[Senate Report 105-225]
[From the U.S. Government Publishing Office]



105th Congress                                                   Report
                                SENATE

 2d Session                                                     105-225
_______________________________________________________________________


 
COMMERCIAL DISTRIBUTION OF MATERIAL HARMFUL TO MINORS ON WORLD WIDE WEB

                               __________

                              R E P O R T

                                 OF THE

           COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION

                                    on

                                S. 1482





                 June 25, 1998.--Ordered to be printed


       SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION

                       one hundred fifth congress

                             second session

                     JOHN McCAIN, Arizona, Chairman

TED STEVENS, Alaska                  ERNEST F. HOLLINGS, South Carolina
CONRAD BURNS, Montana                DANIEL K. INOUYE, Hawaii
SLADE GORTON, Washington             WENDELL H. FORD, Kentucky
TRENT LOTT, Mississippi              JOHN D. ROCKEFELLER IV, West 
KAY BAILEY HUTCHISON, Texas            Virginia
OLYMPIA SNOWE, Maine                 JOHN F. KERRY, Massachusetts
JOHN ASHCROFT, Missouri              JOHN B. BREAUX, Louisiana
BILL FRIST, Tennessee                RICHARD H. BRYAN, Nevada
SPENCER ABRAHAM, Michigan            BYRON L. DORGAN, North Dakota
SAM BROWNBACK, Kansas                RON WYDEN, Oregon

                       John Raidt, Staff Director

                       Mark Buse, Policy Director

     Ivan A. Schlager, Democratic Chief Counsel and Staff Director

             James S. W. Drewry, Democratic General Counsel



105th Congress                                                   Report
                                 SENATE

 2d Session                                                     105-225
_______________________________________________________________________


COMMERCIAL DISTRIBUTION OF MATERIAL HARMFUL TO MINORS ON WORLD WIDE WEB

                                _______
                                

                 June 25, 1998.--Ordered to be printed

_______________________________________________________________________


       Mr. McCain, from the Committee on Commerce, Science, and 
                Transportation, submitted the following

                              R E P O R T

                         [To accompany S. 1482]

    The Committee on Commerce, Science, and Transportation, to 
which was referred 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, and for other purposes'', having 
considered the same, reports favorably thereon without 
amendment and recommends that the bill do pass.

                                Purpose

  The bill, S. 1482, creates a requirement that those engaged 
in the business of the commercial distribution of material that 
is harmful to minors through the World Wide Web (Web) restrict 
access to such material by minors under 17 years of age.
  Commercial transactions in material harmful to minors on the 
Web occur through the use of a verified credit card, debit 
account, adult access code, or adult personal identification 
number (PIN). However, purveyors of such material generally 
display many unrestricted and sexually explicit images in order 
to advertise and entice the consumer into engaging in a 
commercial transaction. Children can move from Web page to Web 
page, viewing and downloading this material without 
restriction.
  S. 1482 addresses this problem by requiring the Web page 
operator engaged in the business of the commercial distribution 
of such material to place material harmful to minors on the 
other side of the verification wall by requiring one of the 
aforementioned verification procedures before displaying 
explicit images.
  The bill was introduced in response to the Supreme Court 
ruling on the ``indecency'' and ``patently offensive'' 
provisions of the Communications Decency Act, and addresses the 
concerns of the Court in the case, Reno v. ACLU, 117 S. Ct. 
2329 (1997).
   S. 1482 presents no ban on the distribution or display of 
material harmful to minors. Rather, it simply requires the 
sellers of such material to recast their message in such a way 
as not to be readily available to children.

                          Background And Need

THE WORLD WIDE WEB

  It is beyond question that a substantial amount of sexually 
explicit material is readily available on-line, and that such 
material may be easily viewed within the United States by 
anyone possessing a computer, a mouse, and access to the 
Internet. This includes minor children, under 17 years of age.
  The World Wide Web (Web) is a portion of the Internet that 
utilizes a formatting language known as hypertext markup 
language (HTML). HTML documents may consist of text, images, 
and sound. Information is published on the Web on ``home 
pages.'' Home pages are established and operated by individuals 
and organizations, for personal use, not-for-profit, or for-
profit. In addition, HTML allows home page operators to create 
``links'' from their respective pages to other documents 
residing on other computers elsewhere on the Internet.
  People navigate the Web through the use of ``search 
engines.'' Search engines allow the user to search for 
information by typing in one or a series of search terms. The 
search engine then presents the user with a list of sites that 
include the key words contained in the search term(s). The list 
is not limited to the topic, but rather to the words included 
in the search.

