The Child Online Privacy Protection Act (COPPA)
Many websites aimed at children have risen and flourished in years since the Internet made its debut. In studies and reports done or received by the FTC, it soon became apparent that many such sites were gathering and sharing information concerning the children, some of them at a very young age, who visited these sites. This information was gathered via registration requirements, contests, surveys, and other means. Although most of the sites had benign intent, the ease with which a child can be persuaded to divulge information such as age, address, who lives in their home, etc., was a major concern because of the possible gathering and use of such information by those who would use it for fraud or to gain information for purposes of predation or other reasons.
The Child Online Privacy Protection Act, 15 U.S.C. §§6501 et seq., was born of these concerns. The statute is very complicated and some of the definitions and explanations it provides only add to the confusion. Basically, the statute makes it unlawful "for an operator of a website or online service directed to children, or any operator that has actual knowledge that it is collecting personal information from a child, to collect personal information from a child in a manner that violates the regulations prescribed under subsection (b) of this section." Subsection (b) refers to a Commission established to formulate regulations. "Child" is defined as a person under the age of 13.
The "personal information" covered by the law includes a first and last name, a home or other physical address including street name and name of a city or town, an e-mail address, telephone number, social security number, or other information that would allow online or personal contact with the child. Verifiable parental consent in some form other than an e-mail must be obtained. Websites are also foreclosed from conditioning entry into contests on providing such information.
Although the law may aid in the protection of the privacy of young children, enforcement is difficult at best and circumvention relatively easy. Parents who believe this law is effective in protecting their children are in dire need of further education on the perils of online activity. Much like the internet user who harbors a false sense of security based on antivirus programs, firewalls, and other measures that reduce but cannot eliminate invasion of one's computers, parents cannot rely on the law to protect their children.
The Child Internet Protection Act (CIPA)
The Child Internet Protection Act (CIPA) requires schools, libraries, and other agencies receiving federal funds or other benefits to ensure the protection of children using computers provided by the agency to access the Internet to use filters or other means to prevent obscene, pornographic, or other material harmful to minors. These agencies must submit certification that they are complying with the requirements.
The American Library Association and others attacked the law and sought relief on much the same grounds advanced in the CDA and COPA litigation along with the corollary claim that the requirement was unduly burdensome. A special three-judge court sitting in the Eastern District of Pennsylvania held the statute was unconstitutional because it effectively required public libraries to violate the First Amendment by censoring speech. Specifically, the Court found that public libraries, which are governmental agencies and thus subject to First Amendment requirements, would be forced to prevent adults from viewing material that they were entitled to view. American Library Ass'n, Inc. v. United States, 201 F.Supp.2nd 401 (E.D. Pa. 2002).
The Supreme Court reversed the decision and held CIPA does not violated the First Amendment. 539 U.S. 194 (2003). The Court held the statute does not require libraries to violate the First Amendment and was a valid exercise of Congress' spending power. The Court noted provisions in the statute that would allow libraries to disable filters for adults using the equipment and that such disabling can be accomplished nearly instantaneously. The Court's opinion came in a 5-4 decision.
Based on the Supreme Court's ruling, CIPA remains in full force and libraries and other agencies are required to filter content to minor users.
Child Pornography Prevention Act (CPPA)
Although the Child Pornography Protection Act is somewhat outside the focus of this series of articles, it does have some relevance and the Supreme Court's opinion concerning this statute may have some bearing on future rulings concerning minors and the internet.
Pornography statutes are generally of local origin. An exception has been in the field of child pornography which depicts nudity and sexual activity of children. Federal law has long outlawed production, possession, or distribution of such depictions. With the advent of sophisticated computer programs available to the home users, many defendants charged with possession of child pornography based on computer images argued that the government had to prove that it was real children depicted as opposed to virtual or morphed images. The courts agreed.
In response Congress passed the Child Pornography Protection Act, which made defined child pornography as included virtual, i.e., computer generated, or morphed images. Morphed images are created by modifying images of real children to make it appear as if they are engaging in sexual acts.
The Supreme Court found CPPA to be partially unconstitutional. Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2003). It found that the ban on virtual images did not take into account artistic content and that such virtual images did not advance the purpose of child pornography laws which is in essence to protect children from the sexual abuse inherent in their production. The case did not include any attack on the morphing of images, so the Court did not consider the constitutionality of that provision.
It is unlikely that the Court's ruling will have a significant effect on the prosecution of people charged with the possession of child pornography. In response to the earlier arguments that the prosecution had to prove the existence of real, as opposed to virtual, children federal law enforcement agencies have developed a vast database of information identifying the real people involved in much of the child pornography circulating on the internet. The majority of this material was produced years ago and the child participants have been identified. Additionally, law enforcement has developed experts who claim to be able to distinguish real from virtual depictions, at least in the case of movies.
