Dear U.S. members of the Internet community:
Now that the Communications Decency Act (CDA) has been signed into law, many
decision makers in business, academic, and other organizations are writing
EFF to inquire whether and how to bring their systems into compliance with
the new statute. We have received a deluge of inquiries about assessing the
risks of non-compliance, and of simply maintaining the status quo and
operating as usual.
We believe, as do many members of Congress, that this law is patently
unconstitutional. The new statute violates the First Amendment by being both
overbroad and vague. This makes it exceedingly difficult for us to advise
you in a reliable way about what you can do to avoid risks (other than the
unacceptable choice of having to shut down altogether).
During the time between filing our Feb. 8th court challenge against the CDA,
and either a preliminary injunction against enforcement or a final ruling in
the case, we have only two suggestions which we feel we can responsibly make
to you.
First, if you operate a general purpose system, our advice is to please be
patient and do not overreact to the current cries for censorship. It is
precisely because the CDA language is difficult to understand and apply,
that we cannot advise you yet what the proper procedures are. No one can,
and that is why the CDA will ultimately fail. Freedom of speech in the
electronic world is fragile --don't risk damaging it before it's clear that
you have to.
Second, if the fundamental focus of your business is distributing sexually
explicit materials, we suggest you implement a procedure to screen out
minors. Provisions in existing US law suggest that acceptable ways to
screen out minors are:
* to require credit card numbers to gain access; or
* to use a password system and verification of user identity and
age; and
* to have procedures in place which allow immediate removal of a
user if s/he is discovered to be a minor.
If you are contacted by a government authority in regard to a possible
violation of the new law, please notify us immediately. This way we can
work to address the legal issues of your specific situation and we can
keep track of how law enforcement agencies are interpreting the CDA, and
share this information with others who are trying to understand and evaluate
this law. And, with this information, we may be able to provide better
guidance in the future.
Again, we believe that the restrictions that have been included in the
legislation will be struck down in court. We have sought a temporary
restraining order (TRO), and plan to follow it with a request for a
preliminary injunction, to prevent enforcement until the court renders a
final judgment in this case. A judge is expected to hear on our request for
a TRO within a week.
In the meantime, while your are evaluating how to best manage risks, we urge
that you do not make any decisions based on hasty reasoning or fear of
liability. EFF is here to help you proceed in a reasonable and cautious
manner that emphasizes preserving the integrity of your service as well as
the First Amendment.
Sincerely,
Lori K. Fena
Executive Director
Electronic Frontier Foundation