EXPOSURE TO SEXUALLY EXPLICIT MATERIAL HARMS CHILDREN

  A child's sexual development occurs gradually through 
childhood. Exposure to pornography shapes children's sexual 
perspective by providing them information on sexual activity. 
However, the type of information provided by pornography does 
not provide children with a normal sexual perspective.
  To children, pornography is instructional in that it provides 
a visual message about new information. However, that 
information is not an accurate portrayal of human sexuality. 
Photographs, videos, magazines, and virtual games which portray 
rape and the dehumanization of females in sexual scenes are 
powerful forms of sex education. Unlike learning provided in an 
educational 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. \1\ 
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    \1\  Dr. Gary Brooks, Assistant Chief of Psychology Services, 
Department of Veterans Affairs, The Centerfold Syndrome (1995).
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  Many people--including children and adolescents--learn about 
sex through pornography; it shapes their beliefs, attitudes, 
and expectations . . . . The prevalence of violent, abusive, 
and degrading pornography can induce beliefs that such 
practices are not only common, but acceptable. \2\ 
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    \2\  Jerry Bergman, Ph.D., The Influence of Pornography on Sexual 
Development: Three Case Histories.
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  It is critical to the normal sexual development of children 
to shield them from sexually explicit material that serves to 
distort normal sexual development. ``Our children live in a 
society whose psychological and social contexts do not stress 
the differences between adults and children. We may safely 
assume that media play an important role in the drive to erase 
differences between child and adult sexuality . . . . The 
traditional restraints against youthful sexual activity cannot 
have great force in a society that does not, in fact, make a 
binding distinction between childhood and adulthood.'' \3\ 
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    \3\  Neil Postman, The Disappearance of Childhood.
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THE GOVERNMENT 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 (1882); Sable Communications of Cal., Inc. v. FCC, 492 U.S. 
115, 126-128 (1989); Denver Area Ed. Tel. Consortium v. FCC, 
116 S. Ct. 2374, 2391 (1996); and Reno v. ACLU, 117 S. Ct. 2329 
(1997). As stated by the Court: ``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'.'' (Ferber at 757). ``This interest extends to 
shielding minors from the influence of literature that is not 
obscene by adult standards.'' (Sable at 126).
  Though the primary responsibility for children resides with 
the parent, the parent deserves the support of the law in 
protecting the welfare of the child. 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 at 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.'' \4\ 
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    \4\  People v. Kahan, 15 N.Y.2d 311, 312, 206 N.E.2d 333, 334 
(1965), cited in Ginsberg at 640.
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  Moreover, there is unanimous precedent for resting a 
reasonable burden of restricting children's access to sexually 
explicit pornography upon the content provider. \5\ 
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    \5\  See FCC v. Pacifica, 438 U.S. 726 (1978). See also: Sable 
Communications of Cal. v. FCC, 492 U.S. 115 (1989), Ginsberg v. New 
York, 390 U.S. 629 (1968).
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  It is this compelling interest in protecting children which 
S. 1482 seeks to address. The bill seeks to restrict access to 
commercial pornography on the Web by requiring those engaged in 
the business of the commercial distribution of material that is 
harmful to minors to take certain prescribed steps to restrict 
access to such material by minors under 17 years of age.

VOLUNTARY MEASURES

  The principal methods of voluntarily restricting children's 
access to sexually explicit material over the Web are the 
Platform for Internet Content Selection (PICS), a standard 
protocol for reacting to ratings services such as Recreational 
Software Advisory Council (RSACi) and Safesurf, and blocking 
and screening software on the end-user computer and/or on the 
server or ISP level (such as X-Stop, N2H2, Net Nanny, 
SurfWatch, Cyber Patrol, Net Shepherd, etc.).
  PICS was developed by the World Wide Web Consortium and is 
designed to allow third party organizations or the actual 
content provider to rate Web sites according to content. Users 
would then utilize the ratings to block these sites according 
to their preference.
  The PICS solution has yet to be proven effective. PICS relies 
on the voluntary efforts of the purveyor of sexually explicit 
images, those deriving profit from the sale of such material, 
to rate their site off-limits. There is no incentive for the 
commercial pornography operator to rate sites, and they have 
every financial incentive not to rate them. The result is that 
rated sites are ``more the exception than the rule.'' \6\ 
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    \6\  ``Web Site Ratings--Shame on Most of Us,'' P.C. Week, February 
3, 1997.
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  There are several different types of blocking software on the 
market, each offering various combinations of features. One 
approach is to block access to a pre-established list of 
Internet and Usenet sites. Another is to screen out sites that 
contain certain words or combinations of words. Some software 
also screens out certain types of files.
  As stated above, users navigate the Web by use of search 
engines, keying in terms or combinations of terms designed to 
locate content of interest. ``Web surfers looking for porn 
typically tap into such search services and use keywords like 
`sex' and `XXX.' But so many on-line sex shops now display 
those words that their presence won't make a site stand out in 
a list resulting from a user's query. To get noticed, 
pornographers increasingly try to trick search engines into 
giving them top billing--sometimes called `spoofing'.'' \7\  As 
a result of the aggressive tactics of commercial pornographers, 
search terms such as ``water baby,'' a popular children's doll, 
and ``fiesta'' will produce commercial sites displaying graphic 
pornography. \8\ 
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    \7\  ``The Erotic Allure of Home Schooling,'' Fortune, September 8, 
1997.
    \8\  Testimony of Sen. Dan Coats, Senate Committee on Commerce, 
Science, and Transportation, Hearing on Indecency on the Internet, 
February 10, 1998.
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CONGRESS CAN ENACT LAWS TO PROTECT CHILDREN FROM SEXUALLY EXPLICIT 
                    MATERIAL

  As stated, the Government has a compelling interest in 
protecting the physical and psychological welfare of children. 
Further, the government may enact laws designed to shield 
children from exposure to sexually explicit material. \9\  Most 
relevant to this bill, the Court, in its ruling against the 
indecency provisions of the Communications Decency Act, 
reaffirmed ``the legitimacy and importance of protecting 
children from harmful materials.''
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    \9\  See Ginsberg v. New York, Pacifica, Denver Area, supra.
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  In fact, in ruling against the indecency portions of the CDA, 
the Supreme Court examined various methods of restricting 
sexually explicit material such as ``making exceptions for 
messages with artistic or educational value, providing some 
tolerance for parental choice, and regulating some portions of 
the Internet--such as commercial web sites--differently from 
others, such as chat rooms.'' \10\ 
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    \10\  Henry Cohen, Legislative Attorney, American Law Division, 
Congressional Research Service, Obscenity: Constitutional Principles 
and Federal Statutes.
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S. 1482 IS NARROWLY TAILORED TO MEET THE COMPELLING INTEREST OF 
                    PROTECTING CHILDREN FROM EXPOSURE TO SEXUALLY 
                    EXPLICIT MATERIAL AND IT PROTECTS THE FIRST 
                    AMENDMENT RIGHTS OF ADULTS

