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The CDA has three principal flaws:
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Judge Sand: But we are in a context here of (a) a criminal statute and (b) something which is arguably inhibiting constitutionally-protected speech, and what you said on April 3 -- and you are saying now -- is that there is going to come a time when anyone who puts "XXX" in its URL [to label sites for filtering] will clearly be within the safe harbor [i.e., in no danger of prosecution]. Now, how are we going to establish whether that time has come or not? | ||
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 It is vague - The Government never once during the trial defined the phrases "content provider" or "patently offensive," leaving it unclear who could be punished under the CDA, and for what they could be punished. In practice, they tried to focus on commercial Web sites selling obscene materials, using "patently offensive" as a synonym for "sexually explicit", even though the Senators who drafted the CDA explicitly rejected standards concerning obscene material as being strong enough, as well as rejecting protections for material, even if it has "serious scientific, literary, artistic or political" value. |
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| Judge Jose Cabranes: One final thing from my point of view [...]. Mr. Hoffman appeared to say that sexually explicit could be either indecent or obscene, and just to get the terminology straight at some point, I would like to know the government's position, whether it is the government's position that all so-called sexually explicit material is by definition either obscene or indecent. ... Then there is a term that has been kicking around that we ought to focus on also and define, which is "patently offensive." ... Mr. Boe [Defense Attorney]: Can I ask for clarification on something? When we use the term "sexually explicit," I'm not sure what we're asking. ... Judge Cabranes: If you're not sure... Mr. Boe: If we were sure, we wouldn't have to be here. |
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 It will have a "chilling effect" on the use of the net - This is the worst effect of the CDA. By spreading potential liability so broadly and so vaguely, anyone who uses the network risks running afoul of a law even the Government has not clearly defined, and where the steps needed to be in compliance require having ordinary citizens to render legal opinions every time they hit the "Send" button. It does not take much of a leap to see a day when people either over-label their material as "patently offensive," thus removing it from certain spheres for whom that standard is a filter, or worse, simply deciding that the threat of a capricious Government crackdown is not worth the risk, and simply not using the network to communicate about anything at all outside their plans for their next vacation at Disneyworld. |
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It is broad - Since the net is so open, it is not clear where the line defining "content provider" is to be drawn. If I write and publish content, obviously, but what if I only publish what someone else has written, or offer them space to publish it themselves, or only mirror it, or point to it, or make a search engine capable of finding it? The CDA gets around this unclarity by simply targeting everybody - were I to go to the Netscape site to use the Altavista search engine to find HotSex.com, everyone in that chain (except, curiously, me) is at least potentially liable.