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4 Legal and Regulatory Issues A variety of legal issues come into play in efforts to protect children from inappropriate sexually explicit material on the Internet. The U.S. Constitution, state and federal statutes, and regulations issued by execu- tive branch agencies all play important roles. In addition, the threat of law and regulation can also push the regulated parties into taking un- mandated actions that they would not otherwise take. 4.1 THE FIRST AMENDMENT 4.1.1 First Principles The First Amendment states that "Congress shall make no law abridg- ing the freedom of speech or of the press." Through a complex process of constitutional amendment and judicial interpretation, over the past 150 years the Constitution has come to mean that "government shall make no law abridging the freedom of speech" that is, the First Amendment re- stricts the actions not only of the Congress, but also of the President, the State of Montana, the city of Pittsburgh, the University of Nebraska, and police officers in Decatur. On the other hand, like other provisions of the Constitution, the First Amendment restricts only the government. It does not restrict private individuals. Thus, a private individual cannot be said to unconstitutionally "abridge" another private individual's "freedom of speech and press." Only the government, or its agents, can be charged with violating the First Amendment. 84

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LEGAL AND REGULATORY ISSUES 85 To give meaning to the First Amendment, scholars have identified three primary reasons for giving constitutional protection to free expression. First, freedom of speech and press is a necessary corollary of self- governance. In a self-governing society, it is the citizens and not the government who ultimately must decide on issues of public policy. To exercise this responsibility effectively, citizens must have access to the entire spectrum of information, opinions, and ideas, without interference from the government. Second, in the words of Justice Oliver Wendell Holmes, "The best test of truth is the power of the thought to get itself accepted in the competi- tion of the market." The idea here is that in all areas of decision making, reaching far beyond the political, and including such questions as whether to marry, or whether to have children, or whether to go to college the best way of reaching the best decisions for both the individual and the community is to allow all ideas and opinions to contest in a free and open encounter, without interference from the government. Third, freedom of expression is guaranteed as a means of ensuring individual self-fulfillment. The notion here is that, as, human beings, we have a fundamental need to speak our minds, to express our emotions and desires, and to create and to learn from one another. The constitu- tional protection of free expression is an essential adjunct of ensuring our common humanity and the opportunity for individual development. These three bases for providing constitutional protection to the free- dom of speech and press are not always consistent with one another and sometimes point in different directions. But, in very general terms, they state the primary values that the First Amendment is thought to serve. Building on these values, the Supreme Court has identified several very basic principles that have shaped its interpretation and application of the First Amendment. Three such principles are most directly relevant to the issues of interest to this committee: First, the Supreme Court has held that the government cannot con- stitutionally restrict speech because the speech advocates ideas, opinions, or values that the government (or perhaps more accurately the majority of citizens) believe to be "wrong" or "improper." Thus, for example, the government cannot constitutionally prohibit speech calling for the legal repeal of the draft on the ground that such expression might persuade the public to vote unwisely to end the draft, even if the government pro- foundly believes that the draft is a good thing and that it is essential to our national welfare. The explanation here is simple: under the First Amend- ment, it is for the citizens themselves to make such decisions, after hear- ing all the arguments; it is not for the government or for the majority- to prevent such decisions by shutting off debate.

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86 YOUTH, PORNOGRAPHY, AND THE INTERNET Second, the Court has generally held that, except in the most ex- traordinary circumstances, the government cannot constitutionally restrict speech because the ideas expressed might cause readers or listeners to engage in unlawful or otherwise socially undesirable conduct. For ex- ample, the government cannot prohibit opposition to the draft on the ground that such expression might cause others to refuse induction or even to blow up induction centers. Indeed, although the Court has often said that such speech can be restricted if it creates a "clear and present danger" of grave harm, in fact the Court has not upheld a governmental effort to restrict speech on this basis for some 50 years. Third, the Court has generally held that the second principle is inapplicable to specific categories of speech that the Court has defined as having only "low" First Amendment value. That is, as the Court ex- plained some 60 years agog There are certain well defined and narrowly limited classes of speech, [such as the obscene and the libelous, that] are no essential part of any exposition of ideas and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. For these categories of expression, which include not only the ob- scene and the libelous, but also fighting words, commercial advertising, express incitement, and threats, the Court has held that some forms of government regulation are permissible. These are the three basic principles that most directly informed the committee's work. They are not exhaustive they do not deal with a host of other First Amendment issues that are largely beyond the bounds of the committee's concern. But they helped frame most of the questions the committee considered concerning the regulation of sexually explicit ma- terials on the Internet. 4.1.2 The First Amendment, Pornography, and Obscenity How does the concept of "pornography" square with the First Amendment? It is important to note that there is a potentially confusing issue of terminology. Historically, the term "pornography" has been used in at least four different ways. First, the terms "obscenity" and "pornog- raphy" traditionally were used interchangeably. Second, beginning about 20 years ago, the term "pornography" began to be used by feminist schol- ars to refer to a concept quite distinct from the legal concept of "obscen- ity"; this feminist concept focused specifically on sexually explicit mate- ~Chaplinsky v. New Hampshire, 315 U.S. 568 (1942~.

