Date--Thu, 25 Aug 1994 14:32:40 -0600
From--djw@eff.org (Daniel J. Weitzner)
Placing the onus, and criminal liability, on the carrier, as opposed to the originator of the content, threatens to limit the free flow of all kinds of information in the online world. If carriers are operating under the threat of criminal liability for all of the content on their services, they will be forced to pre-screen all messages and limit both the privacy and free expression of the users of these services. Senator Exon's amendment raises fundamental questions about the locus on liability for harm done from content in new digital communications media. These questions must be discussed in a way that assures the free flow of information and holds content originators responsible for their actions.
If enacted into law, these amendments would require that anyone who "makes, transmits, or otherwise makes available" indecent communication take prescribed steps to assure that minors are prevented from having access to these communications. In the case of 900 numbers, acceptable procedures include written verification of a subscriber's age, payment by credit card, or use of a scrambling device given to the subscriber after having verified his or her age. Failure to do so would result in up to a $100,000 fine or up to two years imprisonment.
Overbroad carrier liability forces carriers to stifle the free flow of information on their systems and to act as private censors
If carriers are responsible for the content of all information and communication on their systems, then they will be forced to attempt to screen all content before it is allowed to enter the system. In many cases, this would be simply impossible. But even where it is possible, such pre-screening can severely limit the diversity and free flow of information in the online world. To be sure, some system operators will want to offer services that pre-screen content. However, if all systems were forced to do so, the usefulness of digital media as communication and information dissemination systems would be drastically limited. Where possible, we must avoid legal structures which force those who merely carry messages to screen their content.
Carriers are often legally prohibited from screening messages
In fact, under the Electronic Communications Privacy Act of 1986, electronic communication service providers are generally prohibited from examining the contents of messages or information carrier from one subscriber to another.
Extension of the 900 number rules to all electronic information services may be unconstitutional
The regulation of indecent 900 number programming was only accomplished after nearly a decade of constitutional litigation, with rules being overturned by the Supreme Court. The regulations were finally found constitutional only after being substantially narrowed to meet First Amendment scrutiny. Since the access methods offered by online service providers are significantly different than simple telephone access to 900 services, we doubt that the same constitutional justifications would support the newly expanded rules. This issue requires considerable study and analysis.
Content creators, or those who represent the content as their own, should be responsible for liability arising out of the content
In sum, it should be content originators, not carriers, who are responsible for their content. Any other approach will stifle the free flow of information in the new digital media.