Children\'s Safety on the Internet

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]

The Child Online Protection Act

The Child Online Protection Act (COPA) was drafted by the Congress in response to Supreme Court ruling on the first ACLU. This Act came as part of the Omnibus Appropriations Act for Fiscal Year 1999, which President Bill Clinton signed into law on October 21, 1998. The basic definition of the COPA was as follows:

Whoever knowingly and with knowledge of the character of the material, in interstate or foreign commerce by means of the World Wide Web, makes any communication for commercial purposes that is available to any minor and that includes any material that is harmful to minors shall be fined not more than $50,000, imprisoned not more than 6 months, or both." [Author unknown, n.d.]

This act, which had a narrower approach compared to the CDA, was proposed to amend section 223 of the Communications Act of 1985 and be codified at 47 U.S.C. 231.86 the House of Representatives Commerce Committee stated in its report that the COPA "has been carefully drafted to respond to the Supreme Court's decision in [first ACLU case]." The COPA prohibited "knowingly and with knowledge of the character of the material... By means of the World Wide Web, mak[ing] any communication for commercial purposes... available to any minor... that includes any material that is harmful to minors...."

This act was to apply to Web communications and even in that case, only to communications used for commercial purposes. Also, it was to apply to communications that are harmful to minors unlike the CDA that contained application against indecent and patently offensive standards. However, the act was similar to the CDA in the sense that it consented defenses that were carried out in good faith, including "requiring use of a credit card, debit account, adult access code, or adult personal identification number;... accepting a digital certificate that verifies age; or... other reasonable measures that are feasible under available technology."

But again, the unconstitutionality of the COPA was challenged when the ACLU, along with sixteen other plaintiffs, filed a lawsuit against Attorney General Janet Reno in the U.S. District Court, for the Eastern District of Pennsylvania, on October 22, 1998, alleging that the COPA is unconstitutional under the First and Fifth Amendments. The allegations of the plaintiffs included that the COPA violated the First Amendment because it infringed upon the protected speech of adults and older minors and also that the Act violated the Fifth Amendment because it is unconstitutionally vague.

Then, on November 20, 1998, a temporary restraining order was granted by the district court to the plaintiffs' motion, and on February 1, 1999, the court granted the plaintiffs' motion for a preliminary injunction. However, despite the injunction, many commercial pornography Web sites began complying with the COPA.

There were many reasons for the constitutional failure of the COPA. Some of these failures are listed below [Miller, 1999]:

Probably the most important reasons for failure was the fact that there was no proper method of segregating minors and adults in cyberspace and hence the COPA's "harmful to minors" definition could not be readily adapted. It has also been noted that the definition itself was flawed.

Another ambiguity that the definition of "harmful to minors" brought in was that it did not mention how the community standards that required to be "taken as a whole" would apply in the Internet medium.

The first economical angle to the challenging of the Act came from the fact that its affirmative defenses were not economically and technologically available to many of the affected Web sites. Also, the definition of "commercial purpose" was so vast that it covered many web sites that could not economically utilize the COPA's affirmative defenses. The common gateway interface (CGI) capability that was required by many of the commercial online publishers were also unavailable to many website owners.

The second concern was regarding privacy and security. COPA required the Web site owners to authenticate the age of its visitors before posting material that was inappropriate to minors if they wanted to take advantage of the COPA's affirmative defenses. This procedure had to be carried out prior to the visitor being able to access any information. However, the Websites feared that many of the visitors, wary of online theft, would not produce such information. This would definitely lead to a decrease in potential traffic to their website.

The Congress had attempted to regulate the use of the Internet in the Communications Decency Act which however did not properly include the access of the Internet from public libraries. These public libraries, using government resources to purchase books and computer terminals, allowed users, both adults and children, to access the Internet. This unconditional access have rise to the Children's Internet Protection Act.

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.