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LEGAL AND REGULATORY ISSUES 87 rial harmful to women. Third, there is the concept of child pornography, which deals with a very specific problem involving the abuse of children in order to make certain kinds of sexually explicit material. Fourth, the term "pornography" is often used as a catch-all synonym for the generic idea of "sexually explicit material," especially that intended to create sexual arousal. For the sake of clarity, it is important to note that the term "pornography" does not have a legal meaning under the First Amend- ment. To avoid confusion, the committee therefore focuses on the three distinct concepts of "obscenity," "child pornography," and "sexually ex- plicit material." How does the concept of "obscenity" square with the First Amend- ment? Throughout the first half of the 20th century, it was generally assumed that the First Amendment posed no barrier to the suppression of obscene expression. The assumption was that obscene expression is of only "low" First Amendment value and can therefore be regulated more readily than other forms of expression. The Supreme Court did not have occasion to rule on the constitution- ality of anti-obscenity legislation until its 1957 decision in Roth v. United States.2 The Court reasoned as follows: All ideas having even the slightest redeeming social importance unor- thodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion have the full protection of the [First Amendment]. But implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance. Indeed, it is apparent that obscenity, like libel, is outside the protection intended for speech and press. Accordingly, obscene material may be suppressed without proof that it will create a clear and present danger of antisocial conduct. "However, sex and obscenity," the Court continued, are not synonymous. Obscene material is material which deals with sex in a manner appealing to prurient interest. The portrayal of sex, for example in art, literature, and scientific works, is not itself sufficient reason to deny material constitutional protection. Sex, a great and mys- terious motivating force in human life, has indisputably been a subject of absorbing interest to humankind though the ages; it is one of the vital problems of human interest and public concern. It is therefore essential that the standards for judging obscenity safeguard the protection of free- dom of speech and press for material which does not treat sex in a man- ner appealing to prurient interest. The proper test is whether to the average person, applying contemporary community standards, the dom- 2354 U.S- 476 (1957~-

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88 YOUTH, PORNOGRAPHY, AND THE INTERNET inant theme of the material taken as a whole appeals to the prurient interest. Thus, the specific holding of Roth was that if material meets the defi- nition of obscenity, it is not protected by the First Amendment and may thus be restricted without any showing that its sale, exhibition, or distri- bution will cause any particular harm to any particular person. For the next 17 years, the Court wrestled with the problem of refining the Roth definition of obscenity, which proved difficult because of its inherent subjectivity. It was in this era that Justice Potter Stewart offered his famous quip that "I can't define it [obscenity], but I know it when I see it." As Justice Stewart understood, this observation did not bode well for having a clear and consistently applied constitutional standard. In 1973, the Court revisited the question. In Miller v. California,3 the Court reaffirmed the idea that obscene expression is of such "low" consti- tutional value that it is outside the protection of the First Amendment. However, the Court redefined the concept as having three components. Miller concluded that, to be obscene, a work, taken as a whole, and judged by contemporary community standards, must appeal to the prurient in- terest in sex, must depict sexual conduct in a patently offensive manner, and must lack serious literary, artistic, political, and scientific value. This definition has now been in place for the past quarter-century. Under this regime, and as community standards have tended to evolve toward a greater degree of acceptance of sexually oriented expression, it is generally thought today that only the most hard-core forms of sexually explicit material are sufficient to satisfy the constitutional definition of obscenity. As of this writing (May 2002), prosecutions for obscenity are rare though not unheard of at both the federal and local level. Nonetheless, it remains the case that the government, consistent with the First Amendment as it has been interpreted, may prohibit the sale, exhibition, or distribution of obscene material, and there is no Constitu- tional obstacle to a more aggressive policy of prosecuting obscenity on the Internet, subject to the caveats below. One caveat is the narrowness of the definition of obscenity, as de- scribed above. Moreover, enforcing an anti-obscenity prohibition on the Internet presents three additional problems. First, because the definition of obscenity turns on contemporary community standards, there is con- siderable uncertainty about how one defines the relevant "community" for purposes of the Internet. For example, if X creates a sexually explicit Web site in Amsterdam that Y views in St. Louis, what is the relevant 3413 u.s. 15 (1973).

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LEGAL AND REGULATORY ISSUES 89 community Amsterdam? St. Louis? Is the "Internet" itself a "commu- nity" for these purposes?4 Second, there is often a tricky problem of assigning legal responsibil- ity. For example, suppose X makes a threat over the telephone. Can AT&T be held responsible for this criminal use of its phone line? Because AT&T is legally a "common carrier," the answer is no. However, the same type of question can be asked about obscenity on the Internet. If X puts obscene material on a Web site that Y views through, say, America Online, can AOL be held legally responsible for X's conduct? For Inter- net service providers, the law is evolving in this area.5 Third, content transmitted through the Internet presents the issue of what counts as "work as a whole." In the physical world, the work as a whole would include a book, film, or magazine. In an online environ- ment, is the "work as a whole" the Web page on which an image resides, or the entire Web site of which it is a part? No court cases have addressed this point to the best of the committee's knowledge. 4.1.3 The First Amendment and Protecting Children from Exposure to Sexually Explicit Material As already noted, even if obscenity can constitutionally be prohibited on the Internet, this does not solve the broader problem of the exposure of children to sexually explicit material because of the very narrow defini- tion of obscenity required by the Constitution. This raises the question of whether there are other steps the government can take, consistent with the First Amendment, to protect children from non-obscene, sexually ex- plicit material. ~ recognition of the special problems posed by the exposure of chil- dren to such material. the Sunreme Court has recognized the concept of r "variable obscenity." Thus, in its 1968 decision in Ginsberg v. New York,6 the Court recognized that the "power of the state to control the conduct of 4Indeed, one of the primary challenges posed by the Internet is to the traditional associa- tion of geographical co-location with the definition of community. To date, most construc- tions of "community" have, in practice, reduced to some kind of geographical delineation to identify the community in question. 5Some analysts argue, for example, that cyberspace calls for the creation of new law and legal institutions that apply specifically to it. See, for example, David R. Johnson and David G. Post, 1996, "Law and Borders The Rise of Law in Cyberspace," Stanford Law Review 48: 1367. Others challenge this view, arguing that it underestimates the potential of traditional legal tools and technology to resolve the multijurisdictional regulatory problems implied by cyberspace. See, for example, Jack L. Goldsmith, 1998, "Against Cyberanarchy," Univer- sity of Chicago Law Review 65(Fall): 1199. 6390 U.S. 629 (1968~.