  S. 1482 amends Section 223 of the Communications Act of 1934 
(47 U.S.C. 223), creating a requirement that whoever, via the 
Web, is ``engaged in the business of the commercial 
distribution of material that is harmful to minors shall 
restrict access to such material by persons under 17 years of 
age.''
  The bill addresses the specific concerns of the Supreme Court 
in its ruling on the CDA in several key ways. 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 unnecessarily broad 
suppression of speech addressed to adults.'' \11\ 
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    \11\  Reno v. ACLU, 117 S. Ct. at 2346.
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  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. In particular, the Court pointed to 
the lack of an exception for materials with redeeming social 
value. The Court came to this conclusion despite the existence 
of substantial legislative history demonstrating the contrary. 
\12\ 
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    \12\  See Conf. Rep. No. 104-230, at 188-91, 1996 U.S.C.C.A.N. Leg. 
Hist. 201-05. See also, 141 Cong. Rec., July 12, 1995, S. 9770-75, and 
141 Cong. Rec., June 14, 1995, S. 8328, 8337, 8386.
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  The Court also was concerned that the defenses to prosecution 
under the CDA were not technologically feasible for certain on-
line services such as E-mail and chat rooms. On the Web, where 
technological feasibility was acknowledged, the Court was 
concerned that such measures would be cost prohibitive to some 
non-commercial content providers. With regard to restricting 
access by minors by requiring use of a verified credit card or 
adult identification, the Court in Reno noted: ``Such 
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. Under 
the findings of the District Court, however, it is not 
economically feasible for most non-commercial speakers to 
employ such verification.'' \13\ 
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    \13\  117 S. Ct. at 2349.
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  The Committee notes the FCC's dial-a-porn regulations, 
mentioned with approval in Sable, 109 S. Ct. at 2833-34, 2838, 
that provided a defense by allowing a provider, before 
transmission of a message, to restrict customer access by 
requiring either payment by credit card or authorization by 
access or identification code. The Court found that such 
commercial restrictions would be effective in excluding most 
juveniles, stating: ``For all we know from the record, 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 will manage to secure access to such messages.''
  Finally, the Court was concerned that the CDA wrested primary 
authority over the child from the parent should the statute be 
construed to make criminal a parental choice to make sexually 
explicit material available to a child.

S. 1482 PROHIBITS GOVERNMENT CONTENT REGULATION ON THE WEB

  The bill provides no ban on content. Rather, it simply 
requires that commercial pornographers on the Web recast their 
message in such a way as not to be readily accessible by 
minors. In order to remove any ambiguity concerning the intent 
of the bill, specific language is provided expressly 
prohibiting government content regulation under the 
legislation.

S. 1482 CONFORMS WITH THE COURT'S OPINION IN RENO V. ACLU

  S. 1482 adopts the harmful to minors content standard. The 
constitutional application of the ``harmful to minors'' 
standard was established in Ginsberg v. New York. Harmful to 
minors laws are used to regulate the commercial distribution of 
pornography to minors. Forty-eight states have harmful to 
minors laws.
  In its opinion in Reno v. ACLU, the Supreme Court contrasted 
the constitutional application of the harmful to minors 
standard upheld in Ginsberg, with the statutory construction of 
the challenged sections of the CDA and the use of the 
``indecent'' and ``patently offensive'' content standards. It 
is this analysis which is the foundation for the 
constitutionality of S. 1482.
  The Court outlined four specific differences between Ginsberg 
and the CDA. First, the Court wanted the discretion of a parent 
to purchase prohibited materials for their children to be 
preserved. Second, the Court pointed out that the New York 
statute upheld in Ginsberg was limited to only commercial 
transactions. Third, the harmful to minors standard contains a 
serious value element ensuring that material that possesses 
serious literary, artistic, political, or scientific value 
would not be swept up in the statute. Finally, the New York 
statute upheld in Ginsberg defined a minor as someone under 17 
years of age. \14\  All four of the concerns are directly 
addressed in the bill.
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    \14\  117 S. Ct. at 2341.
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PARENTS MAINTAIN AUTHORITY AND MINOR IS DEFINED AS THOSE UNDER 17 YEARS 
                    OF AGE

  S. 1482 contains no restriction on the discretion of the 
parent to purchase material for their children who fall within 
this age group. The bill simply requires the content provider 
to implement certain procedures designed to restrict access by 
minors. Parents desiring to do so may purchase or display such 
material for their child. A minor is defined under the bill as 
persons under 17 years of age.

SCOPE IS LIMITED TO COMMERCIAL TRANSACTIONS

  The bill is strictly limited to those ``engaged in the 
business of the commercial distribution of material that is 
harmful to minors.'' The term ``engaged in the business'' is 
taken directly from 18 U.S.C. Sec.  1466(b), and the Committee 
intends to give the phrase the same meaning established 
therein, substituting the term ``obscene matter'' with the term 
``harmful to minors.''

MATERIALS WITH SERIOUS LITERARY, ARTISTIC, POLITICAL, AND SCIENTIFIC 
                    VALUE ARE PROTECTED

  The bill provides a three-prong test to determine material 
``harmful to minors.'' All three prongs must be met in order 
for the material to be determined ``harmful to minors.'' The 
third prong stipulates that the material must ``lack serious 
literary, artistic, political, or scientific value.'' The 
Committee intends, in considering this third part of the test, 
that the material be taken as a whole, and that it be 
considered in the context of what has value as to 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 
U.S. Courts of Appeals 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., 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) (which, on 
remand from the Supreme Court, upheld Virginia's ``harmful to 
minors'' display law in Commonwealth v. American Booksellers 
Ass'n., 372 S.E.2d 618 (Va. 1988)); 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). It is 
reasonable to conclude that, since issues of ``Penthouse'' 
magazine have been found ``obscene'' as a matter of law in 
federal courts (Penthouse v. McAulliffe, 610 F.2d 1353 (5th 
Cir. 1980); Penthouse v. Webb, 594 F.Supp. 1186 (N.D.Ga. 
1984)), such a ``men's'' magazine would certainly be found 
``harmful to minors'' (like those magazines in Ginsberg v. New 
York), and thus would be restricted from distribution or 
display to minors on the Web under that standard.

