Child Online Protection Act to Be Included in Omnibus Appropriations Bill

(October 16, 1998, 9:00 AM ET)  The "Child Online Protection Act," known to its critics as "CDA II," will be included in the omnibus appropriations bill, which is likely to approved by both the House on Senate late today.

The bill bans sending to minors over the web 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.  The Clinton administration had opposed the bill, but caved in yesterday when supporters went public with their case.   (See, Press Statement of Rep. Oxley at the bottom of this page.)

HR 3783, the "Child Online Protection Act" (COPA), passed the House by a voice vote on Wednesday, October 7.  The Senate did not take it up because of an objection by Sen. Patrick Leahy (D-VT).   However, Congressional negotiators stated on Thursday, October 15, that an agreement had been reached to have the bill included in the massive omnibus appropriations bill.  That bill must be approved, if the government is to remain in operation.  It will likely be passed by both houses of Congress late on Friday, and approved by the President.

The COPA bill is the House version of a bill originally introduced in the Senate by Sen. Dan Coats (D-IN) as S 1482.  Also, when the COPA bill was brought up on the House floor last week, the language of the "Children's Online Privacy Protection Act" was added.  S 2326, sponsored by Sen. Richard Bryan (D-NV), would require that website operators and online services that operate websites directed to children obtain parental consent before collecting information from children under the age of thirteen.   Unlike COPA, Sen. Bryan's bill is not controversial.

Under the rules of the Senate, small numbers of Senators can effectively delay consideration of a bill, and hence defeat it late in a session.  In the case of COPA, Sen. Leahy lead the delaying effort.  Including a bill in the omnibus appropriations package is a tactic used to obtain passage of a bill by the Senate late in the session.

The final hurdle was obtaining Presidential support.  Initially, the administration opposed COPA, and opposed including it in the omnibus appropriations bill.  White House negotiators also sought to maintain a low profile, and keep the debate out of public discourse.  Since the White House is already the setting for a pornographic saga, which was recently published on the Internet in the Starr report, Clinton and his negotiators were negotiating over this Internet porn bill from a very weak position.

Jake Siewart, Communications Director of the National Economic Bureau, stated to Tech Law Journal before the White House reversed its position that Rep. Oxley's statement "completely misrepresents our position."   However, he refused to state any details about what the White House position was, or what was inaccurate about Oxley's statement.

Rep. Mike Oxley

Rep. Mike Oxley (R-OH), the lead sponsor of COPA, took advantage of the President's inability to wage a credible debate regarding matters Internet pornography and sexual morality.  He went public with blunt accusations that the administration was attempting to derail COPA.  He held a press conference Wednesday, October 14, to condemn the administration.  He also issued a strongly worded statement (at bottom of page).

Oxley fumed that if "the White House has its way, pornographers will be able to continue to sell and distribute perversion and brutality to kids with complete impunity. By blocking our efforts, the White House is, in reality, lining the pockets of pornographers.  It's sickening that this is going on in our country, even more sickening that we have a White House that, apparently, tacitly approves."

The administration, and Democratic Congressional leaders, also did not what to hand Republicans candidates a widely popular campaign issue just weeks before the midterm elections.  During negotiations held on Thursday, the administration abandoned its opposition to COPA, and agreed to its inclusion in the omnibus bill, without any changes.

Liberal civil rights groups are disappointed, and are likely to bring a legal challenge to COPA.

The American Civil Liberties Union (ACLU), Electronic Privacy Information Center (EFF), and Electronic Frontier Foundation (EPIC) announced in a joint press release on Thursday that would bring a suit challenging the constitutionality of the law.  All were involved in the successful challenge to the Communications Decency Act.

Barry Steinhardt, President of EFF stated: "It is the height of irony that the same Congress that plastered the salacious Starr Report all over the Internet now passes a plainly unconstitutional law to suppress a vaguely defined category of 'harmful' material."  He added: "You would think Congress would have learned that 'harmfulness' is in the eye of the beholder."

David Sobel, EPIC General Counsel said: "This law violates both the free speech rights and the privacy of Internet users. It requires, in effect, that any adult wishing to receive constitutionally protected material must register with a website before receiving information."

"We are not terribly pleased, not pleased at all, with the Oxley version of this legislation," said Tracy Hahn-Burkett, of People for the American Way.  PFAW is currently challenging the constitutionality of public libraries' use of blocking software to screen out Internet porn in the case Mainstream Loudoun v. Loudoun County Library.

"We have not come to a decision on" filing a court challenge, said Hahn-Burkett.  "We are looking at it, and talking to other groups."

Rep. Oxley's bill requires the operators of  commercial adult websites to take steps to screen out minors.  It employs a constitutionally tested "harmful to minors" standard, which has been upheld by the Supreme Court.  The bill also defines the standard to mirror current law for the print media.  Backers of the bill are confident that this bill, unlike the very broadly worded Communications Decency Act, will be upheld by the Supreme Court.

Press Statement of Rep. Mike Oxley.
Re: Child Online Protection Act.
Date: October 13, 1998.
Source: Office of Rep. Mike Oxley.  The document below was created by scanning and converting to HTML a paper copy of Rep. Oxley's statement.