Government Internet laws and regulations for child safety online

Children's Safety On The Internet

State and federal Internet laws and regulations have made it safer for children online.

One of the most frequent headlines hitting newspapers and also receiving attention in magazines is regarding the issue of online privacy and safety. From one of the oldest crimes such as credit card theft, to relatively new ones such as cyber stalking, the Internet is not just the information super-way that it is glorified to be, but also the dirty mean street filled with pedophiles, pornographers, hate groups and the likes. Children are the most vulnerable to these evils of cyberspace because their powers of discrimination are not in tune with the big bad world. Many parents are also unaware of online threats and hence do not monitor the activities of their wards. This might be because of their lack of exposure to the new technologies (which are picked up by children faster than the adults) or because of their general ignorance. Some parents might also feel that checking on their kids will amount to intruding into their privacy.

But obviously, the issue of children's online safety is beyond ethics and technology. Exposing children to unsuitable content (not just pornography but also advertising tactics like seductive SPAM emails, chat rooms, and search engines) is against the moral fabric of any civilized nation. However, the social and ethical questions surrounding computer technology and practices is so complex that many citizens tend to mentally divide digital life into "government," on one hand, and people, business, markets, etc. On the other. In this case, the question of how to protect the second group from the former becomes the political philosophy. And any type of action due to this may also result in extreme notions of a "Big Brother" taking away the freedom of its people. A political philosophy of this kind can be widely seen among the many who believe that one consequence of the Internet's popularity will be the inability of respective governments to maintain its power over the common people. But what is to be understood is that the government is not for or against the market, but for the sake of it. This means that rather than being thought of as a policeman, the government should be thought of and should act as a guide. In the light of this argument, it can be understood that the same Congress that passes laws against child pornography tries to encourage use of the Internet through programs to that seeks to expand online connectivity in schools and funds Internet access in schools. Hence the discussion of whether the government Internet laws and regulations have made it safer for children or not can be carried out only under the understanding that in whatever way the government tries to control and regulate the Internet, it has needs to keep in mind how all parties involved are affected.

Of course, this does not mean that the actions of those who abuse innocence children should be supported, but it just means that such people generally do so under the safety of either technological advancements, or general public innocence. In such situations, the users of the Internet should take responsibility rather than wholly depending on laws and regulations.

The focus of this paper will be a dissection of the issue - Have the State and federal Internet laws and regulations made it any safer for the children? Do we judge this level of safety by the number of child-pornographers convicted or is that number an indication of a horrible reality that one cannot cure but only prevent? In attempting to answer these questions and a few more, the paper will seek evidence from State laws. Each of these laws will be analyzed in subsequent sections. The first one will be the Communications Decency Act which was overruled quite prematurely by the court. Subsequently, the Child Online Protection Act was drafted, which will be studied next. As a result of children accessing explicit material from public libraries the Children's Internet Protection Act came into existence. Each of these acts will be studied to see what caused them to fail and hence, their effectiveness will be deciphered.

But first, an analysis of the situation to see how children are affected by the Internet will be presented.

Analysis

The Internet provides the ability for one to transmit information in a rapid and fairly unsupervised manner, and hence has become the venue of choice for predators who transmit and receive child pornography material. Authorities have noticed the unprecedented growth of pornographers on the Internet because they have an advantage of not being detected easily. As a result of this anonymity, they engage in acts of sending and receiving obscene material [Huycke, 1997]. Robert Flores, a former attorney in the U.S. Department of Justice's Criminal Division, Child Exploitation and Obscenity Section opines that "The Internet is the ultimate distribution system for child pornography. Before the Internet, pedophiles and child predators targeted children in parks and playgrounds, offering ice cream or candy to gain the child's trust." [Kaplan, 1997]. This way, cyberspace has become a virtual playground where children can be easily lured into not only providing personal information (that can be later used against them or their parents) but also sexual information that can lead to sexual conversations and sexual contact.

One effective way parents can combat this is by using child-monitoring software and educating their children against the potential hazards of chatting with strangers. But what about computer access outside home such as in public libraries? There is certainly concern in this regard as pointed by research conducted at Carnegie Mellon University in Pittsburgh, PA. The research conducted at pubic and school libraries drew on computer records of online activity, from which it was found that the actual material being downloaded in comparison with the stated reasons for Internet use were very different. The research team reviewed 917,410 images in the 18-month research period to discover that 83.5% of them were pornographic. This reflects the fact that trading explicit photographs is one of the most widely conducted activities over the internet. At one university, 13 of the 40 most frequently visited newsgroups featured sexually explicit posts. Probably the most shocking result was the fact that the material discovered to be viewed or traded went beyond the soft-core pornography on magazine racks. This again was a suggestion of the fact that the online market features images of pedophilia (nude photographs of children in various poses), hebephilia (youth/teens), and paraphilia (images of bondage, sadomasochism, urination, defecation, and sex acts with animals) [Rimm, 1995]

No government worth its name can remain a mute spectator to these events. Hence, starting with the Communications Decency Act, the Congress began its regulatory procedures. Three of these acts will be studied next.