VERIFICATION PROCEDURES ARE TECHNICALLY AND ECONOMICALLY FEASIBLE

  The scope of the bill is strictly limited to commercial 
activity and to the Web. As such, the technical and economic 
feasibility concerns of the Court are both addressed. As 
stated, the Court acknowledged the technological and economic 
feasibility of restricting access on the Web by means outlined 
under the bill. \15\ 
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    \15\  117 S. Ct. at 2337 (``Technology exists by which an operator 
of a Web site may condition access on the verification of requested 
information such as a credit card or an adult password.''); 117 S. Ct. 
2347 (Unlike the regulations upheld in Ginsberg and Pacifica, the scope 
of the CDA is not limited to commercial speech or commercial entities.)
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  In fact, the use of the verification means prescribed under 
S. 1482 are standard practice among commercial pornographers on 
the Web. However, ``most adult sites have teasers (pornographic 
images displayed without age verification) so that the user 
will look further into the pages.'' \16\  As to the economic 
feasibility of commercial content providers'' complying with 
the bill, it is not only feasible but profitable for them to do 
so. Adult verification systems (AVS) providers generally pay 
commissions to pornographic site operators who provide 
referrals to the AVS provider. \17\  There is a broad range of 
AVS services available to users, with many subscription options 
and payment methods including credit card, check, and money 
order. Users have many options as methods to subscribe, such as 
E-mail, phone, fax, and mail. \18\  In fact, given that the 
scope of the bill is limited to commercial activity, and that 
the AVS 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 on the 
other side of a verification wall that already exists. The 
commercial pornographer is not otherwise restricted in his 
trade.
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    \16\  Committee Testimony, Undercover Detective, Committee on 
Commerce, Science and Transportation, Hearing on Internet Indecency, 
February 10, 1998. See also, Testimony of Seth Warshavsky.
    \17\  See, e.g., http://www.adultcheck.com/cgi-bin/
merchant.cgi?2078
    \18\  See, e.g., http://www.validate.com/cgi-bin/validate/
member.pl?150224, http://ishield.com/siterefer.cfm?siteid=trevor
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                          Legislative History

  Congress has had extensive involvement with the issue of the 
availability of sexually explicit material to minors on the 
Internet. This history begins with the introduction of the 
Communications Decency Act of 1995 (CDA), introduced during the 
104th Congress as S. 314. The Senate Committee on Commerce, 
Science and Transportation amended the bill and added it to S. 
652, the Telecommunications Competition and Deregulation Act of 
1995, which it reported on March 30, 1995. \19\  During floor 
consideration of S. 652, an amendment was offered by Senators 
Exon and Coats further modifying the CDA provisions of S. 652. 
Extensive debate occurred on the amendment, with the Senate 
adopting it by a vote of 84-16 on June 14, 1995. \20\  S. 652 
was passed by the Senate on June 15, 1995, and by the House on 
October 12, 1995. On December 6, 1995, during the House/Senate 
Conference Committee on the Telecommunications Act, the House 
conferees voted during private session to adopt the Senate 
provisions on computer indecency. Conference reports to 
accompany S. 652 were filed by the House on January 31, 1996 
\21\,  and by the Senate on February 1, 1996. \22\  President 
Clinton signed S. 652 into law on February 8, 1996, as Public 
Law 104-104, the Telecommunications Act of 1996. \23\  Title V 
of that law is the Communications Decency Act of 1996.
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    \19\  S. Rep. No. 104-23, 104th Cong., 1st. Sess. (1995).
    \20\  Cong. Rec., June 14, 1995, at S. 8328-8347.
    \21\  H. Conf. Rep. No. 104-458, 104th Cong., 2d. Sess. (1996).
    \22\  S. Conf. Rep. No. 104-230, 104th Cong., 2d. Sess. (1996).
    \23\  110 Stat. 56 (1996).
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  Two provisions of the CDA were challenged in District Court, 
with the three judge panel that initially heard the case 
granting a preliminary injunction against enforcement. \24\  
Ultimately, the Supreme Court struck down the ``indecency'' and 
``patently offensive'' provisions of the CDA.
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    \24\  929 F.Supp. 824, 883 (E.D. Pa. 1996).
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  S. 1482 was introduced by Senator Coats on November 8, 1997. 
At the time of introduction, Senator Coats submitted an 
extensive floor statement responding to the Court's opinion in 
ACLU v. Reno and outlining how the legislation conforms to the 
opinion. On January 27, 1998, Senators Lott and Inhofe were 
added as co-sponsors.
  On February 10, 1998, Senator McCain chaired a Committee on 
Commerce, Science, and Transportation hearing on Indecency on 
the Internet. The Committee heard extensive testimony regarding 
pornography on the Internet, the threat it poses to the 
physical and psychological well-being of children, and how S. 
1482 would address the problem of easy access to commercial 
pornography on the Web by children.
  On March 12, 1998, the Committee on Commerce, Science and 
Transportation met in open executive session and ordered S. 
1482 reported by voice vote.

