Letter from Anthony Sutin to Rep. Thomas Bliley.
Re: Constitutionality of the Child Online Protection Act, HR 3783.
Date: October 5, 1998.

U.S. Department of Justice
Office of Legislative Affairs

Office of the Assistant Attorney General

October 5, 1998

The Honorable Thomas Bliley
Chairman
Committee on Commerce
U.S. House of Representatives
Washington, DC 20515

This letter sets forth the views of the Department of Justice on H.R. 3783, the "Child On line Protection Act" ("the COPA"), as ordered reported. We share the Committee's goal of empowering parents and teachers to protect minors from harmful material that is distributed commercially over the World Wide Web. However, we would like to bring to your attention certain serious concerns we have about the bill.

The principal provision of the COPA would establish a new federal crime under section 231 of Title 47 of the United States Code. Subsection 231(a)(1) would provide that:

Whoever, in interstate or foreign commerce, by means of the World Wide Web, knowingly makes any communication for commercial purposes that includes any material that is harmful to minors without restricting access to such material by minors pursuant to subsection (c) should be fined not more than $50,000, imprisoned not more than 6 months, or both.

Subsection 231(a)(2), in turn, would provide for additional criminal fines of $50,000 for "each day" that someone "intentionally violates"§231(a)(1); and §231(a)(3) would provide for additional civil fines of $50,000 for "each day" that a person violated §231(a)(1). Subsection 231(b) would exempt certain telecommunications carriers and other service providers from the operation of §231(a)(1). Subsection 231(c)(1) would establish what is denominated an "affirmative defense".

(1) DEFENSE--It is an affirmative defense to prosecution under this section that the defendant, in good faith, has restricted assess by minors to material that is harmful to minors--

(A) by requiring use of a credit card, debit account, adult access code, or adult personal identification number; or

(B) by any other reasonable measures that are feasible under available technology.

Subsection 231(e) would define, inter alia the following terms in the criminal prohibition (i) "by means of the World Wide Web"; (ii) "commercial purposes"; (iii) "material that is harmful to minors," and "minors" See proposed 231(e)(1), (2), (6) & (7). In particular, "material that is harmful to minor" would be defined as:

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, taking the material as a whole and with respect to minors, that such material is designed to appeal to or panders to the prurient interest;

(B) depicts, describes, or represents, in a patently offensive way 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 or female breast; and

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

The Department's enforcement of a new criminal prohibition such as that proposed in the COPA could require an undesirable diversion of critical investigative and prosecutorial resources that the Department currently invests in combating traffickers in hard-core child pornography, in thwarting child predators, and in prosecuting large-scale and multi district commercial distributors of obscene materials. For example, presently the Department devotes a significant percentage of our resources in this area to the highly successful Innocent Images online undercover operation, begun in 1995 by the FBI. Through this initiative, FBI agents and task force officers go on-line, in an undercover capacity, to identify and investigate those individuals who are victimizing children through the Internet and on-line service providers. Fifty-five FBI field offices and a number of legal attaches are assisting and conducting investigations in direct support of the Innocent Images initiative. To ensure that the initiative remains viable and productive, the Bureau's efforts include the use of new technology and sophisticated investigative techniques, and the coordination of this national investigative effort with other federal agencies that have statutory investigative authority. We also have allocated significant resources for the training of state and local law enforcement agents who must become involved in our effort. To date, the Innocent Images national initiative has resulted in 196 indictments, 75 informations, 207 convictions, and 202 arrests. In addition, 456 evidentiary searches have been conducted.

We do not believe that it would be wise to divert the resources that are used for important initiatives such as Innocent Images to prosecutions of the kind contemplated under the COPA. Such a diversion would be particularly ill-advised in light of the uncertainty concerning whether the COPA would have a material effect in limiting minors access to harmful materials. There are thousands of news group and Internet relay chat channels on which anyone can access pornography, and children would still be able to obtain ready access to pornography from a myriad of overseas web sites. The COPA apparently would not attempt to address those sources of Internet pornography, and admittedly it would be difficult to do so because restrictions on news groups and chat channels could pose constitutional questions, and because any attempt to regulate overseas web sites would raise difficult questions regarding extraterritorial enforcement. The practical or legal difficulty in addressing these considerable alternative sources from which children can obtain pornography raises questions about the efficacy of the COPA and the advisability of expending scarce resources on its enforcement.

