House Republicans Introduce Bill to Expand CIPA to Include Chat Rooms and Social Networking Sites

May 9, 2006. Rep. Michael Fitzpatrick (R-PA) and other House Republicans introduced HR 5319, the "Deleting Online Predators Act of 2006", or DOPA. This bill would censor use of the internet by expanding the requirements of the Children's Internet Protection Act (CIPA) to include chat rooms and commercial social networking web sites.

CIPA. The Congress enacted the "Children's Internet Protection Act" in December of 2000 as part of a huge, omnibus, end of session appropriations bill. The CIPA [20 pages in PDF] was one small part of HR 4577 (106th Congress). President Clinton signed the huge bill into law on December 21, 2000. It is now Public Law No. 106-554.

The key provisions of the CIPA are now codified at 47 U.S.C. § 254, at subsections (h)(5) and (h)(6). Section 254, which was added to the Communications Act of 1934 by the Telecommunications Act of 1996, is the universal service section. Section 254 is the statutory section upon which the Federal Communications Commission's (FCC) e-rate tax and subsidy program is loosely based.

The CIPA, among other things, requires schools and libraries receiving e-rate subsidies to use pormography filtering technology on internet access computers used by children. (TLJ misspells words that cause subscribers e-mail filters to block e-mail from TLJ.)

The CIPA also has a long litigation history. Ultimately, the Supreme Court upheld the constitutionality of the CIPA. See, opinion [56 pages in PDF] of June 23, 2003 in US v. American Library Association, and stories titled "District Court Holds Part of Children's Internet Protection Act Unconstitutional" in TLJ Daily E-Mail Alert No. 442, June 3, 2002, and "Supreme Court Upholds Children's Internet Protection Act" in TLJ Daily E-Mail Alert No. 686, June 24, 2003. This Supreme Court's opinion is also reported at 539 U.S. 194.

DOPA. Rep. Fitzpatrick's bill would expand the duties of schools and libraries receiving e-rate subsidies. In order to continue to receive subsidies, schools would have to certify to the FCC that they are "enforcing a policy of Internet safety for minors that includes monitoring the online activities of minors and the operation of a technology protection measure with respect to any of its computers with Internet access that ... prohibits access to a commercial social networking website or chat room through which minors ... may easily access or be presented with obscene or indecent material; ... may easily be subject to unlawful sexual advances, unlawful requests for sexual favors, or repeated offensive comments of a sexual nature from adults; or ... may easily access other material that is harmful to minors".

The bill contains a similar requirement for libraries, but it applies only to "minors" and contains an exception for "parental authorization". Libraries would have to certify to the FCC that they are "enforcing a policy of Internet safety that includes the operation of a technology protection measure with respect to any of its computers with Internet access that ... prohibits access by minors without parental authorization to a commercial social networking website or chat room through which minors ...  may easily access or be presented with obscene or indecent material; ... may easily be subject to unlawful sexual advances, unlawful requests for sexual favors, or repeated offensive comments of a sexual nature from adults; or ... may easily access other material that is harmful to minors".

The bill defines "commercial social networking website" to mean "a commercially operated Internet website that (i) allows users to create web pages or profiles that provide information about themselves and are available to other  users; and (ii) offers a mechanism for communication with other users, such as a forum, chat room, email, or instant messenger."

The bill defines the term "chat rooms" to mean "Internet websites through which a number of users can communicate in real time via text and that allow messages to be almost immediately visible to all other users or to a designated segment of all other users."

The bill would affect, among other things, use of Myspace and Facebook. Rep. Fitzpatrick stated in a release that "Sites like Myspace and Facebook have opened the door to a new online community of social networks between friends, students and colleagues ... However, this new technology has become a feeding ground for child predators that use these sites as just another way to do our children harm."

The bill was referred to the House Commerce Committee.

Support for DOPA. The original cosponsors of the bill are Rep. Mark Kirk (R-IL), Rep. Candace Miller (R-MI), Rep. Curt Weldon (R-PA), Rep. Phil English (R-PA), Rep. Geoff Davis (R-KY), and Rep. Mike Castle (R-DE).

