H.R. 3783, Child Online Protection Act.
Amendment in the Nature of a Substitute, approved by voice vote of House Telecommunications Subcommittee. September 17, 1998.
Source: House Telecommunications Subcommittee.  The document was created by scanning a photocopy, and converting it to HTML.  Several features were lost in the conversion process, including double spacing and line numbering.  Hypertext links were been added.

To amend section 223 of the Communications Act of 1934 to require persons who are engaged in the business of selling or transferring. by means of the World Wide Web, material that is harmful to minors to restrict access to such material by minors, and for other purposes.

IN THE HOUSE OF REPRESENTATIVES

APRIL 30, 1998

Mr. OXLEY (for himself, Mr. GREENWOOD, Mr. MANTON, Mr. GILLMOR, Mr. DEAL of Georgia, Mr. WHITFIELD. Mr. NORWOOD, Mrs. CUBIN, Mr. BURR, of North Carolina, and Mr. UPTON) introduced the following bill; which was referred to the Committee on Commerce

A BILL

To amend section 223 of the Communications Act of 1934 to require persons who are engaged in the business of selling or transferring, by means of the World Wide Web, material that is harmful to minors to restrict access to such material by minors, and for other purposes.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the "Child Online Protection Act".

[begin page 1]

AMENDMENT IN THE NATURE OF A SUBSTITUTE
TO H.R. 3783
OFFERED BY MR. OXLEY OF OHIO

Strike all after the enacting clause and insert the following:

SECTION 1. SHORT TITLE.

This Act may be cited as the "Child Online Protection Act".

SEC. 2. CONGRESSIONAL FINDINGS.

The Congress finds that---

(1) as access to and use of the World Wide Web becomes ubiquitous, the Web and information transmitted over it may become more invasive and intrusive in individual and family lives;

(2) children now have greater opportunities for access to the World Wide Web and such access is continually expanding;

(3) while custody, care, and nurture of the child reside first with the parent, the widespread availability of computers presents opportunities for minors to access materials through the World Wide Web in a manner that can frustrate parental supervision or control;

[begin page 2]

(4) the protection of the physical and psychological well-being of minors by shielding them from materials that are harmful to them is a compelling governmental interest;

(5) to date, parental control protections and voluntary industry efforts to self-regulate have not proven effective as a means to restrict material that is harmful to minors;

(6) the Federal Government has a compelling interest in ensuring that minors are restricted in their access to communications made by means of the World Wide Web that are harmful to minors; and

(7) a prohibition on the distribution of material harmful to minors and legitimate defenses are the least restrictive, yet most effective, means to satisfy the compelling government interest.

SEC. 3. REQUIREMENT TO RESTRICT ACCESS BY MINORS TO MATERIALS SOLD BY MEANS OF THE WORLD WIDE WEB THAT ARE HARMFUL TO MINORS.

Part I of title II of the Communications Act of 1934 (47 U.S.C. 201 et seq.) is amended by adding at the end the following new Section;

[begin page 3]

"SEC. 231. RESTRICTION OF ACCESS BY MINORS TO MATERIALS SOLD BY MEANS OF WORLD WIDE WEB THAT ARE HARMFUL TO MINORS.

"(a) REQUIREMENT TO RESTRICT ACCESS.

"(1) PROHIBITED CONDUCT.---Whoever, in interstate or foreign commerce, by means of the World Wide Web, knowingly makes any communication for commercial purposes that is harmful to minors to any minor shall be fined not more than $50,000, imprisoned not more than 6 months, or both.

"(2) INTENTIONAL VIOLATIONS.---In addition to the penalties under paragraph (1), whoever intentionally violates such paragraph shall be subject to a fine of not more than $50,000 for each violation. For purposes of this paragraph, each day of violation shall constitute a separate violation.

Rep. Chris Cox (R-CA) introduced an amendment that would have struck out the highlighted language at left.  The amendment failed.  See, full text of Cox amendment, below.

"(3) CIVIL FINE.---In addition to the penalties under paragraphs (1) and (2), whoever violates paragraph (1) shall be subject to a civil fine of not more than $50,000 for each violation.  For purposes of this paragraph, each day of violation shall constitute a separate violation. A fine under this paragraph may he assessed either---

"(A) by a court, pursuant to civil action by the Commission or by any attorney employed by [begin page 4] the Commission who is designated by the Commission for such purposes, or

"(B) by the Commission after appropriate administrative proceedings.

