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Indecency Litigation Statement

Internet "Indecency" Legislation: An Unconstitutional
Assault on Free Speech and Privacy Rights

February 7, 1996
Washington, DC

The Electronic Privacy Information Center (EPIC) will participate as both plaintiff and co-counsel in litigation to challenge the so-called "Communications Decency Act." The lawsuit will be filed in Philadelphia soon after the President signs the telecommunications bill containing the Internet "indecency" provisions. EPIC joins the American Civil Liberties Union and more than a dozen other organizations in challenging this ill-advised and unconstitutional attempt to impose governmental content regulation on emerging global electronic media.

The legislation's vague "indecency" standard will have an obvious impact upon the free speech rights of millions of Americans who use computer networks to receive and distribute information. Less apparent is the assault on privacy rights that the legislation will engender.

To avoid potential criminal liability under the "indecency" provision, information providers would, in effect, be required to verify the identities and ages of all recipients of material that might be deemed inappropriate for children. The new statutory regime would thus result in the creation of "registration records" for tens of thousands of Internet sites, containing detailed descriptions of information accessed by particular recipients. These records would be accessible to law enforcement agencies and prosecutors investigating alleged violations of the statute. Such a regime constitutes a gross violation of Americans' rights to access information privately and anonymously.

Less than a year ago, the Supreme Court upheld the right to anonymous speech in McIntyre v. Ohio Elections Commission.. EPIC believes that the Court's rationale in that case applies with even greater force to the Internet "indecency" provisions. The Court noted that

The decision in favor of anonymity may be motivated by fear of economic or official retaliation, by concern about social ostracism, or merely by a desire to preserve as much of one's privacy as possible. ...

Anonymity is a shield from the tyranny of the majority. It thus exemplifies the purpose behind the Bill of Rights, and of the First Amendment in particular: to protect unpopular individuals from retaliation -- and their ideas from suppression -- at the hand of an intolerant society.

According to David L. Sobel, Legal Counsel for EPIC, "Whether the millions of individuals visiting sites on the Internet are seeking information on teenage pregnancy, AIDS and other sexually transmitted diseases, classic works of literature or avant-garde poetry, they enjoy a Constitutional right to do so privately and anonymously. The Communications Decency Act seeks to destroy that right."

EPIC is confident that upon review of the legislation and its impact upon free speech and privacy rights in emerging electronic media, the courts will invalidate the measure as fundamentally at odds with the Constitution.

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