Rep. Kirk stated in a release on May 8, 2006, that the Federal Trade Commission (FTC) will issue a consumer alert "regarding the dangers of using MySpace.com and other social networking sites". He continued that "One in five children receives unwanted sexual advances online ... Social networking sites like MySpace.com contain web pages for tens of millions of American children. Using the anonymity of the Internet, pedophiles found a virtual hunting ground to prey on children. I welcome the decision by the FTC to issue a national consumer alert, urging parents to monitor who is contacting their children via these sites and warning children to use caution when setting up a personal web page."

House Republicans held a news conference on May 10, 2006, to announce the agenda for the Republican's Suburban Caucus. HR 5319 is part of this agenda.

Rep. Miller, a member of the Caucus, and an original cosponsor of HR 5319, stated in a release that "These bills are the start of our ongoing agenda that will address the needs of our suburban constituents. In particular we must do more to protect our children. Just yesterday a thirteen year old girl from my hometown of Harrison Twp. was picked up by a 25 year old man whom she met on MySpace.com. That man then tried to remove her from the state, but thankfully her friends alerted authorities who got her back. It is these kinds of incidents affecting our children and families in suburban America that our agenda is targeting. I am also pleased that our leadership has ensured floor action on each of these bills."

House Speaker Denny Hastert (R-IL) (at right) also spoke at this news conference. He said that this bill "would put filters in schools and libraries so that kids can be protected from websites and tools that predators use online. We’ve all heard stories of children on some of these social websites meeting up with dangerous predators. This legislation adds another layer of protection." See, statement. See also, release of Rep. Davis.

Constitutionality of DOPA. HR 5319 creates no new statutory framework. It merely extends an existing framework -- that of Section 254(h)(5)&(6).

Congressional attempts to censor uses of the internet have sometimes been held unconstitutional by the judiciary. However, the Section 254(h) framework of the CIPA has been held constitutional by the Supreme Court. The strategy of the drafters and sponsors of this bill may be to rely upon the holding of the Supreme Court in US v. ALA.

However, the constitutionality of at least part of the bill, may yet be an open question. The majority of the Supreme Court in US v. ALA was divided, two of its members have since retired, and the reasoning was based upon the facts associated with blocking pormographic web sites, rather than blocking access to chat rooms and social networking sites.

First, it should be noted that both the CIPA and the DOPA apply to both schools (which involve children) and libraries (which involve both adults and children). There was little opposition to the CIPA's schools related provisions, and the District Court upheld these. The issue before the Supreme Court was the CIPA's library related provisions.

Both the District Court and the Supreme Court noted that software that blocks access to pormographic web sites also inadvertently overblocks. It is over-inclusive to the extent that some of the web sites that are blocked do not contain the pormographic content that the statute seeks to have blocked. Hence, library patrons may not gain access to web sites with non-objectionable content. The District Court, but not a majority of the Supreme Court, held that this made the statute unconstitutional under First Amendment analysis.

There is perhaps a big difference, for the purposes of constitutional analysis, between porm blocking, a small part of which is over-inclusive, and chat room and social networking web site blocking, most of which is over-inclusive. That is, the vast majority of the content and communications in chat rooms and social networking web sites is not content or communications which the statute seeks to block.

(Although, it is possible that a recitation of purposes, or legislative history, might be developed that cites bandwidth preservation as an additional purpose of the bill.)

The majority in US v. ALA may also be significant. Chief Justice Rehnquist wrote the opinion of the Court. He is no longer on the Court. Justice O'Connor joined. She is no longer on the Court. The two other Justices who joined were Scalia and Thomas. In addition, Justice Kennedy and Justice Breyer both wrote opinions that concurred as to the judgment of constitutionality, but offered different analyses from that of Chief Justice Rehnquist. That is, there are only two members left who joined in the opinion of the Court, and two more who joined in the judgment as to constitutionality. Depending on how the new members, Roberts and Alito, view this issue, the Court might have supported overturning the CIPA had they been on the Court.