"(4) INJUNCTIONS.---The Attorney General may bring a suit in the appropriate district court of the United States to enjoin any act or practice which violates paragraph (1) or (2). An injunction may be granted in accordance with the Federal Rules of Civil Procedure.

"(b) INAPPLICABILITY OF CARRIERS AND OTHER SERVICE SERVICE PROVIDERS.---For purposes of subsection (a), a person shall not be considered to be engaging in making communications for commercial purposes to the extent that such person is---

"(1) a telecommunications carrier engaged in the provision of a telecommunications service;

"(2) a person engaged in the business of providing Internet access services; or

"(3) similarly engaged in the transmission, storage, retrieval, formatting, or translation (or any combination thereof) of a communication made by another person, without selection or alteration of the content of the communication.

"(c) AFFIRMATIVE DEFENSE.---

[begin page 5]

"(1) DEFENSE.---It is an affirmative defense to prosecution under this section that the defendant has restricted access by minors to material that is harmful to minors by requiring use of a credit card. debit account, adult access code, or adult personal identification number or in accordance with such other procedures as the Commission shall prescribe. The Commission shall biennially review such procedures and shall revise such procedures as necessary to carry out the purposes of this section.

"(2) PROTECTION FOR USE OF DEFENSES.---No cause of action may be brought in any court or administrative agency against any person on account of any activity that is not in violation of any law punishable by criminal or civil penalty, and that the person has taken in good faith to implement a defense authorized under this subsection or otherwise to restrict or prevent the transmission of, or access to, a communication specified in this section.

"(d) PRIVACY PROTECTION REQUIREMENTS.---

"(1) DISCLOSURE OF INFORMATION LIMITED.---A person making a communication described in subsection (a) shall not disclose any information collected for the purposes of restricting access to such communications to individuals 17 years of age or [begin page 6] older without the prior written or electronic consent of the individual concerned, if an adult, or the individual parent or guardian, if the individual is under 17 years of age, and shall take such actions as are necessary to prevent unauthorized access to such information by a person other than the person making such communication and the recipient of such communication.

"(2) EXCEPTIONS.---Such a person may disclose such information if the disclosure is

"(A) necessary to make the communication, or conduct a legitimate business activity related to, making the communication;

"(B) subject to paragraph (4), made pursuant to a court order authorizing such disclosure, if the recipient of the communication is notified of such order by the person to whom the order is directed.

"(3) REMEDIES.---Any individual aggrieved by any act in violation of this subsection may bring a civil action in a United States district court. The court may award---

"(A) actual damages but not less than liquidated damages computed at the rate of $100 [begin page 7] a day for each day of violation or $1,000, whichever is higher;

"(B) punitive damages; and

"(C) reasonable attorneys' fees and other litigation costs reasonably incurred.

"(4) LIMITATION ON COURT ORDERS.---A governmental entity may obtain information described in paragraph (1) pursuant to a court order only if, in the court proceeding relevant to such court order, such entity offers probable cause that the subject of the information is reasonably suspected of engaging in criminal activity and that the information sought would be material evidence in the case.

"(e) NO AUTHORIZATION OF CONTENT REGULATION.---This section may not be construed to authorize the Commission to regulate in any manner the content of any information provided by means of the World Wide Web.

"(f) DEFINITIONS.---For purposes of this subsection, the following definitions shall apply:

"(1) BY MEANS OF THE WORLD WIDE WEB. The term 'by means of the World Wide Web' means by placement of material  in a computer server-based file archive so that it is publicly accessible, over the Internet, by using hypertext transfer protocol or any successor protocol.

