Do Not Feed the Troll – The Communications Decency Act

As discussed in the previous post, griefing can take on many forms as griefers attempt to disturb the online experience of other users. One of the methods griefers utilize is the posting of offensive material in areas that cannot be readily avoided by other users. This may include actions such as spray painting images of extreme sexual acts in virtual areas of a game server, creating obnoxious virtual devices that “spam” such images or audio to unsuspecting users, or posting mislabeled links that take users to the same graphically offensive content. The term “graphically offensive” in this context does not have a basis in any legal “community standards,” nor is it something that could be rated. The material often used in this form of griefing is almost universally abhorrent. A real life equivalent of these griefer’s activities would be if someone flashed a large poster of a coprophiliac act to bystanders on the street without warning or provocation. The obscene nature of these images puts griefing acts within the realm of a number of laws, those both valid and struck down by the Supreme Court.

The Communications Decency Act of 1996, or “CDA” for short, was the first major overhaul of telecommunications law by Congress in over 60 years. In pertinent part, it previously stated that anyone is guilty of a crime who “knowingly . . . 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.” (47 USC 230)

The CDA was intended to curb what was seen as a rapidly growing wave of pornography available to individuals via the Internet, and in particular decrease the incidence of easy access to pornographic materials by minors. Congress did seem to understand the issues surrounding the Internet and pornography that were rapidly developing in the face of ever growing technological capabilities. Where once a minor would have to attempt to sneak access to a singular pornographic magazine, the Internet allowed access to near unlimited material in both still image and movie form on ever faster connections.

Portions of the CDA were struck down as unconstitutional in the years following its enactment. In Reno v. ACLU (521 U.S. 844), the Supreme Court held that the wording of Section 230 of the CDA was overbroad. In particular, the Court found that “[i]n order to deny minors access to potentially harmful speech, the CDA effectively suppresses a large amount of speech that adults have a constitutional right to receive and to address to one another. That burden on adult speech is unacceptable if less restrictive alternatives would be at least as effective in achieving the legitimate purpose that the statute was enacted to serve. . . .”

In Nitke v. Gonzalez, however, a separate portion of the CDA similar to Section 230 was held to be constitutional and provide some standard by which the distribution of obscene material over the Internet is generally criminalized. Sectoin 223 criminalizes “any comment, request, suggestion, proposal, image, or other communication which is obscene or child pornography, with intent to annoy, abuse, threaten, or harass another person . . . ” (47 US 223). Section 223 clearly prohibits such behavior as image spam griefing, which is clearly the creation/placement of an image with the intent to annoy and harass others online. In Nitke the Supreme Court held that the provisions of Section 223 were neither overbroad nor vague, and that the principles of the CDA, namely that it is a criminal act to grief other Internet users.

Even in light of its foresight regarding Internet telecommunications, however, it is doubtful that Congress understood that the collective consciousness of the Internet would turn from distributing pornographic images as a matter of business to merely flashing extreme pornographic imagery as a means of pranking someone. Like so many trends that initiate on the Internet, it is without precedent nor a similar real-world analog.

However, under the CDA, an individual placing a graphic image in view of other players on a game server in Counterstrike or in a virtual environment will be performing a criminal act if the image is viewable by those under age. That is to say that the image need not be viewed, it merely needs to be “display[ed] in a manner available to a person under 18 years of age . . . .”

Furthermore, the CDA has been found to protect Internet providers from indirect civil liability for crimes committed through their service, while simultaneously empowering ISPs to block harmful content privately. In particular, Section 230 provides for “[p]rotection for “good samaritan” blocking and screening of offensive material. . . .” This provision means that ISPs may take proactive steps to prevent and stop griefing without running the risk of civil litigation for constitutional and other service issues.

In all, the CDA almost explicitly criminalizes griefing at least in the form of a presentation of obscene material. Why there is not more stringent prosecution for griefing turns towards the ongoing issues of criminal law on the Internet. Some might argue that the effort required to pursue those who would grief vastly outstrips the social benefits of legitimately halting griefing. Perhaps it is better left in the hands of private service providers and server owners, who can at least kick and ban individuals who do grief others by posting strongly explicit materials. If nothing else, victims of griefing can take comfort in the existence of the CDA and know that there is some precedent for discouraging griefing that has been set.

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~ by scottyufl on November 1, 2010.

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