[House Report 105-775]
[From the U.S. Government Publishing Office]
105th Congress Report
HOUSE OF REPRESENTATIVES
2d Session 105-775
_______________________________________________________________________
CHILD ONLINE PROTECTION ACT
_______
October 5, 1998.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______________________________________________________________________
Mr. Bliley, from the Committee on Commerce, submitted the following
R E P O R T
[To accompany H.R. 3783]
[Including cost estimate of the Congressional Budget Office]
The Committee on Commerce, to whom was referred the bill
(H.R. 3783) to amend section 223 of the Communications Act of
1934 to require persons who are engaged in the business of
selling or transferring, by means of the World Wide Web,
material that is harmful to minors to restrict access to such
material by minors, and for other purposes, having considered
the same, report favorably thereon with an amendment and
recommend that the bill as amended do pass.
CONTENTS
Page
Amendment........................................................ 2
Purpose and Summary.............................................. 5
Background and Need for Legislation.............................. 6
Hearings......................................................... 20
Committee Consideration.......................................... 21
Rollcall Votes................................................... 21
Committee Oversight Findings..................................... 21
Committee on Government Reform and Oversight..................... 21
New Budget Authority, Entitlement Authority, and Tax Expenditures 21
Committee Cost Estimate.......................................... 22
Congressional Budget Office Estimate............................. 22
Federal Mandates Statement....................................... 24
Advisory Committee Statement..................................... 24
Constitutional Authority Statement............................... 24
Applicability to Legislative Branch.............................. 24
Section-by-Section Analysis of the Legislation................... 25
Changes in Existing Law Made by the Bill, as Reported............ 29
The amendment is as follows:
Strike out all after the enacting clause and insert in lieu
thereof the following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Child Online Protection Act''.
SEC. 2. CONGRESSIONAL FINDINGS.
The Congress finds that--
(1) while custody, care, and nurture of the child resides
first with the parent, the widespread availability of the
Internet presents opportunities for minors to access materials
through the World Wide Web in a manner that can frustrate
parental supervision or control;
(2) the protection of the physical and psychological well-
being of minors by shielding them from materials that are
harmful to them is a compelling governmental interest;
(3) to date, while the industry has developed innovative ways
to help parents and educators restrict material that is harmful
to minors through parental control protections and self-
regulation, such efforts have not provided a national solution
to the problem of minors accessing harmful material on the
World Wide Web;
(4) a prohibition on the distribution of material harmful to
minors, combined with legitimate defenses, is currently the
most effective means by which to satisfy the compelling
government interest; and
(5) notwithstanding the existence of protections that limit
the distribution over the World Wide Web of material that is
harmful to minors, parents, educators, and industry must
continue efforts to protect children from dangers posed by the
Internet.
SEC. 3. REQUIREMENT TO RESTRICT ACCESS BY MINORS TO MATERIALS SOLD BY
MEANS OF THE WORLD WIDE WEB THAT ARE HARMFUL TO
MINORS.
Part I of title II of the Communications Act of 1934 (47 U.S.C. 201
et seq.) is amended by adding at the end the following new section:
``SEC. 231. RESTRICTION OF ACCESS BY MINORS TO MATERIALS SOLD BY MEANS
OF WORLD WIDE WEB THAT ARE HARMFUL TO MINORS.
``(a) Requirement To Restrict Access.--
``(1) Prohibited conduct.--Whoever, in interstate or foreign
commerce, by means of the World Wide Web, knowingly makes any
communication for commercial purposes that includes any
material that is harmful to minors, without restricting access
to such material by minors pursuant to subsection (c), shall be
fined not more than $50,000, imprisoned not more than 6 months,
or both.
``(2) Intentional violations.--In addition to the penalties
under paragraph (1), whoever intentionally violates such
paragraph shall be subject to a fine of not more than $50,000
for each violation. For purposes of this paragraph, each day of
violation shall constitute a separate violation.
``(3) Civil penalty.--In addition to the penalties under
paragraphs (1) and (2), whoever violates paragraph (1) shall be
subject to a civil penalty of not more than $50,000 for each
violation. For purposes of this paragraph, each day of
violation shall constitute a separate violation.
``(b) Inapplicability of Carriers and Other Service Providers.--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.
``(c) Affirmative Defense.--
``(1) Defense.--It is an affirmative defense to prosecution
under this section that the defendant, in good faith, has
restricted access by minors to material that is harmful to
minors--
``(A) by requiring use of a credit card, debit
account, adult access code, or adult personal
identification number; or
``(B) by any other reasonable measures that are
feasible under available technology.
``(2) Protection for use of defenses.--No cause of action may
be brought in any court or administrative agency against any
person on account of any activity that is not in violation of
any law punishable by criminal or civil penalty, and that the
person has taken in good faith to implement a defense
authorized under this subsection or otherwise to restrict or
prevent the transmission of, or access to, a communication
specified in this section.
``(d) Privacy Protection Requirements.--
``(1) Disclosure of information limited.--A person making a
communication described in subsection (a)--
``(A) shall not disclose any information collected
for the purposes of restricting access to such
communications to individuals 17 years of age or older
without the prior written or electronic consent of--
``(i) the individual concerned, if the
individual is an adult; or
``(ii) the individual's parent or guardian,
if the individual is under 17 years of age; and
``(B) shall take such actions as are necessary to
prevent unauthorized access to such information by a
person other than the person making such communication
and the recipient of such communication.
``(2) Exceptions.--A person making a communication described
in subsection (a) may disclose such information if the
disclosure is--
``(A) necessary to make the communication or conduct
a legitimate business activity related to making the
communication; or
``(B) made pursuant to a court order authorizing such
disclosure.
``(e) Definitions.--For purposes of this subsection, the following
definitions shall apply:
``(1) By means of the world wide web.--The term `by means of
the World Wide Web' means 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.
``(2) Commercial purposes; engaged in the business.--
``(A) Commercial purposes.--A person shall be
considered to make a communication for commercial
purposes only if such person is engaged in the business
of making such communications.
``(B) Engaged in the business.--The term `engaged in
the business' means 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). 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.
``(3) Internet.--The term `Internet' means the combination of
computer facilities and electromagnetic transmission media, and
related equipment and software, comprising the interconnected
worldwide network of computer networks that employ the
Transmission Control Protocol/Internet Protocol or any
successor protocol to transmit information.
``(4) Internet access service.--The term `Internet access
service' means a service that enables users to access content,
information, electronic mail, or other services offered over
the Internet, and may also include access to proprietary
content, information, and other services as part of a package
of services offered to consumers. Such term does not include
telecommunications services.
``(5) Internet information location tool.--The term `Internet
information location tool' means a service that refers or links
users to an online location on the World Wide Web. Such term
includes directories, indices, references, pointers, and
hypertext links.
``(6) Material that is harmful to minors.--The term `material
that is harmful to minors' means any communication, picture,
image, graphic image file, article, recording, writing, or
other matter of any kind that--
``(A) the average person, applying contemporary
community standards, would find, taking the material as
a whole and with respect to minors, that such material
is designed to appeal to or panders 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, an actual or
simulated normal or perverted sexual act, or a lewd
exhibition of the genitals or female breast; and
``(C) taken as a whole, lacks serious literary,
artistic, political, or scientific value for minors.
``(7) Minor.--The term `minor' means any person under 17
years of age.''.
SEC. 4. NOTICE REQUIREMENT.
(a) Notice.--Section 230 of the Communications Act of 1934 (47 U.S.C.
230) is amended--
(1) by redesignating subsections (d) and (e) as subsections
(e) and (f), respectively;
(2) by inserting after subsection (c) the following new
subsection:
``(d) Obligations of Interactive Computer Service.--A provider of
interactive computer service shall, at the time of entering an
agreement with a customer for the provision of interactive computer
service and in a manner deemed appropriate by the provider, notify such
customer that parental control protections (such as computer hardware,
software, or filtering services) are commercially available that may
assist the customer in limiting access to material that is harmful to
minors. Such notice shall identify, or provide the customer with access
to information identifying, current providers of such protections.''.
(b) Conforming Amendment.--Section 223(h)(2) of the Communications
Act of 1934 (47 U.S.C. 223(h)(2)) is amended by striking ``230(e)(2)''
and inserting ``230(f)(2)''.
SEC. 5. STUDY BY COMMISSION ON ONLINE CHILD PROTECTION.
(a) Establishment.--There is hereby established a temporary
Commission to be known as the Commission on Online Child Protection (in
this section referred to as the ``Commission'') for the purpose of
conducting a study under this section regarding methods to help reduce
access by minors to material that is harmful to minors on the Internet.
(b) Membership.--The Commission shall be composed of 17 members, as
follows:
(1) Industry members.--The Commission shall include--
(A) 2 members who are engaged in the business of
providing Internet filtering or blocking services or
software;
(B) 2 members who are engaged in the business of
providing Internet access services;
(C) 2 members who are engaged in the business of
providing labeling or ratings services;
(D) 2 members who are engaged in the business of
providing Internet portal or search services;
(E) 2 members who are engaged in the business of
providing domain name registration services; and
(F) 4 members who are engaged in the business of
making content available over the Internet.
Of the members of the Commission by reason of each subparagraph
of this paragraph, an equal number shall be appointed by the
Speaker of the House of Representatives and by the Majority
Leader of the Senate.
(2) Ex officio members.--The Commission shall include the
following officials:
(A) The Assistant Secretary (or the Assistant
Secretary's designee).
(B) The Attorney General (or the Attorney General's
designee).
(C) The Chairman of the Federal Trade Commission (or
the Chairman's designee).