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So YOUTH, PORNOGRAPHY, AND THE INTERNET children reaches beyond the scope of its authority over adults," that the claim of parents "to direct the rearing of their children is basic in the struc- ture of our society," and that the state "has an independent interest in the well-being of its youth." With these factors in mind, the Court held in Ginsberg that the government can constitutionally prohibit "the sale to mi- nors . . . of material defined to be obscene on the basis of its appeal to them whether or not it would be obscene to adults." In other words, the govern- ment can prohibit children from having access to certain types of sexually explicit material that it cannot constitutionally ban for adults. (Recent legis- lation (e.g., the COPA, discussed below) defined such speech as "harmful to minors." In this report, the phrase "obscene with respect to minors" or "obscene for minors" is used interchangeably with "harmful to minors.") Although this distinction compounds still further the problems of vague- ness and subjectivity inherent in the very concept of obscenity by now creating multiple definitions of obscenity it is also a useful tool, for it is the doctrine of variable obscenity that enables the government constitutionally to prohibit minors from buying, renting, or viewing certain sexually explicit movies, magazines, or books that would not be obscene for adults. The key limitation of this doctrine, however, is that it works best (perhaps only) in those situations in which it is possible to individuate the audience that is, to separate the children from the adults. Thus, the doctrine of variable obscenity works reasonably well for movie theaters, video rental shops, and book stores, but not for television and radio. For in those latter means of communication, it is not as easy to separate the children from the adults. And as the Supreme Court recognized in its 1957 decision in Butler v. Michigan,7 the government "may not reduce the adult population . . . to reading only what is fit for children." To understand this precept, it is useful to consider several recent decisions of the Supreme Court. In Sable Communications v. FCC,8 decided in 1989, the Court unanimously held unconstitutional a federal statute prohibiting "indecent" commercial telephone messages so-called "dial- a-porn" services. The Court said that if the government wants to protect children in this context, it must do so by technical means rather than by a total ban on the transmission of such messages, for although some limited numbers of children might be able to defeat these devices, a prohibition would have the impermissible effect of "limiting the content of adult telephone conversations to that which is suitable for children to hear." In Reno v. ACLU,9 decided in 1997, the Court unanimously held un- constitutional the Communications Decency Act of 1996, which prohib- 7352 u.s. 380 (i957~. 8492 u.s. ii5 (~989~. 952i u.s. 844 (~997~.

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LEGAL AND REGULATORY ISSUES 91 ited any person from making any "indecent" communication over the Internet with knowledge that a recipient might be under the age of 18. "Indecent" was defined in the statute as expression that "depicts or de- scribes, in terms patently offensive as measured by contemporary com- munity standards, sexual or excretory activities or organs." Although acknowledging the importance of the government's inter- est "in protecting children from harmful materials," the Court reaffirmed that that "interest does not justify an unnecessarily broad suppression of speech addressed to adults," and that the government "may not reduce the adult population to only what is fit for children." The Court suggested that the government should explore less speech- restrictive means of serving this interest, such as requiring indecent mate- rial to be "tagged" in a way that facilitates parental control of material entering the home, exempting from regulation indecent messages with artistic or educational value, and perhaps regulating only some portions of the Internet such as commercial Web sites while leaving unregu- lated non-commercial uses of the Internet, such as chat rooms. The lesson of these decisions is this: outside the realm of speech that is constitutionally obscene, the government may not prohibit "indecent" or "offensive" or "sexually explicit" or "profane" speech on the Internet in order to protect children, unless the speech is obscene with respect to minors and government regulation does not unduly interfere with the rights of adults to have access to such material. The challenge is thus to 10See also the following Supreme Court cases. In Cohen v. California, 403 U.S. 15 (1971), the Court rejected the idea that profanity could be analogized to obscenity as a form of "low-value" speech and dismissed the notion that such language, which can serve a useful role in public debate, can be prohibited merely because it is offensive to others. In FCC v. Pacifica Foundation, 438 U.S. 726 (1978), the Court upheld the constitutionality of a Federal Communications Commission order that a radio station had impermissibly broadcast inde- cent material when it broadcast in the middle of the day a satirical monologue that involved [the] "seven words you cannot say on the public airwaves." In doing so, the Court sug- gested some latitude for the regulation of offensive but non-obscene speech in order to shield children, even at some intrusion on what otherwise would be the rights of adults. In Erznoznik v. City of Jacksonville, 422 U.S. 205 (1975), the Court held that a city could not constitutionally prohibit drive-in movie theaters whose screens were visible to the public from exhibiting movies that contain nudity, even if the goal was to protect children from exposure to such scenes. In Denver Area v. FCC, 422 U.S. 205 (1996), the Court held that the FCC could not constitutionally require cable operators to segregate "indecent" program- ming on a single, blocked channel and to unblock that channel only on a subscriber's writ- ten request. In United States v. Playboy Entertainment, 529 U.S. 803 (2000), 120 S. Ct. 1878 (2000), the Court held unconstitutional a provision of the 1996 Federal Telecommunications Act that required cable operators who provide channels devoted "primarily to sexually- oriented programming" either to limit their transmission of such channels to between 10:00 p.m. and 6:00 a.m. or to "fully scramble" those channels so that they cannot even inadvert- ently "bleed through" to those households that do not want them.

