Congressional Child Safety Bills Present Serious Constitutional Risks, and Some Opportunities for Effective Action

The current Congressional session has seen the introduction of an unprecedented number of bills intended to promote online child safety or regulation online content. In past Congresses, there have only been a handful of serious proposals to regulate speech. This year, in marked contrast, more than thirty different bills, addressing the broad topic of child safety in new and online media, have been introduced.

1) CDT is Monitoring and Responding to an Unprecedented Number of Legislative Proposals Aimed at Child Safety or Content Regulation

2) Many Bills Raise Serious Constitutional Concerns and/or Would Not Be Effective in Promoting Online Safety

3) Experts Agree that Education and Enforcement of Existing Laws Are Key to Keeping Kids Safe Online

4) CDT Urges Passage of Specific Bills Focused on Education and Law Enforcement

1) CDT is Monitoring and Responding to an Unprecedented Number of Legislative Proposals Aimed at Child Safety or Content Regulation

The current Congressional session has seen the introduction of an unprecedented number of bills intended to promote online child safety or regulation online content. In past Congresses, there have only been a handful of serious proposals to regulate speech. This year, in marked contrast, more than thirty different bills, addressing the broad topic of child safety in new and online media, have been introduced.

To monitor and keep track of all of the bills in this area, CDT collaborated with Adam Thierer, of the Progress & Freedom Foundation (PFF), and developed a comprehensive index that identifies and describes the full range of these legislative proposals.

The first version the index has been released. It is intended to serve as a comprehensive resource for the public and the media, describing all legislation seeking to regulate Internet communications or online media content in order protect children. The bills are cataloged by name, topic, chamber and agency or organization the legislation affects. The index also contains a summary of the proposals, the status of each bill, and links to the bill text, as well as links to pertinent analysis by PFF and CDT staff. The index will be updated regularly to reflect developments and new online child safety proposals.

In addition to the joint tracking index, CDT has released its own substantive analysis and critique of the most significant of the child safety proposals. As detailed below, the bills raise a broad range of serious concerns about their constitutionality and their effectiveness. CDT’s analysis also reviews a number of positive proposals that are likely to make a meaningful impact in promoting online child safety.

Joint CDT/PFF Online Safety/Content Bill Tracking Index

CDT’s Analysis of "Child Safety and Free Speech Issues in the 110th Congress"

PFF Analysis of Safety/Content Bills

2) Many Bills Raise Serious Constitutional Concerns and/or Would Not Be Effective in Promoting Online Safety

Many of the bills pending in Congress–including some that have been passed by the House of Representatives — would violate the Constitution, be grossly ineffective, or possibly both. CDT has urged Congress to reject these bills and proposals, including the following:

  • A federal "blacklist" of images and websites that ISPs are told to block, without any judicial proceeding to determine if the images or websites are, in fact, illegal. This proposal, found in H.R. 3791 (passed by the House), as well as S. 519 and S. 1965, would violate clear Supreme Court precedent prohibiting such government blacklists.
  • A requirement that ISPs automatically disclose, to the National Center for Missing & Exploited Children, an enormous amount of personal information, in the context of a required report, about possible child pornography. The mandated information, contained in H.R. 3791, goes beyond what the government can normally receive without judicial supervision. Further, all of the information, including from cases that prove not to be child pornography, can be maintained by NCMEC without any privacy safeguards; NCMEC is operating as a private entity, immune from the Privacy Act and the Fourth Amendment.
  • A requirement that sex offenders "register" their e-mail addresses so service providers can block them as users. This proposal, contained in S. 431, would be trivially easy to circumvent by a sex offender who wanted to contact a minor. The e-mail registry would be grossly ineffective at protecting kids, but would put significant burdens on many social networks, blogs and other online sites. House bill H.R. 719 is a far more focused and likely effective approach to protecting minors from sex offenders who might threaten them.
  • More generally, burdens on social networking sites. A range of proposals, including the "Deleting Online Predators Act" ("DOPA"), would limit access to or otherwise burden, social networking and other sites that are becoming a vital part of how our society communicates, including how political candidates communicate with young people. CDT is one of the only organizations that are actively fighting burdens and limitations on social networking sites, both in Congress and in the states.

These and other proposals are discussed in detail in CDT’s Analysis, cited above.

3) Experts Agree that Education and Enforcement of Existing Laws Are Key to Keeping Kids Safe Online

Two expert panels, established by Congress to investigate the best ways to protect kids online, found the combination of education, filtering software and tools enabling parents to make better decisions, were most effective. CDT has long advocated for education and the broad availability of a wide range of technological and non-technological user empowerment tools. These tools include media literacy education and are more effective and less restrictive than governmental censorship or regulation.

A key value of user empowerment tools is that they work against all websites, not just those based in the U.S. These tools can be tailored to meet individual family values and adjusted to match a child’s natural age progression. The value of education, in particular, is that it transcends the boundaries of the home – wherever a child is, he will have the ability to make smart choices for himself about what he does online.

That education and user empowerment tools are key to protecting children online, were the central conclusions of two separate expert panels looking at the issues. Both the 2000 report by the congressionally-chartered "COPA Commission," and the 2002 report by the National Academy of Sciences, entitled "Youth, Pornography and the Internet," emphasized education as the most effective way to protect kids online.

COPA Commission report (2000)

National Academy of Sciences report entitled, "Youth, Pornography and the Internet" (2002)

4) CDT Urges Passage of Specific Bills Focused on Education and Law Enforcement

CDT believes that Congress should promote education of children and awareness by parents of parental empowerment tools. CDT has urged Congress to fund programs to promote media literacy for both adults and children, which is the most effective way to protect children online. Specialized non-profit groups need support for education programs, as do schools and libraries. The latter is on the front lines of teaching children how to safely and effectively benefit from the wealth of information available on the Internet. Compared to other countries, our investment in technology and media literacy is inadequate and piecemeal in nature.

Certain proposals in Congress do directly address the need for education. H.R. 3461, introduced by Rep. Melissa Bean, D-IL, has passed the House of Representatives, and would create a new federal office to coordinate online child safety efforts and education. S. 2344, introduced by Sen. Robert Menendez, D-NJ, would provide significant funding for child safety efforts and has been favorably reported by the Senate Judiciary Committee.

These, and certain other proposals in Congress, can be expected to have a real impact in the effort to protect kids online. And these bills would do so without burdening lawful speech or violating the Constitution. CDT urges Congress to act on these education-focused proposals.

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