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Regulating the Internet

In 1996, Congress enacted the Communications Decency Act (CDA). The act was part of a larger bill that was directed at deregulating the telecommunications industry. The CDA sought to ban any online material deemed indecent or patently offensive and that is accessible to minors. This alarmed the Internet community, mainly because the wording is broad enough to include conversations in chat rooms, newsgroup postings, and even data exchange on educational topics, such as rape or safe sex. Needless to say, no one wants to be arrested for typing a curse word in a chat room.

The CDA also sought to make it a felony to knowingly send indecent material to a child (anyone under 18). Although everyone agrees (at least they should) that children need protection from the Internet';s more dangerous aspects, figuring out how to protect them has proven quite a challenge. The CDA created a huge uproar at its introduction, and the American Civil Liberties Union filed suit to block the CDA on behalf of free-speech advocates, Internet companies, publishers, civil rights groups, and Net users. Their claim was that the law was too broad and it violated the right to free speech.

A year after the introduction of the CDA, it was ruled unconstitutional. Deeming the Internet the most participatory form of mass speech ever, the judges agreed to protect the First Amendment right to free speech. The CDA failed to pass largely because it broadly tried to regulate indecent material on the Internet, rather than focus on obscene material. What';s the difference? Obscene material is already illegal.

For many of us, there';s not a lot of difference between indecent and obscene—bad is bad, and bad is certainly bad for children. But in the eyes of the court, there are different levels of "badness" when it comes to indecent or obscene material. According to the United States Supreme Court, something is obscene if it meets all three of the following criteria:

Applying community standards, the average person finds the work appeals to prurient, or base, interests...
And the work describes or shows patently offensive sexual conduct defined by state law, or is offensive to local standards of decency...
And the work lacks serious artistic, literary, scientific, or political value.

Indecency, on the other hand, is merely what makes material off limits to minors but available to adults; pornography falls into this category. So according to law, child pornography is obscene and regular pornography is just indecent (and sometimes downright tacky, but there';s never been a law against tackiness—which is really unfortunate if you ask me).

In 1998, Congress tried again with the Children';s Online Protection Act (COPA), dubbed "CDA II." This bill attempted to narrow the online focus and pass constitutional muster. It hoped to make it illegal for commercial Web sites to allow minors access to harmful material that is deemed obscene. Commercial Web pornographers would require adult verification or a credit card for users to access the sites. It';s widespread practice for such sites to place free "teaser" images (pornographic pictures) on their site';s home page, which anybody can access. After you pass verification or use your credit card number, only then can you enter the site and see all it has to offer. The COPA bill would end such practices.

Interestingly enough, commercial Web pornography sites are saying that mandatory age checks are too costly to implement and would deter Web surfers. They want their pornography easy to access, darn it, and a law commanding them to regulate who uses their sites is just too restrictive. Besides, how are they supposed to make any money if they';re in jail for letting minors view obscene graphic files?

COPA was signed into law by President Clinton in October, 1998. Opponents say the law is still too vague. Those opposing the law aren';t so much worried about the accessibility of pornography, but are more concerned the law will cross over to include other online areas, not just pornography sites. Enforcement of the law was halted in January of 1999, and both sides continue to duke it out in the courts.

The battle to protect children online rages on in the courts and among lawmakers. You can be sure that advocates are online and investigating ways to regulate what children are exposed to on the Internet, as well as offering resources for everyone concerned with these issues. For example, in February 2000, the United Nations introduced an initiative, called "Innocence in Danger," to combat pedophilia and child pornography on the Web. Under the initiative, a group called Wired Kids has been formed. It includes participants such as industry giants Microsoft and AOL, as well as government agencies such as the FBI and Interpol. The group is endeavoring to be an online think tank and a clearinghouse for information about online exploitation of children.


Electronic Frontier Foundation

To learn more about the prospects of regulations on the Internet, visit the Electronic Frontier Foundation';s Web site at www.eff.org.

Although the Internet is a difficult area to regulate when it comes to obscenity and protecting kids, laws will continue to be hammered out. After all, the safety of our children is at stake.

What If There Was a Law?

Even if both sides finally agreed to an acceptable law concerning the online safety of children, enforcing it poses a completely different problem. The Internet is global—what';s illegal in one country might be legal in another. In fact, with some countries, such as Iraq and Iran, the Internet is already heavily censored. That';s not to say the world';s governments aren';t trying to work together; they are. The difficulty lies in prosecuting cases across borders. To learn more about law enforcement on the Internet, check out Chapter 19, "Finding Law Enforcement When You Need It."

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