Telecommunications

In the 1980s and 1990s, the use of digital data transmission revolutionized the communication of words, images, and sounds. Computer-driven means of telecommunication have made possible electronic mail (E-MAIL), the sharing of computer files, and, most importantly, the Internet.

The Internet is a network of computers linking the United States with the rest of the world. Originally developed as a way for U.S. research scientists to communicate with each other, by the mid-1990s the Internet had become a popular form of telecommunication for personal computer users. Written text represents a significant portion of the Internet's content, in the form of both E-mail and articles posted to electronic discussion forums. In the mid-1990s, the appearance of the World Wide Web made the Internet even more popular. The Web is a multimedia interface that allows for the transmission of what are known as Web pages, which resemble pages in a magazine. In addition to combining text and pictures or graphics, the multimedia interface makes it possible to add audio and video components. Together these various elements have made the Internet a medium for communication and for the retrieval of information on virtually any topic.

The federal government has attempted to regulate this form of telecommunication. Congress passed the Electronic Communications Privacy Act of 1986 (ECPA) (18 U.S.C.A. § 2701 et seq. [1994]), also known as the Wiretap Act, which made it illegal to read private E-mail. The ECPA extended to electronic mail most of the protection already granted to conventional mail. This protection, however, has not been extended to all E-mail that is transmitted in the workplace.

A controversial issue in the workplace is whether an employer should be able to monitor the E-mail messages of its employees. An employer has a strong legal and financial motive to prohibit unauthorized and inappropriate use of its E-mail system. Under the Wiretap Act, a company is not restricted in its ability to review messages stored on its internal E-mail system. In addition, interception of electronic communications is permitted when it is done in the ordinary course of business or to protect the employer's rights or property. This exception would apply when, for example, an employer has reasons to suspect that an employee is using the E-mail system to disclose information to a competitor or to send harassing messages to a coworker. Finally, the prohibitions of the Wiretap Act do not apply if the employee whose messages are monitored has explicitly or implicitly consented to such monitoring.

Congress sought to curb the transmission of indecent content on the Internet and other computer network telecommunications systems by enacting the Communications Decency Act (CDA) (47 U.S.C.A. § 223(a)-(h)), as part of the Telecommunications Act of 1996. The CDA made it a federal crime to use telecommunications to transmit "any comment, request, suggestion, proposal, image, or other communication which is obscene or indecent, knowing that the recipient of the communication is under 18 years of age, regardless of whether the maker of such communication placed the call or initiated the communication." It includes penalties for violations of up to five years imprisonment and fines of up to $250,000.

In Reno v. American Civil Liberties Union, 521 U.S. 844, 117 S. Ct. 2329, 138 L. Ed. 2d 874 (1997), the Supreme Court struck down the "indecent" provision as a violation of the First Amendment right of free speech.