Order Code RS21328
Updated January 28, 2004
CRS Report for Congress
Received through the CRS Web
Internet: Status Report on
Legislative Attempts to Protect Children
from Unsuitable Material on the Web
Marcia S. Smith and Amanda Jacobs
Resources, Science, and Industry Division
Summary
Preventing children from encountering unsuitable material, such as pornography,
as they use the Internet is a major congressional concern. Several laws have been
passed, including the 1996 Communications Decency Act (CDA), the 1998 Child
Online Protection Act (COPA), and the 2000 Children’s Internet Protection Act (CIPA).
Federal courts ruled, in turn, that certain sections of CDA, COPA and CIPA were
unconstitutional. All the decisions were appealed to the Supreme Court. The Supreme
Court upheld the lower court decision on CDA in 1997. It has agreed to again hear the
COPA case, after a lower court ruled COPA unconstitutional for a second time; an
injunction against the law’s enforcement remains in place. The Supreme Court upheld
CIPA on June 23, 2003. Congress also passed the “Dot Kids” Act (P.L. 107-317),
which creates a kid friendly space on the Internet, and the “Amber Alert” Act (P.L. 108-
21) which, inter alia, prohibits the use of misleading domain names to deceive a minor
into viewing material that is harmful to minors. This report will be updated.
Background
The Internet has become a pervasive tool used by children to research school
projects, look for entertainment, or chat with friends. Parents and policy makers are
concerned that children are encountering unsuitable material — such as pornography —
while they use the World Wide Web. Most agree that protecting children requires a
multi-faceted approach, with parental or other adult supervision as a key ingredient.
Many also believe that legislation is needed. Several federal laws have been enacted to
date, including the 1996 Communications Decency Act (CDA), the 1998 Children’s
Online Protection Act (COPA), and the 2000 Children’s Internet Protection Act (CIPA).
Such legislation has proved difficult to draft in a manner that does not violate rights
guaranteed by the Constitution, particularly the First Amendment. One difficulty is that
there can be considerable disagreement as to what is “unsuitable,” “inappropriate,” or
“harmful,” just as what constitutes pornography can be debated. Even the definition of
“children” can be problematical, since some material may be deemed inappropriate for
a pre-teen, but might not be deemed inappropriate for a senior in high school. (Congress
Congressional Research Service ˜ The Library of Congress

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addressed the issue of sexually explicit e-mail advertisements in the CAN-SPAM Act,
P.L. 108-187. See CRS Report RL31953.)
1996 Communications Decency Act (CDA)
Congress passed the Communications Decency Act (CDA) as Title V of the 1996
Telecommunications Act (P.L. 104-104), on February 8, 1996. That day, the American
Civil Liberties Union (ACLU) filed suit against portions of the CDA
[http://www.aclu.org/news/n103196b.html]. The American Library Association (ALA)
and others filed suit later. They challenged two sections of the law — 47 U.S.C. §
223(d) and 47 U.S.C. § 223(a)(1)(B) — that made it a crime to engage in “indecent” or
“patently offensive” speech on computer networks if the speech could be viewed by a
minor (defined as under 18). The plaintiffs argued that the provisions were
unconstitutional because they prohibited speech protected by the First Amendment, and
the terms indecent and patently offensive were overbroad and vague. In June 1996, a
special three-judge panel of the U.S. District Court in Philadelphia, established under
procedures set forth in the CDA, agreed. It issued a preliminary injunction barring
enforcement of those provisions. Under the CDA, the government could appeal the case
directly to the Supreme Court, which it did. (For more information, see CRS Report 97-
660, by Henry Cohen). In Reno v. American Civil Liberties Union, 521 U.S. 844 (1997),
the Supreme Court upheld the lower court’s ruling that the provisions were
unconstitutional. Specifically, it found that, with regard to the use of the term “indecent,”
the CDA “is a blanket restriction on speech” and could be found to be constitutional only
if it “serves to promote a compelling interest” and is the “least restrictive means to further
the articulated interest.”1 The Court did not find that it met those tests.
In 2003, Congress passed the PROTECT Act (P.L. 108-21), which amended CDA
by substituting “child pornography” for “indecent.” Thus, it now bans obscenity and child
pornography, neither of which is protected by the First Amendment. Therefore the Act
no longer raises the constitutional issues that formed the basis of that Supreme Court
ruling (see CRS Report 95-804A for more information).
A challenge also has been made to the provisions regarding obscenity. In 1999, the
Supreme Court upheld the constitutionality of sections 223(a)(1)(A) and 223(a)(2) with
respect to their prohibition on obscene communications.2 In December 2001, the
National Coalition for Sexual Freedom (NCSF) and others filed suit in the U.S. District
Court for the Southern District of New York to overturn section 223(a)(1)(B) as it relates
to obscenity.3 A special three-judge panel was convened to hear the case. NCSF also
filed a motion for a preliminary injunction to enjoin enforcement of the obscenity
provision of CDA on May 24, 2002. On March 24, 2003, the panel denied that motion,
but declined to dismiss the case, allowing it to proceed [Nitke v. Ashcroft, 253 F. SUPP.
2D 587 (S.D.N.Y. 2003)].
1 As quoted in CRS Report 95-804A, Obscenity and Indecency: Constitutional Principles and
Federal Statutes, by Henry Cohen
2 See Cohen, Ibid.
3 See NCSF’s Web site [http://www.ncsfreedom.org/].