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92 YOUTH, PORNOGRAPHY, AND THE INTERNET devise mechanisms that reconcile these two powerfully competing inter- ests, where the Court has made clear the strong First Amendment pre- sumption that the government's legitimate interests in protecting chil- dren will have to yield to the constitutional interests of adults, to the extent that those interests cannot otherwise be reconciled. 4.1.4 The First Amendment Rights of Minors Because the First Amendment relates only to government action, chil- dren have no First Amendment rights against their parents. Thus, if a parent prevents a child from reading a book or watching a movie, the child cannot sue the parent for violating the First Amendment. But mi- nors "are 'persons' under our Constitution.... possessed of fundamental rights which the State must respect''ll and "are entitled to a significant measure of First Amendment protection.''l2 Moreover, a constitutional issue can arise if the government intrudes in the parent-child relationship. For example, if the government passed a law prohibiting any person from permitting a minor to view a movie that includes nudity without the written permission of the minor's parent, a court would likely hold such a law unconstitutional, at least as applied to older minors, and especially if the nudity were not further qualified. (Note, however, that materials deemed to be illegal that is, to be child pornography or obscenity do not enjoy First Amendment protection, either for adults or for minors. Thus, even if a minor has permission from his/her parents to obtain child pornography or obscenity, he or she does not have a First Amendment right to do so.) It is important to note that the constitutionality of any particular regu- lation of the speech rights of minors may turn on the age of the particular minor in question. Indeed, as this report discusses in Chapter 5, minors range from O to 18 years old, and there are large developmental differ- ences between an 8-year-old and a 17-year-old. The Supreme Court has held that "the strength of the Government's interest in protecting minors is not equally strong throughout the [age] coverage.''l3 The constitutional rights of minors, including their First Amendment rights, get stronger as they grow older. As the Court has said, "constitutional rights do not 1lTinker v. Des Moines Independent Community School District, 393 U.S. 503, 511 (1969~; see Planned Parenthood v. Casey, 505 U.S. 833, 899 (1992), parental consent statute must contain method by which minor can obtain abortion without parental consent; see In re Gault, 387 U.S. 1,13 (1967), minors' right to criminal due process. Erznoznik v. City of Jacksonville, 422 U.S. 205, 212-213 (1975) (citation omitted). 13Reno, 521 U.S. at 878 (using examples of 17-year-olds); American Booksellers Association v. Webb, 919 F.2d 1493, 1504-05 (llth Cir. 1990~; American Booksellers Association v. Virginia, 882 F.2d 125, 127 (4th Cir. 1989~.

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LEGAL AND REGULATORY ISSUES 93 mature and come into being magically only when one attains the state- defined age of majority,''l4 and these rights ripen at different times and in different contexts. The precise contours of the First Amendment rights of minors, even acknowledging that they may well vary with age and maturity, are uncer- tain. The Supreme Court has held that certain minors have constitutional rights in certain circumstances that trump a general deference to parental authority, for example, in the case of a mature minor seeking an abor- tionl5 or privacy rights about the use of contraception.l6 Further, it is arguable that mature minors have a First Amendment right to receive information relevant to the exercise of these substantive rights. Whether and in what circumstances a minor has a First Amendment right of access to adult-oriented entertainment Web sites remains an open question. But even if minors do not themselves have a constitutional right to access such material, the government cannot unduly burden the rights of adults to such material in order to keep it away from children. 4.1.5 The First Amendment and Child Pornography Another facet of protecting children concerns the issue of child por- nography. Here, the primary concern is not the exposure of children to sexually explicit material, but the use (or, possibly, the apparent use) of children to make such material. In New York v. Ferber,l7 the Supreme Court upheld the constitutionality of a state statute that prohibited any person from knowingly producing, promoting, directing, exhibiting, or selling any material depicting a "sexual performance" by a child under the age of 16. The statute defined "sexual performance" as any perfor- mance that includes "actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, sado-masochistic abuse, or lewd exhibition of the genitals." The Court explained that, like obscenity, child pornography is of only "low" First Amendment value and that the "use of children" in such materials "is harmful to the physi- 14Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 74 (1976), minors' right to abortion. 15Id. at 640-3; Planned Parenthood v. Casey, 505 U.S. 833, 899 (1992~; Lambert v. Wicklund, 520 U.S. 292 (1997~. 16See Carey v. Population Services International, 431 U.S. 678 (1977) (plurality opinion). Although Carey was a plurality opinion, the holding that teenagers have privacy rights regarding procreation commanded five votes. See 431 U.S. at 681 (plurality opinion) Qus- tice Brennan, joined by Justices Stewart, Marshall, and Blackmun); Id. at 693, 702 Qustice White, concurring) (agreeing with plurality in result and including "with respect to Part IV" in which plurality recognized privacy interests of minors in contraception). 17458 U.S. 747 (1982~.

