F.  Congress Creates ‘Dot Kids’

Domain for Children’s Content

 

      A bill signed into law on Dec. 4, 2002 sought to segregate Internet Web sites that could be considered “kid friendly” by creating a new “.kids” domain.  H.R. 3833, known as the Dot Kids Implementation and Efficiency Act of 2002, received overwhelming House approval in May.  An identical bill, S. 2537, cleared the Senate in November.  Meanwhile, one private company that implements the “.us” top-level domain began preparing for a “.kids.us” domain name in advance of the bill’s enactment.

 

House Takes Lead

      The Dot Kids Act contains an extensive findings section in which Congress cites both the benefits and detriments of the World Wide Web with regard to children.  It acknowledges that the Web “presents a stimulating and entertaining opportunity for children to learn, grow, and develop educationally and intellectually,” while noting that “Internet technology also makes available an extensive amount of information that is harmful to children, as studies indicate that a significant portion of all material available on the Internet is related to pornography.”  H.R. 3833, 107th Cong., 2d Sess. Sec. 2(a)(1)-(2) (2002).  The creation of a “green-light” area on the Internet is analogous to the creation of a children’s section in a library, the measure states.  Id. at Sec. 2(a)(10)-(11). 

      The legislation creates a second-level domain within the United States country code Internet domain for material considered “suitable for minors” and “not harmful to minors,” to be called .kids.us.  The National Telecommunications and Information Administration will oversee the domain’s establishment.  The registrar who allocates these new domain names will have to comply with a number of requirements, including, among others: (1) oversight of content on the sites; (2) enforcement of actions against sites that provide access to content not in accordance with the standards and requirements of the registry; (3) creation of a process for resolving disputes with regard to this content; and (4) commencement of operation within one year of enactment of this law.

      The legislation puts a large emphasis on materials deemed “harmful to” or “suitable for” minors.  “Harmful” material is defined as content that: (1) appeals or panders to the prurient interest; (2) 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 (3) taken as a whole, lacks serious, literary, artistic, political, or scientific value for minors.  Id. at Sec. 4(i)(1).  Materials suitable for minors (1) are not psychologically or intellectually inappropriate for minors; and (2) serve the educational, informational, intellectual, or cognitive needs of minors or  the social, emotional, or entertainment needs of minors.  Id. at Sec. 4(i)(4). 

      The House Committee on Energy and Commerce saw no constitutional issues with this bill, likening it to laws that require pornography to be sold behind a counter or in shrink wrap at a newsstand, or those that limit the broadcast of certain content to specified hours of the night.  It noted that the bill is narrowly tailored to meet a compelling government interest -- the protection of children from exposure to sexually explicit material -- and that this interest has been given great deference by the U.S. Supreme Court on repeated occasions.  H. Rep. No. 449, 107th Cong., 2d Sess. 7 (2002) (citing Sable Communications of California v. FCC, 492 U.S. 115 (1989); FCC v. Pacifica Foundation, 438 U.S. 726 (1978); Ginsburg v. New York, 390 U.S. 629 (1968)).  The committee also stated that “[s]hould adults want to express certain views that are not ‘suitable for minors’ or are deemed ‘harmful to minors,’ the bill does nothing to prevent an adult from utilizing the vast remainder of the ‘.us’ domain or the entirety of the World Wide Web to express and share those views.”  Id. at 8.  

      H.R. 3833 was introduced on March 4, 2002 by Rep. John Shimkus (R-Ill.) with 40 co-sponsors.  On May 21, 2002, the full House of Representatives  passed the measure by a vote of 406 to 2.  A Senate version, S. 2537, was introduced on May 21 by Sen. Byron Dorgan (D-N.D.) with three co-sponsors.  It was referred to the Senate Committee on Commerce, Science and Transportation but eventually gave way to H.R. 3833, which was passed by the full Senate on Nov. 13.  President Bush signed H.R. 3833 into law on Dec. 4, 2002.  

 

Private Company Proposes Guidelines

      As Congress was considering mandatory requirements for a .kids.us domain, Neustar, Inc. set into motion its own plans for a voluntary domain of this sort.  In August 2002, Neustar released proposed guidelines for a kids’ domain and requested input from the public during a 30-day comment period.

      The guidelines primarily cover the content to be found on .kids.us Web sites, but also deal with issues such as law enforcement and surveillance.  Neustar proposed that .kids.us Web sites be suitable for children under 13 years old, but sought input on whether this was the proper age cut-off.

      Neustar proposed that all content posted on a .kids.us Web site be in compliance with existing laws, widely adopted children’s online protection policies, advertising policies, and online policy requirements.  The following content would not be permitted on a .kids.us Web site: (1) actual normal or perverted sexual acts or sexual contact; (2) lewd exhibitions of genitals or post-pubescent female breasts; (3) any of the “seven dirty words” identified in FCC v. Pacifica Foundation, 438 U.S. 726 (1978); (4) revealing attire; (5) content that displays, sells, or advocates the use of weapons; (6) game sites designed for teens or adults; (7) content that advocates the legal or illegal use of drugs; (8) content that advocates legal or illegal gambling; (9) content that advocates or contemplates alcohol consumption; (10) explicit violence against people or animals, including hate crimes; and (11) smoking or the use of tobacco products.

      Neustar also sought information on the educational content to be offered on .kids.us Web sites.  It proposed that at least some educational or informational content be required, but did not recommend a definition for this term or the amount of content that should be required. 

      The proposal also recommended strict compliance with two consumer protection standards.  First, it noted the Children’s Online Privacy Protection Act (COPPA) and rules issued by the Federal Trade Commission to implement COPPA.  Web sites directed to children under the age of 13 or that collect information from children under 13 must post a privacy policy, provide notice to parents regarding the site’s information-collection practices, and obtain parental consent prior to collecting personal information from children.  Parents must also be able to access their child’s information and make necessary changes.  

      Compliance with the Children’s Advertising Review Unit (CARU) standards would also be required under the Neustar proposal.  These guidelines seek voluntary compliance to guard against misleading, inaccurate, or inconsistent advertising.  All advertising sold by .kids.us registrants would comply with the CARU guidelines, found at www.caru.org. 

      Neustar also proposed that .kids.us sites not be allowed to link to any non-.kids.us sites, and sought advice on this point.  Finally, the company asked for comment regarding mechanisms for protecting children online, including how to review Web sites for unlawful activity and oversight procedures to minimize the appearance of improper content. 

 

--Kevin Goldberg and Richard M. Schmidt, Jr.