the current obscenity laws, such as child pornography.

As the Supreme Court overruled the CDA, there will most likely be more attempts to protect children and censor the Internet to some degree. The CDA obviously was a poor attempt to solve the problem of Internet indecency and more solutions must be developed. Even a working CDA would not solve the problems on the Internet due to the community issues discussed in this paper. The Internet is more than just the United States so a United States law would not be able to rule the Internet fairly when applied outside of the domain it was established in. Another solution must be developed to address the problem of censorship and community on the Internet.