[begin page 8]

"(2) COMMERCIAL PURPOSES ENGAGED IN THE BUSINESS.---A person shall be considered to make a communication for commercial purposes if such person is engaged in the business of making such communications. The term 'engaged in the business' means that the person who makes a communication, or offers to make a communication, by means of the World Wide Web, that is harmful to minors devotes time, attention, or labor to such activities, as a regular course of trade or business, 'with the objective of earning a profit, although it is not necessary that the person make a profit or that the making or offering to make such communications be the person's sole or principal business or source of income

"(3) INTERNET.---The term 'Internet' means the combination of computer facilities and electromagnetic transmission media, and related equipment and Software, comprising the interconnected world-wide network of computer networks that employ the Transmission Control Protocol/Internet Protocol, or any predecessor or successor protocol to transmit information

"(4) INTERNET ACCESS.---The term 'Internet access service' means a service that enables users to access content, information, electronic mail, or other [begin page 9] services offered over the Internet, and may also include access to proprietary content, information. and other services as part of a package of services offered to consumers. Such term does not include telecommunications services.

"(5) MATERIAL THAT IS HARMFUL TO MINORS.---The term 'material that is harmful to minors' means any communication, picture, image, graphic image file, article, recording, writing, or other matter of any kind that---

"(A) the average person, applying contemporary community standards, would find that the material taken as a whole and with respect to minors, is designed or pandered to appeal to the prurient Interest;

"(B) depicts, describes, or represents, in a manner patently offensive with respect to minors, an actual or simulated sexual act or sexual contact, actual or simulated normal or perverted sexual acts, or a lewd exhibition of the genitals; and

"(C) taken as a whole, lacks serious literary artistic, political, or scientific value for minors.

[begin page 10]

"(6) MINOR.---The term 'minor' means any person under 17 years of age.".

SEC. 5. NOTICE REQUIREMENT.

(a) NOTICE.---Section 230 of the Communications Act of 1934 (47 U.S.C. 230) is amended---

(1) by redesignating subsections (d) and (c) as subsections (e) and (f), respectively;

(2) by inserting after subsection (c) the following new subsection:

"(d) OBLIGATIONS OF INTERNET ACCESS PROVIDERS.---A provider of Internet access service (as such term is defined ill section 231) shall, at the time of entering an agreement with a customer for the provision of Internet access services and in a manner deemed appropriate by the provider, notify such customer that parental control protections (such as computer hardware, software, or filtering services) are commercially available that may assist the customer in limiting access to material that is unsuitable for children. Such notice shall identity, or provide the customer with access to information identifying, current providers of such protections.".

(b) CONFORMING AMENDMENT.---Section 223(h)(2) of the Communications Act of 1934 (47 U.S.C. 223(h)(2)) is amended by striking "230(e)(2)" and inserting "230(f)(2)".

[begin page 11]

SEC. 6. STUDY OF TOP LEVEL DOMAINS.

(a) NTIA STUDY.---The National Telecommunications and Information Administration shall conduct a study of the economic, technical, and administrative feasibility of---

(1) creating a second level adult domain space (such as "adult.us") that would be available within the ".us" domain; and

(2) transferring commercial distributors of information that is harmful to minors (within the meaning of section 231 of the Communications Act of 1934, as added by this Act) to that domain.

(b) REPORT. ---Within 6 months after the date of enactment of this Act, the Assistant Secretary for Communications and Information of the Department of Commerce shall transmit to the Congress a report on the study required by subsection (a). Such report shall include such policy recommendations as the Assistant Secretary considers appropriate concerning---

(1) the creation and adoption of the second level adult domain space described in subsection (a)(1); and

(2) other measures required to provide appropriate zoning or screening of communications that are harmful to minors.

[begin page 12]

SEC. 7. GLOBAL PROTECTION.

Within 6 months after the date of enactment of this Act, the Secretary of Commerce shall submit to the Congress a report---

(1) analyzing the global distribution over the Internet of material that is harmful to minors;

(2) making recommendations on methods for reducing such distribution; and

(3) containing suggested legislative or administrative actions to implement those methods.

Amendment offered by Rep. Chris Cox, To Rep. Mike Oxley's Amendment in the Nature of A Substitute.
Re: H.R. 3783, "Child Online Protection Act."
Rejected by voice vote of House Telecommunications Subcommittee on September 17, 1998.
Source: House Commerce Committee.

Amendment to H.R. 3783
Offered by Mr. Cox of California

Page 5, line 6, strike "or" and all that folows through page 5, line 10, and insert a period.

Page 3, strike line 18 and all that follows through page 4, line 4.