House Subcommittee Passes Child Online Protection Act

(September 21, 1998.)  The House Telecommunications Subcommittee approved an amended HR 3783, the "Child Online Protection Act," on Thursday, September 17.  This is the House version of a bill sponsored by Sen. Dan Coats, which passed the Senate in July.  The full Commerce Committee will likely take up the bill on Thursday, September 24.

The bill would criminalize the sending to minors over the web of material that is harmful to minors.  It is intended to replace the much more broadly worded Communications Decency Act, which was held unconstitutional by the Supreme Court last year.  HR 3783 (subcommittee substitute) passed unanimously by a voice vote, although Rep. Chris Cox (R-CA) stated that he opposed the bill, on the grounds that it was too weak, and gave too much authority to the Federal Communications Commission (FCC).

Rep. Billy Tauzin (R-LA), the Chairman of the Telecommunications Subcommittee, presided at the meeting, and spoke in favor of the bill.  He stated that "the bill we are marking up today makes an honest attempt to prevent the widespread distribution of pornography to kids.  Some pornography sites show violent, abusive, degrading pictures or videos with total disregard of who the audience may be, and this of course, is quite disturbing."

He continued that "HR 3783 restricts businesses from selling pornography over the world wide web unless they have taken precautions to screen minors' access."

Rep. Tom Bliley (R-VA), the Chairman of the Commerce Committee, likewise spoke in favor of the bill.  However, he also argued that it was necessary for the development of electronic commerce.  He stated that:

"electronic commerce, will only continue to develop if it is safe, secure, and private. Consumers are less likely to engage in commerce on-line, or purchase access to the Internet for that matter, if they believe that their credit card numbers can be easily stolen, or if their children will be easily exposed to pornography on the Web. H.R. 3783 addresses the "safety" of the Internet and provides an effective means to protect children online."  (See also, full text of Rep. Bliley's Opening Statement.)

The bill is sponsored by Rep. Mike Oxley (R-OH), and 59 other members of the House.  Rep. Oxley described his bill as follows:

"This bill, which is based on a measure sponsored by Senator Dan Coats, who of course testified before this subcommittee last week, requires the operators of commercial adult websites to take steps to screen out minors.  It employs the constitutionally tested "harmful to minors" standard, defining it to mirror current law for the print media."

Rep. Oxley added that this bill is designed to stand up to Supreme Court review.: "The Court wasted no time in throwing out the CDA, because of the 'indecency' standard, which was found wanting by the Court.  Now, Mr. Chairman, we are back with a more reasonable product, a product that is, we think, is constitutional, and will stand up to a constitutional challenge."

Rep. Ed Markey (D-MA), the ranking minority member of the Telecommunications Subcommittee, stated that the CDA "was overly broad, and overly vague.  The standard in the bill before us this morning, 'harmful to minors,' is narrower than the CDA.  Yet like the CDA, the bill is proposing a national standard, rather than a community based standard, of what 'harmful to minors' means.  The legislation before us raises a number of difficult policy questions."   Rep Markey listed two: how to implement this standard in communities with different standards, and how to separate content providers from conduits.

Rep. Rick White (R-WA) raised a number of concerns that he had about the bill.  He began by saying that "pornography on the Internet is a problem that needs to be fixed, and needs to be fixed now.  The problem is we probably don't know exactly how to fix it, and that is why I have some reservations with the bill we are considering today."

He went on to list four items.  "I do have some reservations, and I just want to briefly put them on the record:"

• "Number one, I want to make sure that when we adopt something in this Congress, or come up with a proposal for dealing with pornography, that we actually do something that works.  Unfortunately, in Washington DC we have a tendency to think that passing a law will solve all our problems, and I think that this is one area that passing a law may help us, but may not solve all, or even most of the problem. ... "
• "I also want to make sure that we don't give people a false sense of security that the government has solved this problem, that parents don't have to be vigilant, they can just let their children go on the Internet. ... "
• "I want to make sure that we don't lock ourselves into an old technology, so that we force the world to start off in one direction,  just as another far more effective direction is appearing out in the real world.  ... "
• "And number four, I want to make that whatever we do, it turns out to be constitutional -- we don't go through the same problem we had with the Communications Decency Act."

While restraints on content on the Internet have been criticized by legal scholars and liberal civil rights groups, and rejected by the courts, the notion is very popular with elected officials in the Congress.  This subcommittee bill passed by unanimous voice vote.  Moreover, even though many members of the Subcommittee were present throughout the meeting, there was no debate over whether the bill should be passed, other than Rep. Cox's opposition.  And he opined that the the bill is too weak.

However, one item was tersely debated by several members: whether to give the Federal Communications Commission authority to enforce certain sections of the bill.  Rep. Chris Cox (R-CA) offered an amendment that would have struck out two such clauses.

Some members of the Committee have objected to many actions taken by the the FCC in enforcing the Telecommunications Act of 1996.  Now, many do not want to give the FCC any excuse for extending its authority to the computer and Internet industries.  This attitude is reflected in a clause added to the bill banning the FCC from regulating the content on the web.  The FCC does not have this authority now.  But then, lacking statutory authority has not always stopped the FCC from acting as though it did.

Cox said that, "I am also pleased that language was added in Section 231(e) that expressly bars the Federal Communications Commission from policing the content of websites, or from becoming a de facto Federal Computer Commission."

His amendment would have taken away from the FCC the authority to enforce a civil penalties section of the bill.  (Actually, it would have also deleted that penalty clause in its entirety.)  It would also have taken away from the FCC the authority to establish procedures for pornographers to distribute their material to persons with credit cards, debit cards, or adult access codes.

Rep. Oxley strongly objected to the Cox amendment, and the two angrily debated.

The first vote was on the Cox amendment.  It failed by a voice vote.   However, Rep. Cox picked up several votes from other Republicans.  The second vote was on adopting the amendment in the nature of a substitute to HR 3783.  It passed by unanimous voice vote.  Rep. Cox stated that he opposed the bill, but left the room just before the final vote.

Rep. Cox also expressed objections to the bill on the basis that it did not go far enough to protect children from pornography on the Internet.  He cited several weaknesses in the bill. (See also, Statement of Rep. Christopher Cox.)

• It "affects U.S. sites only."  It does nothing to prevent pornography on the web from coming in from other countries.
• It "applies only to non-commercial sites, and sites on the World Wide Web.   Broad categories of the Internet--individual or hobby porn web pages, Usenet, email, electronic bulletin boards, chatrooms--are exempt from the bill's ban on making obscene material available to minors."
• It "doesn't let parents set tougher standards."