The Communications Decency Act

In response to discoveries such as the one shown in the above mentioned study, the Congress initially enacted the Communications Decency Act (CDA) as part of the Telecommunications Act of 1996. Section 223(a) prohibited knowingly transmitting any "communication which is obscene or indecent, knowing that the recipient of the communication is under [eighteen] years of age," and Section 223(d) prohibited knowingly sending or displaying to a person under eighteen years of age any "communication that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs."

However, this Act was held unconstitutional in Federal court in July 1997 because it was a violation of the First Amendment's guarantee of freedom of speech. This was decided when ACLU and the publisher of the American Reporter, an electronic newspaper, each filed suit, challenging the constitutionality of these two provisions on First Amendment and Fifth Amendment grounds. In the case, it was determined by the Court that the CDA should be reviewed under strict scrutiny, which necessitates a convincing interest and necessary means, acknowledging the protection of the physical and psychological well-being of minors as a compelling interest, including protecting minors from material that is not obscene by adult standards. However, CDA failed constitutional analysis despite the compelling interest because of lack of necessary means that the government did not demonstrate. The Court's opinion, written by Justice John Paul Stevens, discarded censorship of the online medium and to establish fundamental principles to help guide judicial consideration of the Internet for the 21st century. In commentary on the court's decision, Senator Jim Exon (1996), a senior Senator from Nebraska and a cosponsor of the Communications Decency Act noted that:

The Philadelphia court found that there were no effective measures to determine the age of computer users. This technological argument is faulty because as a relatively new medium, the Internet and other interactive computer services are infinitely changeable and their architecture does and can accommodate child screening. The court overlooks that a number of Internet sites already block child access by requiring credit card or adult PIN numbers like those used for automatic teller machines to access certain sites. Even if such technologies were not available, the statute does not require those who traffic in electronic pornography to do the impossible -- only what is "reasonable, effective and appropriate."

However surprisingly, there have been arguments for pornography and have stated that it encourages experimentation with new media and any act to censor it would go against the First Amendment which has not only intellectual, moral, political, and artistic value, but practical and economic value as well. It is believed that the First Amendment supports accepting adults, unrestrained by censorship, to search for innovative ways to use new media and find inventive ways to make money. Another reasonable argument is that censoring the Internet will only lead to complacency on the part of the parents who ought to be the first responsible censors of any unsuitable material. With no regulation by the government and the potential dangers of the Internet around, they will be forced to become computer-literate. A healthy discussion between parent and child on these matters is also expected, something which otherwise would probably be swept under the carpet. [Johnson, 1996]

Children's Internet Protection Act

The issue of censoring children's access to internet at libraries had undergone much debate prior to the case. It was estimated that approximately 10% of the Americans who used the Internet accessed it at public libraries and approximately 95% of all public libraries in the United States provide public access to the Internet.

Public libraries, reacting to the easy access to unwanted material from their premises, have used a variety of means to ensure proper use of the internet, especially by children. While some libraries provided instructions to their patrons on how to safely use the internet, others directed them to "preferred" Web sites that librarians have previously reviewed. Other libraries that have found it uncomfortable to confront their users have either made use of commercial software that censors internet content (as predefined by the authorities) or have installed monitoring screens. To exert control over the use of the Internet, the Library has also had to place filters at the computer terminals as previously suggested in Reno v. ACLU, case where the Court had suggested such a course of action to parents concerned about sexually explicit material on the Internet. It had been estimated that 7% of American public libraries used blocking software for adult. Although they have proven useful in blocking bulk volumes of inappropriate content, they fail in certain instances, and sometimes also deny access to much needed information. All these measures taken by the Library were however involuntary prior to December 2000

The Congress, sharing the concerns of many library boards, consequently enacted the Children's Internet Protection Act ("CIPA"), Pub. L. No. 106-554, on December 21, 2000. More recently, in June this year, the Federal Communications Commission gave libraries until July 1, 2004, to comply with the Children's Internet Protection Act (CIPA).

This act made the use of filters by a public library mandatory in order for them to receive two kinds of important (and possibly critical) subsidies to the budgets-

Discounted rates for services under the E-Rate program.