Second, such a provision would likely be challenged on constitutional grounds, since it would be a content-based restriction applicable to "the vast democratic form of the Internet," a "new market place of ideas" that has enjoyed a "dramatic expansion" in the absence of significant content-based regulation. Reno v. ACLU, 117 S. Ct. 2329, 2343, 2351 (1997). As the Court in ACLU suggested, id at 2341 (discussing Ginsberg v. New York 390 U.S. 629 (1968)), it may be that Congress could, consistent with the First Amendment, enact an Internet version of a "variable obscenity", harmful-to-minors prohibition, analogous to state-law statutes prohibiting bookstores from displaying to minors certain materials that are obscene as to such minors. See e.g. American Booksellers v. Webb. 919 F.2d 1493 (11th Cir. 1990), cert. denied 500 U.S. 942(1991); American Booksellers Ass'n v. Virginia 882 F.2d 125 (4th Cir. 1989), cert denied 494 U.S. 1056 (1990); Davis-Kidd Booksellers, Inc. v. McWherter, 866 S.W.2d 520(Tenn. 1993). However, it is not certain how the constitutional analysis might be affected by adaptation of such a scheme from the bookstore context in which it previously has been employed to the unique media of the Internet. Because it may be more difficult for Internet content providers to segregate minors from adults than it is for bookstore operators to do the same, and because the Internet is, in the Court's words, a "dynamic, multifaceted category of communication" that permits "any person with a phone line" to become "a town crier with a voice that resonates farther than it could from any soapbox." ACLU, 117 S.Ct. At 2344, the Court is likely to examine very carefully any content-based restrictions on the Internet.

The decision in ACLU suggests that the constitutionality of an Internet-based "harmful- to-minors" statute likely would depend, principally, on how difficult and expensive it would be for persons to comply with the statute without sacrificing their ability to convey protected expression to adults and to minors. And the answer to that question might depend largely on the ever-changing state of technology, the continuing progress that the private sector makes in empowering parents and teachers to protect minors from harmful material, and the scope and detail of the record before Congress. In this regard, it is notable that the COPA also would establish a Commission (see §6) to study the ways in which the problem could most effectively be addressed in a time of rapidly evolving technologies. In light of the difficult constitutional issues, we believe that Congress should wait until the Commission has completed its study and made its legislative recommendations before determining whether a criminal enactment would be necessary, and if so, how such a statute should be crafted.

Finally, the COPA as drafted contains numerous ambiguities concerning the scope of its coverage. Such ambiguities not only might complicate and hinder effective prosecution; they also might "render [the legislation] problematic for purposes of the First Amendment" by "undermin[ing] the likelihood that the [bill] has been carefully tailored to the congressional goal of protecting minors from potentially harmful materials." ACLU, 117 S. Ct. at 2344. Among the more confusing or troubling ambiguities are the following:

(a) While the COPA mentions that minors' access to materials on the Internet "can frustrate parental supervision or control" over their children, §2(1), the only "compelling interest" that the COPA would invoke as a justification for its prohibitions is "the protection of the physical and psychological well-being of minors by shielding them from materials that are harmful to them," id. §2(2). The constitutionality of the bill would be enhanced if Congress were to identify as the principal compelling interest the facilitation for parents' control over their children's upbringing, in addition to the government's independent interest in keeping certain materials from minors regardless of their parents' views. See, e.g., ACLU 117 S. Ct. at 2341 (noting that the statute in Ginsberg presented fewer constitutional problems than the Communications Decency Act because in the former, but not later, parents' consent to, or participation in, the communication would avoid application of the statute).

(b) While the bill would not appear to apply to material posted to the Web from outside the United States, that question is not clear, and the extraterritoriality of the prohibition might affect the efficacy and constitutionality of the statute. See ACLU. 117 S. Ct. at 2347 n. 45.

(c) It is unclear what difference is intended in separately prohibiting "knowing" violations (proposed §231(a)(1)) and "intentional" violations (proposed §231(a)(2)); and there is no indication why the two distinct penalty provisions are necessary or desirable. Moreover, it is not clear, in subsection (a)(1), which elements are modified by the "knowingly" requirement: For example, must the government prove that the defendant knew that the communication contained the harmful to minors? Nor is it clear what it would mean, in the context of distribution of the targeted materials over the World Wide Web, to violate subsection (a)(1) "intentionally."

(d) Proposed §231 (a)(3) would provide for civil penalties; but that section does not indicate how such penalties are to be imposed and enforced -- e.g., who would be responsible for bringing civil actions. In this regard, we should note that if Congress were to eliminate criminal penalties altogether, in favor of civil penalties, that would improve the likelihood that the statute eventually would be found constitutional. See e.g., ACLU, 117 S.Ct. at 2342 (distinguishing the civil penalties upheld in the "indecency" statute at issue in FCC v. Pacifica Foundation, 438 U.S. 726 (1978), from the criminal penalties in the CDA).

(e) The titles of §3 of the bill, and of proposed §231 of Title 47, refer to materials "sold by means of the World Wide Web"; and yet the prohibition itself does not appear to prohibit merely the "sale" of harmful material, although it is limited to communications "for commercial purposes."

