(Summary of) Testimony of Jerry Berman, Executive Director Center for Democracy and Technology Before the Subcommittee on Telecommunications, Trade and Consumer Protection September 11, 1998

CDT is pleased to participate in this hearing at the request of the Subcommittee. We welcome the opportunity to address a critical issue: how to protect children from inappropriate material on the Internet consistent with constitutional values and the growth and health of the Internet.

We view this issue through the experience of the legislative process that resulted in Congress’ first attempt to regulate content on the Internet — the Communications Decency Act (CDA) -- and the litigation culminating in the Supreme Court decision declaring that law unconstitutional.

In the CDA decision, the Supreme Court struck down a sweeping attempt by Congress to regulate "indecency" on the Internet. As the Supreme Court recognized, the Internet is a unique, user-controlled medium. It allows individuals and families to choose the material worthy of their attention. The Court found that users of the Internet are not "assaulted" by material, and that the risk of encountering unwanted material by accident is remote because a series of affirmative steps is required to access specific material.

The Internet, the Supreme Court concluded, should not be treated like broadcast media. As the Court stated, "unlike the conditions that prevailed when Congress first authorized regulation of the broadcast spectrum, the Internet can hardly be considered a scarce'expressive commodity. It provides relatively unlimited, low-cost capacity for communication of all kinds." The Court emphasized that the Internet is a global medium and much of the material that would be considered offensive is produced overseas. Further, the Court noted that existing technology did not include any effective method for a sender to prevent minors from obtaining access to its communications on the Internet without also denying access to adults.

Before the Subcommittee today are at least seven well-intentioned but misguided efforts to address the problem of protecting children from speech that is considered inappropriate for them. Each of the seven bills is narrower than the CDA and each reveals an effort to more appropriately balance constitutional values in the effort to protect children. Nevertheless, none of the bills succeeds in this effort. The bills can be placed in three general categories:

• Harmful to minors: One bill requires entities that sell or transfer information considered "harmful to minors" to restrict access to those under 17.

• Protecting children in the school and library settings: Two bills would condition federal e-rate funding for schools and libraries on the use of filtering technology. A third bill conditions e-rate funding on the adoption of a policy outlining "acceptable use" of the Internet.

• Providing parents with access to content selection software: Three bills require Internet access providers to make filtering software designed to limit children’s access to unsuitable information available to subscribers at the time they sign up for service.

On the Internet, neither governments nor publishers can control the distribution of material made available over the Web. As the findings in the CDA case state, "Once a provider posts its content on the Internet, it cannot prevent that content from entering any community. Unlike newspaper, broadcast station, or cable system, Internet technology gives a speaker a potential worldwide audience." In the CDA case, the federal district court found that a "large percentage, perhaps 40% or more, of content on the Internet originates outside the United States… ." "Because of the global nature of the Internet, material posted overseas is just as available as information posted next door."

Three of the bills - the Online Children’s Protection Act, the Safe Schools Internet Act, and the Child Protection Act — will in their application limit adults' and older minors' access to constitutionally protected information. As the Supreme Court restated in the CDA decision, "The level of discourse reaching a mailbox simply cannot be limited to that which would be suitable for a sandbox" and this is so "regardless of the strength of the government’s interest in protecting children."

While seeking to control content through Internet Service Providers may at first glance seem attractive, making them responsible for information that merely travels through their systems would fundamentally change the nature of the Internet and is technically and practically impossible. ISPs cannot easily stop the incoming flow of material nor can they monitor the enormous quantity of network traffic or selectively disable transmission to particular users.

The infirmities of the proposed legislation ought not to lead to the conclusion that there is nothing to be done about the very real problem of Internet speech that is inappropriate for children. While communities across the country are grappling with this issue, this Subcommittee could provide a needed forum for a serious discussion of this important issue. It could begin the process of examining the alternatives available to achieve the goal of protecting children. Can we zone the Internet and what are the risks of doing so? Are there ways to verify the age of those seeking certain materials? Is there a need for resources and tools for parents that are easier to access and use?

Such an effort, not a continuing cycle of hasty legislation and time-consuming litigation, is the process through which we will ultimately make the Internet a safe place for children and realize our most cherished First Amendment values. We look forward to working with the Subcommittee and all interested parties to develop effective, constitutionally sound solutions.