S. 314 and existing situation

["Richard F. Dutcher" <rfdutcher@igc.apc.org>]

Gee, fellas, looking over this bill, *most* of what's going on is
just porting existing telephone law over to cybercomm. Given the
existence of 900-sex-talk, the phone companies are clearly not being
held responsible for content.

They are required, of course, to cooperate when complaints of 
harassing or obscene calls are made, to obey properly warranted 
requests for wiretaps, etc.  It's perfectly reasonable to expect 
similar requirements on net service providers.

> 
> Read carefully. There are indeed implications for Internet service 
> providers in terms of their responsibility under the law for the content 
> of their systems and services.
> 

Yeah, but First Amendment and common carrier law is a morass of 
conflicting statutes, interpretations, and case law.  After all, 
libel law puts some content liability on newspapers [too much, IMHO, 
but it has hardly destroyed freedom of the press].

As several posters have noted, the placement of the key words 
"knowingly" and "intentionally" are critical.  It doesn't appear, 
though, that any "knowingly"s or "intentionally"s have been removed.  
I am forwarding copies of this and the whole bill text to my brother, 
the former DA in Telluride, to see if he sees any unusual craptraps.  
I'll post any useful reply ...

>    
>    (a) Prohibited acts generally
>    
>    Whoever -
>    
>    (1) in the District of Columbia or in interstate or foreign
>    communication by means of [telephone] telecommunications
>    device -
>    
>    (A) [makes any comment, request, suggestion or proposal] 
>    makes, transmits, or otherwise makes available any comment,
>    request, suggestions, proposal, image, or other communication]
>    which is obscene, lewd, lascivious, filthy, or indecent;
> 
>    (B) [makes a telephone call, whether or not conversation
>    ensues, without disclosing his identity and with intent to
>    annoy, abuse, threaten, or harass any person at the called
>    number] makes a telephone call or utilizes a telecommunications
>    device, whether or not conversation or communications ensues,
>    without disclosing his identity with intent to annoy, abuse,
>    threaten, or harass any person at the called number or who
>    receives the communication;
>    
>    (C) makes or causes the telephone of another repeatedly or   
>    continuously to ring, with intent to harass any person at the
>    called number; or
>    
>    (D) [makes repeated telephone calls, during which conversation
>    ensues, solely to harass any person at the called number; or]
>    makes repeated telephone calls or repeatedly initiates
>    communication with a telecommunications device, during which
>    comversation or communication ensues, solely to harass any
>    person at the called number of who receives the communication;
>    or

I.e., *just like with phones,* you can't send harrassing or obscene 
messages to unwilling recipients.  Is there a lot of slack for 
bullshit?  You betcha!  A major change from the present?  Doesn't 
look like it.  [no intention of holding up the present as paradise, of 
course  ;-]

>    
>    
>    (b) Prohibited acts for commercial purposes; defense to prosecution
>    
>    (1) Whoever knowingly -
                         ^^^^^^^^^^ [applies to A & B below]
>    
>    (A) within the United States, by means of [telephone], 
>    telecommunications device makes (directly or by recording device)
>    any obscene communication for commercial purposes to any person, 
>    regardless of whether the maker of such communication [placed the
>    call] placed the call or initiated the conversation; or
>    
>    (B) permits any [telephone] telecommunications facility under such 
>    person's control to be used for an activity prohibited by
>    subparagraph (A), shall be fined in accordance with title 18 or 
>    imprisoned not more than two years, or both.
>    
>    (2) Whoever knowingly -
                         ^^^^^^^^^^ [applies to A & B below]
>    
>    (A) within the United States, [by means of telephone, makes]
>    by means of telecommunications device, makes, knowingly
>    transmits, or knowingly makes available (directly or by recording 
>    device) any indecent communication for commercial purposes which is 
>    available to any person under 18 years of age or to any other person 
>    without that person's consent, regardless of whether the maker of
>    such communication [placed the call] placed the call or
>    initiated the communication; or
>    
>    (B) permits any [telephone] telecommunications facility under such 
>    person's control to be used for an activity prohibited by subparagraph 
>    (A), shall be fined not more than [$50,000] $100,000 or imprisoned not 
>    more than [six months] 2 years, or both.
>

===================================
Rich Dutcher, San Francisco Greens
P.O. Box 77005, San Francisco, California 94107 USA

"That's libertarians for you - anarchists who want police protection from their slaves."
                          Kim Stanley Robinson, "Green Mars"

Greens, of course, only enslave plants - so weed-whackers work better than cops ...
====================================