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The Perpetual Fight To Protect Kids Online
by Andrew Noyes
A federal court's rejection of a 1998 law aimed at protecting children online was a major defeat for the Justice Department and the latest loss suffered by proponents of the mandate, which the Supreme Court blocked three years ago.
U.S. District Judge Lowell Reed sided with the American Civil Liberties Union and high-tech experts last month. They said the Child Online Protection Act would impose draconian criminal sanctions on people who post online material deemed "harmful to minors."
COPA would criminalize Web sites that give unfettered access to content the government deems adult. Penalties would include a $50,000 fine and up to six months behind bars. U.S.-based sites also would have to require credit-card numbers or other age-verification methods.
In his lengthy opinion, Reed called COPA "impermissibly vague and overbroad," and said kids can be protected by filtering technologies that do not impinge on others' free-speech rights. Government lawyers were unable to show that the law would be "the least restrictive, most effective" method of safeguarding children, he wrote.
The American Civil Liberties Union, which brought the case against the government, believes the Bush administration may fight the ruling. "I think [Justice] feels an institutional obligation to defend things that Congress does, so I'd be surprised if they didn't appeal," ACLU attorney Chris Hansen told Technology Daily.
Renewing The Battle In Congress
The fight also is not over in Congress. Although high-tech experts consider Reed's ruling a concrete one, they think more attempts to put regulatory brakes on certain online offerings will continue. Several purported child-protection bills already have been introduced.
The most recent was unveiled last week by Democratic Sens. Max Baucus of Montana and Mark Pryor of Arkansas. The measure, S. 1086, would let parents, schools and libraries set Internet browsers to prevent children from viewing adult material.
Operators of pornographic sites would have to include a "flag" in their site code to make it easier for filtering software to block. The legislation also would force adult sites to have a "clean" homepage and require them to verify the age of a visitor.
"Bottom line, we want to keep our kids safe when they're on the Internet," Baucus said in a press release. "Parents and teachers shouldn't worry about their kids when they're on the computer at home or in the classroom." Baucus said parents, teachers and others who want to protect children from adult material online support the bill, which is before the Senate Commerce Committee.
A paper released by John Morris at the Center for Democracy and Technology outlined other recent child-protection bills that he said could threaten free speech online. The Deleting Online Predators Act, introduced last Congress and passed by the House, sought to block kids from social-networking sites in schools and libraries.
The bill, reintroduced as S. 49, would simply lead children to shift their social-networking usage to other times or other avenues. The majority of teenagers using the sites already take steps to shield their identities from unknown people, CDT said.
CDT also urged Congress not to impose new liability on creators of Internet communities. Sen. John McCain, R-Ariz., introduced a bill late last session that would have done just that. When he reintroduced it this year as S.431 and S.519, the measures generally avoided seeking to burden Web logs and social networks.
But other lawmakers are considering proposals that would target sites like Facebook and MySpace, and some are weighing bills that would put more burdens on Internet service providers. That would run counter to important provisions in the 1996 Telecommunications Act that protects ISPs from being held liable for content posed by users, CDT said.
A 'Blunt Instrument' That Critics Say Won't Work
Some proposals being discussed would create a list of sites that offer illegal content like child pornography and require ISPs to block them. A 2003 Pennsylvania law to that effect was ultimately held to be unconstitutional. In that case, CDT proved that the child-porn-blocking effort also blocked access to more than 1.5 million unrelated and innocent sites.
ACLU Legislative Counsel Marv Johnson called such bills "a blunt instrument that is not designed to solve the problem." Children are going to find ways of visiting social-networking sites and other Web destinations, regardless of restrictions imposed, he said.
Johnson said he expects more legislation is on the way. "Virtually all of these bills are flying in the face of what the government's own blue-ribbon panels have recommended," he said. "But Congress has a pretty poor record of listening to commissions."
Reports by the so-called COPA Commission and a National Academy of Sciences task force both determined that the most effective way to protect kids online is a combination of education with the use of filtering and blocking technology. Policymakers have argued that parents do not act to keep their kids safe, "so the government has to," Johnson said.
That argument was unsuccessful in U.S. v. Playboy Entertainment Group in 2000, when the Supreme Court overturned a law restricting adult channels' broadcasts to late-night hours, he said. The court said parents' ability to block the Playboy cable channel was determinative.
"You'll never have 100 percent protection, no matter what you do," Johnson said, but sinking more money and resources into enforcement and prosecution efforts, in addition parental empowerment, can help.
Johnson also worries that language offered in the name of child protection but that actually would endanger the First Amendment could be part of the upcoming presidential campaign. "Anytime you have an election, you have posturing ... and showing that they're out there protecting children makes them look good," he said.
The Outsourcing Of Online Porn
Kenneth Dreifach, once the Internet bureau chief to former New York Attorney General and now-Gov. Eliot Spitzer, said the bills "represent the thinking of the 1990s -- that you can somehow control the technology and control people's behavior by controlling technology."
Dreifach, now a partner at Sonnenschein Nath & Rosenthal, said the gulf between the pro-regulatory and pro-enforcement camps will continue to grow. He said the age-verification push being led by attorneys general in several states could become the most contentious view.
"The problem, on paper, is solved. But of course it won't be solved," Dreifach said. Kids will keep accessing Web sites, and the sites themselves will move to other countries.
"That will happen in about four days -- the same as it did with online gambling," he said. Last year, President Bush signed into law a bill that bans the use of credit cards and electronic transfers to place online bets.
"Sites with all the same bells and whistles will be located in Malta and Estonia, and they won't be cooperative with law enforcement," Dreifach warned. "A solution is needed that not only protects kids on paper but helps law enforcement protect kids in the everyday reality of an Internet that's rife with predators."
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