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Random Musings
Vol. 1, No. 6: Online Pornography and the Protection of Minors, Part II: An Introductory Tour of Statutory Efforts

Random Musings is a collection of opinions, commentary, humor, satire, information and other thoughts escaping from the cluttered mind of the not necessarily well-informed Gerald "grsamf" Smith concerning news and events in the world of computers and their use.

Article Overview

This is the second of a three-part series examining the attempts by the United States Congress to protect minors and their privacy in their online activity by limiting the availability of pornography and other material deemed harmful to minors and imposing other restrictions. The primary emphasis will be on the Child Online Protection Act (COPA). This Part examines the background that led to congressional enactment of COPA, discusses its provisions and briefly discusses other statutes designed to protect minors. In Part I, I discuss my views of the legal issues and my opinion as to why legislative efforts along the lines of COPA are doomed to fail. Part III analyzes the legal history of COPA, including the preliminary injunction against its enforcement that has been upheld by the United States Supreme Court. All discussion of legal issues throughout this series of articles is limited to the laws of the United States.

Introduction

One of the more troublesome aspects of the technology boom of the past few decades has been the burgeoning dangers, both real and imagined, to children. These dangers range from exposure to pornography or material and information that is inappropriate or harmful for particular age groups to collection of information online for fraudulent, or worse, predatory purposes.

Protecting children from such activity without infringing on the rights of adults to engage in otherwise legal and constitutionally protected activity has proven to be a monumental, if not insurmountable, task. For those of us who grew up in a time when space travel was the stuff of science fiction and the idea of home computers, to say nothing of the ability to instantly access information from anywhere in the world, went beyond fantasy, protecting children from pornography and other harmful material was a far simpler task. Indeed, I would suspect that many in my age group long for the day that the greatest thrill for grade school children who had just learned to read was to look up naughty words in the dictionary. In today's world, children do not even have to be able to read to be exposed to pornography or to face the other dangers confronting them online.

Much of the difficulty in adopting legislation to protect children arises from First Amendment protections. Attempts to preclude the availability of objectionable material to children have often run afoul of free speech rights. Although some restrictions on speech and expression are permissible, such restrictions must be narrowly tailored to avoid criminalizing or otherwise preventing intrusion on First Amendment rights. A more detailed, but still necessarily basic, discussion of the development and status of First Amendment law is contained in Part III of this series.

At times, the complexity of the issues involved is exacerbated by the legislative penchant for cleverly descriptive names of statutes lending themselves to equally clever acronyms and by an incomplete understanding by the legislators of the issues involved. With respect to the names of statutes and their respective acronyms, this article discusses several statutes so similarly named that a reader may have some difficulty keeping the statutes properly separated. The statutes discussed include:

Congressional Intent

Congress will often, through committees or appointment of special commissions, engage in lengthy studies and research before enacting a piece of legislation. Public hearings are held at which individuals and organizations can present their views. Although this process ostensibly is for the purpose of gaining the necessary background and information for the drafting and passing of legislation, it is often simply a political process to provide justification for preconceived legislative acts and the objectivity of such efforts is often debatable.

These studies result in congressional findings that are often included as preambles to legislation. These findings provide the constitutional basis for the legislation and define its purpose. Again, however, the findings are arguably often little more than political statements designed to garner votes for the legislation or appease the voters back home. The studies and the findings often serve as a guide to courts interpreting statutes and ruling on their constitutional validity by means of determining after the fact what the congressional intent was in passing the legislation. This can often be a tool in saving a piece of legislation from being declared constitutionally invalid by instead limiting the interpretation so it covers only constitutionally permissible restrictions.

As a basis for enactment of COPA, Congress made the following findings:

  1. while custody, care, and nurture of the child resides first with the parent, the widespread availability of the Internet presents opportunities for minors to access materials through the World Wide Web in a manner that can frustrate parental supervision or control;


  2. the protection of the physical and psychological well-being of minors by shielding them from materials that are harmful to them is a compelling governmental interest;


  3. to date, while the industry has developed innovative ways to help parents and educators restrict material that is harmful to minors through parental control protections and self-regulation, such efforts have not provided a national solution to the problem of minors accessing harmful material on the World Wide Web;


  4. a prohibition on the distribution of material harmful to minors, combined with legitimate defenses, is currently the most effective and least restrictive means by which to satisfy the compelling government interest; and


  5. notwithstanding the existence of protections that limit the distribution over the World Wide Web of material that is harmful to minors, parents, educators, and industry must continue efforts to find ways to protect children from being exposed to harmful material found on the Internet.

The wording of these findings and that of the statute itself is guided to a large degree on Supreme Court decisions on the permissible limits on the First Amendment. We now turn to an examination of COPA and related statutes.