and the employer has knowledge of, authorizes, or ratifies the employees or
agent’s conduct?. (Subsec. 402(f)(2)). A former federal prosecutor in our firm
indicates that absent this defense, a company might be held liable under a
theory of agency or vicarious liability for the actions of an employee whether
or not the company intended those actions.
3. Screening and Compliance With FCC Regulations.
The sole remaining affirmative defense, which provides protection from
prosecution under Sec. (d) for compliance with access restrictions and
subsequent FCC regulations, is worthless to companies. First, this defense is
meaningless without a comparable defense to prosecution under Title 18, for
which companies are liable for even higher penalties (5 years in prison vs. 2
years in prison) for the same behavior (an ?indecent? communication to a minor).
The October 16 proposal provides no comparable Title 18 safeharbor, rendering
the Title 47 safeharbor worthless.
Second, the proposal prescribes restrictions with which companies must
comply until FCC regulations take effect, but the restrictions, lifted wholesale
from FCC dial-a-porn regulations, are inapplicable to most companies and would
be impossible to comply with. The interim restrictions require companies to
block or restrict access to any person under 18 through the use of a verified
credit card, adult access code, or adult personal identification number (PIN).
Such restrictions are workable for a dial-a-porn provider who provides
restricted access to a telephone number for a commercial charge. Such
restrictions are antithetical, however, to unrestricted, intentionally open
connections, such as within a company’s computer network between systems.
Companies are required to comply with the interim restrictions until FCC
regulations become effective, which, because the proposal restricts
constitutionally protected indecent speech, could take a decade or more. The
dial-a-porn regulations on which the interim restrictions are based took ten
years for constitutionally sustainable regulations to finally take effect. Thus,
companies could be left without a defense for a decade or more, while the FCC
attempts to fashion constitutional regulations — which may be nevertheless
prove useless to companies. Indeed, if the FCC regulations resemble the interim
restrictions in the proposal, they will in fact be useless to most companies.