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COLPA, The Child Online Protection Act

Congress' recent release of the sexually explicit Starr Report on the Internet has not stopped Congress from considering the criminalization of the material "harmful to minors" distributed in cyberspace.

Efforts to pass a bill that will comply with the First Amendment in the face of the Supreme Court's decision invalidating a sweeping measure in 1997 have been referred to as "Son of CDA" proposals.

One has just become law.

In 1996, Congress passed the Communications Decency Act (CDA), which attempted to criminalize the content of "indecent" computer communications. Note that even before Congress enacted the CDA, it was already illegal under federal law to transmit obscenity or child pornography over the Internet. The CDA did not define the term "indecent" but it is usually understood to mean material that would give a movie a "PG" rather than a "G" rating.

In 1997, the Supreme Court struck down the CDA, finding that its attempt to regulate and criminalize "indecent" speech violated the free speech provisions of the First Amendment. [http://supct.law.cornell.edu/supct/html/96-511.ZS.html] In the words of the Court, "Regardless of the strength of the government's interest in protecting children, the level of discourse reaching a mailbox simply cannot be limited to that which would be suitable for a sandbox." Since that time, Congress has tried to pass a bill that complies with the demands of the First Amendment. There were two versions, the more comprehensive House version and the more limited Senate version. The Senate version also restricted the harmful to minors test, by requiring that the material have a value to "minors" as opposed to people as a whole. The form, as signed into law by President Clinton last week, is probably not constitutional. Known as the Child Online Protection Act, [http://thomas.loc.gov/cgi-bin/query/z?c105:H.R.3783:IH], the bill will criminalize the transmission of "material that is harmful to minors" to persons under the age of 17.

The penalties include six months in prison and/or a $50,000 fine. (The CDA had provided for a two year jail term.). Unlike the CDA, the new bill includes the constitutionally mandated requirement that material with redeeming social value be protected. However, the bill qualifies that protection by requiring that the material must have redeeming social value "for minors," a constitutionally troubling qualification.

The bill appears to back away from one of the more troubling aspects of the CDA, the criminalization of private e-mail or chat room conversation.

Rather than applying to any person -- including parents who e-mail their teenagers birth control information-- the new bill is limited to those "engaged in the business" of distributing "material that is harmful to minors."

However, even the limitation to commercial operators is troubling. As all know, Congress released the Starr Report detailing allegations concerning sexual practices involving President Clinton and Monica Lewinsky. Assuming that the Report would be deemed "harmful to minors," under the bill, Congress -- a non-commercial entity -- would not be liable, but any ISP or news organization that mirrored the Report from Congress' site would be subject to criminal penalties.

Civil liberties groups have already challenged the new measure in court.

Already under challenge in the same federal court that struck down the CDA, the portion of the Child On Line Protection Act may very well be unconstitutional. To read the pleadings filed by the ACLU and others, visit http://www.aclu.org/court/acluvrenoII_complaint.html.We will summarize the pleadings and describe the essential arguments.

Our analysis of The Child On Line Protection Act is set forth below. We support many new laws regarding children in cyberspace, especially the increased penalties for child sexual predators, but cannot support the attempt to restrict commercial speech online to the level of what is appropriate for a sandbox, as so aptly described by The Supreme Court in its CDA opinion.

Apparently, the Department of Justice agrees with us. In their letter to Congress, they issued a report on the provisions of the Child On Line Protection Act (COLPA) which they believe are unconstitutional or problematic. The DOJ's letter dated October 8, 1998 to Congress regarding constitutional problems with the Child On Line Protection Act can be read at http://www.aclu.org/court/acluvrenoII_doj_letter.html.

Unfortunately, in coordinating the House version for the Bill with the Senate version of the bill, the Senate version was used...one which we believe unlawfully restricts free speech.

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COLPA, The Child Online Protection Act