(c) Study.--
(1) In general.--The duty of the Commission shall be to
conduct a study (and submit a report under subsection (d) on
the study) to identify technological or other methods, if any,
to help reduce access by minors to material that is harmful to
minors on the Internet that--
(A) the Commission determines meet the requirements
for use as affirmative defenses for purposes of section
231(c) of the Communications Act of 1934 (as added by
this Act); or
(B) may be used in any other manner to help reduce
such access.
Any methods so identified shall be used as the basis for making
legislative recommendations to the Congress under subsection
(d)(3).
(2) Specific methods.--In carrying out the study, the
Commission shall identify and analyze various technological
tools and methods for protecting minors from material that is
harmful to minors, which shall include--
(A) a common resource for parents to use to help
protect minors (such as a ``one-click-away'' resource);
(B) filtering or blocking software or services;
(C) labeling or rating systems;
(D) age verification systems;
(E) the establishment of a domain name for posting of
any material that is harmful to minors; and
(F) any other existing or proposed technologies or
methods for reducing access by minors to such material.
(3) Analysis.--In analyzing technologies and other methods
identified pursuant to paragraph (2), the Commission shall
examine--
(A) the cost of such technologies and methods;
(B) the effects of such technologies and methods on
law enforcement entities;
(C) the effects of such technologies and methods on
privacy;
(D) the extent to which material that is harmful to
minors is globally distributed and the effect of such
technologies and methods on such distribution; and
(E) the accessibility of such technologies and
methods to parents.
(d) Report.--Not later than 1 year after the enactment of this Act,
the Commission shall submit a report to the Congress containing the
results of the study under this section, which shall include--
(1) a description of the technologies and methods identified
by the study and the results of the analysis of each such
technology and method;
(2) the conclusions and recommendations of the Commission
regarding each such technology or method;
(3) recommendations for legislative or administrative actions
to implement the conclusions of the committee; and
(4) a description of the technologies or methods identified
by the study that may be used as affirmative defenses for
purposes of section 231(c) of the Communications Act of 1934
(as added by this Act).
(e) Staff and Resources.--The Assistant Secretary for Communication
and Information of the Department of Commerce shall provide to the
Commission such staff and resources as the Assistant Secretary
determines necessary for the Commission to perform its duty efficiently
and in accordance with this section.
(f) Termination.--The Commission shall terminate 30 days after the
submission of the report under subsection (d).
(g) Inapplicability of Federal Advisory Committee Act.--The Federal
Advisory Committee Act (5 U.S.C. App.) shall not apply to the
Commission.
Purpose and Summary
The purpose of H.R. 3783 is to amend the Communications Act
of 1934 by prohibiting the sale of pornographic materials on
the World Wide Web (or the Web) to minors. H.R. 3783 has been
carefully drafted to respond to the Supreme Court's decision in
Reno v. ACLU, 117 S.Ct. 2329 (1997) and the Committee believes
that the bill strikes the appropriate balance between
preserving the First Amendment rights of adults and protecting
children from harmful material on the World Wide Web.
Notwithstanding H.R. 3783, the Committee recognizes that
parents, educators, and industry must continue to play a role
and find ways to help protect children from being exposed to
harmful material that can be found on the Internet.
H.R. 3783 prohibits a person from knowingly making, by
means of the World Wide Web, any communication for commercial
purposes that is harmful to minors, unless such person makes a
good faith effort to restrict access by minors. A person
violating H.R. 3783 could be subject to criminal and civil
penalties. The bill explicitly states that only entities
engaged in the commercial business of making communications
that contain material harmful to minors could be held liable
under the bill. These entities include a person who 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. The general prohibition would not
be applicable to entities that merely access, transport, or
link the communications of another person.
The bill provides examples of ways a business would be in
compliance with the law by identifying ``affirmative defenses''
to prosecution. Such examples include the use of a credit card,
debit account, adult access code, or adult personal
identification number. There is also a general affirmative
defense for a business that makes a good faith effort to
restrict a minor's access to material harmful to minors. In
addition, the bill requires providers of interactive computer
services to notify customers, at the time the customer signs up
for service, that parental control protections, such as
computer hardware, software, and filtering services, are
commercially available that may assist the customer in limiting
access to material that is harmful to minors. Finally, the bill
establishes a Commission on Online Child Protection that is
required to study technological and other methods to help
reduce access by minors to material that is harmful to minors
on the Internet. The Commission is required to submit its
findings within one year from the date of enactment of the
bill.
H.R. 3783 presents no ban on the distribution or display of
material harmful to minors, nor does it impose any unreasonable
burdens on adults. Rather, it simply requires the sellers of
such material to recast their messages so that they are not
readily available to children. Thus, the Committee believes
that H.R. 3783 is currently the most effective, yet least
restrictive, way to reduce a minor's access to harmful
material.
Background and Need for Legislation
I. Background
A. Electronic commerce
For over two hundred years, the Congress of the United
States has sought to protect and facilitate the development of
interstate and foreign commerce. From regulating matters
regarding ports of entry into the United States (18th century)
to the creation of a national railroad system (19th century) to
establishing communications policy (20th century), Congress'
duty remains constant: to uphold the responsibilities delegated
to the Congress by the people with respect to the regulation of
commerce among the several States.
As the Nation approaches the next millennium, Congress must
stand ready to ``keep pace with the progress of the country,
and adapt [itself] to the new developments of time and
circumstances.'' Pensacola Tel. Co. v. Western Union Tel. Co.,
96 U.S. 1, 9 (1878)). One such development is the explosive
growth of electronic commerce. In general, electronic commerce
is the term used to describe the buying, selling, or transfer
of goods and services over electromagnetic transmission media.
The media could include wireline and wireless networks, both of
which have been previously held to be interstate in nature.
While electronic commerce is becoming a more common way to
conduct business, many industries have been engaged in it for
years. Bank-wire transactions, the use of automatic-teller
machines, credit card verifications, and the purchase of goods
or services over the telephone all constitute a type of
electronic commerce.
The growth of electronic commerce is having a profound
impact on the nation's economy. Over the past decade, the
information technology sector of our economy has grown rapidly
and is seen by many as playing a leading role in the current
economic expansion. According to The Emerging Digital Economy,
a recent Department of Commerce report on electronic commerce,
the information technology sector now constitutes 8.2 percent
of the nation's GDP, up from 4.5 percent in 1985. At the end of
1997, approximately 7.4 million Americans were employed in this
field. Many are predicting even stronger growth in the future.
Estimates of the total value of economic activity conducted
electronically in 2002 range from $200 billion to more than
$500 billion, compared to just $2.6 billion in 1996. While
other mediums have been used to enable electronic commerce in
the past, the growth and use of the Internet will likely be the
basis for additional growth in the future.
B. The Internet
The Internet was largely the domain of academic researchers
from its creation in the late 1960s until the start of the
1990s. In 1991, the National Science Foundation lifted its
restriction on commercial activity on the Internet. Also in
1991, the World Wide Web was created. In 1993, the first
commercially available Web browser was introduced, thus
allowing millions of consumers and businesses an easy method of
navigating on the Internet. These events, combined with the
widespread availability of inexpensive yet powerful personal
computers (that allowed computer users to access graphics,
audio, and video on the World Wide Web in addition to text),
led to the dramatic growth of the Internet and online services.
C. Adult entertainment industry
One such market that has flourished on the Internet is sale
of pornography. According to Wired Magazine, there are
approximately 28,000 adult Web sites promoting pornography on
the Internet and these sites generate close to $925 million in
annual revenues. While legitimate U.S. businesses should remain
free from unnecessary government regulation, the adult
entertainment industry has traditionally been subject to
restrictions because of the danger posed by pornographic
material to children. Parents, educators, and civic groups
agree that exposure to pornography shapes a child's perspective
on sexual activity in a manner that may be inconsistent with
the goal of healthy sexual development. For example, some
pornography consists of photographs, videos, magazines, and
games that are violent, abusive, and degrading, and certainly
counterproductive to learning about sexual activity in an
appropriate educational or home setting.
Publishers of pornography, like all publishers in the
United States, are protected by the First Amendment which
provides that ``Congress shall make no law . . . abridging the
freedom of speech.'' U.S. Const., Amdt. 1. The amendment
prohibits government restrictions on ``the freedom of speech,''
but not all speech such as obscenity or child pornography.
Thus, while the Internet is the medium of choice for electronic
commerce, it is also the medium of choice that stimulates a
marketplace of ideas generated from Web pages, newsgroups,
listservs, chat rooms, e-mail, and bulletin board services, all
of which have the ability to reach more Americans on more
topics, including pornography, than we have seen from
traditional mediums of communications in the past.
D. The Communications Decency Act of 1996
As part of the Telecommunications Act of 1996 (the
Telecommunications Act), Congress enacted two statutory
provisions designed to protect minors from ``indecent'' and
``patently offensive'' communications on the Internet. These
statutory provisions were included in Title V of the
Telecommunications Act, known as the Communications Decency Act
of 1996 (the CDA) and were codified as part of the
Communications Act of 1934, as amended (the Act). 47 U.S.C.
Sec. 223. The first provision, Section 223(a) of the Act,
prohibited the knowing transmission of obscene or indecent
messages to any recipient under 18 years of age. The second
provision, Section 223(d) of the Act, prohibited the sending or
displaying of patently offensive messages in a manner that is
available to a person under 18 years of age.
The breadth of these provisions were qualified by two
affirmative defenses. One covers those who take ``good faith,
reasonable, effective, and appropriate actions'' to restrict
access by minors to the prohibited communications. Section
223(e)(5)(A). The other covers those who restrict access to
covered material by requiring certain designated forms of age
proof, such as a verified credit card or an adult
identification number or code. Section 223(e)(5)(B).