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1998 Child Online Protection Act (COPA)
Congress subsequently passed the Child Online Protection Act (COPA), as Title XIV
of the FY1999 Omnibus Appropriations Act (P.L. 105-277), which was signed into law
October 21, 1998. COPA prohibits communication of material that is “harmful to
minors” on a Web site that seeks to earn a profit. COPA defines minor as under the age
of 17, instead of 18 as in CDA. The term “material that is harmful to minors” is defined
as “any communication, picture, image, graphic image file, article, recording, writing, or
other matter of any kind that is obscene or that (A) the average person, applying
contemporary community standards, would find, taking the material as a whole and with
respect to minors, is designed to appeal to, or is designed to pander to, the prurient
interest; (B) depicts, describes, or represents in a manner patently offensive with respect
to minors an actual or simulated sexual act or sexual contact, actual or simulated normal
or perverted sexual act, or a lewd exhibition of the genitals or post-pubescent female
breast; and (C) taken as a whole, lacks serious literary, artistic, political or scientific value
for minors.”
Congress was reportedly optimistic that COPA would survive constitutional
challenges in spite of the ruling on CDA because of the stated exceptions for
communications that had literary, artistic, political or scientific value, its application only
to commercial sites, and use of the court-tested “harmful to minors” language rather than
“indecent.” The definition of “harmful to minors” was based on the obscenity test
created in Miller v. California, thereby requiring jurors to apply “contemporary
community standards” when assessing material. The ACLU filed suit challenging the
constitutionality of COPA, arguing that the statute violated the First Amendment rights
of adults because it effectively banned constitutionally protected speech, and did not use
the least restrictive means to advance a compelling government interest. A preliminary
injunction was issued against enforcement on the act in February 1999, which was upheld
by the Third Circuit Court of Appeals in June 2000. The Third Circuit ruled that the act
was unconstitutional because its use of “community standards” resulted in material
available to a nationwide audience being judged by the standards of the community most
likely to be offended, since one cannot make material on the Internet available in some
communities but not in others.
The Department of Justice appealed the Third Circuit decision to the Supreme Court.
In May 2002, the Supreme Court held that COPA’s use of the term “community
standards” alone did not make the statute unconstitutional and vacated the Third Circuit’s
decision. However, the Court expressed no view as to whether COPA is unconstitutional
for other reasons. Therefore, the Court remanded the case to the Third Circuit for further
review, and allowed the injunction against enforcement of the law to remain in effect.
The Third Circuit again ruled in March 2003 that the law was unconstitutional. That
decision has now been appealed to the Supreme Court, which has agreed to hear the case.
Oral argument is scheduled for March 2, 2004. (See CRS Report 95-804 A.)
COPA also created a Child Online Protection Commission to study methods to help
reduce access by minors to material that is harmful to minors. The COPA Commission
released its report in October 2000 [http://www.copacommission.org/report/], concluding
that a combination of public education, consumer empowerment technologies and
methods, increased enforcement of existing laws, and industry action was needed. Also
in 1998, Congress directed (in P.L. 105-314, the Sexual Predators Act) the National

