News from the States

Winter 1998

Slamming
E-rate Program
Regulating the Internet: Censoring or Safeguarding?
California Passes New Laws to Deal with SPAM
Identity Theft
PFF Releases Report on State Governments & Digital Technology Use

Slamming

In 1998, the following states have considered or enacted legislation that would regulate the practice of "slamming" (the change of a consumer's telecommunications carrier without the consumer's prior authorization): ME, MI, MN, NE, NJ, OK, RI, and TN. Maine House Bill 1494 (Public Law No. 702) prohibits the practice of slamming, authorizes the Public Utilities Commission to adopt rules to supplement the prohibition, and provides penalties. Tennessee House Bill 2908 prohibits slamming and requires the Tennessee Regulatory Authority to maintain a web site for consumer complaints.

Also see NCSL's Action Resolution Protecting Consumers Against "Slamming".

—Submitted by Bob Boerner, NCSL

E-rate Program

During President Clinton's reelection campaign of 1996 he pledged to connect all classrooms to the Internet by the turn of the century. Under the Federal Communications Commission's e-rate (education rate) program, schools and libraries would receive Internet discounts of 20 percent to 90 percent on Internet access and connections, as well as for telecommunications services, when they contract with private companies to wire them to the Internet. 30,000 schools and libraries nationwide have filed applications for discounts. For example, all of Alaska's school districts and 40 public libraries have submitted applications.

The total quarterly budget of the program is $325 million although it has not yet begun giving money to schools and libraries. In June 1998 the Federal Communications Commission reduced the annual expenditure on the program from $3.35 billion to $1.9 billion over 18 months. Therefore, only the neediest school systems will receive e-rate funds during the first full year of the program. The FCC is determining how needy a district is, and how large its e-rate subsidy will be, based on how many pupils in the system are eligible for the government's national school lunch program.

—Submitted by Bob Boerner, NCSL

Regulating the Internet: Censoring or Safeguarding?

The Internet continues to pose challenges for state legislatures as they struggle to protect children from harmful materials without impinging on the constitutional rights of adults. In June 1997, the Supreme Court, in Reno v. ACLU struck down the federal Communications Decency Act (CDA) that attempted to protect children from sexually explicit materials on the Internet.

A second federal law, the 1998 Child Online Protection Act, or COPA, was almost immediately challenged and a temporary restraining order was issued against its enforcement. A preliminary injunction hearing is scheduled for early December 1998. Meanwhile, states are moving forward on legislation of their own, with mixed results. For example, New York in late 1996 passed legislation similar to the CDA, but an injunction against enforcement of the law was granted in ALA v. Pataki. However, one provision (NY CLS Penal Law 235.22) of the 1996 legislation has not been challenged and is supported by civil liberties groups like the ACLU. This provision makes it a crime to disseminate indecent materials online to minors for the specific purpose of inducing them to engage in sexual acts. It is narrowly aimed at preventing criminal solicitation and is not considered a broad attack on free expression. California, Florida, Illinois, Maryland, North Carolina, and Oklahoma have similar laws aimed at those who use the Internet to solicit or lure minors into illegal activities.

Other types of state laws that attempt to address sexually explicit materials on the Internet have been struck down or are still being tested. For example, a 1996 Virginia law aimed at prohibiting state employees from using state computers to view sexually explicit materials was overturned in Urofsky v. Allen (4 F. Supp. 2d 1029). New Mexico legislation passed in 1998 would have made it a crime to electronically transmit sexual images or content to someone known to be a minor, but a preliminary injunction was granted against the law’s enforcement in ACLU v. Johnson (4 F. Supp. 2d 1029) (see the findings and order in the case).

Several states in 1997 and 1998, including Arkansas, California, Kentucky, New Hampshire, and Utah passed legislation requiring public libraries or schools to promulgate rules or policies governing access to sexually explicit or harmful materials on the Internet. An important case relating to filtering policies is Mainstream Loudoun, et al. v. Board of Trustees of the Loudoun County Library.

Existing state and federal child pornography laws, however, are effective and have been used successfully to prosecute those who transmit or distribute child pornography by computer. And at least 18 states have expanded these laws with language that specifically prohibits electronic transmission of child pornography or possession of computerized child porn. Similarly, some states have amended existing obscenity laws governing the sale, distribution, or possession of obscene matter to include computerized or electronic images or representations of obscene materials.