Immediately after the Telecommunications Act was signed
into law, two lawsuits were filed challenging the
constitutionality of Sections 223(a)(1) and 223(d). The two
cases were consolidated and the Federal Court for the Eastern
District of Pennsylvania held that part of Section 223(a)(1)
was unconstitutional with respect to ``indecent''
communications (but not obscenity) and that all of Section
223(d) was unconstitutional. ACLU v. Reno, 929 F.Supp. 824
(E.D.Pa. 1996), aff'd, Reno, 117 S.Ct. at 2329. The government
appealed the case to the Supreme Court and in Reno, the Court
affirmed the lower court's ruling. 117 S.Ct. at 2329. The Court
concluded that the CDA lacks the precision that the First
Amendment requires when a statute regulates the content of
speech and that the CDA effectively suppresses a large amount
of speech that adults have a constitutional right to receive.
Id. at 2346.
Specifically, the Court noted the lack of legislative
hearings, the use of different linguistic forms for
``indecent,'' the broad definition of indecent, the heightened
level of review because of the criminal nature of the statute,
the broad applicability of the statute to commercial and
noncommercial speech, the failure of the government to consider
less restrictive alternatives, and unreliable affirmative
defenses as fundamental problems with the CDA. Although the
Court stated that the ``CDA's burden on protected speech cannot
be justified,'' id. at 2346, it went on to say that such
problems ``could be avoided by a more carefully drafted
statute.'' Id.
E. Section 230 of the Communications Act
In addition to Section 223, as part of the
Telecommunications Act, Congress added Section 230 to the
Communications Act. 47 U.S.C. Sec. 230. Section 230 states that
providers and users of interactive computer services shall not
be treated as publishers of any information provided by another
information content provider. Section 230 also provides
liability protections for providers and users of interactive
computer services by permitting them to remove or restrict
access to inappropriate materials.
II. The Continued Need for Legislation
A. The growth of the Internet
Over the past several years, the popularity and use of the
Internet has grown dramatically. Since January 1996 (one month
before the CDA was enacted), the number of host computers
(i.e., machines physically connected to the Internet) has more
than tripled from approximately 9.4 million hosts to more than
29.6 million hosts. The number of users has also increased.
According to a recent study by Nielsen Media Research,
approximately 70.2 million adults use the Internet in the
United States. This figure represents an increase from
approximately 52 million adults using the Internet a mere nine
months ago. With respect to children using the Internet, the
Chairman of the Federal Trade Commission recently stated that
the population of minors on the Internet has almost doubled to
16 million from a year ago. Testimony of Robert Pitosfsky,
Chairman, Federal Trade Commission, before the Senate Committee
on Commerce, Science, and Transportation (September 22, 1998).
In addition, a national effort is underway to connect every
school and library to the Internet. See In the Matter of
Federal-State Joint Board on Universal Service, Report and
Order, CC Docket 96-45, FCC 97-157 (May 8, 1997). According to
a 1997 U.S. Department of Education survey, 78 percent of all
public schools have access to the Internet. Of these schools,
approximately 27 percent of the classrooms that are used for
instructional purposes have access to the Internet, with at
least 43 percent of the schools that have Internet access in 5
or more instructional classrooms. Furthermore, the Department
of Education predicts that 95 percent of all schools will have
access to the Internet by the year 2000. Internet Access in
Public Schools, National Center for Education Statistics, U.S.
Department of Education (Feb. 1998).
While clearly the Internet is not yet as ``invasive'' as
broadcasting, its popularity and growth because of electronic
commerce and expansive Federal subsidy programs make it widely
accessible for minors. The Committee recognizes that parents
are responsible for the custody, care, and nurture of the
child, but the widespread availability of the Internet presents
opportunities for minors to access information on the Internet
that can frustrate parental supervision and control. Moreover,
because of sophisticated, yet easy to use navigating software,
minors who can read and type are capable of conducting Web
searches as easily as operating a television remote. While a
four-year old may not be as capable as a thirteen year old,
given the right tools (e.g., a child trackball and browser
software) each has the ability to ``surf'' the Net and will
likely be exposed to harmful material.
B. The availability of material harmful to minors
As the Internet has grown, so has the availability of on-
line pornography. In 1996, there were estimates that almost 50
percent of the content available on the Web was unsuitable for
children. ``Half of 'Net Content Said Unsuitable for
Children,'' Reuters Financial Service (January 10, 1996). Two
years later, as of 1998, the estimates have increased to almost
70 percent of the traffic on the Web is adult-oriented
material. ``The Net's Dirty Little Secret: Sex Sells,'' Upside
Publishing Company (April 1998). Sexually explicit material on
the Internet includes text, pictures, and communications via
chat rooms. Purveyors of such material generally display many
unrestricted and sexually explicit images to advertise and
entice the consumer into engaging in a commercial transaction.
Currently, minors can move from Web page to Web page, viewing
and downloading this material without restriction. Once posted
on the Internet, sexually explicit material has entered all
communities.
While much of the sexually explicit material is accessed
deliberately, minors often stumble upon it by mistake. There
are numerous hard-core pornography sites on the Internet using
``copycat URLs'' to take advantage of innocent mistakes to
bring traffic to their graphic sexual images. First, children
searching the Internet for the official Web site of the White
House can be confronted by hard-core pornography by mistyping
``www.whitehouse.com'' rather than ``www.whitehouse.gov.''
Second, children who mistype ``www.betscape.com'' instead of
``www.netscape.com'' or ``www.sharware.com'' instead of
``www.shareware.com'' will be confronted with live sex shows
and other X-rated pictures. Finally, brand names are often
misused in ways that direct people to sexually explicit
material. Testimony of Enough is Enough, Hearing on Legislative
Proposals to Protect Children from Inappropriate Materials on
the Internet, House Commerce Committee (September 11, 1998)
(Committee Hearing). Another set of examples involves children
using Internet search engines to look up innocent information.
Searches for toys, dollhouses, girls, boys, pets, teen,
cheerleader, actress, gang, beanie babies, bambi, and doggy
will lead to material harmful to minors. Testimony of Enough is
Enough, Committee Hearing; Testimony of National Law Center for
Children and Families, Committee Hearing.
Moreover, even though some Web sites contain warnings that
the material on that Web site is adult-oriented, most provide
no warnings, or if they do provide a warning, there is sexually
explicit material on the same page as the warning.
Consequently, the odds are no longer slim that a user will
enter a sexually explicit site by accident. Contra 929 F. Supp.
at 16.
C. Exposure to sexually explicit material harms children
A child's sexual development occurs gradually throughout
childhood. Exposure to pornography shapes children's sexual
perspectives by providing them with information on
sexualactivity intended for adults. The type of information provided by
pornography, however, does not provide children with a normal sexual
perspective. Unlike learning provided in an educational or home
setting, exposure to pornography is counterproductive to the goal of
healthy and appropriate sexual development in children. It teaches
without supervision or guidance, inundating children's minds with
graphic messages about their bodies, their own sexuality, and those of
adults and children around them. Dr. Gary Brooks, Assistant Chief of
Psychology Services, Department of Veterans Affairs, The Centerfold
Syndrome (1996).
Testimony before the Committee also highlighted the dangers
of exposing minors to harmful material. One witness testified
that pornography produces ``permission-giving beliefs'' for
sexual pathology and sexual violence and that pornography
produces distortions that change an individual's belief system.
As a result, children exposed to pornography can become victims
or victimizers, encouraged by the strong sexual images
contained in pornography found on the World Wide Web. Testimony
of Dr. Mary Anne Layden, Committee Hearing. Similarly,
testimony has been inserted into the record describing the body
of research indicating that pornography has significant impact
on attitudes and values, and that such impact is clearly
harmful to minors. Testimony of Enough is Enough, Committee
Hearing.
III. Constitutionality of H.R. 3783
A. Congress has a compelling interest in protecting children
The Supreme Court's precedent is clear in establishing the
government's compelling interest in protecting children from
exposure to sexually explicit material. The Court has
repeatedly articulated such an interest in Ginsberg v. New
York, 390 U.S. 629, 636-43 (1968); FCC v. Pacifica Foundation,
438 U.S. 726, 748-50 (1978); New York v. Ferber, 458 U.S. 747,
757 (1982); Sable Communications of Cal. v. FCC, 492 U.S. 115,
126-128 (1989); Denver Area Ed. Tel. Consortium v. FCC, 116
S.Ct. 2374, 2391 (1996); and 117 S.Ct. at 2346, 2348. As stated
by the Court in Ferber: ``It is evident beyond the need for
elaboration that the State's interest in safeguarding the
physical and psychological well-being of a `minor' is
`compelling'.'' 458 U.S. at 757. ``This interest extends to
shielding minors from the influence of literature that is not
obscene by adult standards.'' 492 U.S. at 126. Whether the
restrictions have required pornography to be sold behind the
counter at a drug store, on blinder racks at a convenient
store, in a shrink wrap at a news stand, or broadcast between
certain hours of the night, the restrictions have sought to
shield children from exposure to material that could distort
their views of sexuality. The purpose of H.R. 3783 is to extend
those protections in cyberspace by restricting the sale of
material harmful to minors over the World Wide Web.
Though the primary responsibility for protecting the
welfare of children resides with the parent, the parent
deserves the support of the law. This principle is of
particular importance as it relates to shielding children from
exposure to sexually explicit material over the Web, where they
may be exposed to such material outside the home, at a friend's
house, at the local library or school. ``While the supervision
of children's reading may be best left to their parents, the
knowledge that parental control or guidance cannot always be
provided and society's transcendent interest in protecting the
welfare of children justify reasonable regulation of the sale
of material to them.'' People v. Kahan, 15 N.Y.2d 311, 312, 206
N.E.2d 333, 334 (1965), cited in Ginsberg, 390 U.S. at 640.