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94 YOUTH, PORNOGRAPHY, AND THE INTERNET ological, emotional, and mental health of the child." The Court added that, unlike obscenity, child pornography does not have to meet all of the requirements of Miller. 4.1.6 The First Amendment in Public Libraries The general principles of the First Amendment are designed primar- ily for those circumstances in which the government attempts to regulate the free speech rights of individuals in the larger society. Those prin- ciples may apply differently in special contexts, such as public libraries and schools. In public libraries, for example, the government has limited resources. It cannot buy all books. It must therefore make choices. In making those choices, it inevitably must decide which books are most necessary and most appropriate for the particular collection. This gives the government, in the form of the library board or the librarian, the authority and the responsibility to make decisions based on content that it could not make in more general regulations of public discourse. For example, although the government cannot constitutionally prohibit all books on any subject but art history, it can constitutionally create a library dedicated only to art history. And although the government cannot con- stitutionally prohibit all books that are not appropriate for children, it can constitutionally create a library dedicated only to children's books. On the other hand, even a public library is not free to engage in "viewpoint discrimination." For example, in Board of Education of Island Trees Union Free School District v. Pico,~8 the members of a public school board of education decided to remove from the school library certain books, including Soul on Ice by Eldridge Cleaver and Slaughterhouse Five by Kurt Vonnegut, because they were "improper fare for children." The board members described the books as "anti-American, anti-Christian, anti-Semitic, and just plain filthy." The Supreme Court held that this action would violate the First Amendment if the intent of the board mem- bers was to deny "access to ideas" with which they "disagreed."~9 It should be noted that an important reason for granting a public library broad (but not absolute) discretion to decide which books to in- clude in its collection is the fact of limited resources. This fact is not present in the same way in the Internet context. To the contrary, in the Internet context, where filters may be at issue, it will generally cost more )8457 U.S. 853 (1982~. 19As a matter of legal precedent, Pico has specific relevance to public school libraries; however, the applicability of its logic to other settings such as public libraries has yet to be determined.

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104 YOUTH, PORNOGRAPHY, AND THE INTERNET Under CIPA, material is "harmful to minors" if taken as a whole and with respect to minors, [it] appeals to a prurient interest in nudity, sex, or excretion; depicts, describes or represents, in a patently offensive way with respect to what is suitable for minors, an actual or simulated normal or perverted sexual act, or a lewd exhibition of the genitals, and taken as a whole, lacks serious literary, artistic, polit- ical or scientific value to minors.43 The American Civil Liberties Union and the American Library Asso- ciation have both filed Suit to challenge CIPA on First Amendment grounds as the act is applied to libraries.44 Note added in proof: On May 31, 2002, a threejudge panel of the U.s. District Court for the Eastern District of Pennsylvania entered a final judgment declaring Sections 1712(a)~2) and 1721(b) of the Children's Internet Protection Act (i.e., the provisions that required libraries receiv- ing federal funds for Internet access to employ technology protection measures) to be facially invalid under the First Amendment and perma- nently enjoining the defendants from enforcing those provisions.45 AS of rune 13, it is unknown if the U.s. government will appeal the decision to the Supreme Court. 4.2.6 The Children's Online Privacy Protection Act The Children's Online Privacy Protection Act of 1998 (COPPA) pro- hibits the collection, maintenance, and use or disclosure46 of personal information47 from children under the age of 13 on commercial Web sites that are directed at children48 or if the operator has actual knowledge that 4347 U.S.C. 254(h)~7~(G) (2001~. 44Multnomah County Library v. United States. No. 01-CV-1322 (ED Pa. 2001~. Available online at . 45See . 46Disclosure of information means the release of personal information collected from a child in identifiable form for any purpose, except where such information is used for inter- nal purposes only and the operator does not disclose or use that information for any other purpose, or making personal information collected from a child publicly available in identi- fiable form. 47For purposes of COPPA, personal information is "individually identifiable information about an individual collected online, including: first and last name, a home or other physi- cal address, an e-mail address, a telephone number, a social security number, anything that the FTC determines permits the physical or online contacting of a specific individual, and information concerning the child or the parents of the child that the Web site collects online from the child and combines with any of the previously mentioned information." 48A Web site directed at children is a commercial Web site that is targeted to children or the portion of a commercial site that is targeted to children.

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LEGAL AND REGULATORY ISSUES 105 the child is under 13, if the information is collected without notice and without verifiable parental consent.49 COPPA provides that the site op- erator50 must allow the parent to refuse to permit the operator's further or continued use, maintenance, or collection of information at any time. It further provides that the site operator may not condition participation in a game, a prize offer, or other activity on a disclosure of information where the information requested is more than necessary to participate in the activity. To ensure the effectiveness of these prohibitions, COPPA authorizes the Federal Trade Commission (FTC) to enact regulations con- cerning the method and content of the notification provisions and its parental consent provisions. COPPA provides that a site that is directed at children and collects personal information, or any operator that knowingly collects informa- tion from a child, must provide notice on the Web site that discloses the type of information collected, how the operator uses the information col- lected, and the operator's disclosure practices. The FTC regulations adopted pursuant to COPPA require the operator to place the notice on the home page of the site, as well as at each area where personal informa- tion is collected.51 The FTC regulations further require that the notice be clearly and prominently displayed. A site that uses a link to the notice must ensure that the link is clearly distinguishable from other links. The FTC regula- tions also prescribe the necessary content of the notice, which must be clearly written and understandable (Box 4.2~. COPPA also requires the operator to obtain verifiable parental con- sent to the collection, maintenance, and use of personal information. Under COPPA, the operator must use "any reasonable effort" to ensure that a parent of a child receives notice of the operator's collection, mainte- nance, use, or disclosure of personal information and that a parent autho- rizes any collection, maintenance, use, or disclosure of his or her child's information before the information is collected from the child.52 The FTC has stated that, until April 2002, it will use a sliding scale to 49P.~. No. 105-277, Division C, Title XITI, 112 Stat. 2681, 15 U.S.C. 650 nt. The act amends 15 U.S.C. 41, et seq. 50For purposes of COPPA, a site operator is any person who operates a Web site and collects or maintains personal information from or about site visitors, or the person for whom the information is collected, if the site is operated for commercial purposes. 51How to Comply with the Children's Online Privacy Protection Rule, November 1999, avail- able online at . 52CoPPA provides exceptions to the requirement that the operator obtain verifiable pa- rental consent in certain circumstances.