Deciphering the complicated body of case law surrounding the regulation of obscenity and pornography has proven to be a troublesome topic for decades. The advent of the Internet promises to add to this complicated body of law and heighten the attention we pay it.

—Submitted by Pam Greenberg, NCSL

California Passes New Laws to Deal with SPAM

American Online estimates that ten million unsolicited commercial e-mail messages are sent over its networks every day. Internet users aren't the only ones protesting this onslaught of spam -- Internet Service Providers (ISPs) like AOL can incur significant costs when their networks are bogged down by the bulk ads. Now, a new California law gives ISPs the power to sue bulk e-mailers who send unauthorized messages across their networks. The new law also makes it a crime to use fraudulent return addresses in bulk e-mail ads. Spammers often use the domain names of other companies and use misleading subject lines to legitimize and disguise their mail.

Assemblywoman Debra Bowen sponsored a related law, which makes it easier for Internet users to control the e-mail they receive. Advertisers who send unsolicited commercial e-mail must identify it advertising messages by including the label "ADV:" in the subject line of the message. Advertisements for sexually explicit materials or other information inappropriate for minors must be labeled "ADV:ADLT." The law also requires spammers to include a toll-free telephone number or a valid e-mail address so recipients can ask to stop receiving junk e-mail. (A 1997 Nevada law contains a similar contact requirement.)

The new laws are likely to be challenged in court, however. Opponents say they will challenge the constitutionality of the labeling provisions as a form of compelled speech, and both laws may be under attack as unconstitutional for intruding into the interstate commerce arena. Congress in 1998 considered, but failed to pass, several bills aimed at the junk e-mail problem.

California is the third state to act to address the junk e-mail problem. A 1997 Nevada law requires bulk e-mailers to include contact information and a procedure for recipients to remove themselves from future mailings. Washington in 1998 prohibited the practice of forging headers, hijacking other email systems, or otherwise misrepresenting the point of origin of messages. The Washington law also gives individuals the right to sue spammers for sending unsolicited messages that contain fraudulent information.

—Submitted by Pam Greenberg, NCSL

Identity Theft

At least nine states have enacted some form of identity theft legislation--AZ, CA, GA, KS, MO, MT, NJ, WV and WI. The first state identity theft law was passed in Arizona in 1996, making it a felony. Recently California added a possible felony to its already existing misdemeanor charge for identity theft. The new law also says that court records must reflect the innocence a person whose identity was falsely used. Georgia passed the Personal Financial Security Act that defines the criminal offense of financial identity fraud, provides for penalties, authorizes the Attorney General to prosecute cases of such fraud and repeals conflicting related laws.

Kansas law specifies that misuse of another’s identification documents or personal identification numbers for economic benefit is a class A misdemeanor. It’s a class B misdemeanor in Missouri to practice identity deception or fraud on an application for certification or licensure as a state certified real estate appraiser. Montana also applies a misdemeanor charge if bribery, theft or misrepresentation of identity are used to obtain health care information. West Virginia also made a felony offense of taking another’s name for the purpose of conducting financial or credit transactions in that name. In Wisconsin it’s called a misappropriation of personal identifying information and includes recovery of damages, court costs and attorney’s fees and relates to racketeering.

—Submitted by Rita Thaemert, NCSL

PFF Releases Report on State Governments & Digital Technology Use

This fall, the Progress & Freedom Foundation (PFF) released a new study, "The Digital State 1998," which analyzed data from all 50 state governments on their Internet use. The PFF rated states on how they disseminated data in a variety of different areas, including legislative issues, education, law enforcement, and taxation. The report also ranked the states according to how they used the World Wide Web to provide services, such as access to laws and utilization of technology (such as search engines). Tracking States both collectively and individually, the research then issued a numeric report card to compare with last year's results. As a whole, the average score improved by 39%. Individually, Washington ranked top in the survey, with Wisconsin, Missouri, Pennsylvania, and Florida rounding off the top 5 respectively.

Copies of the Executive Summary are available at http://pff.org/digital98.html.

—Submitted by Janna Goodwin, NCSL

Updated 4-22-99

Visits to this page

News from the States

CONTENTS