B. H.R. 3783 is narrowly tailored
The Committee recognizes the First Amendment rights of
adults and carefully drafted H.R. 3783 not to impose an
unnecessary burden on those rights. For example, the
prohibition on making communications that are harmful to minors
applies only to material posted on the World Wide Web. The
World Wide Web is one type of remote information retrieval
system, among many. H.R. 3783 does not apply to content
distributed through other aspects of the Internet such as one-
to-one messaging (e-mail), one-to-many messaging (list-serv),
distributed message databases (USENET newsgroups); real time
communications (Internet relay chat); real time remote
utilization (telnet) or remote information retrieval other than
the World Wide Web (ftp and gopher).
H.R. 3783 is also limited to the commercial distribution of
material harmful to minors and does not affect noncommercial
speech. In addition, the bill defines harmful to minors in a
manner that parallels many State statutes that have been upheld
by the Supreme Court and only restricts access for minors 16
years old or younger. Finally, H.R. 3783 provides maximum
flexibility for entities engaged in the business of selling
pornography by providing them with a host of good faith
defenses from prosecution if they adopt reasonable measures to
restrict a minor's access to material that is harmful.
C. H.R. 3783 is consistent with Reno v. ACLU
H.R. 3783 addresses the specific concerns raised by the
Supreme Court in Reno v. ACLU. In ruling against the indecency
portions of the CDA, the Court stated that ``the government
interest in protecting children from harmful materials . . .
does not justify an unnecessary broad suppression of speech
addressed to adults.'' 117 S.Ct. at 2346. H.R. 3783 was crafted
in a way to respond to the Supreme Court's concerns and thus
should not result in an unnecessary broad suppression of
speech.
1. The definition of harmful to minors
The principal concern of the Court with the CDA was that
the ``indecency'' and ``patently offensive'' content standards
used in the challenged sections of the CDA were overly vague as
applied to the Internet. The Court also noted that the CDA's
definition of ``indecency'' did not conform with Ginsberg
because it lacked an element ensuring that material of serious
literary, artistic, political, or scientific value would not be
swept up in the statute. 117 S.Ct. at 2345.
H.R. 3783 conforms to the standards identified in Ginsberg,
as modified by the Supreme Court in Miller v. California, 413
U.S. 15 (1973). H.R. 3783 modifies the ``patently offensive''
language by explicitly describing the material that is harmful
to minors. In particular, it includesmaterial that displays an
actual or simulated sexual act or sexual contact, actual or simulated
normal or perverted sexual acts, or a lewd exhibition of the genitals
or female breast. H.R. 3783 mirrors many of the State laws already in
place, which have been upheld by the Supreme Court. The new harmful to
minors definition also includes the requirement that the material is
harmful to minors only if ``taken as whole, lacks serious literary,
artistic, political, or scientific value for minors.''
The ``harmful to minors'' standard is also familiar to the
Federal courts, even though that standard is not used in
present Federal statutes, since the Federal district courts and
Federal appellate courts have routinely heard challenges to
State ``harmful to minors'' display laws and upheld those laws
on a regular basis over the years. See, e.g., Crawford v.
Lungren, 96 F.3d 380 (9th Cir. 1996), cert. denied, 117 S. Ct.
1249 (1997); American Booksellers v. Webb, 919 F.2d 1493 (11th
Cir. 1990); American Booksellers Ass'n v. Com. of Va, 882 F.2d
125 (4th Cir. 1989); Upper Midwest Booksellers v. City of
Minneapolis, 780 F.2d 1389 (8th Cir. 1985); M.S. News Co. v.
Casado, 721 F.2d 1281 (10th Cir. 1983).
2. Scope limited to commercial transactions
The Court in Reno also criticized the CDA for its breadth
with respect to commercial and non-commercial transactions. The
Court stated that the ``[b]readth of the CDA's coverage is
wholly unprecedented. Unlike the regulations upheld in Ginsberg
and Pacifica, the scope of the CDA is not limited to commercial
speech or commercial entities. Its open-ended prohibitions
embrace all non-profit entities and individuals posting
indecent messages or displaying them in the presence of
minors.'' 117 S.Ct. at 2347. By contrast, H.R. 3783 applies
only to commercial transactions involving the display of
material that is harmful to minors over the World Wide Web. It
does not prohibit non-commercial activities over the Web, or
over the Internet for that matter, and thus the concerns raised
by the Supreme Court are no longer applicable. The Committee
notes that a large quantity of information will still be
available to minors who are capable of accessing these non-
commercial sites on the Web and on the Internet. As a result,
as part of Section 5 of H.R. 3783, the Committee anticipates
that the industry will suggest legislative proposals on how to
address the difficult issue of restricting a minor's access to
inappropriate material with respect to these aspects of the
Internet.
3. Age verification systems are technologically and
economically feasible
The Court in Reno also was concerned that age verification
systems under the CDA were not technologically feasible for
certain non-commercial, private, and on-line services such as
e-mail and chat rooms. 117 S.Ct. at 2347. Or, even where
technological feasibility was acknowledged, the Court was
concerned that such measures would be cost prohibitive to some
non-commercial content providers. Id. The Court recognized,
however, with regard to restricting access by minors by
requiring use of a verified credit card or adult verification,
that ``[s]uch verification is not only technologically
available but is used by commercial providers of sexually
explicit material. These providers, therefore, would be
protected by the defense.'' 117 S.Ct. at 2349.
H.R. 3783 provides a legitimate defense for commercial
purveyors of pornography. As discussed above, H.R. 3783 does
not apply to noncommercial sites, nor does it apply to those
aspects of the Internet outside the World Wide Web. Thus, the
Committee agrees with the Supreme Court that commercial
distributors of material harmful to minors will be protected by
these defenses if they make a good faith effort to restrict a
minor's access to harmful material.
Unlike other restrictive approaches, age verification
systems stop a minor's access at the source of the
communication and require no independent judgments to be made
about the content of the material. The Committee notes that the
FCC's dial-a-porn regulations, which were upheld in Dial
Information Services Corp. v. Thornburgh, 938 F.2d 1535 (2d
Cir. 1991), cert. denied, 502 U.S. 1072 (1992), and cited with
approval in Sable, 429 U.S. 115 (1989), provided a defense to
prosecution by allowing a provider, before the transmission of
a message, to restrict customer access by requiring either
payment by credit card or authorization by access or
identification code. In Sable, the Court found that such
commercial restrictions would be effective in excluding most
juveniles, stating: ``the FCC's technological approach to
restricting dial-a-porn messages to adults who seek them would
be extremely effective, and only a few of the most enterprising
and disobedient young people would manage to secure access to
such messages.'' 429 U.S. at 130.
In fact, the use of the age verification means prescribed
under H.R. 3783 are standard practice among some commercial
distributors of pornography on the Web. Testimony before the
Committee revealed that adult verification services are
effective and can be used successfully to screen minors from
adult material. Testimony of Laith Paul Alsarraf, Cybernet
Ventures, Committee Hearing. One such service is sold by
Cybernet Ventures, an industry leader in age verification
systems. This service utilizes age verification software that
contains a script that is embedded into a Web page. The script
is placed at the entrance of a website that may contain
material that is harmful to minors thus preventing further
access or exposure of the website's content by requiring a
personal identification number, which is only available to
adults. If a consumer does not have a personal identification
number (PIN), a link is provided for them to obtain one from
the age verification system associated with that site.
Consumers may obtain a PIN instantly by submitting an
application to an age verification system. The credit card and
other information submitted by a consumer are verified by a
proprietary age verification system to determine validity. If
the information is deemed to be valid, a working adult PIN is
issued. The process of verifying the information submitted
generally takes less than one minute and often only 5 to 10
seconds. Consumers may also apply for a PIN by fax. Id.
Testimony received by the Committee shows that there are at
least 25 organizations assigning adult PINs and age
verification services today. Testimony of National Law Center
for Children and Family, Committee Hearing (Tab K).
It is not only economically feasible for commercial content
providers to comply with the bill, but profitable for them to
do so. Adult verification systems generally require the user to
pay for entrance to a site, although users have many ways to
subscribe. Given that the scope of the bill is limited to
commercial activity, and that the age verification system
procedures prescribed under the bill represent standard
procedures for conducting commercial activity on pornographic
Web sites, the effect of the bill is simply to reorder the
process in such a way as to require age verification before
pornography is made available, essentially requiring the
commercial pornographer to put sexually explicit images
``behind the counter.'' The commercial pornographer is not
otherwise restricted in his trade.
4. Parents maintain control and minor is defined as those
under 17
In Reno, the Court expressed concern that the CDA wrested
primary authority over the child from the parent if the statute
is construed to make criminal a parental choice to make
sexually explicit material available to a minor. 117 S.Ct. at
2348. H.R. 3783 contains no restriction on the discretion of
the parent to purchase material for their children who are
under the age of 17. In other words, a parent should not be
liable under H.R. 3783 for merely sharing sexually explicit
material with a minor. In addition, a minor is defined under
the bill as persons under 17 years of age.
5. Congress may regulate services offered over the Internet
The Supreme Court also questioned Congress's role in
regulating the Internet. The Court distinguished the Internet
from other distribution mediums and stated that ``[n]either
before nor after the enactment of the CDA have the vast
democratic fora of the Internet been subject to the type of
government supervision and regulation that has attended the
broadcast industry.'' 117 S.Ct. at 2343. Regulation of the
Internet does, however, fall within the jurisdiction of the
Congress under its Article I, Section 8, Clause 3 authority.