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106 YOUTH, PORNOGRAPHY, AND THE INTERNET assess the measures used to obtain verifiable parental consent.53 Under the sliding-scale approach the required effectiveness of the method used depends upon the use that the operator makes of the information col- lected. If the information is only used internally for purposes such as marketing back to the child, the operator may use e-mail to obtain paren- tal consent, as long as the operator also takes additional steps to increase the likelihood that the parent has, in fact, provided consent. However, if the information is disclosed to third parties or made publicly available, a more reliable method must be used to obtain parental consent. A more reliable method includes such measures as getting a signed form from the parent via facsimile or mail, accepting and verifying a credit card num- 53How to Comply with the Children's Online Privacy Protection Rule, November 1999, avail- able online at .

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LEGAL AND REGULATORY ISSUES 107 her, taking calls from parents through a toll-free number, or accepting e- mails accompanied by a digital signature. COPPA also provides a safe harbor for Web site operators: an operator will be found to have satisfied the notice and the consent requirements if it is shown that the site imple- mented a set of self-regulatory guidelines issued by representatives of the marketing or online industries. 4.2.7 State Statutes All states prohibit the production, sale, or exhibition of obscenity. A typical state law on this subject would incorporate the Miller definition, as applied to the community standards of the state. To regulate the distribu- tion specifically to minors of sexually explicit material that does not meet the Miller test for obscenity, states have often used the phrase "harmful to minors," which derives from Ginsberg. For example, the California penal code Section 313 defines "harmful matter" as matter that, "taken as a whole, which to the average person, applying contemporary statewide standards, appeals to the prurient interest, and is matter which, taken as a whole, depicts or describes in a patently offensive way sexual conduct and which, taken as a whole, lacks serious literary, artistic, political, or scientific value for minors." For the remainder of this report, the term "harmful to minors" should be understood as meaning "obscene with respect to minors" (or equivalently, "obscene for minors"), as defined by the Supreme Court in Ginsberg. 4.2.8 Regulatory Efforts The Federal Trade Commission The Federal Trade Commission enforces the Federal Trade Commis- sion Act (15 U.S.C. 41-58) (the FTC Act), which prohibits deceptive or unfair acts or practices in commerce. A representation or practice is de- ceptive under the FTC Act if it is likely to mislead consumers acting reasonably under the circumstances and it is material, meaning that the representation or practice is likely to affect consumers' conduct or deci- sions with respect to the product or service at issue. An act or practice is unfair under the FTC Act if it causes or is likely to cause injury to consum- ers that is substantial, not outweighed by countervailing benefits to con- sumers or to competition, and not reasonably avoidable by consumers themselves. Practices within the adult entertainment industry may vio- late the FTC Act if they utilize deceptive or unfair methods that facilitate minors' access to adult content. In recent years, the FTC has brought eight law enforcement actions focusing on the deceptive or unfair use of

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108 YOUTH, PORNOGRAPHY, AND THE INTERNET new technology that has the effect of luring minors to sexually explicit material on the Internet.54 In one action, the FTC filed suit in September 1999 in the U.S. District Court for the Eastern District of Virginia against a number of companies for "pagejacking" and "mouse/rapping" in a way that exposed users not seeking it to sexually explicit material.55 Pagejacking refers to a practice in which almost-exact copies are made of innocuous Web pages, including all the metadata that informs search engines about the subject matter of the site. These new pages differ from the original pages only in that they redirect a user coming to the new page to another Web site containing sexually explicit, adult-oriented ma- terial. Using the metadata, the sham copy of a legitimate Web site would be registered in the databases of search engines along with the legitimate Web site itself, but any user clicking on a search-engine-generated link to the sham copy would be directed to the adult Web site. In this case, the defendants located overseas produced look-alike versions of U.S.-based Web sites that were indexed by search engines. This process diverted unsuspecting consumers, including minors, to a sequence of pornogra- phy sites from which they could not easily exit, essentially "trapping" them at the site. The defendants cloned as many as 25 million Web pages, including kids' game sites and movie review sites. The United States District Court for the Eastern District of Virginia granted a temporary injunction against these practices. Subsequently, one of the defendants settled out of court and agreed to refrain from undertaking such practices, and another was never located (though its actions have ceased). In a second case, the FTC also took action against the use of execut- able dialer programs that hijack consumers' modems and connect them to adult sites. Companies advertising "free" adult images disconnected con- sumers from their local Internet service without their knowledge and reconnected them to long-distance lines, resulting in enormous telephone bills. Consumers victimized by this scheme included a substantial num- ber of minors. The FTC obtained orders halting these schemes and pro- viding redress for financial injury.56 In a third case, the FTC has targeted the deceptive use of unsolicited 54The FTC has a broad program of enforcement in the area of e-commerce and the Internet; the first FTC actions involving the Internet date to the mid-199Os. see . 55FTC v. Carlos Pereira d/lo/a atariz.com, No. 99-1367-A (ED vat filed sept. 14, 1999~; press release available online at . 56FTC v. RIB Telecom, Inc. et al., No. 002017 PHX (D. Az., filed sept. 26, 2001~; FTC v. Ty Anderson et al., No. C 00-1843P (WD we., filed act. 27, 2000~; FTC v. Verity International, Ltd.,

