Communications Decency Act e-mail provision cited in private lawsuit

Friday, April 21, 2000

A provision of the Communications Decency Act of 1996, much of which was struck down by the Supreme Court, is still very much alive and is being cited in a lawsuit in federal court in Manhattan, according to a report in The New York Times.

On April 11, a New York-based Internet service provider,, filed suit citing section 223(a)(1)(A) of the CDA to pursue an anonymous e-mailer who was posting “obscene, lewd, lascivious, filthy and indecent messages’ in the service’s chat rooms, according to the Times.

Many lawyers thought this provision of CDA had been found unconstitutional, the Times reported, along with the more well-known sections controlling indecent online material, which were thrown out by the Supreme Court in 1997. But in a one-line ruling a year ago, the court affirmed a lower court’s decision upholding this provision of the CDA that makes it a crime to send obscene e-mail to annoy or harass someone else.

The Justice Department, in a 1998 memorandum, said the law should apply only to messages that were obscene. But’s use of the law in private litigation seems to expand the law beyond any action contemplated by the government.

“The private use of the law is particularly troubling to me,” said Chris Hansen, senior staff attorney for the American Civil Liberties Union, in an interview with the Times. “If you … take a more expansive view, an awful lot of people could be rushing into federal court to stop all kinds of speech they find annoying.”

Gerald Singleton, a lawyer for, told the Times he would now seek to subpoena Internet providers around the country to try to learn the identity of the person posting the messages.

It was the use of the CDA criminal statute to pierce anonymity that led Hansen and others to express concern. Hansen told the Times that one solution would be for judges to block subpoenas aimed at specific, named defendants until those individuals were given the chance to appear in court to protect their anonymity.