B.  Commissions Study Ways To Restrict Objectionable Material on Internet

    Congress has commissioned two major studies to provide independent and authoritative analyses of methods for restricting children’s access to objectionable material on the Internet.  The Commission on Online Child Protection delivered its report to Congress on Oct. 21, 2000.  A committee of the National Academy of Science’s National Research Council is expected to deliver its report to Congress in late summer 2001.

    Inside and outside Congress, advocates on both sides expect to use the commissions’ research and recommendations to bolster their arguments for and against regulation of Internet content.

COPA Commission

    The Commission on Online Child Protection was mandated by the Child Online Protection Act, Pub. L. No. 105-277, Div. C, Title XIV, Sec. 1405 (1998) (“COPA”), approved by Congress in October 1998.  The primary purpose of the commission was to “identify technological or other methods that will help reduce access by minors to material that is harmful to minors on the Internet.”  The commission was made up of 16 members from various segments of the online industry, with three representatives of federal agencies serving as ex-officio members.  The law did not provide financing for the commission; it depended instead on funds, grants, and facilities provided by a number of individuals, companies, and educational institutions.

    The commission’s charge was to evaluate ways to address the problem in six areas: online resources for parents; filtering or blocking software or services; labeling or ratings systems; age verification systems; a separate domain for “harmful” material; and current or future technologies or methods for reducing access to such material.  Originally the group was to report to Congress by November 1999, but the deadline was extended for one year because the full commission had not been named until a few days before the initial deadline.  Beginning on March 7, 2000, the commission held three public hearings -- in Washington, D.C., Richmond, and San Jose -- and gathered testimony from dozens of interested parties before issuing its report to Congress in October.

COPA Commission Recommendations

    The commission’s primary recommendations focused on public education and consumer empowerment efforts.  The commissioners urged that government and the private sector cooperate in a major campaign to educate the public about technological and other methods available for protecting children online.  The report said there should be further evaluation of child-protection technologies and that the industry should improve child-protection mechanisms.

    The commission also called for the funding of expanded law enforcement efforts at all levels against obscenity on the Internet.  It did not call for new laws, however.  Although the commission had been urged by some members to endorse mandatory filtering software and rating systems, it did not do so.  The report did state that a “broad, national, private sector conversation should be encouraged on development of next-generation systems for labeling, rating, and identifying content.”  The commission also rejected the idea of Internet domains for pornographic Web sites or kid-friendly sites.

National Research Council Study

    In the Protection of Children from Sexual Predators Act of 1998, Pub. L. No. 105-314, Title IX, Sec. 901 (1998), Congress directed the U.S. attorney general to request that the National Academy of Sciences, through its National Research Council, conduct a study of ways to change federal law and law enforcement techniques to address the problem of pornographic material available to children on the Internet.  Working with components of the Justice and Education departments and the information technology industry, the NRC developed a project titled “Tools and Strategies for Protecting Kids from Pornography and Their Applicability to Other Inappropriate Internet Content.”

    The primary focus of the study is “Internet pornography and threats to children from sexual predators on the Internet.”  The final report will describe risks and benefits of various tools and strategies; explain how “packages” of those tools and strategies might be used; present case studies of how different communities have approached the problem; and discuss “legislative approaches and law enforcement techniques necessary to advance the achievement of various goals.”

     The NRC committee consists of 15 members representing academic, library, children’s advocacy, and industry backgrounds.  Richard Thornburgh, former governor of Pennsylvania and a former U.S. attorney general, chairs the group.

    The NRC committee plans to hold seven meetings in a number of locations and to conduct two workshops in addition to its other research efforts.  The first meeting was held July 17-19, 2000 in Washington, D.C., and the last one is scheduled for June 2001 in Chicago.  The committee is seeking testimony from public interest groups, including the American Civil Liberties Union, Center for Democracy and Technology, Electronic Frontier Foundation, Christian Coalition, Family Research Council, and National Parent-Teacher Association, as well as representatives of the legislative and executive branches and other interested groups.

Potential Impact of the Studies

    While many such efforts simply produce reports that are filed away and forgotten, there seems to be a general consensus that these two projects will have significant impact on public policy deliberations.  The issue of filtering and blocking technologies is not expected to go away despite a new law requiring public schools and libraries to install filtering software or lose federal funds.  Congress did not appear willing to pay heed to the COPA Commission’s recommendations or to wait for the NRC study before unexpectedly incorporating the Children’s Internet Protection Act into the $450-billion federal spending bill on Dec. 15, 2000 just before recess.  President Clinton signed the spending measure into law.

    Although the congressional charges to both commissions did not address First Amendment concerns explicitly, from the outset both groups found the problems and solutions under consideration laden with potential infringement of the free-speech rights of content providers, adult users, and even children.  “Even voluntarily implemented protective methods reduce access to fully protected speech,” the COPA Commission report observed.  A crucial question for the group, according to the report: “What are the most effective means of serving the public’s interest in protecting children online that have the least potential adverse impacts on protected adult speech?”

    Glimpses of the First Amendment dimensions of the commission’s task were contained in the minus-10 to plus-10 scale used to chart the efficacy of 18 approaches evaluated by the commission.  Each of the technologies or methods had a negative First Amendment value, ranging from -0.2 for online information resources to -5.2 for age verification systems.  About the latter, the commission reported: “An adverse impact on First Amendment values arises from the costs imposed on content providers, and because requiring identification has a chilling effect on access.”

    When the COPA Commission released its report in October 2000, some civil liberties advocates expressed relief that it had not recommended mandatory filtering of the Internet for libraries and schools.  “This technology raises First Amendment concerns because of its potential to be over-inclusive in blocking content,” said the report.  “There are significant concerns about First Amendment values when server-side filters are used in libraries and schools,” it added.  Nevertheless, supporters of filtering and blocking technologies hailed the commission’s call for more study of such technologies and “further development.”

    Finally, the congressional charges to the commissions appeared to avoid a number of issues relevant to the overall projects as well as to First Amendment concerns.  For example, Congress did not direct the commissioners to assess the nature and scope of “objectionable” material online; to inquire into how easily or how often children accessed such content; to examine the social science on so-called “harmful” material; or to explore the jurisprudence regarding expression deemed obscene, indecent, and harmful to minors.  The fact that neither commission could avoid these matters entirely in its deliberations is an indication that those and others would have some role in any unbiased assessment of their recommendations.

    Interestingly, the Child Online Protection Act, which incorporates a number of assumptions or presumptions about these issues, remained under injunction in a federal court as constitutionally suspect while both groups went about their work.