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LEGAL AND REGULATORY ISSUES 109 commercial e-mail to attract consumers, including minors, to adult enter- tainment. Defendants' e-mail messages advised each consumer contacted that his "order" had been received, that his credit card had been charged $250, and that he should call a specified number to cancel the order. This ploy deceived numerous consumers, including minors, into making ex- pensive international calls that connected to an audiotext entertainment service with sexual content. The FTC obtained a court order stopping the scheme and also obtained monetary redress for consumers.57 In addition to law enforcement action, the FTC is sometimes able to obtain modification of potentially deceptive practices through informal action. For example, one company set up an adult Web site with the domain name nasa.com, leading consumers to sexually explicit, adult- oriented sites, not the National Aeronautics and Space Administration (www.nasa.gov). At the request of FTC staff, the domain name registry Network Solutions Inc. immediately deactivated nasa.com. In October 2001, the FTC charged an online firm with the use of thousands of "copy- cat" Web addresses to divert Web users from their intended Internet destinations to one of its sites; in response, the United States District Court for the Eastern District of Pennsylvania in Philadelphia enjoined its activities pending further order of the court.58 These copycat addresses were based on the use of domain names that are confusingly similar misspellings of domain names or famous marks of interest to children. (For example, the firm registered 15 variations of the popular children's cartoon site, , and 41 variations on the name of teen pop star, Britney Spears.) Users who misspelled a Web address were taken to the firm's Web sites, where they received a rapid series of advertisements for goods and services ranging from Internet gambling to pornography. Users seeking to leave one of these sites were also mouse- trapped. FTC staff currently are investigating additional, potentially decep- tive, adult content industry practices that may target minors. These in- clude the use of domain names that are confusingly similar misspellings of domain names or famous marks of interest to children. Finally, the FTC has launched what it describes as a crackdown on deceptive unsolicited commercial e-mail (also known as "spam"~.59 In February 2002, seven defendants caught in an FTC sting operation agreed No. 00 Civ. 7422 (LAK) (SDNY, filed Oct. 2, 2000~; FTC v. Sheinkin, No. OO-CV-03636 (DSC, filed Nov. 11, 2000~; FTC v. Audiotex Connection, Inc., CV-97-0726 (EDNY, filed Feb. 13, 1997~; Beylen Telecom, Ltd., No. C-3782 (court, final consent Jan. 23, 1998~. 57FTC v. Benoit, No. 3:99 CV 181 (WDNC, filed May 11, 1999~. 58See . 59See .

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110 YOUTH, PORNOGRAPHY, AND THE INTERNET to settle charges that they were spamming consumers with deceptive chain letters. In addition, the FTC announced that it would mail warning letters to an additional 2,000+ individuals who were involved in this chain letter scheme. Further, the agency will launch a public/private educa- tion effort in conjunction with various Internet service provider associa- tions. Though the spam in these cases did not involve adult-oriented, sexually explicit material, spam that does involve such materials is a source of many complaints regarding the exposure of children to inap- propriate sexually explicit material. The Federal Communications Commission The Federal Communications Commission (FCC) has promulgated rules requiring all television sets with picture screens 13 inches or larger to be equipped with the V-chip, a technology that enables the blocking of the display of television programming based on its rating. (The rating is encoded in the program broadcast, and the V-chip blocks programs from the set based on the rating selected by the parent.) Ratings identify pro- gramming with sexual, violent, or other material parents may deem inap- propriate (Box 4.3~. However, despite much political support for the V- chip initiative, its use remains relatively uncommon in U.S. households. An Annenberg study, Media in the Home,60 found that while 40 percent of parents have access to the V-chip or similar blocking technologies, only half of them use it. Only 50 percent of parents are aware of the content ratings associated with the V-chip, and only 10 percent can correctly iden- tify the age ratings for programs watched by their children. (This survey also found that although parents are more concerned about children's television use than their use of any other medium, over half of the chil- dren surveyed (57 percent) had a television in their bedroom.) The FCC has issued regulations governing practices in the pay-per- call industry, which includes dial-a-porn services. For example, FCC regulations require use of credit cards, access codes, or scrambling as ways to prevent minors from accessing such services. The FCC is responsible for the development of guidelines for "inde- cent material" broadcast on the public airwaves. Such guidelines include definitions of indecency (such as the famous "seven dirty words''61 or the description or depiction of sexual or excretory organs or activities in a 60Media in the Home 2000: The Fifth Annual Survey of Parents and Children, a national poll conducted for the Annenberg Public Policy Center of the University of Pennsylvania, Phila- delphia, and released on June 26, 2000. Available online at . 61See footnote 10.

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LEGAL AND REGULATORY ISSUES 111