Regardless of whether Congress exercises its authority under
this section, the power of Congress to regulate in this area
remains constant. During the 105th Congress, bills have moved
through both House and Senate authorizing committees that
address intellectual property rights over the Internet, whether
the Internet should be taxed, and how communications over the
Internet can be kept secure through the use of encryption
technologies. Merely because the Internet itself has not been
widely regulated because of its organizational structure and
lack of dominance by a single entity should not imply that
Congress cannot regulate certain activity conducted over the
Internet, including regulating the display of harmful material
to children on the Web. In fact, in Reno, the Supreme Court
explicitly upheld Congress's ability to regulate obscene
communications transmitted over the Internet. 117 S.Ct. at
2350.
6. Legislative hearings highlight the problem
In Reno, the Court noted that Congress did not hold
legislative hearings on the CDA, nor did Congress reach any
detailed findings addressing the problem of distributing
indecent materials to minors over the Internet. 117 S.Ct. at
2348. On the other hand, both the House and Senate during the
105th Congress have extensively considered ways to reduce a
minor's access to harmful material. The Senate Committee on
Commerce, Science, and Transportation held a hearing to
consider ways to protect children on the Internet on February
10, 1998, as did the House Committee on Commerce on September
11, 1998. The testimony receivedhighlighted the problem of
children getting easy access to pornography and the need for
Congressional action to stop the widespread distribution of material
harmful to minors.
D. Alternatives considered by the committee
In light of the Reno decision, the Committee has
thoughtfully and thoroughly considered a number of ways to help
protect children from being exposed to harmful material. Each
proposal has merit, but the Committee concludes that H.R. 3783
is currently the most effective, yet least restrictive approach
that should be taken given the current state of technology. The
alternatives considered generally involve zoning and blocking
techniques that rely on screening material after it has been
posted on the Internet or retrieved by the end-user. The
Committee believes that it is more effective to screen the
material prior to it being sent or posted to minors, and that
such a restriction imposes minimal burdens on adults. The
Committee's general conclusion is supported by the Second
Circuit in the Dial Information Services decision, where the
appellate court stated:
Common sense dictates that a presubscription
requirement, like requirements for payment by credit
card before a message is transmitted, for use of an
authorized access or identification card before
transmission . . . is more likely to achieve the goal
sought than blocking after one or more occasions of
access. It always is more effective to lock the barn
door before the horse is stolen. 938 F.2d at 1542.
1. Market-based solutions in general
The industry has taken some significant steps to reduce a
child's access to inappropriate material. There have been a
number of online summits where policymakers and industry have
discussed the ``ugly'' side of the Internet (e.g.,
kidsonline.org and americalinksup.org). Given the public policy
sensitivities and potential demand for new products, the
industry has developed new technologies that will help screen
material for parents and educators. Some of the new products
include Secure Learning (Spyglass, Inc.), NetWatch (Netscape
Communications), Kids CyberHighway (AT&T), Cyber Patrol (The
Learning Company), Disney's Internet Guide (The Walt Disney
Company), Parental Controls (AOL), Net Nanny (Net Nanny
Software, Inc.), X-Stop (Log On Data Corp.), Net Shepherd (Net
Shepherd, Inc.) and Internet Explorer that incorporates a
content advisor feature (Microsoft). In addition, there have
been a number of educational trade shows that help inform
educators about new products that enhance online safety for
children. The Committee applauds the efforts of industry and is
confident that demand for new products will continue to grow.
Unfortunately, industry-led efforts have not provided a
national or uniform solution to the problem of children
accessing harmful material. To quote the CEO of Net Nanny, one
of the leading filtering software developers in the nation:
Asking us to come up with one specific technological
solution to the child safety issue is an extremely
difficult proposition because we are not all in the
same line of business. Some of us are filtering
companies, others are ISPs and still others are search
engine and browser companies. No single company has
complete control over the access points to the Internet
or is responsible for all the content that is produced
online.
Letter from Gordon Ross, President and CEO, Net Nanny Software
International, Inc. to The Honorable Joseph Lieberman and The
Honorable Rick White, Members of Congress (August 4, 1998).
H.R. 3783 provides a national solution and places the burden on
the appropriate entity, the person selling the harmful material
on the Web.
2. Zoning techniques
A number of proposals have been suggested that would
identify or classify material harmful to minors. ``Zoning''
effectively places the seller of pornography in a red-light
district in cyberspace. While each of these proposals are
technically feasible today, mandating their use raises a host
of additional issues that jeopardize their success and
effectiveness. In addition, zoning techniques alone do not
solve the problem of minor's accessing harmful material. Zoning
techniques must be combined with a blocking or filtering
service and may require the same type of age verification
system specified in H.R. 3783.
a. Tagging
Tagging is a term used to describe information about a Web
page. Some tags, known as ``meta tags,'' do not affect how the
Web page is displayed. Instead, meta tags provide information
such as who created the page, how often the page is updated,
what the page is about, and which keywords represent the page's
content. Many search engines use tags when building their
indices. As a result of tagging, websites may contain
information that will alert users of adult content. In order
for tagging to be used as an effective zoning technique, a
requirement of tagging must be complied with by every provider
of material harmful to minors. A requirement would then need to
be imposed on the hardware and software community to develop
products that would include capabilities to block ``tagged''
material. The Committee does not believe that level of
regulation of the computer industry is warranted at this time,
nor does it believe that it has the luxury of time to wait for
industry to develop uniform blocking standards while material
harmful to minors is being distributed to children today.
b. Ratings
Voluntary ratings systems of Web sites have been somewhat
successful. Several systems have already been developed and
show promise in allowing parents to block objectionable
material. The most popular rating systems rely on the Platform
for Internet Content Selection (PICS) protocol. PICS is not a
rating system, but rather a technical standard that can be
usedto enable the rating of sites. Two current rating systems (RSACi
and SafeSurf) allow websites to self-rate using the PICS protocol.
Under RSACi, the owner of the Website rates itself on a scale of 0-4 in
four categories (sex, violence, nudity, and language). A third system,
NetShepherd, uses a third party to rate all sites. The drawbacks of
rating systems are that few sites are actually rated today and it is
unlikely that commercial websites would rate themselves. Alexa Internet
reports that in August 1997 they searched a collection of 88,647 Web
pages . . . and found 2363 had RSACi labels and 483 had SafeSurf
labels. Technology Inventory, Internet Online Summit--Focus of Children
(7/29/98). To mandate self-rating would raise additional First
Amendment issues because entities such as online newspapers could be
asked to rate their content. Furthermore, without the use of filters or
other screening methods, ratings could actually help a minor find adult
material.
c. Domain name zoning
Segregating adult content was also considered by the
Committee. Schemes have been proposed to create a generic top
level domain on the Internet that would be specifically
reserved for adult content. For example, a set of domain names
could be adult only, such as ``www.site1.adult'' or
``www.site1.xxx.'' There are no technical barriers to creating
an adult domain, and it would be very easy to block all
websites within an adult domain. Unfortunately, the domain name
registration system is in a state of flux. The Internet
industry is currently in the process of creating a self-
governing structure that will manage the future domain name
system and IP number allocation process. In addition, changes
made to the top level domains under the new self-governing
structure, will have international consequences and the United
States should not act without reaching broad industry and
international consensus. With respect to the creation of a
second level domain within the .us domain, such as
``www.site1.xxx.us,'' which clearly is within the control of
the United States, zoning the adult entertainment industry by
itself does not solve the problem. Moving commercial sellers of
material harmful to minors into a ``.xxx.us'' domain, like
tagging, must be combined with a blocking service. As stated
above, the Committee is reluctant to begin regulating the
computer industry or waiting for uniform blocking techniques to
be developed. Anything short of a mandate on regulating the
source of the pornographic material would not result in
sufficiently protecting children from accessing material that
is harmful.
3. Blocking or filtering techniques
Blocking and filtering techniques vary and can be as simple
as blocking access to particular sites or as complicated as
reviewing each page of material posted on the Web based on key
words. In addition, some techniques can be used in conjunction
with the zoning methods discussed above, while other approaches
operate independently of zoning techniques. While blocking and
filtering techniques may be effective for many parents,
schools, and libraries, the Committee does not believe,
however, that they are as effective as the approach taken in
H.R. 3783. In fact, the Committee is concerned that a national
mandate requiring the use of blocking or filtering could lead
to private censorship or inadvertent blocking. The Committee
also does not believe that any of these approaches are
currently any less restrictive than the age verification
services that are now widely used by the adult entertainment
industry and adults.
In general, blocking or filtering software programs work in
conjunction with Internet browsers such as Netscape Navigator
and Microsoft's Internet Explorer, and are either installed
directly onto individual computers or onto a host server used
with a network of computers. Blocking or filtering software
could also be installed at the site of the Internet access
provider. Software to block access to websites has existed for
many years. Other products do not prohibit access to sites, but
provide parents with a record of which websites a minor has
visited.
In order to block Internet sites, a software vendor
identifies categories of material to be restricted and then
configures the software to block sites containing those
categories of speech. Some software blocking vendors employ
individuals who browse the Internet for sites to block, while
others use automated searching tools to identify which sites to
block. New products are constantly being developed, however,
that could improve the effectiveness of the blocking software.
For example, at least one product has been designed that is
capable of analyzing the content being retrieved by the
computer. By analyzing the content, rather than a predefined
list of sites, the product is capable of screening
inappropriate material from chat rooms, e-mail, attached
documents, search engines, and web browsers. Such products will
help parents and educators reduce a minor's exposure to
sexually explicit material.
