81. Signed into law on February 8, 1996, the Communications Decency Act criminalizes the display and distribution of constitutionally protected expressive material.

82. The Act contains two primary criminal provisions. Violation of either provision is a felony, punishable by as much as two years in prison and substantial fines.

83. Section 502(2) of the Act, to be codified at 47 U.S.C. § 223(d), broadly prohibits knowingly using any "interactive computer service" to send to a specific person or persons under 18 years of age, or to "display," "in a manner available to" a person under 18, certain "patently offensive" communications. Section 502(2) provides, in pertinent part:

(d) Whoever--

(1) in interstate or foreign communications knowingly--

(A) uses an interactive computer service to send to a specific person or persons under 18 years of age, or

(B) uses any interactive computer service to display in a manner available to a person under 18 years of age,

any comment, request, suggestion, proposal, image, or other communication that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs, regardless of whether the user of such service placed the call or initiated the communication; or

(2) knowingly permits any telecommunications facility under such person's control to be used for an activity prohibited by paragraph (1) with the intent that it be used for such activity,

shall be fined under title 18, United States Code, or imprisoned not more than two years, or both.

84. "Interactive computer service" is defined as "any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions."
Act § 502(2) (to be codified at 47 U.S.C. § 223(h)(2)) referring to Act § 509 (to be codified at 47 U.S.C. § 230(e)(2)).

85. The terms "patently offensive," "contemporary community standards," and "display" are nowhere defined in the Act.

86. Another section of the Act, Section 502(1), to be codified at 47 U.S.C. § 223(a)(1)(B), prohibits and criminalizes the use of a "telecommunications device" knowingly to make or create and "initiate[] the transmission of, any comment, request, suggestion, proposal, image, or other communication which is . . . indecent, knowing that the recipient of the communication is under 18 years of age." Another provision of the same section makes it a crime to "knowingly permit[] any telecommunications facility under [a person's] control to be used for any activity prohibited by paragraph (1) with the intent that it be used for such activity."
Act § 502(1) (to be codified at 47 U.S.C. § 223(a)(2)).

87. "Telecommunications device" is defined to exclude an "interactive computer service."
Act § 502(2) (to be codified at 47 U.S.C. § 223(h)(1)(B)).

88. The term "indecent" is not defined.

89. The Act establishes several defenses a defendant may assert in a criminal prosecution under the Act. First, no person shall be held to have violated subsection (a) or (d) solely for providing access or connection to or from a facility, system, or network not under that person's control, including transmission, downloading, intermediate storage, access software, or other related capabilities that are incidental to providing such access or connection that does not include the creation of the content of the communication.
Act § 502(2) (to be codified at 47 U.S.C. § 223(e)(1)).

90. The phrase "not under that person's control" is nowhere defined in the Act.

91. This defense is not available "to a person who is a conspirator with an entity actively involved in the creation or knowing distribution of communications that violate this section, or who knowingly advertises the availability of such communications." Id. (to be codified at 47 U.S.C. § 223(e)(2)). Nor is this defense available to "a person who provides access or connection to a facility, system, or network engaged in the violation . . . that is owned or controlled by such person." Id. (to be codified at 47 U.S.C. § 223(e)(3)). The level or nature of control is not defined.

92. In addition, the Act provides a defense to a criminal prosecution under (a)(1)(B) or (d), or under (a)(2) for use of a facility for an activity under (a)(1)(B), if the defendant

(A) has taken, in good faith, reasonable, effective, and appropriate actions under the circumstances to restrict or prevent access by minors to a communication specified in such subsections, which may involve any appropriate measures to restrict minors from such communications, including any method which is feasible under available technology; or

(B) has restricted access to such communication by requiring use of a verified credit card, debit account, adult access code, or adult personal identification number.

93. Congress made no findings in connection with enacting Section 502 of the Act. Congress made no findings as to its purpose or interest in criminalizing online communication of "indecent" or "patently offensive" materials to, or that would be available to, persons under age 18. In considering the Act, Congress made no inquiry into or findings regarding the extent to which such materials were available to persons under 18. Congress made no inquiry into or findings whether the means Congress chose to address whatever interest it had would substantially further that interest. Congress made no inquiry into or findings whether any less restrictive means would substantially further its interest.

94. In another section of the Act, however, Congress did make the following relevant findings:

(1) The rapidly developing array of Internet and other interactive computer services available to individual Americans represent an extraordinary advance in the availability of educational and informational resources to our citizens.

(2) These services offer users a great degree of control over the information that they receive, as well as the potential for even greater control in the future as technology develops.

(3) The Internet and other interactive computer services offer a forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity.

(4) The Internet and other interactive computer services have flourished, to the benefit of all Americans, with a minimum of government regulation.

(5) Increasingly Americans are relying on interactive media for a variety of political, educational, cultural, and entertainment services.