Internet: Status Report on Legislative Attempts to Protect Children from Unsuitable Material on the Web

Order Code RS21328 Updated January 30, 2006 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 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 heard COPA twice, in 2002 and 2004, and each time remanded the case to a lower court; 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. Congress remains concerned about these issues. This is the final edition of this report. 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 Internet. 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, 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 inappropriate for a pre-teen, Congressional Research Service ˜ The Library of Congress CRS-2 but not for a senior in high school. (Sexually explicit e-mail was addressed in the CANSPAM Act. 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; 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). 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 95-804 for more information). A suit was filed in December 2001 by Barbara Nitke, the National Coalition for Sexual Freedom ([http://www.ncsfreedom.org/] and others to overturn section 223(a)(1)(B) as it relates to obscenity (Nitke v. Ashcroft, 253 F. SUPP. 2D 587 (S.D.N.Y. 2003). A special three-judge panel of the U.S. District Court for the Southern District of New York rejected the arguments in July 2005.2 1998 Child Online Protection Act (COPA) Congress next passed the Child Online Protection Act (COPA), as Title XIV of the FY1999 Omnibus Appropriations Act (P.L. 105-277), signed into law October 21, 1998. COPA prohibits communication of material that is “harmful to minors” on a website that seeks to earn a profit. COPA defines minor as under the age of 17, instead of 18 as in 1 As quoted in CRS Report 95-804, Obscenity and Indecency: Constitutional Principles and Federal Statutes, by Henry Cohen 2 McCullagh, Declan. Judges Refuse to Overturn Net Obscenity Law. c|net news.com, July 26, 2005, 09:56:00 PDT. CRS-3 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 reportedly was optimistic that COPA would survive constitutional challenges because of the stated exceptions for communications that had literary, artistic, political or scientific value, its application only to commercial sites, and use of “harmful to minors” 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 it violated the First Amendment rights of adults, 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’s 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 was unconstitutional for other reasons, remanded the case to the Third Circuit, and allowed the preliminary injunction to remain in effect. The Third Circuit again ruled in March 2003 that the law was unconstitutional. That decision was also appealed to the Supreme Court. On June 29, 2004, the Court affirmed the Third Circuit’s preliminary injunction, but did not rule on whether the act is unconstitutional, instead remanding the case to the Third Circuit for trial. The Court concluded that the government did not demonstrate that COPA was the least restrictive means of achieving the goal; that, for example, the use of filters may be more effective. (See CRS Report 95-804.) In January 2006, it became publicly known that the Justice Department was seeking data from major search engine companies (e.g., Yahoo!, MSN, America Online, and Google) on search terms employed by users, reportedly as part of an effort to demonstrate that filters are insufficient to protect children, and therefore COPA is needed. Google officials are resisting the subpoena (see CRS Report RL31408 for more information). 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 Research Council (NRC) to conduct a study on how to limit the availability of CRS-4 pornography on the Internet. The 2002 NRC report, Youth, Pornography, and the Internet, 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.3 CIPA also requires libraries receiving federal funds to block websites containing obscene material or child pornography from access by adults. Minors are defined as persons under 17. The term “harmful to minors” is somewhat different 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, see CRS Report 95-804. 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 ruled that “it is currently impossible ... to develop a filter that neither underblocks nor overblocks a substantial amount of speech.”4 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). The ALA decried the court’s decision (see [http://www.ala.org/ ala/washoff/WOissues/civilliberties/cipaweb/cipa.htm]). 