CDT | Letter to Crime Subcommittee regarding H.R. 3508

Letter to Crime Subcommittee regarding H.R. 3508

September 11, 1996

Members of the Crime Subcommittee of the House Judiciary Committee
and Interested Parties:

The Center for Democracy and Technology urges the Crime Subcommittee to cast a critical eye on the "Children's Privacy Protection and Parental Empowerment Act" (CPPPEA) (HR 3508). While we commend the bill's sponsor, Representative Franks, and Chairman McCollum, as well as the members of the Committee for their efforts to protect children's privacy, we believe that the solutions proposed in the CPPPEA -- particularly as they relate to the exchange of information on the Internet -- will increase the collection of information about children in certain circumstances and criminalize behavior in a vast array of unintended situations, thereby compromising the free flow of information online.

CDT is committed to advancing individual privacy on the Internet. We believe that protecting children's privacy is a subject in need of exploration and action, however we urge the Committee to seek solutions that both protect privacy and respect our First Amendment freedoms.

As stated by CDT, Voters Telecommunications Watch, People for the American Way, and the Electronic Frontier Foundation in a June 1996 letter to Representative Franks (attached), the CPPPEA raises a number of significant privacy and First Amendment concerns.

Compliance with the bill could well lead to an increase in the collection of information about children and adults, compounding privacy risks. Information providers on the Internet currently have no way of distinguishing children from adults. Given marketers and other information providers desire to continue their business, it is likely that they will seek to collect more intrusive information about children's ages and their parents in an effort to limit their liability and garner parental consent. In the worst case scenario this could lead to an unacceptably intrusive national ID system for the Internet (a system that none of us support).
The term "list broker," is drafted to cover any entity which exchanges personal information in the course of its operation. The vast majority of World Wide Web site operators, as well as anyone who operates a listserv, mailing list or other information distribution mechanism, all collect, store, and may well exchange, email addresses. Unless Web site operators obtain parental consent before collecting information, they risk criminal penalties for violation of section (a)(4).
The requirement to disclose the source and content of personal information about children to parents creates unclear new obligations on Internet information providers. In fact, many of the information providers who would be covered by the CPPPEA do not keep track of the source of their information and thus may not have the ability to comply with the statute. Compliance with this section could well lead to an increase in the overall collection of personal information about Internet users, thereby compounding privacy risks.
Requiring parental consent in all instances and requiring providers to disclose information to parents collected from children fails to acknowledge the distinction between young children and teenagers and their rights under the Constitution. Such a provision as applied to a fourteen or fifteen year old child may fail to respect the youth's independent First Amendment and privacy interests.
Imposed identification procedures applied to the World Wide Web under the threat of criminal penalties would limit all Internet users' ability to read, speak, receive information and interact online under constitutionally-protected conditions of anonymity.
Section (a)(6) which criminalizes any distribution or receipt of personal information where the receiver has knowledge or "reason to believe that the information will be used to abuse the child or physically harm the child" is well-intentioned, but potentially so broad as to cover anyone who receives and discloses personal information about a child, or on the Internet anyone who allows a child to "post" information about his or herself. The bill establishes no clear standard of care or level of knowledge necessary to meet this requirement, leaving everyone on the Internet in doubt about whether or not they may be violating this new crime. Schools and organizations who publish directories as well as newspapers who publish the identity of a child in a news story could be subject to prosecution because they had "reason to know" that the information may end up in the possession of bad actors.

The Internet offers children unprecedented and important new educational and recreational opportunities. But, the medium also may offer access to inappropriate material, and exposure to unfair marketing or information collection practices. Solutions to these problems must be carefully analyzed and should take into account both the unique nature of the Internet, as well as the multitude of First Amendment and privacy rights at stake for all who seek to read, communicate, and associate with others in the online environment.

Given the importance of addressing children's privacy issues, we suggest that the Committee examine alternatives. Empowering parents to protect their children's privacy with existing technological tools, fair information practices by the industry, and the enactment of more narrowly tailored legislation, will help ensure that the Internet continues to grow and thrive for both commercial and noncommercial endeavors. For example, software already on the market such as Cyberpatrol, as well as industry-standard technologies such as the Platform for Internet Content Selection (PICS) enable people -- including parents and their children -- to restrict access to sites which practice objectionable marketing and information collection techniques.

At present, PICS technology, along with other innovative products, allows parents to filter and block-out materials that contain objectionable content or block access to sites with inappropriate or abusive marketing practices. Current technology can enable parents to:

prevent their children from accessing Web sites with inappropriate information practices -- as defined by the parent or a consumer or privacy organization of the parent's choice;
prevent their children from revealing personal information such as name, address, and e-mail address to others;
install security measures such as passwords that prevent their child from changing rules about Web site access or information disclosure, collection and use that the parent has established.

CDT strongly believes that parents should be given the tools and legal remedies necessary to ensure a safe, educational, and enjoyable online experience for their children. It is possible to craft a policy that will ensure children's safety and protect children's privacy, consistent with the First Amendment. We urge the Committee to seek a policy that will protect the privacy of users of the Internet, foster free speech, and continue the Internet's development as a robust platform for social, political and economic activities.

Sincerely,

Jerry Berman
Executive Director

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Posted on September 13, 1996