                      Summary Of Major Provisions

  The provisions of S. 1482 are summarized below as they appear 
in the bill.
          1. The bill amends section 223 of the Communications 
        Act of 1934 (47 U.S.C. Sec.  223) by inserting a new 
        subsection (e).
          2. Subsection (e)(1) establishes a requirement that 
        whoever is engaged in the business of the commercial 
        distribution of material that is harmful to minors 
        shall restrict access to such material by minors under 
        17 years of age.
          3. Subsection (e)(2) establishes that a person found 
        guilty of violating the requirement may be fined not 
        more than $50,000, and imprisoned not more than six 
        months, or both.
          4. Subsection (e)(3) establishes that any person 
        found to be in intentional violation of the requirement 
        may be fined up to $50,000 for each day that the person 
        is found to be in violation.
          5. Subsection (e)(4) establishes a civil fine of not 
        more than $50,000 for each day of violation.
          6. Subsection (e)(5) establishes an affirmative 
        defense to prosecution if the defendant restricted 
        access to material harmful to minors under 17 years of 
        age by prescribed means.
          7. Subsection (e)(6) expressly prohibits the 
        Commission from regulating in any manner the content of 
        any information on the Web.
          8. Subsection (e)(7)(A) establishes a three prong 
        test to define ``material that is harmful to minors.'' 
        Material must appeal to the prurient interest in sex, 
        must depict sexually explicit material, in a patently 
        offensive way with respect to what is suitable to 
        minors and--taken as a whole--must lack serious 
        literary, artistic, political, or scientific value for 
        minors. Subsection (e)(7)(B) assigns the terms ``sexual 
        act'' \25\  and ``sexual contact'' \26\  the same 
        meanings as assigned them in section 18 U.S.C. 2246.
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    \25\  18 U.S.C. Sec.  2246(2) defines ``sexual act'' as: ``(A) 
contact between the penis and the vulva or the penis and the anus, and 
for purposes of this subparagraph contact involving the penis occurs 
upon penetration, however slight; (B) contact between the mouth and 
penis, the mouth and the vulva, or the mouth and the anus; (C) the 
penetration, however slight, of the anal or genital opening of another 
by hand or finger or by any object, with an intent to abuse, humiliate, 
harass, degrade, or arouse or gratify the sexual desire of any person; 
(D) the intentional touching, not through the clothing, of the 
genitalia of another person who has not attained the age of 16 years 
with an intent to abuse, humiliate, harass, degrade, or arouse or 
gratify the sexual desire of any person.''
    \26\  18 U.S.C. Sec.  2246(3) defines ``sexual act'' as: ``the 
intentional touching, either directly or through the clothing, of the 
genitalia, anus, groin, breast, inner thigh, or buttocks of any person 
with an intent to abuse, humiliate, harass, degrade, or arouse or 
gratify the sexual desire of any person.''
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          9. Finally, the bill requires the Department of 
        Justice and the Federal Communications Commission to 
        post on their Web sites information necessary to inform 
        the public of the meaning of the term ``material that 
        is harmful to minors.''

                            Estimated Costs

  In accordance with paragraph 11(a) of rule XXVI of the 
Standing Rules of the Senate and section 403 of the 
Congressional Budget Act of 1974, the Committee provides the 
following cost estimate, prepared by the Congressional Budget 
Office:

       [Insert CBO letter, attached as page(s) ---- through ----]

                      Regulatory Impact Statement

    In accordance with paragraph 11(b) of rule XXVI of the 
Standing Rules of the Senate, the Committee provides the 
following evaluation of the regulatory impact of the 
legislation, as reported:

                       number of persons covered

  The legislation creates a requirement that those engaged in 
the commercial distribution of material harmful to minors on 
the Web restrict access to such material by minors under 17 
years of age. The legislation creates no regulatory oversight. 
In fact, S. 1482 expressly prohibits the Federal Communications 
Commission from exercising regulatory authority over Web 
content under the bill.
  Section 1(e)(5) establishes several affirmative defenses to 
prosecution for those engaged in such commercial activity on 
the Web. These defenses are that the defendant restricted 
access by means of requiring use of a verified credit card, 
debit account, adult access code, or adult personal 
identification number, or in accordance with such other 
procedures as the Commission may prescribe.
  As previously established the technological requirements 
established under this section are standard throughout the 
commercial pornography industry on the Web. As such, the 
legislation does not create a new regulatory requirement. 
Rather, it requires the content provider to recast their 
message, placing material harmful to minors on the other side 
of the pre-existing verification technology. As such, the 
number of persons affected by this legislation is nominal.

                            economic impact

  As stated, the adult verification system (AVS) requirements 
under this bill are standard throughout the commercial 
pornography industry on the Web. AVS services are generally 
provided free-of-charge to the Web site operator. In fact, the 
operator is often paid a referral fee for clients he refers to 
the AVS provider. This creates a revenue center for the 
operator. Thus, there is no negative economic impact on the 
commercial content provider.
  The scope of the legislation is limited to commercial Web 
sites. Any customer utilizing the site is currently required to 
utilize an AVS service in order to participate in an economic 
transaction on the site. Therefore, the legislation poses no 
new economic burden on the consumer.

                                privacy

  The AVS system procedures established as affirmative defenses 
to prosecution under the legislation do require the customer to 
provide basic personal information necessary to establish their 
age. However, as stated, these procedures are the status quo on 
the Web. As such, the legislation will not present any new 
threat to privacy.

                               paperwork

  The legislation creates no paperwork requirement.

                      Section-By-Section Analysis

SECTION 1. PROHIBITION ON COMMERCIAL DISTRIBUTION ON THE WORLD WIDE WEB 
                    OF MATERIAL THAT IS HARMFUL TO MINORS.