(f) One of the elements of the basic prohibition in proposed §231(a)(1)would be that the defendant made the communication "without restricting access to such material by minors pursuant to subsection (c)." Yet subsection (c) itself would provide that such a restriction of access is an affirmative defense. This dual status of the "restricting access" factor appears to create a redundancy; at the very least, it leaves unclear important questions regarding burdens of proof with respect to whether a defendant adequately restricted access.

(g) The COPA definition of "material that is harmful to minors" would be similar to the "variable obscenity" state-law definitions that courts have upheld in cases (cited above) involving restrictions on the display of certain material to minors in bookstores. Those state statutes have, in effect, adopted the "obscenity as to minors" criteria approved in Ginsberg, as modified in accordance with the Supreme Court's more recent obscenity standards announced in Miller v. California, 413 U.S. 15, 24 (1973). But the COPA's definition would, in several respects, be different from the definitions typically used in those state statutes, and the reasons for such divergence are not clear. Is the definition intended to be coterminous with, broader, or narrower than, the standards approved in the cases involving scale-law display statutes? The breadth and clarity of the coverage of the COPA's "harmful to minors" standards could have a significant impact on the statute's constitutionality.

(h) Particular ambiguity infects the first of the three criteria for "material that is harmful to minors," proposed §231(e)(6)(A). (i) The words "that such material" appear extraneous. (ii) It is unclear whether "is designed to" is supposed to modify "panders to," and, if not , whether the "panders to" standard is supposed to reflect the intended or the actual effect of the expression "with respect to minors." (iii) Which "contemporary community standards" would be dispositive? Those of the judicial district (or some other geographical "community ") in which the expression is "posted"? Of the district or local community in which the jury sits? Of some "community" in cyberspace? Some other "community"? Resolution of this question might well affect the statute's constitutionality. See ACLU, 117 S. Ct. at 2345 n. 39.

(i)Must the material, taken as a whole, "lack[] serious literary, artistic, political, or scientific value" for all minors, for some minors, or for the "average" or "reasonable" 16- year-old minor? See e.g., American Booksellers, 919 F.2d at 1504-05 (under a variable obscenity statute, "if any reasonable minor, including a seventeen-year-old, would find serious value, the material is not harmful to minors"); Davis-Kid Booksellers, 866 S.W.2d at 528 (same); American Booksellers Ass'n 882 F.2d at 127 (sustaining constitutionality of a state variable obscenity statute after state court had concluded that a book does not satisfy the third prong of the statute if it is "found to have a serious literary, artistic, political or scientific value for a legitimate minority of normal, older adolescent").

(j) In the definition of "engaged in the business" (proposed §231 (e)(2)(B)), it is not clear what is intended by the reference to "offering to make such communications" Also unclear is the effect of the modifier "knowingly" in that same definition's clarification that a person may be considered to be "engaged in the business of making by means of the World Wide Web, communications for commercial purposes that include material that is harmful to minors only if the person knowingly causes the material that is harmful to minors to be posted on the World Wide Web." Must the person know that the material is posted to the Web? That the material is harmful to minors? That he or she "cause[d]" the material to be posted?

In addition, we have concerns with certain facets of the proposed Commission on Online Child Protection, which would be established under §6 of the bill. The Commission would be composed of fourteen private persons engaged in business, appointed in equal measures by the Speaker of the House and by the Majority Leader of the Senate, as well as three "ex officio" federal officials (or their designees): the Assistant Secretary of Commerce, the Attorney General and the Chairman of the Federal Trade Commission. The principal duty of the Commission, see §6(c)(1), would be:

to conduct a study....to identify technological or other methods to help reduce access by minors to material that is harmful to minors on the Internet, [and] which methods, if any--

(A) that the Commission determines meet the requirements for use as affirmative defenses for purposes of section 231(c).....; or

(B) may be used in any other manner to help reduce such access.

If subsection (A) of this provision were construed to permit or to require the Commission to "determine [ ]," as a matter of law, which methods would satisfy the affirmative defense established in §231(c), it would violate the constitutional separation of powers because most of the Commission members would be appointed by congressional officials and would not be appointed in conformity with the Appointments Clause of the Constitution, article II, section 2, clause 2. Accordingly, we would urge deletion of the portion of §6(c)(1) that follows the words "Internet." For similar reasons, we urge deletion of §6 (d)(4), which would require the Commission, as part of the report is submits to Congress, to describe "the technologies or methods identified by the study that may be used as affirmative defenses for purposes of section 231(c)...." (Even if such a delegation of responsibility to the proposed Commission were otherwise permissible, it would be unwise, in our view, as a mater of policy to permit the Commission--in essence--to make such determinations about a criminal offense.)

Thank you for the opportunity to present our views on this matter. The Office of Management and Budget has advised that there is no objection from the standpoint of the Administration's program to the presentation of this report.

Sincerely,

L. Anthony Sutin
Acting Assistant Attoney General

cc: The Honorable John Dingell
Ranking Minority Member