The House Commerce Subcommittee on Telecommunications has approved legislation regulating content on the Internet deemed "harmful to minors." The Subcommittee action came in the form of a substitute text to H.R. 3783, the Child Online Protection Act, sponsored by Rep. Michael Oxley (R-OH).

In criticizing the bill's impact on free expression, CDT Director Jerry Berman said, "Despite the last minute changes, the bill remains an unnecessary, ineffective and unconstitutional effort to censor the Internet. In fact, some of the changes may have made it more unconstitutional, which only proves our point that it is wrong to legislate in this rushed manner, without examining the alternatives."

The substitute amendment approved by Subcommittee is available at http://www.cdt.org/legislation/105th/speech/oxley.html

Criminal and Civil Penalties

The bill makes it a crime for anyone, by means of the World Wide Web, to make any communication for commercial purposes that is "harmful to minors," unless the person has restricted access by minors by requiring a credit card number or other procedure specified by the Federal Communications Commission.

The substitute includes both criminal and civil penalties of up to $50,000 per day for violations. While some feel that civil penalties are less stigmatizing than criminal penalties, they can be imposed without the due process protections available under the criminal law.

Prior Restraint - The Worst Form of Censorship

One very troublesome portion of the substitute is a section authorizing the Attorney General to seek a court injunction against violators. Such injunctions would seem to be a form of prior restraint, constitutionally the most disfavored form of government restriction on speech.

The substitute includes "Congressional findings" that attack the factual record on which the Supreme Court based its 1997 decision striking down Congress' first attempt to regulate the Internet. With no support in its scant hearing record, the Subcommittee stated that "the Web and information transmitted over it may become more invasive and intrusive; that parental control tools have proven not effective; and that the approach in the bill is "the least restrictive, yet most effective, means" to protect children from harmful content online.

Berman said, "These findings mischaracterize the nature of the Web and would not withstand serious scrutiny under any serious inquiry. They will not preserve the bill from judicial overturning."

New Privacy Intrusions

By offering a defense to any Website that verifies the age of visitors, the bill in effect requires a new type of privacy intrusion. "This isn't like showing your driver's license when you buy beer," Berman explained. "The package store doesn't keep a record of who you are and what you bought. In the online world, age verification procedures create a permanent database of what you viewed and when." The substitute bill adopts privacy protections intended to limit disclosure of such information. However, the protections have a major loophole, allowing the disclosure of personal information for "legitimate business activites related to" making such communications.

Next Step - Full Committee

"Civil liberties and industry groups are gearing up to fight this bill when it is considered by the full Commerce Committee next week," said Berman.

For further information, contact Jerry Berman or Ari Schwartz (202) 637-9800