Communications Decency Act

Communications Decency Act (CDA), legislation enacted by the U.S. Congress in 1996 primarily in response to concerns about minors’ access to pornography via the Internet. In 1997 federal judges found that the indecency provisions abridged the freedom of speech protected by the First Amendment to the U.S. Constitution; this decision was affirmed by the U.S. Supreme Court without comment.

The CDA created a criminal cause of action against those who knowingly transmit “obscene” or “indecent” messages, as determined by local community standards, to a recipient under the age of 18 years. It also prohibited knowingly sending or displaying a “patently offensive” message containing sexual or excretory activities or organs to a minor. The CDA did, however, provide a defense to senders or displayers of online “indecent” materials if they took reasonable good-faith efforts to exclude children.

This legislation had numerous problems that affected both Internet service providers (ISPs) and businesses. First, there was no way for senders or displayers to know if they were within the exception. At that time, it was difficult and cumbersome for a sender to screen out minors. The displayers could ask for a credit card number as validation, but this would not allow them to conduct business with those who did not have a credit card and were over the age of 18 years. In addition, the terms indecent and patently offensive were ambiguous, and the CDA as a whole placed an undue burden on free speech.

Portions of the CDA, especially those regarding the phraseology, were quickly challenged in court by civil rights groups and free-speech advocates. The case was ultimately taken to the Supreme Court in 1997 in Reno v. ACLU. The provisions regarding indecent and patently offensive materials were found to violate the freedom of speech protected by the First Amendment and were removed from the CDA.

In 2003 the portions of the CDA regarding obscene content were challenged in Nitke v. Ashcroft (later Nitke v. Gonzales). The plaintiff Barbara Nitke argued that the use of local community standards to determine whether content was obscene was an infringement on her First Amendment rights, as online content is shared with a global community with varying standards. However, she was unable to meet the burden of proof necessary to support her claim, as she could not demonstrate that she would actually be harmed by the CDA.

In Section 230 the CDA created a federal immunity to any cause of action that would make ISPs liable for information originating with a third-party user of the service. That section, originally introduced as the Internet Freedom and Family Empowerment Act in 1995, was added to the CDA during a conference to reconcile differences between the Senate and the House of Representatives versions of the bill. Although it protects online forums and ISPs from most federal causes of action, it does not exempt providers from applicable state laws or criminal, communications-privacy, or intellectual-property claims. Though ISPs are protected by the “Good Samaritan” portions of this section, there have been individuals and groups who have sued Internet users and ISPs over libelous Web pages. Some parties maintain that users should be able to sue ISPs in cases where it is appropriate, including situations where an anonymous poster of questionable content in an online forum cannot be identified. Additionally, the courts have not clearly defined the line at which a blogger, who may be viewed as an information publisher and a user, becomes an information content provider. Editing a Web page or posting a comment so as to create a new, defamatory meaning for the existing content may cause that user to lose protection under Section 230.