  This section, which is the only section of the bill, adds a 
new subsection (e) to section 223 of the Communications Act of 
1934.
  (1) Subsection (e)(1) establishes the requirements under the 
bill, requiring that ``whoever, through interstate or foreign 
commerce in or through the World Wide Web, is engaged in the 
business of the commercial distribution of material that is 
harmful to minors shall restrict access to such material by 
persons under 17 years of age.''
  The term ``engaged in the business'' is assigned a specific 
definition in 18 U.S.C. Sec.  1466(b). \27\  The Committee 
intends that this term be interpreted as having the same 
meaning, as applicable to the World Wide Web, under S. 1482, 
substituting the term ``material that is harmful to minors'' 
for the term ``obscene matter.'' As such, anyone engaged in the 
business of commercial distribution of material that is harmful 
to minors is any person who sells or transfers or offers to 
sell or transfer material that is harmful to minors, devotes 
time, attention, or labor to such activities, as a regular 
course of trade or business, with the objective of earning a 
profit, although it is not necessary that the person make a 
profit or that the selling, or transferring, or offering to 
sell or transfer such material be the person's sole or 
principal business or source of income. Finally, the Committee 
intends that the above described activities be interpreted as 
to require the defendant to be knowingly engaged in such 
activities, with scienter of the overall character and sexually 
explicit nature of the material.
---------------------------------------------------------------------------
    \27\  18 U.S.C. Sec.  1466(b) defines ``engaged in the business'' 
to mean: ``that the person who sells or transfers or offers to sell or 
transfer obscene matter devotes time, attention, or labor to such 
activities, as a regular course of trade or business, with the 
objective of earning a profit, although it is not necessary that the 
person make a profit or that the selling or transferring or offering to 
sell or transfer such material be the person's sole or principal 
business or source of income . . . .''
---------------------------------------------------------------------------
  By limiting the scope of the bill to only commercial 
activity, the bill is brought into line with the previously 
outlined Supreme Court discussion in Reno v. ACLU of the 
contrast between the CDA and the New York statute upheld in 
Ginsberg v. New York.
  The term ``minor'' is established as persons under 17 years 
of age. Again, by defining a minor as someone under 17 years of 
age, the bill is brought into line with the Court's opinion in 
Reno v. ACLU to exclude the typical college freshman.
  (2) The fines and penalties levels under S. 1482 are 
identical to those already contained under section 223(b)(4) 
and (b)(5)(A).
  Persons may be fined not more than $50,000, imprisoned not 
more than six months, or both. The bill further establishes 
that whoever is found to have intentionally violated the 
requirements of new subsection (e)(1) may be fined up to 
$50,000 for each violation, with each day of violation 
constituting a separate violation. In addition, the bill 
establishes a limit of $50,000 in civil penalties, with each 
day of violation constituting a separate violation.
  (3) The bill establishes an affirmative defense to 
prosecution under the subsection if the defendant has 
restricted access to material harmful to minors under 17 years 
of age by requiring use of a verified credit card, debit 
account, adult access code, or adult personal identification 
number, or in accordance with procedures as prescribed by the 
Commission.
  As outlined previously, the Supreme Court, in its ruling 
against the CDA, acknowledged the technical feasibility of the 
above measures on the Web. Further, the Court acknowledged the 
economic feasibility for commercial content providers. What is 
more, it has been established that these AVS measures are 
generally provided, for little or no charge, to the content 
provider. The content provider is further paid commissions for 
referrals by the AVS operator. In addition, evidence shows that 
these AVS services present no real obstacle for adult users. 
The requirements under this bill are virtually identical to 
those ruled constitutional under the dial-a-porn statutes. 
Since a commercial pornographer can take a credit card or PIN 
from an adult to sell access to thousands of hard and soft core 
pornographic images, then they can take the card or PIN before 
showing the free teaser material to minors who seek or stumble 
onto those Web sites.
  The bill accounts for the dynamic and evolving nature of the 
medium by providing that the Commission may prescribe measures 
that would serve as additional defenses to prosecution. The 
Committee anticipates that, as Web technology evolves, and new 
and more effective means of restricting access to pornographic 
material by minors are developed, the Commission may prescribe 
regulations that incorporate these new technologies. This 
provision gives the defenses a ``living'' quality.
  (4) The bill establishes a definition of ``material that is 
harmful to minors'' that mirrors the New York statute upheld in 
Ginsberg v. New York, as upheld for the States since Miller v. 
California. \28\  The definition is, in fact, a three prong 
test designed to determine material ``obscene as to minors.'' 
It means any communication, picture, image, graphic image file, 
article, recording, writing, or other matter that: (1) taken as 
a whole and with respect to minors, appeals to the prurient 
interest in nudity, sex, or excretion; (2) depicts, describes, 
or represents sexual acts or activities, in a patently 
offensive way with respect to what is suitable to minors; (3) 
and lacks serious literary, artistic, political, or scientific 
value. On this third prong, the Committee intends that the 
material be taken as a whole and be considered in the context 
of serious value as to minors.
---------------------------------------------------------------------------
    \28\  413 U.S. 15, 24-25 (1973). This decision established the 
three prong test for adult ``obscenity'' and thereby serves to modify 
some of the terms contained in the harmful to minors test.
---------------------------------------------------------------------------
  This definition ensures that the bill may not be construed as 
to restrict access to public health information, art, 
literature, and political information.
  (5) As previously discussed, the terms ``sexual act'' and 
``sexual contact'' are given the same meanings assigned to them 
under 18 U.S.C. 2246. These definitions have been adopted to 
provide clarity as to the meaning of the material covered under 
the new subsection (e), as well as to provide definitions with 
which the courts are familiar.
  (6) Subsection (b) of section 1 of the bill directs the 
Attorney General, in the case of the Department of Justice, and 
the Federal Communications Commission, each to make available 
on their respective Web sites information necessary to inform 
the public of the meaning of the term ``material that is 
harmful to minors.'' This provision is designed to ensure that 
there is adequate information available to the public regarding 
the meaning of this term. By posting this information on the 
Web, it will be universally available with no cost to the user.

CONCLUSION

  S. 1482 is narrowly tailored to restrict children's access to 
material that is harmful to minors, and at the same time, it 
protects the First Amendment rights of adults to view such 
material. The means of restricting access established under the 
bill are both technically and economically feasible for the 
commercial content provider on the Web, and present no 
meaningful hurdle for the potential adult consumer. The Supreme 
Court has repeatedly affirmed the compelling governmental 
interest in protecting the physical and psychological welfare 
of children. Further, the Court has repeatedly upheld as 
constitutional narrowly tailored statutes designed to restrict 
the commercial distribution of pornography to minors. Equally, 
it is an established precedent that it is the responsibility of 
the content provider to restrict access by minors to 
pornographic material, even where voluntary measures are 
available. For example, in Dial Information Services, the Court 
upheld the requirement that the ``speaker'' of indecent 
telephone speech bear the burden of keeping his speech away 
from children, despite the existence of commercially available 
blocking devices for the home.

                        Changes in Existing Law

  In compliance with paragraph 12 of rule XXVI of the Standing 
Rules of the Senate, 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 material is printed 
in italic, existing law in which no change is proposed is shown 
in roman):

SEC. 223. OBSCENE OR HARASSING TELEPHONE CALLS IN THE DISTRICT OF 
                    COLUMBIA OR IN INTERSTATE OR FOREIGN 
                    COMMUNICATIONS.