2002 “Dot Kids” Act (P.L. 107-317) The 107th Congress approached the issue from the aspect of creating or regulating the use of domain names. Website 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., [http://www.congress.gov]) that corresponds to the website’s numerical address. Top Level Domains (TLDs) appear at the end of a Web address. They can be 3 The No Child Left Behind Act (P.L. 107-63) applies this requirement to schools receiving educational technology (EdTech) grants established under that act. 4 O’Harrow Jr, Robert. Washington Post, June 1, 2002, p. A01 CRS-5 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 U.S. Department of Commerce. The .us ccTLD is owned by the Commerce Department, which contracts with a company, NeuStar, for its operation. Congress passed the Dot Kids Implementation and Efficiency Act (HR. 3833, 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” (H.Rept. 107449, p. 5). Participation is voluntary, and the Commerce Department monitors the site to ensure that only material that is “suitable for minors and not harmful to minors” is posted there. “Minors” are 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 dot kids domain [http://www.kids.us] was opened for public registrations on September 4, 2003. NeuStar subcontracted with KidsNet, a Florida company, to provide content review and monitoring services. A House Energy and Commerce subcommittee held a hearing on May 6, 2004, at which a NeuStar witness stated that 1,700 .kids.us domain names have been sold, but there were only 13 “live sites”at that time. Critics have complained that the cost for obtaining a dot kids domain name, and paying for required content review, is too expensive, and the content requirements are too restrictive.5 2003 “Amber Alert” Act (P.L. 108-21) and Pending Amendments The 108th Congress passed the PROTECT (Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today) Act, also called the AMBER Alert Act (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. Under 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). Legislation was introduced in the first session of the 109th Congress to increase the penalty. Under current law, an offender is to be fined, or imprisoned for no more than four years, or both. H.R. 2318/S. 956 would increase the maximum sentence to 10 years. H.R. 3132, which passed the House in September 2005, would impose a minimum sentence of 10 years and a maximum of 30 years. All three bills would make imprisonment mandatory. 5 McGuire, David. Firms Ignore Kids-Only Internet Domain. Washingtonpost.com, February 20, 2003, 6:39 AM. CRS-6 Issues in the 109th Congress Congress remains concerned about how to protect children using the Internet. Additional legislation has been introduced, and hearings held. In a statement before a November 10, 2005, Senate Judiciary subcommittee hearing (available at [http://judiciary.senate.gov]), Senator Hatch said that “The problem is not the Internet, the problem is pornography. But we must take seriously the unique and powerful ways the Internet can be used for evil rather than for good.” The Senate Commerce Committee held a hearing on January 19, 2006, on these issues. Taxing Pornographic Websites. The Internet Safety and Child Protection Act (H.R. 3479/S. 1507) would impose a 25% tax on the amounts charged by “regulated pornographic websites” as defined in the bill. The proceeds would be used to pay for enforcement of the act, for federal government programs such as Cyber Tip-line and the Internet Crimes Against Children Task Force, and other purposes related to protecting children who use the Internet. It would also set requirements on those sites to verify that anyone viewing the site is over 18. It appears that such a tax likely would be found unconstitutional, however. A 1987 Supreme Court decision (Arkansas Writers’ Project, Inc. v. Ragland, 481 U.S. 221, 230) concluded that “official scrutiny of the content of publications as the basis for imposing a tax is entirely incompatible with the First Amendment’s guarantee of freedom of the press.” Establishing An Adult (.xxx) Domain Name. On June 1, 2005, the organization that manages assignment of Internet domain names, ICANN, announced that it had entered into negotiations with a registry company to operate a new “.xxx” domain for use by websites offering adult content. The extent to which a separate domain for such websites would reduce access to objectionable content by minors is unclear. Registering as a .xxx domain would be voluntary, with no requirement that adult website operators discontinue their existing sites. Use of a .xxx domain might make it easier to use filters to block .xxx websites, but similarly could make it easier to find adult-oriented material. ICANN has delayed consideration of final approval of the .xxx domain name at the request of the Department of Commerce and others. The Family Research Council, for example, opposes the idea because it might “do more harm than good” [http://www.frc.org/get.cfm?i=PR05F01]. See CRS Report RL33224 for an analysis of constitutional issues associated with the .xxx domain name concept. See CRS Report 97868 for more information on domain names, generally. Peer to Peer (P2P) Networks. Concern also exists 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 websites. Such file-sharing programs are better known for their widespread use for downloading copyrighted works, raising concerns about copyright violations, but they can be used for sharing any type of files. Government Accountability Office (GAO) reports in 2003 (GAO-03-351) and 2005 (GAO-05-634), found that pornographic images are easily shared and accessed on P2P networks and juveniles are at risk of inadvertent exposure to them. The Federal Trade Commission issued a consumer alert [http://www.ftc.gov/bcp/conline/pubs/alerts/sharealrt.htm] in 2003 and held a seminar in December 2004. In May 2004, the Justice Department announced the results of a major law enforcement effort against P2P networks that distribute child pornography [http: crsphpgw //www.usdoj.gov/opa/pr/2004/May/04_crm_331.htm].