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Research Council to conduct a study on how to limit the availability of pornography on
the Internet. The NRC study, Youth, Pornography, and the Internet,4 similarly concluded
that a multi-faceted approach was needed.
2000 Children’s Internet Protection Act (CIPA)
Congress next passed the Children’s Internet Protection Act (CIPA) as Title XVII
of the FY2001 Consolidated Appropriations Act (P.L. 106-554), signed into law on
December 21, 2000. The law requires schools and libraries that receive federal funding
to use filtering technologies to block from minors Web pages that contain material that
is obscene, child pornography, or harmful to minors.5 CIPA also requires libraries
receiving federal funds to block Web sites containing obscene material or child
pornography from access by adults. Minors are defined as persons under 17. The term
“harmful to minors” is defined differently than in COPA. In CIPA, it is any “ picture,
image, graphic image file, or other visual depiction that (A) taken as a whole and with
respect to minors, appeals to a prurient interest in nudity, sex, or excretion; (B) depicts,
describes, or represents in a patently offensive way with respect to what is suitable for
minors, an actual or simulated sexual act or sexual contact, actual or simulated normal
or perverted sexual act, or a lewd exhibition of the genitals; and (C) taken as a whole,
lacks serious literary, artistic, political or scientific value as to minors.” An exception
allows blocking features to be disabled by an adult to allow access for “bona fide research
or other lawful purposes.” For more detail on CIPA’s provisions, see CRS Report
RS20036 and CRS Report 95-804 A.
The ALA and ACLU challenged sections 1712(a)(2) and 1721(b) as they apply to
public libraries only. Opponents of the law say the software required to block the material
cannot determine which material is protected by free speech. They also say that the law
is unenforceable, censors speech to adults as well as children, is overbroad and vague, and
denies those without home computers the same access to information.
In May 2002, a three-judge federal district court in Philadelphia established under
the terms of CIPA (identical to those in CDA) ruled that “it is currently impossible given
the Internet’s size, rate of growth, rate of change, and architecture, and given the state of
the art of automated classification systems, to develop a filter that neither underblocks nor
overblocks a substantial amount of speech.”6 The court ruled that public libraries cannot
be forced to use Internet blocking systems because they might also block access to sites
that contain information on subjects such as breast cancer, homosexuality, or sperm
whales. As provided for in CIPA, the Department of Justice appealed the case directly
to the Supreme Court, which upheld the constitutionality of CIPA on June 23, 2003 (see
CRS Report 95-804 A for more detail on the court’s ruling). The ALA decried the court’s
decision (see [http://www.ala.org/cipa]). Some public libraries are considering forgoing
government funding rather than install the filters.
4 [http://www.nap.edu/catalog/10261.html?onpi_webextra_050202]
5 The No Child Left Behind Act (P.L. 107-63) applies this requirement to schools receiving
educational technology (EdTech) grants established under that Act.
6 O’Harrow Jr, Robert. Washington Post, June 1, 2002, p. A01

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2002 “Dot Kids” Act (P.L. 107-317): A Domain Name Approach
The 107th Congress approached the issue from the aspect of creating or regulating
the use of domain names. Web site addresses actually are a series of numbers, but to
make the Internet more user friendly, the Domain Name System was created to provide
a simple address (e.g., www.congress.gov) that corresponds to the Web site’s numerical
address.7 Top Level Domains (TLDs) appear at the end of a Web address. They can be
given a generic designation (“gTLD”) such as .com, or a country code (“ccTLD”) such
as .us for the United States. TLDs are assigned by the Internet Corporation for Assigned
Names and Numbers (ICANN), operating under a Memorandum of Understanding with
the Department of Commerce (DOC).

Congress passed the Dot Kids Implementation and Efficiency Act (P.L. 107-317) in
2002. It creates a “dot kids” (.kids) second-level domain within the .us ccTLD as “a
haven for material that promotes positive experiences for children and families using the
Internet, provides a safe online environment for children, and helps to prevent children
from being exposed to harmful material on the Internet.”8 Participation in the Web site
is voluntary, and the DOC will monitor the site to ensure that only material that is
“suitable for minors and not harmful to minors” is posted there. “Minors” are defined as
children under 13. “Suitable for minors” is defined as material that is “not
psychologically or intellectually inappropriate for minors, and serves the educational,
informational, intellectual, or cognitive needs of minors, or the social, emotional or
entertainment needs of minors.” “Harmful to minors” is defined similarly to the way it is
in COPA, although it omits obscene material and does not specify the types of material
covered (communication, picture, image, etc.)
The legislation was originally introduced as H.R. 2417 and would have required
ICANN to create a .kids gTLD. Concerns were raised, however, about the difficulties
inherent in attempting to create a U.S.-defined “kid friendly” space on the Internet
through ICANN because the Internet and the Domain Name System are global. Another
concern was that the agreement between DOC and ICANN calls for actions based on
mutual agreement, not DOC regulation. Timeliness was also mentioned, in terms of how
long it might take ICANN to create a new gTLD. A revised bill, H.R. 3833, called for
.kids to be created as a second-level domain within the .us ccTLD, giving the U.S.
government direct control over it. That bill passed the House on May 21, 2002. In its
report (H.Rept.107-449), the House Energy and Commerce committee expressed
optimism that the bill would survive court challenges because it does not impose any
unnecessary burden on First Amendment rights, likening it to creating a children’s section
of a public library.