    (a) Whoever--
            (1) in interstate or foreign communications--
                    (A) by means of a telecommunications device 
                knowingly--
                            (i) makes, creates, or solicits, 
                        and
                            (ii) initiates the transmission of,
                any comment, request, suggestion, proposal, 
                image, or other communication which is obscene, 
                lewd, lascivious, filthy, or indecent, with 
                intent to annoy, abuse, threaten, or harass 
                another person;
                    (B) by means of a telecommunications device 
                knowingly--
                            (i) makes, creates, or solicits, 
                        and
                            (ii) initiates the transmission of,
                any comment, request, suggestion, proposal, 
                image, or other communication which is obscene 
                or indecent, knowing that the recipient of the 
                communication is under 18 years of age, 
                regardless of whether the maker of such 
                communication placed the call or initiated the 
                communication;
                    (C) makes a telephone call or utilizes a 
                telecommunications device, whether or not 
                conversation or communication ensues, without 
                disclosing his identity and with intent to 
                annoy, abuse, threaten, or harass any person at 
                the called number or who receives the 
                communications;
                    (D) makes or causes the telephone of 
                another repeatedly or continuously to ring, 
                with intent to harass any person at the called 
                number; or
                    (E) makes repeated telephone calls or 
                repeatedly initiates communication with a 
                telecommunications device, during which 
                conversation or communication ensues, solely to 
                harass any person at the called number or who 
                receives the communication; or
            (2) knowingly permits any telecommunications 
        facility under his control to be used for any activity 
        prohibited by paragraph (1) with the intent that it be 
        used for such activity,
shall be fined under title 18, United States Code, or 
imprisoned not more than two years, or both.
    (b)(1) Whoever knowingly--
            (A) within the United States, by means of 
        telephone, makes (directly or by recording device) any 
        obscene communication for commercial purposes to any 
        person, regardless of whether the maker of such 
        communication placed the call; or
            (B) permits any telephone facility under such 
        person's control to be used for an activity prohibited 
        by subparagraph (A),
shall be fined in accordance with title 18, United States Code, 
or imprisoned not more than two years, or both.
    (2) Whoever knowingly--
            (A) within the United States, by means of 
        telephone, makes (directly or by recording device) any 
        indecent communication for commercial purposes which is 
        available to any person under 18 years of age or to any 
        other person without that person's consent, regardless 
        of whether the maker of such communication placed the 
        call; or
            (B) permits any telephone facility under such 
        person's control to be used for an activity prohibited 
        by subparagraph (A), shall be fined not more than 
        $50,000 or imprisoned not more than six months, or 
        both.
    (3) It is a defense to prosecution under paragraph (2) of 
this subsection that the defendant restricted access to the 
prohibited communication to persons 18 years of age or older in 
accordance with subsection (c) of this section and with such 
procedures as the Commission may prescribe by regulation.
    (4) In addition to the penalties under paragraph (1), 
whoever, within the United States, intentionally violates 
paragraph (1) or (2) 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.
    (5)(A) In addition to the penalties under paragraphs (1), 
(2), and (5), whoever, within the United States, violates 
paragraph (1) or (2) shall be subject to a civil fine of not 
more than $50,000 for each violation. For purposes of this 
paragraph, each day of violation shall constitute a separate 
violation.
    (B) A fine under this paragraph may be assessed either--
            (i) by a court, pursuant to civil action by the 
        Commission or any attorney employed by the Commission 
        who is designated by the Commission for such purposes, 
        or
            (ii) by the Commission after appropriate 
        administrative proceedings.
    (6) The Attorney General may bring a suit in the 
appropriate district court of the United States to enjoin any 
act or practice which violates paragraph (1) or (2). An 
injunction may be granted in accordance with the Federal Rules 
of Civil Procedure.
    (c)(1) A common carrier within the District of Columbia or 
within any State, or in interstate or foreign commerce, shall 
not, to the extent technically feasible, provide access to a 
communication specified in subsection (b) from the telephone of 
any subscriber who has not previously requested in writing the 
carrier to provide access to such communication if the carrier 
collects from subscribers an identifiable charge for such 
communication that the carrier remits, in whole or in part, to 
the provider of such communication.
    (2) Except as provided in paragraph (3), no cause of action 
may be brought in any court or administrative agency against 
any common carrier, or any of its affiliates, including their 
officers, directors, employees, agents, or authorized 
representatives on account of--
            (A) any action which the carrier demonstrates was 
        taken in good faith to restrict access pursuant to 
        paragraph (1) of this subsection; or
            (B) any access permitted--
                    (i) in good faith reliance upon the lack of 
                any representation by a provider of 
                communications that communications provided by 
                that provider are communications specified in 
                subsection (b), or
                    (ii) because a specific representation by 
                the provider did not allow the carrier, acting 
                in good faith, a sufficient period to restrict 
                access to communications described in 
                subsection (b).
    (3) Notwithstanding paragraph (2) of this subsection, a 
provider of communications services to which subscribers are 
denied access pursuant to paragraph (1) of this subsection may 
bring an action for a declaratory judgment or similar action in 
a court. Any such action shall be limited to the question of 
whether the communications which the provider seeks to provide 
fall within the category of communications to which the carrier 
will provide access only to subscribers who have previously 
requested such access.
    (d) Whoever--
            (1) in interstate or foreign communications 
        knowingly--
                    (A) uses an interactive computer service to 
                send to a specific person or persons under 18 
                years of age, or
                    (B) uses any interactive computer service 
                to display in a manner available to a person 
                under 18 years of age,
        any comment, request, suggestion, proposal, image, or 
        other communication that, in context, depicts or 
        describes, in terms patently offensive as measured by 
        contemporary community standards, sexual or excretory 
        activities or organs, regardless of whether the user of 
        such service placed the call or initiated the 
        communication; or
            (2) knowingly permits any telecommunications 
        facility under such person's control to be used for an 
        activity prohibited by paragraph (1) with the intent 
        that it be used for such activity,
shall be fined under title 18, United States Code, or 
imprisoned not more than two years, or both.
    (e)(1) Whoever in interstate or foreign commerce in or 
through the World Wide Web is engaged in the business of the 
commercial distribution of material that is harmful to minors 