Mandating blocking or filtering software, however, is not
the preferred solution. Because of the discretionary means to
screen information, there is a chance that protected, harmless,
or innocent speech would be accidentally or inappropriately
blocked. Software that blocks a minor's access to ``breast,''
for example, may also screen that minor from accessing
information about ``breast cancer.'' In addition, simple
blocking techniques that would screen tagged material are not
currently available in existing Internet browsers. Moreover,
the Committee notes that blocking and filtering software and
services can be expensive and may discourage adults or schools
from using them. For example, the cost of most products for
home use range from $14.95 to $199.50 depending on the quality
of the software program. Presumably parents would want to
purchase the best product for their use. Other software used
for schools or multiple users may cost anywhere from $1,050 to
$4,250. See Internet World, ``www.internetworld.com'' (May 18,
1998). Even if a customer incurs a single nonrecurring cost, he
or she may also incur recurring costs because the software
needs to be continually updated to respond to the ever-changing
content on the World Wide Web. Filters may be very useful tools
for parents and educators, but the law should impose duties on
the source of the problem, not the victims.
Finally, the Committee remains concerned that all blocking
software requires the exercise of subjective human judgment by
the vendor or purchaser to decide what speech is acceptable and
what is unacceptable. In some cases, the library of restricted
words, URLs, or content is not visible to users and may result
in hidden censorship if the blocking or filtering service
includes matters beyond adult content such as addressing
politics or religion.
E. International distribution of pornography
Throughout the legislative debate, opponents of H.R. 3783
have argued that 40 percent or more of the pornography sold in
the United States originates from foreign countries and that a
domestic legislative solution will not stop material from being
sent into the United States. To date, however, no reliable
statistics exist on the world-wide distribution of pornography
over the Internet. A 1996 finding by the lower court ruling in
Reno is often misquoted by opponents of legislation. They argue
that ``40% or more'' of the material that is harmful to minors
is produced outside of the United States. In fact, the lower
court concluded that ``[a] large percentage, perhaps 40 percent
or more, of content on the Internet originates outside the
United States.'' 929 F. Supp. at 848 (emphasis added).
``Content'' is not synonymous with ``material harmful to
minors.'' While data regarding the origination of material that
is harmful to minors are unavailable, the fact remains that
much of the harmful material is produced and posted in the
United States. In describing the $8 billion dollar adult
entertainment industry, of which commercial pornography is
included, the Executive Director of the Free Speech Coalition
testified that ``[t]hose eight billions are homegrown American
products, generating more dollars, jobs and taxes in a
burgeoning export trade.'' Testimony of Jeffrey J. Douglas,
Committee Hearing. Clearly domestic restrictions in the United
States will help reduce a child's access to pornography, and it
may even help protect children in foreign nations who are the
recipients of this ``burgeoning export trade.'' To the extent
that an international problem exists, the Committee has
requested that the Commission on Online Child Protection study
the matter and report back to Congress.
Hearings
On September 11, 1998, the Subcommittee on
Telecommunications, Trade, and Consumer Protection held a
legislative hearing on methods to prevent the distribution of
material that is harmful to minors over the Internet. The
Subcommittee received testimony from: The Honorable Dan Coats,
U.S. Senate, State of Indiana; The Honorable Bob Franks, U.S.
House of Representatives, Seventh District, State of New
Jersey; The Honorable Ernest J. Istook, Jr., U.S. House of
Representatives, Fifth District, State of Oklahoma; Mr. Stephen
R. Wiley, Chief, Violent Crimes and Major Offenders Section,
Federal Bureau of Investigations; Mr. Jerry Berman, Director,
Center for Democracy and Technology; Mr. Jeffrey J. Douglas,
Executive Director, Free Speech Coalition; Mr. Laith Paul
Alsarraf, President and CEO, Cybernet Ventures, Inc.; Dr. Mary
Anne Layden, Center for Cognitive Therapy, Department of
Psychology, University of Pennsylvania; Dr. Larry Lessig,
Professor, Harvard Law School; Mr. Peter Nickerson, Chief
Executive Officer, N2H2; Mr. Andrew L. Kupser, Chief Executive
Officer, Northwest Internet Services, LLC; Mr. John Bastian,
Chief Executive Officer, Security Software Systems Inc.; and
Ms. Agnes M. Griffen, Director, Tucson-Pima Public Library.
Committee Consideration
On September 17, 1998, the Subcommittee on
Telecommunications, Trade, and Consumer Protection met in open
markup session and approved H.R. 3783, the Child Online
Protection Act, for Full Committee consideration, amended, by a
voice vote. On September 24, 1998, the Full Committee met in
open markup session and ordered H.R. 3783, reported to the
House, amended, by a voice vote, a quorum being present.
Rollcall Votes
Clause 2(l)(2)(B) of rule XI of the Rules of the House
requires the Committee to list the recorded votes on the motion
to report legislation and amendments thereto. There were no
recorded votes taken in connection with ordering H.R. 3783
reported. An Amendment in the Nature of Substitute offered by
Mr. Oxley was adopted by a voice vote. A motion by Mr. Bliley
to order H.R. 3783 reported to the House, amended, was agreed
to by a voice vote, a quorum being present.
Committee Oversight Findings
Pursuant to clause 2(l)(3)(A) of rule XI of the Rules of
the House of Representatives, the Committee held a legislative
hearing and made findings that are reflected in this report.
Committee on Government Reform and Oversight
Pursuant to clause 2(l)(3)(D) of rule XI of the Rules of
the House of Representatives, no oversight findings have been
submitted to the Committee by the Committee on Government
Reform and Oversight.
New Budget Authority, Entitlement Authority, and Tax Expenditures
In compliance with clause 2(l)(3)(B) of rule XI of the
Rules of the House of Representatives, the Committee finds that
H.R. 3783, the Child Online Protection Act, would result in no
new or increased budget authority, entitlement authority, or
tax expenditures or revenues.
Committee Cost Estimate
The Committee adopts as its own the cost estimate prepared
by the Director of the Congressional Budget Office pursuant to
section 402 of the Congressional Budget Act of 1974.
Congressional Budget Office Estimate
Pursuant to clause 2(l)(3)(C) of rule XI of the Rules of
the House of Representatives, the following is the cost
estimate provided by the Congressional Budget Office pursuant
to section 402 of the Congressional Budget Act of 1974:
U.S. Congress,
Congressional Budget Office,
Washington, DC, October 1, 1998.
Hon. Tom Bliley,
Chairman, Committee on Commerce,
U.S. House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 3783, Child Online
Protection Act.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contacts are Mark Hadley
(for federal costs), Hester Grippando (for revenues), and Jean
Wooster (for the private-sector impact).
Sincerely,
June E. O'Neill, Director.
Enclosure.
H.R. 3783--Child Online Protection Act
Summary: H.R. 3783 would amend the Communications Act of
1934 to require persons engaged in interstate or foreign
commerce in the distribution of material that is harmful to
minors in or through the World Wide Web to restrict access to
such Internet material by persons under 17 years old. The bill
would impose civil and criminal penalties on persons who
violate this requirement and would establish a commission to
study ways of reducing access by children to harmful materials
on the Internet.
CBO estimates that implementing this bill would cost about
$1 million in 1999, assuming appropriation of the necessary
amounts. Because the bill would establish new criminal
penalties and thus could affect receipts, pay-as-you-go
procedures would apply, but CBO estimates that any changes in
receipts would be less than $500,000 a year.
H.R. 3783 would impose both intergovernmental and private-
sector mandates, as defined by the Unfunded Mandates Reform Act
(UMRA), but CBO estimates that the costs of the mandates would
fall well below the thresholds established in UMRA. (The
thresholds are $50 million for intergovernmental mandates and
$100 million for private sector mandates, adjusted annually for
inflation after 1996.)
Estimated cost to the Federal Government: Under H.R. 3783,
CBO expects that the Federal Communications Commission (FCC)
would issue a regulation to prescribe procedures to be used to
restrict access to Internet material that is considered harmful
to minors. Based on information from the FCC, we estimate that
this regulation would cost less than $500,000 to promulgate.
That spending would be subject to appropriation of the
necessary amounts, but under current law the FCC is authorized
to collect fees from the telecommunications industry sufficient
to offset the cost of itsregulatory program. Therefore, CBO
estimates that this provision would have no net cost to the government.
The bill also would amend the Communications Act of 1934 to
impose criminal and civil penalties on any person who violates
the requirement to restrict access to material that is harmful
to minors. Enacting H.R. 3783 could increase governmental
receipts from the collection of fines, but CBO estimates that
any such increase would be less than $500,000 annually.
Criminal fines are deposited in the Crime Victims Fund and are
spent in the following year. Thus, any change in direct
spending from the fund would also amount to less than $500,000
annually.
Finally, the bill would establish a one-year commission to
study ways to reduce access by minors to harmful material on
the Internet. Based on information from the National
Telecommunications and Information Administration and the
experience of similar commissions, CBO estimates that
implementing this provision would cost about $1 million in
1999, subject to appropriation of the necessary amount.
Pay-as-you-go considerations: The Balanced Budget and
Emergency Deficit Control Act sets up pay-as-you-go procedures
for legislation affecting direct spending or receipts. CBO
estimates that any increases in governmental receipts and
direct spending would each total less than $500,000 a year.
Intergovernmental and private-sector impact: H.R. 3783
would impose both intergovernmental and private-sector
mandates, as defined in UMRA. CBO estimates that the costs of
the mandates imposed on providers of interactive computer
services, including public educational institutions and perhaps
some libraries, and on commercial interstate and foreign
distributors of ``material that is harmful to minors'' would be
small and would fall below the thresholds established in UMRA.
Section 5 would require that providers of interactive
computer services (most of which are private) notify customers
that parental control protections are commercially available.
According to information from representatives of private-sector
Internet providers and their trade association, most providers
currently supply the required information to their customers,
and some also offer software or filtering services.
