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The Justice Department Brief in support of the Communication Decency Act filed on January 21, 1997.
END NOTES
1. Unless otherwise noted, references to the CDA are to its provisions
as they will be codified in the United States Code.
2. Congress also added supplemental restrictions (the control
provisions) that prohibit persons from "knowingly permitting any
telecommunications facility under [their] control to be used for" for
any activity that violates the three primary restrictions. 47
U.S.C. 223(a)(2) and (d)(2).
3. The prohibitions addressed to interactive computer services
apply to services, other than the Internet, such as bulletin
boards. 47 U.S.C. 230(e); see United States v. Thomas, 74 F. 3d 701
(6th Cir.) (discussing bulletin boards), cert. denied, 117 S. Ct. 74
(1996) .
4. After the decision in this case, a three-judge court in the
Southern District of New York issued its own preliminary
injunction against enforcement of the CDA's restrictions on
patently offensive communications. Shea v. Reno, 930 F. Supp.
916 (1996). The Shea court rejected the district court's
conclusion in this case that the CDA's restrictions are
unconstitutionally vague, but agreed with its conclusion that
they are unconstitutional under Sable. The Attorney General's
appeal of that preliminary injunction is also pending before this
Court. Reno v. Shea, No. 96-595 (jurisdictional statement filed
Oct. 15, 1996).
5. The supplemental control provisions, 47 U.S.C. 223(a)(2)
and (d) (2) are constitutional for the same reasons that the
provisions they supplement are constitutional. We therefore do
not discuss them further.
6. Although there is overlap between the transmission and
specific child provisions (both cover the use of computers to
send indecent material when the computers are linked by modems),
there are also some differences in coverage. The transmission
provision prohibits the use of a telephone or fax machine to
transmit indecent material, while the specific child provision
does not. The latter provision prohibits the use of interactive
computers that are directly linked to other computers to
disseminate indecent material, while the former does not.
7. The harm to children is exacerbated where access to indecent
material by children is readily permitted, because of the implied
societal approval of the material that accompanies such a regime.
See Ginsberg, 390 U.S. at 642-643 n.10.
8. Cyberporn Hearing at 7 (Sen. Grassley) ("Congress must give
America's parents a new comfort level in public and commercial
computer networks if these are to be transformed from the private
preserve of a special class of computer hackers into a widely
used communications medium. This necessary transformation will
never happen if parents abandon the Internet and computer
communications technology remains threatening.").
9. Commercial providers of indecent information on multi-user
computer servers that are not connected to the Internet -- such
as electronic bulletin boards -- can also screen for age, since
passwords are ordinarily required to gain access to such a
service, and proof of age (or a valid credit card number) can be
requested before a password is conferred upon a user. Schmidt
Decl. paragraph 37(a); Schmidt Exh. 40, at 2 (bulletin board
conditioning access on provision of copy of driver's license or
birth certificate). See also United States v. Thomas, 74 F.3d
701, 705 (6th Cir.) (describing operation of sexually explicit
electronic bulletin board that limited access to members who had
provided names, ages, addresses, phone numbers, and signatures),
cert. denied, 117 S. Ct. 74 (1996 ).
10. E.g., http://www.thepalace.com (chat service);
http://www.alamak.com/chat/index.html (creation of chat room
through use of a of credit card); http://www.lyris.com. (software
to create discussions and announcement lists).
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