shall restrict access to such material by persons under 17 
years of age.
    (2) Any person who violates paragraph (1) shall be fined 
not more than $50,000, imprisoned not more than six months, or 
both.
    (3) In addition to the penalties under paragraph (2), 
whoever intentionally violates paragraph (1) 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.
    (4) In addition to the penalties under paragraphs (2) and 
(3), whoever violates paragraph (1) shall be subject to a civil 
fine of not more than $50,000 for each violation. For purposes 
of this paragraph, each day of violation shall constitute a 
separate violation.
    (5) It is an affirmative defense to prosecution under this 
subsection that the defendant restricted access to material 
that is harmful to minors by persons under 17 years of age by 
requiring use of a verified credit card, debit account, adult 
access code, or adult personal identification number or in 
accordance with such other procedures as the Commission may 
prescribe.
    (6) This subsection may not be construed to authorize the 
Commission to regulate in any manner the content of any 
information provided on the World Wide Web.
    (7) For purposes of this subsection:
            (A) 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--
                    (i) taken as a whole and with respect to 
                minors, appeals to a prurient interest in 
                nudity, sex, or excretion;
                    (ii) depicts, describes, or represents, in 
                a patently offensive way with respect to what 
                is suitable for minors, an actual or simulated 
                sexual act or sexual contact, actual or 
                simulated normal or perverted sexual acts, or a 
                lewd exhibition of the genitals; and
                    (iii) lacks serious literary, artistic, 
                political, or scientific value.
            (B) The terms ``sexual act'' and ``sexual contact'' 
        have the meanings assigned such terms in section 2246 
        of title 18, United States Code.
    [(e)] (f) In addition to any other defenses available by 
law:
            (1) No person shall be held to have violated 
        subsection (a) or (d) solely for providing access or 
        connection to or from a facility, system, or network 
        not under that person's control, including 
        transmission, downloading, intermediate storage, access 
        software, or other related capabilities that are 
        incidental to providing such access or connection that 
        does not include the creation of the content of the 
        communication.
            (2) The defenses provided by paragraph (1) of this 
        subsection shall not be applicable to a person who is a 
        conspirator with an entity actively involved in the 
        creation or knowing distribution of communications that 
        violate this section, or who knowingly advertises the 
        availability of such communications.
            (3) The defenses provided in paragraph (1) of this 
        subsection shall not be applicable to a person who 
        provides access or connection to a facility, system, or 
        network engaged in the violation of this section that 
        is owned or controlled by such person.
            (4) No employer shall be held liable under this 
        section for the actions of an employee or agent unless 
        the employee's or agent's conduct is within the scope 
        of his or her employment or agency and the employer (A) 
        having knowledge of such conduct, authorizes or 
        ratifies such conduct, or (B) recklessly disregards 
        such conduct.
            (5) It is a defense to a prosecution under 
        subsection (a)(1)(B) or (d), or under subsection (a)(2) 
        with respect to the use of a facility for an activity 
        under subsection (a)(1)(B) that a person--
                    (A) has taken, in good faith, reasonable, 
                effective, and appropriate actions under the 
                circumstances to restrict or prevent access by 
                minors to a communication specified in such 
                subsections, which may involve any appropriate 
                measures to restrict minors from such 
                communications, including any method which is 
                feasible under available technology; or
                    (B) has restricted access to such 
                communication by requiring use of a verified 
                credit card, debit account, adult access code, 
                or adult personal identification number.
            (6) The Commission may describe measures which are 
        reasonable, effective, and appropriate to restrict 
        access to prohibited communications under subsection 
        (d). Nothing in this section authorizes the Commission 
        to enforce, or is intended to provide the Commission 
        with the authority to approve, sanction, or permit, the 
        use of such measures. The Commission shall have no 
        enforcement authority over the failure to utilize such 
        measures. The Commission shall not endorse specific 
        products relating to such measures. The use of such 
        measures shall be admitted as evidence of good faith 
        efforts for purposes of paragraph (5) in any action 
        arising under subsection (d). Nothing in this section 
        shall be construed to treat interactive computer 
        services as common carriers or telecommunications 
        carriers.
    [(f)(1)] (g)(1) 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 section 
or otherwise to restrict or prevent the transmission of, or 
access to, a communication specified in this section.
    (2) No State or local government may impose any liability 
for commercial activities or actions by commercial entities, 
nonprofit libraries, or institutions of higher education in 
connection with an activity or action described in subsection 
(a)(2) or (d) that is inconsistent with the treatment of those 
activities or actions under this section: Provided, however, 
That nothing herein shall preclude any State or local 
government from enacting and enforcing complementary oversight, 
liability, and regulatory systems, procedures, and 
requirements, so long as such systems, procedures, and 
requirements govern only intrastate services and do not result 
in the imposition of inconsistent rights, duties or obligations 
on the provision of interstate services. Nothing in this 
subsection shall preclude any State or local government from 
governing conduct not covered by this section.
    [(g)] (h) Nothing in subsection (a), (d), [(e), or (f)] 
(f), or (g) or in the defenses to prosecution under subsection 
(a) or (d) shall be construed to affect or limit the 
application or enforcement of any other Federal law.
    [(h)] (i) For purposes of this section--
            (1) The use of the term ``telecommunications 
        device'' in this section--
                    (A) shall not impose new obligations on 
                broadcasting station licensees and cable 
                operators covered by obscenity and indecency 
                provisions elsewhere in this Act; and
                    (B) does not include an interactive 
                computer service.
            (2) The term ``interactive computer service'' has 
        the meaning provided in section 230(e)(2).
            (3) The term ``access software'' means software 
        (including client or server software) or enabling tools 
        that do not create or provide the content of the 
        communication but that allow a user to do any one or 
        more of the following:
                    (A) filter, screen, allow, or disallow 
                content;
                    (B) pick, choose, analyze, or digest 
                content; or
                    (C) transmit, receive, display, forward, 
                cache, search, subset, organize, reorganize, or 
                translate content.
            (4) The term ``institution of higher education'' 
        has the meaning provided in section 1201 of the Higher 
        Education Act of 1965 (20 U.S.C. 1141).
            (5) The term ``library'' means a library eligible 
        for participation in State-based plans for funds under 
        title III of the Library Services and Construction Act 
        (20 U.S.C. 355e et seq.).

                                
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