The .us ccTLD is owned by DOC, which contracts with a company, NeuStar, for its
operation. As passed by the House, the bill authorized the National Telecommunications
and Information Administration (NTIA, part of DOC) to require NeuStar to establish,
operate, and maintain .kids as a second-level domain of the .us ccTLD. However,
7 See CRS Report 97-868, Internet Domain Names: Background and Policy Issues, by Lennard
Kruger.
8 U.S. Congress. House. Committee on Energy and Commerce. Report to accompany H.R. 3833
(H.Rept. 107-449). Washington, U.S. Govt. Print. Off., 2002. p. 5.

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DOC’s contract with NeuStar does not obligate NeuStar to do that. During a September
12, 2002 Senate Commerce Committee hearing on a companion measure (S. 2537),
NeuStar testified that although it had proposed creation of a .kids subdomain as part of
its contract proposal to the DOC, it did not intend to do so immediately. NeuStar argued
that it must be accomplished in a manner that makes it attractive to content providers, is
supported by a long term business plan, and would be used by the audience it was meant
to attract. As enacted, the law does not change the terms of the existing contract with
NeuStar, but conditions any renewal of it, or award of a successor contract, on creation
of a .kids second-level domain. The dot kids domain is activated [www.kids.us].
2003 “Amber Alert” Act (P.L. 108-21)
The 108th Congress passed the PROTECT (Prosecutorial Remedies and Other Tools
to End the Exploitation of Children Today) Act, or AMBER Alert Act (S. 151, P.L. 108-
21). Among its provisions, the Act makes it a crime to knowingly use a misleading
domain name to deceive a person into viewing obscenity on the Internet, or to deceive a
minor into viewing material that is harmful to minors. For the purposes of the Act, a
domain name that includes a word or words that relates to the sexual content of a site,
such as sex or porn, is not misleading. The term “harmful to minors” is defined similarly
to CIPA, except that it applies to “any communication” rather than a “picture, image,
graphic image file, or other visual depiction.” The Act also amends the Communications
Decency Act so that it applies to child pornography transmitted via the Internet (discussed
above), and prohibits “virtual” child pornography (see CRS Report 98-670).
Continuing Congressional Issues
Concern is rising about the availability of pornography on “peer-to-peer” (P2P)
networks that use file-sharing software to allow individual users to communicate directly
with each other via computer, rather than accessing Web sites. Such file-sharing
programs are perhaps best known because of their widespread use for downloading
copyrighted music, raising concerns about copyright violations (see CRS Report
RS21362). P2P networks can be used for sharing any type of files, however, not only
music. A February 2003 General Accounting Office (GAO) report found that “When
searching and downloading images on peer-to-peer networks, juvenile users face a
significant risk of inadvertent exposure to pornography, including child pornography.”9
The House Government Reform Committee held a hearing on March 13, 2003 that
focused on the issue of children’s access to unsuitable material via P2P networks. On
July 24, 2003, Representative Pitts introduced H.R. 2885, which would make it unlawful
to distribute peer-to-peer file trading software in interstate commerce unless it conforms
with regulations to be set by the Federal Trade Commission. Those regulations would
require, inter alia, that recipients of P2P software receive warnings that the software
might expose the user to pornography, illegal activities, and security and privacy threats.
The distributor would have to check for a “do-not-install” beacon on the user’s computer
and not install the P2P software if it is found; obtain verifiable parental consent to install
it if the recipient is under 18; ask if the recipient is under 13; and comply with COPPA.
9 U.S. General Accounting Office. File-Sharing Programs: Peer-to-Peer Networks Provide Ready
Access to Child Pornography. GAO-03-351. February 2002. p. 3. [http://www.gao.gov]

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