Funding through Title III of the Elementary & Secondary Education Act, or the Library Services & Technology Act -- when those funds are used to purchase computers that access the Internet or to pay for direct costs associated with accessing the Internet.

Certain arguments regarding this Act have been raised in recent times, notably in the U.S. v. American Library Association, et al. [Author Unknown, n.d] case. As noted earlier, some technical limitations exist in the automated systems that filtering companies use to collect Web pages for classification. Basically, three types of filters are available. While the first one filters out content based on key words suggesting access to a blocked website, the second type that is more sophisticated makes use of algorithmic functions to find inappropriate content by searching for patterns or combinations of words to determine if a Web site is inappropriate. Both these systems either block the key word or the entire website. The third filter is user defined and blocks websites that have been assessed as inappropriate by the company.

One of the critical limitations is hence the fact that the system will be able to search only text, not images, thus effectively crippling the requirement of the CIPA which says that all "visual depictions" that are obscene, child pornography, or harmful to minors should be censored. The government however thus acknowledges that the filtering software is not complete but maintains that it nonetheless does its job by successfully preventing access to a bulk of the Web pages that meet filtering companies' category definitions (e.g., pornography). In the government's view, this is sufficient and as long as the filtering software selected by the libraries censors a vast majority of the Web pages banned by CIPA, the a reasonable choice has been made by the libraries and this suffices under the applicable legal principles, to pass constitutional muster in the context of a facial challenge.

A reasonable argument that the government maintains is that the process of Internet filtering is analogous to the initial decision of a library when it comes to deciding which materials to purchase for its print collection. This comes in view of the fact that public libraries are required to make choices as to whether to purchase, for example, books on gardening or books on golf with limited budgets.

To summarize, the CIPA was Congress' third attempt at this type of law. The first one, the Communications Decency Act, was passed in 1996 and it made illegal the purposeful transmission of any obscene or indecent messages to any person under the age of 18. However, the CDA was held to be broad and unconstitutional by the Supreme Court in the Reno v. American Civil Liberties Union case because it found that the CDA violated the First Amendment due to the expanse of the Act, the absence of clear definitions of the terms obscene or indecent, and the Act's violation of free speech. Hence, consequently, the Children Online Protection Act was passed in 1998. This act focused on offensive material found online. The COPA this time clearly defined indecent material on the basis of community standards of the time. This Act made illegal the posting of indecent material on the web. However, it was challenged in the Ashcroft v. American Civil Liberties Union before it went into effect. It was barred by lower federal courts on the basis of First Amendment concerns. The Supreme Court then in 2002 declined it enforcement without its thorough constitutional examination by the Third Circuit.

Conclusion

After having seen how the government failed thrice to implement regulations to protect children, the question that needs to be answered is - has the Internet become safe for children? While the State laws and regulations themselves have only been distilled to the CIPA, the effort to enact these laws has certainly brought in awareness among the public and legitimate businesses regarding the potential threats of the Internet. This awareness is in fact one of the most crucial factors that will bring safety to children's online policy. It has already been noted that many libraries have stated that they will continue to use filters on their computers, but will only do so on children's terminals. [Bowman 2002] This goes to prove that despite the uncertainty over the future of Internet laws, there is general consent by the public to censor material.

Of all the rights that Constitution guarantees, the First Amendment rights are possibly the most prized. Any law drafted to exercise control over the providers of pornographic Web sites, as seen in the case of the CDA and COPA, is a violation of these rights. Hence even the new laws setup under CIPA are likely violate the First Amendment. Therefore, it becomes necessary to draft policies that aim to protect children that respect all of the fundamental rights of the country. Hence it becomes difficult to draft laws that respect children's rights without affecting the freedom of expression of adults. In light of this situation, two projects have been proposed. They are rating system (known as Safesurf) similar to filtering much similar to the movie rating system already prevalent. However, unlike the movies which have a central body of authority, Web sites need to be self-rated and this is being done using "PICS," the Platform for Internet Content Selection, an Internet protocol for which there are currently 22 companies consenting. [Author unknown, n.d.]

The Dot Kids Implementation and Efficiency Act of 2002 that was signed by President Bush last December. A second-level domain is expected to be created by this act in the United States' Web domain, known as."kids.us," allowing only Web content appropriate for children 13-year and younger. This is expected to be functional at the end of 2003. [Whitehouse press release, 2002]

In conclusion, it can be said that these new systems offer hope to the future of children's online safety which currently is more in the hands of mentoring adults than any state of national law.