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2 YOUTH, PORNOGRAPHY, AND THE INTERNET manner that is patently offensive to an average viewer or listener) and regulations that prohibit broadcast of such material during times that children are likely to be listening or watching. Finally, under the Children's Internet Protection Act, the FCC is re- sponsible for promulgating and enforcing regulations to implement the CIPA.62 4.2.9 International Dimensions Today, the Internet is a global medium that presents challenges to traditional systems of national governance that are based on the existence of geographical borders.63 Because different nations have different sensi- tivities toward various types of material (e.g., hate, politics, sexually ex- plicit materials), international consensus on an appropriate regulatory environment for materials on the Internet is hard (if not impossible) to obtain, and few attempts have been made to do so beyond the outlawing of child pornography. Given this state of affairs, the behavior of foreign parties (e.g., content providers, ISPs, foreign citizens) is difficult to affect directly through the application of U.S. law. Nevertheless, foreign institutional parties (i.e., non-individual foreign players) often operate through the use of facilities and equipment subject to U.S. jurisdiction, and how the United States will be able to use this jurisdiction has yet to be seen. 4.3 LAW ENFORCEMENT, TRAINING, AND EDUCATION The effectiveness of a statutory framework for regulating the access of minors to sexually explicit material depends on a number of factors. One factor, of course, is the extent to which it can withstand constitutional challenge. But assuming that it is constitutional, factors such as enforce- ment, training, and education are also relevant. For example, testimony to the committee from the Department of Justice in October 2000 indicated that it was department policy to pros- ecute obscenity cases where major producers and major distribution of obscenity are involved, rather than local cases in which community stan- dards are at issue. Moreover, the department's priorities at the time were to prosecute matters related to the production and online distribution of 62See . 63For more discussion, see Computer Science and Telecommunications Board, National Research Council, 2001, Global Networks and Local Values, National Academy Press, Wash- ington, D.C.

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LEGAL AND REGULATORY ISSUES 113 child pornography and the luring of minors into illegal sexual activity, with the consequence that federal obscenity prosecutions had declined significantly. This policy emphasis, as described, indicated a significant difference from the emphasis of the previous administration, which had prosecuted obscenity cases with greater vigor. This is an important point. In the 1980s, the Department of Justice undertook an aggressive approach to the prosecution of obscenity. As noted in Chapter 3, many of the most graphic forms of sexually explicit material that can now readily be found on the Internet (including graphic depictions of sexual intercourse both heterosexual and homosexual, fella- tio, cunnilingus, anal intercourse, incest, and bestiality) would have fallen within the prosecutorial policies of the Department of Justice in the 1980s. By the mid-199Os, however, prosecutorial attention began to shift to concerns about child pornography and sexual predators of children. Be- cause resource limitations inevitably constrain what investigators and prosecutors can do,64 this shift of attention led to a substantial reduction at both the national and local levels in the number of prosecutions for the sale, production, or exhibition of traditional obscenity. Today, the conventional wisdom seems to be that community stan- dards about sexually explicit material may well have changed to the point that only the most hard-core depictions could any longer be classified as legally "obscene." But this is speculative. Because of the relative dearth of obscenity prosecutions in recent years, it is in fact impossible to say for certain that a more aggressive prosecutorial strategy directed at online "obscenity," as legally defined by the Supreme Court in Miller, could not have a significant impact on the availability of such material on the Inter- net. Whether the current state of affairs with respect to obscenity prosecu- tions is due to changes in community standards or a mere lack of prosecu- tions is an open question. (This point is discussed further in Section 9.1.) Moreover, the concept of material that is "obscene for minors" has not been fully developed. Although this concept was recognized by the Supreme Court in Ginsberg, it has rarely been applied since. In ACLU v. Reno, the Court made clear that any effort to regulate such material must be careful not to interfere with the right of adults to gain access to mate- rial that is constitutionally protected for them. But with a more creative 64For example, pursuing an online sexual predator of children through a sting operation is a personnel-intensive enterprise. Because a sexual predator works slowly to build up a relationship of trust with his victims, law enforcement officials must operate in a similar fashion. Participating in such an enterprise is time-consuming. In any event, the number of potentially law-breaking interactions far outstrips any plausible enforcement efforts that could be made.

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114 YOUTH, PORNOGRAPHY, AND THE INTERNET use of technology to develop effective and simple age verification pro- cesses, this concept could take on a more significant role in the future, at least with respect to commercial Web sites. Another key implementation issue in law enforcement is interagency cooperation and citizen involvement. Jurisdiction for anti-obscenity and anti-child-pornography efforts is shared among the FBI, the U.S. Customs Service, and the U.S. Postal Service, as well as state and local law enforce- ment authorities. In addition, the National Center for Missing and Ex- ploited Children (NCMEC) has responsibility for providing technical assistance and training to federal, state, and local law enforcement in identifying and investigating cases of child exploitation. An example of bureaucratic impediments to coordination can be seen in the relationship of the NCMEC to law enforcement agencies. One of the NCMEC's functions is to take reports from the field on child pornog- raphy, provide analysis on these cases, and then relay those reports to law enforcement agencies of jurisdiction. To expedite law enforcement action in cases involving ongoing exploitation of a child (and hence calling for immediate intervention by law enforcement to prevent further exploita- tion), it is desirable that the NCMEC analysis forwarded to law enforce- ment agencies contain as much information as possible on the alleged perpetrator. Thus, the NCMEC, as a congressionally mandated quasi-law enforcement agency, would benefit from access to information in the FBI's CRS records systems, FBI investigative files, the National Crime Informa- tion Center (NCIC), the Interstate Identification Index system within the NCIC, the FBI's Sex Offender Data Base, state motor vehicle registration and drivers' license systems, the wanted-persons index within NCIC, and the National Law Enforcement Telecommunications System (NLETS). However, it does not currently have such access. Finally, training is an issue. No case is brought unless a prosecutor is willing and able to bring such a case, and prosecutors and investigators vary in the knowledge and ability they bring to the enforcement of laws related to sexually explicit material. For example, a prosecutor must be familiar with the concept of "community standards" relevant and essen- tial to a successful prosecution. In the United States, the NCMEC pro- vides training to law enforcement agencies in all aspects of missing- and exploited-child cases. Training topics include child sexual exploitation investigations, responding to missing and exploited children cases, re- sponse planning, and policy development. . ~~ , -- r