Telecommunications Offenses Described
Title 47 U.S.C. § 223 makes it a Federal offense for any person in
interstate or foreign communications by means of a telecommunication device
knowingly make, create or solicit and initiate transmission of any
which is obscene, lewd, or indecent. Section 223(b), which also creates
and injunctive remedies that may be used against such communications, was
intended to provide effective remedies against inter alia, the
"Dial-A-Porn" services, by which a person can make a telephone call and
a recorded obscene message. The FBI has primary jurisdiction to investigate
alleged violations of 47 U.S.C. § 223.|
This section was amended by the Communications Decency Act of 1996
Section 223(a)(1)(B)(ii) made it a crime to communicate anything "indecent"
a minor using a "telecommunications device." Section 223(d)(1)(B) made it a
crime to "display" in a manner "available to" a minor, by "interactive
service," a communication that "depicts or describes, in terms patently
as measured by contemporary community standards, sexual or excretory
The consolidated cases of ACLU et al. v. Reno and ALA et al.
DOJ et al., 929 F. Supp 824 (E.D. Pa. 1996) challenged 47 U.S.C. §
(a)(2) and 223(d) with respect to "indecency." A special three judge panel
Philadelphia on June 12, 1996, found these sections to be unconstitutional
enjoined the Department from action under these sections (including
prosecution, investigation or review).
In Shea v. Reno, 930 F. Supp. 916 (S.D.N.Y. 1996), a three judge
panel held that the plaintiff, an editor and publisher of a newspaper
exclusively through electronic means, had not sustained his burden of
demonstrating a likelihood of success on his claim that § 223(d) was
unconstitutionally vague, but that the plaintiff did demonstrate a
success on his claim that the section was unconstitutionally overbroad
it bans protected indecent communications between adults. Thus, the
was granted a preliminary injunction.
On June 26, 1997, the United States Supreme Court held that the CDA's
"indecent transmission" and "patently offensive display" provisions abridge
the freedom of speech protected by the First Amendment. Reno v.
ACLU, 521 U.S. 844 (1997). The Department is not prevented from
enforcing, prosecuting, investigating, investigating or reviewing
allegations of violations of Section 223(a)(2), based on prohibited
activities specified in § 223 (a)(1)(A), (C), (D), or (E), or based on
prohibited obscenity activities as specified in § 223(a)(1)(B).
obscene speech may be banned totally, the Court severed the term "indecent"
from the statute, leaving the "obscene" part of §223(a) standing.
In 1998, Congress passed the Child Online Protection Act (COPA) to
restrict the dissemination of "obscene" or "harmful to minor" materials over
the World Wide Web and provided for criminal and civil penalties. The Act
also reates an affirmative defense to liability of the Web site has
attempted to screen minors from viewing materials by requiring access
through a credit card, debit card, or adult identification number.
COPA has been challenged on First and Fifth Amendment grounds in ACLU
Janet Reno, 31 F. Supp.2d 473 (E.D. Pa.). After a hearing in the United
States District Court for the Eastern District of Pennsylvania, the court
upheld plantiffs' standing to challenge COPA on the premise that any
material that is "sexual in nature" could be subject to prosecution under
The United States has appealed the preliminary injunction against the
enforcement of the statute. The court entered a stay of proceedings pending
[updated April 2000] [cited in USAM 9-75.050]