Federal Legislation Policy Update
by Skip Auld
I spent a good bit of the weekend following the VLA Annual Conference reading the report of the nineteen-member Commission on Online Child Protection, better known as the COPA Commission. The commission's final report, released a day before the October 21 Congressional deadline, is extremely timely: a mandatory filtering amendment is currently before the Labor/Health & Human Services/Education Appropriations Conference Committee.
By the time this article is in your hands, either that amendment will have faded into obscurity (perhaps to be resurrected during next year's Congress)or it will have galvanized and electrified the disparate worlds interested in filters. These "worlds" include conservatives who will be cheering at Congress' concern for our children; civil libertarians who along with the American Library Association will have undoubtedly filed a lawsuit challenging its constitutionality; and library technology managers, administrators, and attorneys who will be tearing their hair out trying to figure out how and what to do to implement the mandate.
The report provides a fascinating review of technological and other methods which both government and industry can use to help shield children from exposure to material defined in the act. The purpose of the Child Online Protection Act, which was passed 23 October 1998 and which established the COPA Commission, is to conduct a study "regarding methods to help reduce access by minors to material that is harmful to minors on the Internet. " "Harmful to minors" (those under seventeen years of age under this act) is defined as "any communication, picture, image, graphic image file, article, recording, writing, or other matter of any kind that is obscene or that-
(A)the average person, applying contemporary community standards, would find, taking the material as a whole and with respect to minors, is designed to appeal to, or is designed to pander to, the prurient interest;
(B)depicts, describes, or represents, in a manner patently offensive with respect to minors, an actual or simulated sexual act or sexual contact, an actual or simulated normal or perverted sexual act, or a lewd exhibition of the genitals or post-pubescent female breast;and
(C)taken as a whole, lacks serious literary, artistic, political, or scientific value for minors."
Without going into great detail, suffice it to say that the commission recommends a blend of methods to help Congress achieve the goal of limiting minors' access to material deemed harmful to them. While everyone from commissioner Jim Schmidt, library science professor at San Jose State University, to Commissioner Donna Rice Hughes, formerly of Enough is Enough!, agrees with limiting children's access to pornography, COPA has not recommended mandatory filters.
Keep in mind that the COPA Commission was but one part of the 1998 Child Online Protection Act. The other was a prohibition against online web sites whose creators knowingly make available to minors material that is "harmful to minors. " This prohibition is frequently referred to as"CDA 2" because it was passed in Congress just over a year after the supreme Court found the Communications Decency Act (CDA) unconstitutional on 25 June 1997. This part of COPA (or CDA 2), if enforced, would subject violators to fines up to $150, 000 per offense and/or imprisonment for up to six months, with each day of violation constituting a separate violation. In other words, one week of knowingly presenting materials that are harmful to minors would be punishable by $1, 050, 000 in fine sand/or three and a half years in prison.
Shortly after COPA was first enacted, Eastern District Court Judge Lowell Reed issued are straining order barring its enforcement. On June 22 of this year, Judge Garth of the 3rd Circuit Court of appeals upheld the earlier injunction. He began his opinion by quoting a 1990 case, stating that "This appeal 'presents a conflict between one of society's most cherished rights-freedom of expression-and one of the government's most profound obligations-the protection of minors. '"
Returning to the COPA Commission Report issued the Saturday after the VLA conference in Norfolk, it is worthwhile to note its unanimous recommendations and almost conciliatory tone. An interesting "scattergram"graphically depicts five of the eighteen evaluated technologies and methods which are most effective and accessible and have the fewest adverse impacts on intellectual freedom, privacy, law enforcement, and other areas of concern. These five include(a) establishing a top level domain (such as ". kids") for material not harmful to minors, (b) client-side filters, (c) "greenspaces"(such as "Kids Click" or ALA's "700+ Great Sites"), (d)acceptable use policies and family contracts, and (e) family education programs.
I highly recommend for your reading pleasure a perusal of the COPA Commission's final report (available at http://www.copacommission.org), which includes individual and very diverse two-page reports by the commissioners;research papers and testimony by those who attended the three public hearings in Washington, D. C. , Richmond, and San Jose, California during the past several months; biographies of commissioners; and various other interesting and informative materials.