Furthermore, the cost to those public and private providers
that may not currently supply this information would be
minimal. Because some public college, universities, perhaps
some public libraries offer Internet access, this requirement
would impose an intergovernmental mandate on those entities.
Based on information from the National Association of State
Colleges and Land Grant Universities and the Public Library
Association, CBO estimates that the cost of complying with this
requirement would be minimal since it would not require
significant alteration in most of the agreements currently
used.
Section 3 would also impose a private-sector mandate on
commercial interstate and foreign distributors who knowingly
cause or solicit ``material that is harmful to minors'' to be
posted on the World Wide Web. This section would require that
those distributors restrict access to minors of such material.
The use of a credit card, debit account, adult access code,
adult personal identification number, or any feasible measures
would constitute compliance. Based on information from
representatives of the industry, commercial adult-content Web
sites currently require the use a credit card or some type of
age verification for membership or subscription payment. Thus,
CBO estimates that those commercial interstate and foreign
distributors would not incur any additional costs.
Previous CBO estimate: On March 30, 1998, CBO transmitted
an estimate of S. 1482, a bill to amend section 223 of the
Communications Act of 1934 to establish a prohibition on
commercial distribution on the World Wide Web of material that
is harmful to minors, as ordered reported by the Senate
Committee on Commerce, Science, and Transportation on March 12,
1998. That bill would not establish a new commission (as H.R.
3783 would); therefore, CBO estimated that S. 1482 would have
no significant net effect on the federal budget.
Estimate prepared by: Federal costs: Mark Hadley; Federal
revenues: Hester Grippando; Impact on the private sector: Jean
Wooster.
Estimate approved by: Paul N. Van de Water, Assistant
Director for Budget Analysis.
Federal Mandates Statement
The Committee adopts as its own the estimate of Federal
mandates prepared by the Director of the Congressional Budget
Office pursuant to section 423 of the Unfunded Mandates Reform
Act.
Advisory Committee Statement
No advisory committees within the meaning of section 5(b)
of the Federal Advisory Committee Act were created by this
legislation.
Constitutional Authority Statement
Pursuant to clause 2(l)(4) of rule XI of the Rules of the
House of Representatives, the Committee finds that the
Constitutional authority for this legislation is provided in
Article I, section 8, clause 3, which grants Congress the power
to regulate commerce with foreign nations, among the several
States, and with the Indian tribes.
Applicability to Legislative Branch
The Committee finds that the legislation does not relate to
the terms and conditions of employment or access to public
services or accommodations within the meaning of section
102(b)(3) of the Congressional Accountability Act.
Section-by-Section Analysis of the Legislation
Section 1. Short title
Section 1 establishes the short title of the bill as the
``Child Online Protection Act.''
Section 2. Congressional findings
Section 2 lists the Congressional findings.
Section 3. Requirements to restrict access by minors to materials sold
by means of the World Wide Web that are harmful to minors
Section 3 amends the Communications Act of 1934 by adding a
new section 231, entitled ``Restriction of Access by Minors to
Materials Sold by Means of the World Wide Web that are Harmful
to Minors.''
New subsection 231(a) provides that whoever, in interstate
or foreign commerce, by means of the World Wide Web, knowingly
makes any communication for commercial purposes that includes
any material that is harmful to minors without restricting
access to such material shall be fined or imprisoned.
The Committee believes that this restriction will help
reduce a minor's access to sexually explicit material on the
World Wide Web. The restriction is narrowly drafted and is
limited to entities making communications for commercial
purposes that include material harmful to minors. The
restrictions do not apply to other communications on the
Internet that involve electronic mail, newsgroups, or chat
rooms. The key words used in the prohibition, such as
``commercial purposes,'' and ``harmful to minors'' are defined
in new subsection 231(c). In addition, like any criminal
statute, a person who is a conspirator or otherwise aids and
abets the offender may be prosecuted under this statute.
New subsection 231(b) clarifies that certain entities do
not ``make any communication for commercial purposes'' if they
are engaged in certain transmission or access related
activities. In particular, this subsection clarifies that, for
purposes of subsection (a), a person shall not be considered to
be engaged in making communications for commercial purposes to
the extent that such person is (1) a telecommunications carrier
engaged in the provision of telecommunications services; (2) a
person engaged in the business of providing Internet access
services; (3) a person engaged in the business of referring or
linking users to an online location on the World Wide Web and
includes the provision of directories, indices, references,
points, and hypertext links services; or (4) similarly engaged
in the transmission, storage, retrieval, hosting, formatting,
or translation of a communication made by another person,
without the selection or alteration of the content of the
communication.
The Committee believes that these entities do not knowingly
cause the material that is harmful to minors to be posted on
the World Wide Web, nor do they knowingly solicit such material
to be posted on the World Wide Web. The Committee notes,
however, that subsection 231(b) applies only ``to the extent
that such person'' is engaged in these other activities. For
example, if an Internet access provider also has a web site
selling harmful material on the World Wide Web, then that site
would be subject to the general restriction set forth in new
subsection 231(a).
New subsection 231(c) states that it is affirmative defense
to prosecution under this section if the defendant, in good
faith, has restricted access by minors to material that is
harmful to minors. The new subsection provides two ways to be
eligible for the affirmative defense. The first defense,
subparagraph 231(c)(1)(A), permits the person posting the
harmful material on the Web to employ the use of a credit card,
debit account, adult access code, or adult personal
identification number as a means to prove age. The second
defense, subparagraph 231(c)(1)(B), allows the defendant to use
any other reasonable measures that are feasible under available
technology. New subsection 231(c) also permits a good faith
defense for entities that attempt to restrict or prevent the
transmission of, or access to, a communication specified in
this section.
For purposes of this subsection, the Committee believes
that purveyors of material harmful to minors have sufficient
tools available today to make a good faith attempt to restrict
access to their web sites. Credit card verification is commonly
used today in both the dial-a-porn and Internet context and it
should be easy to use and implement for commercial entities
that sell pornography on the Web. In addition, adult access
codes and adult personal identification numbers could be issued
by mail or fax after reasonably ascertaining that the applicant
is not a minor. The Committee does not consider data such as
zip codes, telephone numbers, or mere warning pages as a good
faith attempt to restrict access. This information is unrelated
to the age of the person wishing to access the material and
thus should not constitute a defense to prosecution.
The fact that some uncertainty exists surrounding what
constitutes a good faith effort to restrict access under
subparagraph 231(c)(1)(B) should not undermine the legitimacy
of the criminal statute. Entities selling material that is
harmful to minors could utilize the subparagraph 231(c)(1)(A)
defenses until other defenses under subparagraph 231(c)(1)(B)
became available. The Committee believes that technologies will
evolve and new age verification systems, such as use of digital
certificates, tags, student identifiers, etc. could be used to
reduce access and thus, could become effective affirmative
defenses. As a result, the bill incorporates needed and
limitless flexibility. In addition, the Committee also tasked
the industry to study age verification methods pursuant to
Section 5 of the bill, which could provide additional help
regarding the subparagraph 231(c)(1)(B) defenses.
New subsection 231(d) prohibits a person who collects
information about another individual for purposes of
restricting access to material that is harmful to minors from
disclosing any information collected. The Committee intends to
ease the concerns of adults who may be required to disclose
certain information about themselves in order to gain access to
material that they have a right to receive.
New paragraph 231(e)(1) defines the World Wide Web as the
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.
In general, the Web utilizes a hypertext formatting
language called hypertext markup language (HTML), and programs
that browse the Web can display HTML documents containing text,
images, sound, animation and moving video. Any HTML document
can include links to other types of information or resources,
so that while viewing an HTML document that, for example,
describes resources available on the Internet, one can
``click'' using a computer mouse on the description of the
resource and be immediately connected to the resource itself.
Such hyperlinks allow information to be accessed and organized
in very flexible ways, and allow people to locate and
efficiently view related information even if the information is
stored on numerous computers all around the world. Most sellers
of material that is harmful to minors have home pages on the
Web that provide links to sexually explicit material, although
the home pages themselves often contain hard-core or soft-core
pornographic ``teasers'' that contain material harmful to
minors.
New paragraph 231(e)(2) defines commercial purposes as a
person who makes a communication when such person is engaged in
the business of making such communication. ``Engaged in the
business'' is defined as a person who makes a communication via
the Web that is harmful to minors and such person makes the
communication as a regular course of such person's trade or
business. The Committee notes that the term ``engaged in the
business,'' 18 U.S.C. Sec. 1466, has been held constitutional
and not unconstitutionally vague as the term is applied to
obscenity law. U.S. v. Skinner, 25 F.3d 1314 (6th Cir. 1994).
New paragraph 231(e)(3) defines the Internet as a
combination of computer facilities and electromagnetic
transmission media, and related equipment and software,
comprising the interconnected world-wide network of computer
networks that employ the Transmission Control Protocol/Internet
Protocol (TCP/IP) protocol or any successor protocol.
New paragraph 231(e)(4) defines Internet access service as
a service that enables users to access content, information,
electronic mail, or other services offered over the Internet,
and may include access to proprietary content, information, and
other services as part of a package of services offered to
consumers, and paragraph (5) defines Internet information
location tool as a service that refers or links users to an
online location on the World Wide Web.
New paragraph 231(e)(6) defines material that is harmful to
minors as any communication that (A) the average person,
applying contemporary community standards, would find, taking
the material as a whole and with respect to minors, that such
material is designed to appeal to or panders to the prurient
interest; (B) depicts, describes, or represents, in a manner
patently offensive with respect to minors, an actual or
simulated normal or perverted sexual act or contact, or a lewd
exhibition of the genitals or female breast; and (C) taken as a
whole, lacks serious literary, artistic, political, or
scientific value for minors.
