The Good, the Bad, and the Ugly - Child Protection Proposals in Congress
February 16, 2007
Filed under Free Expression
Following a familiar pattern over the past few years, Members of Congress are rushing to introduce bills they claim will protect children online - yet all too often, the bills in fact would not protect kids and would violate the U.S. Constitution. Unfortunately, ineffectiveness and unconstitutionality are not obstacles for proposals that Members can tout in press releases and in campaigns. Although protecting kids is a critical goal (I have two elementary school age kids myself), and although I am sure that all Representatives and Senators genuinely share that goal, all too often the rhetoric far outweighs the reality of what federal law can accomplish and what the First Amendment permits. CDT has just released an analysis of all (we think) bills introduced in Congress so far this year aimed at protecting kids online. Among the most problematic proposals are returns of "mandatory labeling" requirements (terming a broad range of content to be "sexually explicit") and the "Deleting Online Predators Act" ("DOPA") (limiting kids' access to social networking). Both of these proposals were pushed last year, but both garnered strong opposition from CDT and others, and thankfully neither made it through both houses of Congress. Another highly problematic proposal that is being discussed in some circles - including on Capitol Hill - is a proposal that ISPs should be required to block access to a blacklist of alleged child pornography sites that the government assembles. The State of Pennsylvania enacted such a law in 2003, but the requirement had enormous harmful collateral consequences, and ultimately was held to be unconstitutional in a lawsuit initiated and won by CDT. In that case (in federal court in Philadelphia), we proved that in an effort to comply with Pennsylvania orders to block access to about 350 child pornography websites, the ISPs subject to the blocking orders ended up blocking access to more than 1.5 million wholly unrelated and innocent web sites. The judge declared that the law violated the First Amendment, and enjoined its enforcement. Moreover, this type of proposal would allow the federal government to block websites with no judicial oversight or review whatsoever. Not all of the news from Congress is bad. One bill - H.R. 1008 - proposes a streamlining of federal efforts to protect kids online, as well as grants to educate kids about how to conduct themselves online (and what types of sites or people to avoid). This is the exact approach advocated by two "blue-ribbon" panels, as detailed more fully in CDT's new analysis. On the ugly front is one legislative proposal that is not discussed in our analysis. In S. 519 and H.R. 876, one section of the bill suggests that molesting a child after having contacted the child over the Internet is somehow more heinous than molesting a child after meeting the child on a playground. The bills propose to make the Internet an "aggravating factor," leading to longer prison terms for some crimes. Although this proposal would probably be constitutional, it inappropriately demonizes the Internet, which in fact is an amazing and valuable resource for young people today. One heartening (although non-scientific) sign is the overwhelming reaction on a Washington Post blog to a decision a few days ago by a judge who ruled that MySpace was not liable when a 13-year old lied to get on MySpace, and then was assaulted by a 19-year old she met there. A posting on the Washington Post's technology blog asked an open ended question: "what do you think about the decision?" The overwhelming response was that the judge was correct, and the parents should take responsibility for supervising their child. This hints at a possible public appreciation of the fact that online sites like MySpace cannot as a practical matter police the interactions of their users, and that parents must step in to decide what is or is not appropriate for their kids.