The combination of Court turnover, and a fact scenario less conducive to a finding of constitutionality, could lead the current Court to overturn at least the library related provisions of the DOPA.

Back in 2002, the three judge panel of the U.S. District Court (EDPa) held the statute unconstitutional as a violation of the First Amendment. It held that filtering software is a content based restriction on access to a public forum, and is therefore subject to the strict scrutiny test -- that is, it must be necessary to achieve a compelling governmental interest, and be narrowly tailored to further that interest. The District Court held that the federal government has a compelling interest in preventing the dissemination of obscenity, child pormography, or, in the case of minors, material harmful to minors. However, it found that mandating the use of filters is not narrowly tailored to further those interests.

The Supreme Court reversed. Justices wrote several opinions. Six Justices joined in opinions that concluded that the CIPA is constitutional. Rehnquist wrote an opinion that was joined by Justices O'Connor, Scalia and Thomas. His opinion turned on the question of whether or not libraries are public fora.

Rehnquist first reviewed the nature of internet access and filtering software. He wrote "there is also an enormous amount of pormography on the Internet, much of which is easily obtained. ... The accessibility of this material has created serious problems for libraries, which have found that patrons of all ages, including minors, regularly search for online pormography. ... Some patrons also expose others to pormographic images by leaving them displayed on Internet terminals or printed at library printers. ... Upon discovering these problems, Congress became concerned that the E-rate and LSTA programs were facilitating access to illegal and harmful pormography."

"But Congress also learned that filtering software that blocks access to pormographic Web sites could provide a reasonably effective way to prevent such uses of library resources", wrote Rehnquist.

He also acknowledged that "But a filter set to block pormography may sometimes block other sites that present neither obscene nor pormographic material, but that nevertheless trigger the filter."

Rehnquist then analyzed the function fulfilled by public libraries, and concluded that, in the context of internet access, public libraries are not "public forums" within the meaning of constitutional analysis.

He wrote that "The public forum principles on which the District Court relied ... are out of place in the context of this case. Internet access in public libraries is neither a ``traditional´´ nor a ``designated´´ public forum."

He reasoned that "A public library does not acquire Internet terminals in order to create a public forum for Web publishers to express themselves, any more than it collects books in order to provide a public forum for the authors of books to speak. It provides Internet access, not to ``encourage a diversity of views from private speakers,´´ ... but for the same reasons it offers other library resources: to facilitate research, learning, and recreational pursuits by furnishing materials of requisite and appropriate quality."

Justice Breyer approached the case differently. He wrote that "Given the comparatively small burden that the Act imposes upon the library patron seeking legitimate Internet materials, I cannot say that any speech-related harm that the Act may cause is disproportionate when considered in relation to the Act’s legitimate objectives. I therefore agree with the plurality that the statute does not violate the First Amendment, and I concur in the judgment."

Were Justice Breyer to stand in judgment of the DOPA, he might conclude that it presents a comparatively large burden on library patrons.

In addition, Justice Breyer noted that "the Act allows libraries to permit any adult patron access to an ``overblocked´´ Web site; the adult patron need only ask a librarian to unblock the specific Web site ..."

Section 254(h)(6)(D), which pertains to libraries, provides that "An administrator, supervisor, or other person authorized by the certifying authority under subparagraph (A)(i) may disable the technology protection measure concerned, during use by an adult, to enable access for bona fide research or other lawful purpose."

Justice Kennedy placed great emphasis on this clause. He wrote that " If, on the request of an adult user, a librarian will unblock filtered material or disable the Internet software filter without significant delay, there is little to this case."

HR 5319 does not amend Section 254(h)(6)(D). It does, however, amend Section 254(h)(5)(D), which pertains to schools, to allow unblocking during computer use "by minors with adult supervision to enable access for educational purposes".

In conclusion, six Justices concluded that the CIPA was constitutional as applied to libraries. However, two of those have retired, and Breyer might reach the opposite conclusion were he to review the DOPA. It appears from the CIPA case that Justice Scalia, Thomas and Kennedy would uphold the constitutionality of the DOPA. The positions of Justices Roberts and Alito are unknown.