The Committee intends for the definition of material
harmful to minors to parallel the Ginsberg and Miller
definitions of obscenity and harmful to minors, as those
definitions were later refined in Smith v. United States, 431
U.S. 291, at 300-02, 309 (1977) and Pope v. Illinois, 481 U.S.
497, at 500-01 (1987). In essence, the Committee intends to
adopt the ``variable obscenity'' standard for minors. The
Committee recognizes that the applicability of community
standards in the context of the Web is controversial, but
understands it as an ``adult'' standard, rather than a
``geographic'' standard, and one that is reasonably constant
among adults in America with respect to what is suitable for
minors. In addition, when a person posts material on the Web,
he makes it available, simultaneously, to all communities in
the world where a computer can be plugged in. Thus, the person
posting the material is engaged in interstate commerce and is
subjecting himself to the jurisdiction of all communities in a
manner similar to the way obscenity laws apply today. See
United States v. Thomas, 74 F.3d 701 (6th Cir. 1996), cert.
denied, 117 S.Ct. 74 (1996); Sable, 492 U.S. at 126-27.
Furthermore, it is well established that ``there is no
constitutional impediment to the government's power to
prosecute pornography dealers in any district into which the
material is sent.'' United States v. Bagnell, 679 F.2d 826, 830
(11th Cir. 1982), cert. denied, 460 U.S. 1047 (1983).
The Committee also notes that the ``harmful to minors''
standard has been tested and refined for thirty years to limit
its reach to materials that are clearly pornographic and
inappropriate for minor children of the age groups to which it
is directed. Cases such as Erznoznik v. City of Jacksonville,
422 U.S. 205 (1975) and Board of Education v. Pico, 457 U.S.
853 (1982), prevent the traditional ``harmful to minors'' test
from being extended to entertainment, library, or news
materials that merely contain nudity or sexual information,
regardless of how controversial they may be for their political
or sexual viewpoints.
New paragraph 231(e)(7) defines minor as any person under
17 years of age.
Section 4. Notice requirement
Section 4 amends Section 230 of the Communications Act by
requiring a provider of interactive computer service to notify
each customer, at the time it enters into an agreement to sign
up the customer, that parental control protections (such as
computer hardware, software, and filtering service) are
commercially available that may assist the customer in limiting
access to material that is harmful to minors.
The Committee believes that such a requirement will help
inform parents and educators on the availability of filtering
software and services that may assist with the shielding of
harmful material. The Committee also believes that this
requirement is a necessary supplement to the general
prohibition in Section 3 and allows for marketplace solutions
to develop to address the difficult technical and legal
questions surrounding restricting a minor's access to harmful
material with respect to all communications that take place on
the Internet.
Section 5. Study by commission on online child protection
Section 5 establishes a temporary Commission on Online
Child Protection for purposes of conducting a study regarding
methods to help reduce access by minors to material that is
harmful to minors on the Internet. The Commission will be
composed of industry and government representatives and is
required to report its findings within one year from the date
of enactment of H.R. 3783. The Committee intends that the
Commission's findings may be used to make legislative
recommendations to Congress on additional ways to reduce access
by minors to harmful material and as an evidentiary basis for
good faith defenses under Section 3 of the bill. The Committee
notes that the Commission is required to study alternative ways
to reduce material that is harmful to minors on the Internet,
which should include ways to reduce such harmful material with
respect to one-to-one messaging (e-mail), one-to-many messaging
(listserv), distributed message databases (USENET newsgroups);
real time communications (Internet relay chat); real time
remote utilization (telnet) and remote information retrieval
systems. The Commission is also free to comment on the approach
taken in H.R. 3783 and on whether other legislative
recommendations would be helpful, such as a proposal to
prohibit the distribution of unsolicited commercial e-mail that
contains material harmful to minors.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3 of rule XIII of the Rules of the
House of Representatives, changes in existing law made by the
bill, as reported, are shown as follows (existing law proposed
to be omitted is enclosed in black brackets, new matter is
printed in italic, existing law in which no change is proposed
is shown in roman):
COMMUNICATIONS ACT OF 1934
* * * * * * *
TITLE II--COMMON CARRIERS
PART I--COMMON CARRIER REGULATION
* * * * * * *
SEC. 223. OBSCENE OR HARASSING TELEPHONE CALLS IN THE DISTRICT OF
COLUMBIA OR IN INTERSTATE OR FOREIGN
COMMUNICATIONS.
(a) * * *
* * * * * * *
(h) For purposes of this section--
(1) * * *
(2) The term ``interactive computer service'' has the
meaning provided in section [230(e)(2)] 230(f)(2).
* * * * * * *
SEC. 230. PROTECTION FOR PRIVATE BLOCKING AND SCREENING OF OFFENSIVE
MATERIAL.
(a) * * *
* * * * * * *
(d) Obligations of Interactive Computer Service.--A provider
of interactive computer service shall, at the time of entering
an agreement with a customer for the provision of interactive
computer service and in a manner deemed appropriate by the
provider, notify such customer that parental control
protections (such as computer hardware, software, or filtering
services) are commercially available that may assist the
customer in limiting access to material that is harmful to
minors. Such notice shall identify, or provide the customer
with access to information identifying, current providers of
such protections.
[(d)] (e) Effect on Other Laws.--
(1) * * *
* * * * * * *
[(e)] (f) Definitions.--As used in this section:
(1) * * *
* * * * * * *
SEC. 231. RESTRICTION OF ACCESS BY MINORS TO MATERIALS SOLD BY MEANS OF
WORLD WIDE WEB THAT ARE HARMFUL TO MINORS.
(a) Requirement To Restrict Access.--
(1) Prohibited conduct.--Whoever, in interstate or
foreign commerce, by means of the World Wide Web,
knowingly makes any communication for commercial
purposes that includes any material that is harmful to
minors, without restricting access to such material by
minors pursuant to subsection (c), shall be fined not
more than $50,000, imprisoned not more than 6 months,
or both.
(2) Intentional violations.--In addition to the
penalties under paragraph (1), whoever intentionally
violates such paragraph shall be subject to a fine of
not more than $50,000 for each violation. For purposes
of this paragraph, each day of violation shall
constitute a separate violation.
(3) Civil penalty.--In addition to the penalties
under paragraphs (1) and (2), whoever violates
paragraph (1) shall be subject to a civil penalty of
not more than $50,000 for each violation. For purposes
of this paragraph, each day of violation shall
constitute a separate violation.
(b) Inapplicability of Carriers and Other Service
Providers.--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.
(c) Affirmative Defense.--
(1) Defense.--It is an affirmative defense to
prosecution under this section that the defendant, in
good faith, has restricted access by minors to material
that is harmful to minors--
(A) by requiring use of a credit card, debit
account, adult access code, or adult personal
identification number; or
(B) by any other reasonable measures that are
feasible under available technology.
(2) Protection for use of defenses.--No cause of
action may be brought in any court or administrative
agency against any person on account of any activity
that is not in violation of any law punishable by
criminal or civil penalty, and that the person has
taken in good faith to implement a defense authorized
under this subsection or otherwise to restrict or
prevent thetransmission of, or access to, a
communication specified in this section.
(d) Privacy Protection Requirements.--
(1) Disclosure of information limited.--A person
making a communication described in subsection (a)--
(A) shall not disclose any information
collected for the purposes of restricting
access to such communications to individuals 17
years of age or older without the prior written
or electronic consent of--
(i) the individual concerned, if the
individual is an adult; or
(ii) the individual's parent or
guardian, if the individual is under 17
years of age; and
(B) shall take such actions as are necessary
to prevent unauthorized access to such
information by a person other than the person
making such communication and the recipient of
such communication.
(2) Exceptions.--A person making a communication
described in subsection (a) may disclose such
information if the disclosure is--
(A) necessary to make the communication or
conduct a legitimate business activity related
to making the communication; or
(B) made pursuant to a court order
authorizing such disclosure.
(e) Definitions.--For purposes of this subsection, the
following definitions shall apply:
(1) By means of the world wide web.--The term ``by
means of the World Wide Web'' means 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.
(2) Commercial purposes; engaged in the business.--
(A) Commercial purposes.--A person shall be
considered to make a communication for
commercial purposes only if such person is
engaged in the business of making such
communications.
(B) Engaged in the business.--The term
``engaged in the business'' means 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). 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.
(3) Internet.--The term ``Internet'' means the
combination of computer facilities and electromagnetic
transmission media, and related equipment and software,
comprising the interconnected worldwide network of
computer networks that employ the Transmission Control
Protocol/Internet Protocol or any successor protocol to
transmit information.
(4) Internet access service.--The term ``Internet
access service'' means a service that enables users to
access content, information, electronic mail, or other
services offered over the Internet, and may also
include access to proprietary content, information, and
other services as part of a package of services offered
to consumers. Such term does not include
telecommunications services.
(5) Internet information location tool.--The term
``Internet information location tool'' means a service
that refers or links users to an online location on the
World Wide Web. Such term includes directories,
indices, references, pointers, and hypertext links.
(6) Material that is harmful to minors.--The term
``material that is harmful to minors'' means any
communication, picture, image, graphic image file,
article, recording, writing, or other matter of any
kind that--
(A) the average person, applying contemporary
community standards, would find, taking the
material as a whole and with respect to minors,
that such material is designed to appeal to or
panders 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, an actual or simulated normal
or perverted sexual act, or a lewd exhibition
of the genitals or female breast; and
(C) taken as a whole, lacks serious literary,
artistic, political, or scientific value for
minors.
(7) Minor.--The term ``minor'' means any person under
17 years of age.
* * * * * * *