Another Attempt at CDA

Communications Decency Act-II:

Child Online Protection Act

Signed Oct 21, 1998 and scheduled to take effect Nov 21, 1998, The Child Online Protection Act again seeks to limit "adult" content on the Internet. This time the ACLU and several other Plaintiffs representing a large cross section of concerned First Amendment companies were ready.

Dubbed 47 U.S.C. § 231, the new law again repeats the CDA of 1997. For a history, see "Decency Act Held Indecent" and "Supreme Court Strikes Provisions of the CDA."

As before in the Supreme Court in the case of Reno vs. ACLU (No. 96-5101) , this author predicts that the latest act will fail to pass muster and be stricken. It has been temporarily enjoined in a Pennsylvania Federal Court until a full hearing is conducted in January, 1999. There is a case pending now before the UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA that asks the court to enjoin the DOJ from implementing the new version of the decency act, which would have become operative on Nov 21, 1998, 30 days after its enactment.

The act which will become 47 U.S.C. § 231 would do the following:

It amends the section of the Communications Act of 1934 and adds criminal and civil liability and, "imposes severe criminal and civil penalties on the availability, display and dissemination of constitutionally protected, non-obscene materials on the Internet by making it a crime to knowingly . . . by means of the World Wide Web, make any communication for commercial purposes that is available to any minor and that includes any material that is harmful to minors . . .." (quote from filed ACLU papers). Thus, any speech that some community might consider to be "harmful to minors" --including Ken Starr's report on the Clinton-Lewinsky matter could violate it. Any showing of "too much skin" might be a violation.
Subsection (e)(1) establishes the requirements under the bill that `whoever, through interstate or foreign commerce in or through the World Wide Web, is engaged in the business of the commercial distribution of material that is harmful to minors shall restrict access to such material by persons under 17 years of age.'
The penalty is: a person violating this act shall be fined not more than $50,000, imprisoned not more than 6 months, or both. Each day of violation would constitute a separate violation.
The Act defines material that is "harmful to minors" 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;

The issue here is what community? It would not stop foreign "sex" from being sent here. It really does not define this well and the vagueness is one of it s defects. How is a person or company supposed to know how they would comply or violate this law? They would not argues those seeking to uphold the First Amendment.

"...(B) depicts, describes, or represents, in a manner patently offensive with respect to minors, an actual or simulated sexual act or sexual contact, an 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." 47 U.S.C. § 231(e)(6).
1. The Act defines "minor" as "any person under 17 years of age." 47 U.S.C. § 231(e)(7).
2. Act defines the phrase "by means of the World Wide Web" to mean "by placement of material in a computer server-based file archive so that it is publicly accessible, over the Internet, using hypertext transfer protocol or any successor protocol." 47 U.S.C. § 231(e)(1).
3. "Doing business is given an even broader definition that in the original CDA:
4. The Act defines "engaged in the business" as meaning "that the person who makes a communication, or offers to make a communication, by means of the World Wide Web, that includes any material that is harmful to minors devotes time, attention, or labor to such activities, as a regular course of such person's trade or business, with the objective of earning a profit as a result of such activities (although it is not necessary that the person make a profit or that the making or offering to make such communications be the person's sole or principal business or source of income).
5. A person may be considered to be engaged in the business of making, by means of the World Wide Web, communications for commercial purposes that include material that is harmful to minors, only if the person knowingly causes the material that is harmful to minors to be posted on the World Wide Web or knowingly solicits such material to be posted on the World Wide Web." 47 U.S.C. § 231(e)(2)(B).

Tenuous exemptions:
1. "The ISP Exemption": "For purposes of subsection (a), a person shall not be considered to make any communication for commercial purposes to the extent that such person is -- (1) a telecommunications carrier engaged in the provision of a telecommunications service; (2) a person engaged in the business of providing an Internet access service; (3) a person engaged in the business of providing an Internet information location tool; or (4) similarly engaged in the transmission, storage, retrieval, hosting, formatting, or translation (or any combination thereof) of a communication made by another person, without selection or alteration of the content of the communication, except that such person's deletion of a particular communication or material made by another person in a manner consistent with subsection (c) or section 230 shall not constitute such selection or alteration of the content of the communication."
2. The Good Faith Exemption/Defense: Section 231(c) of the Act provides an affirmative defense if the defendant "in good faith, has restricted access by minors to material that is harmful to minors –
3. Other means defense, "by any other reasonable measures that are feasible under available technology." 47 U.S.C. § 231(c)(1), whatever that means.
4. Section 231(d) of the Act forbids the disclosure of "any information collected for the purposes of restricting access to such communications" to minors without prior consent. 47 U.S.C. § 231(d)(1)(A).
5. The Act makes no distinction between material that may be "harmful" to very young minors and material that may be "harmful" to older minors. Likewise The Act does not define the relevant "community" for purposes of determining what is "harmful to minors" in the global medium of cyberspace.
An argument is made that the Act makes no distinction between younger minors and older ones.

Armed with a letter based on research by the DOJ itself to Janet Reno, those seeking to overturn the Act should prevail under U.S. law. It is uncertain whether a court would strike all or any parts of this Act, but one thing is certain, be prepared for more of the same from Congress. To follow the controversy, visit the Links page and follow the links to News>News Sources>ACLU.

If you are a concerned parent, use software to block out such sites, or, better yet, be there for your children when they surf the Web. Set up folders on their computers that do not include adult material. There are many more Child oriented Websites than a year ago and parents need to exercise oversight just as they would if a minor were to browse magazine racks that contain adult contents along side Mad Magazine, National Geographic or Discovery.