House Approves DOPA

July 26, 2006. The House approved HR 5319, the "Deleting Online Predators Act of 2006", a bill to require schools and libraries receiving e-rate subsidies to block access to social networking web sites and chat rooms.

Rep. Michael Fitzpatrick (R-PA) introduced this bill on May 9, 2006. The House Commerce Committee (HCC) held a hearing on this bill on July 11. However, there was no subcommittee or full committee mark up of the bill. The full House approved it on July 26, 2006, under suspension of the rules, by a vote of 410-15. See, Roll Call No. 405.

The Senate has yet to take any action on this bill.

Summary of HR 5319. This bill builds on the Children's Internet Protection Act (CIPA), which amended 47 U.S.C. § 254, the universal service section of the Communications Act. The Federal Communications Commission's (FCC) e-rate program, which taxes communications to subsidize telephone service, internet access, and internal wiring at schools and libraries, is based loosely on Section 254(h).

The CIPA, which is codified at Section 254(h)(5), added the requirement that schools receiving e-rate subsidies must, among other things, 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 protects against access through such computers to visual depictions that are (I) obscene; (II) child pornography; or (III) harmful to minors", and that they are "enforcing the operation of such technology protection measure during any use of such computers by minors".

The bill would amend 47 U.S.C. § 254(h)(5)(B) to add the requirement that schools also certify that they are enforcing a policy that "protects against access to a commercial social networking website or chat room unless used for an educational purpose with adult supervision".

It would add the requirement that libraries also certify that they are enforcing a policy that "protects against access by minors without parental authorization to a commercial social networking website or chat room, and informs parents that sexual predators can use these websites and chat rooms to prey on children".

The bill then requires the FCC to conduct a rule making proceeding to define the terms "social networking website" and "chat room". It provides that the FCC shall consider whether the site:

  "(i) is offered by a commercial entity;
   (ii) permits registered users to create an on-line profile that includes detailed personal information;
   (iii) permits registered users to create an on-line journal and share such a journal with other users;
   (iv) elicits highly-personalized information from users; and
   (v) enables communication among users."

The bill would only affect schools and libraries currently receiving subsidies via the FCC e-rate program. School or libraries not receiving subsidies, or not receiving subsidies currently, would not be affected. Accessing of social networking sites from outside of subsidized schools and libraries would not be affected.

The bill does not regulate social networking sites. Nor does the bill regulate internet service providers.

While the DOPA builds on the CIPA, it is broader is several respects.

The CIPA is limited to "visual depictions", while the DOPA is not. It affects graphics, text, and other media.

The CIPA limits access only to content that is either obscene, child pornography (CP), or harmful to minors. The DOPA limits access to any content in the nature of a social networking web site or chat room, regardless of whether any content is obscene, CP, or harmful to minors.

The CIPA does not regulate speech or speakers. It only regulates certain access to that speech. That is, it limits listeners. The DOPA regulates both listeners and speakers. That is, certain students and library users are prevented from expressing themselves on social networking web sites and chat rooms.

House Debate and Vote. Rep. Fred Upton (R-MI), the Chairman of the HCC's Subcommittee on Telecommunications and the Internet, spoke in support of the bill. He said that "the bill before us today would require schools which receive e-rate funding, and I would note that I am a strong supporter of e-rate funding, to enforce a policy of Internet safety for minors that includes monitoring their online activities and the protection measures to protect against access to commercial social networking Web sites or chat rooms, unless used for an educational purpose with adult supervision."

Rep. Upton continued that "this bill would require libraries which receive e-rate funding to enforce a policy of Internet safety that includes the operation of a technology protection measure that protects against access by minors to commercial social networking Web sites or chat rooms unless they have parental authorization and the library informs parents that sexual predators can use those Web sites and chat rooms to prey on kids."

He added that "The approach taken by this legislation is not dissimilar to the approach taken by the Children's Internet Protection Act through which Congress requires schools and libraries that receive e-rate funding to impose filtering technology to protect kids from online visual depictions of an inappropriate sexual nature."

Rep. Ed Markey (D-MA) (at left) stated that "This is an issue upon which Democrats and Republicans agree".

However, he continued that the House Republicans "decided to skip a subcommittee and a full committee markup. They opted to rewrite this bill without public input or consultation with the Democratic side, and they decided to rush it to the floor today. Not surprisingly, the bill continues to have several flaws. It remains overbroad and ambiguous. I continue to have reservations about utilizing the e-rate funding mechanism as the legislative hook for Federal involvement in this area. That is because the e-rate program was not designed to be a cop on the beat in the front lines battling child predators. Rather, it was designed to enhance Internet access and bridge the digital divide."

He also pointed out that "if the goal is protecting children and combating child exploitation, why should these requirements only apply in schools receiving e-rate funding? And this bill does nothing for families when the kids online are at home. If the goal is to address the issue of online predators, this bill proposes an ineffectual remedy."

Rep. Bart Stupak (D-MI) stated that "child predators are not the target of today's bill. This bill will not delete online predators. Rather, it will delete legitimate Web content from schools and libraries. Schools and libraries that serve students are the target of this legislation."

Rep. Stupak (at right) continued that "The bill is an attempt to protect children in schools and libraries from online predators. It is important to note that during the six oversight hearings we had, hearing from 38 witnesses on the issue, there was not one mention of online child exploitation being a problem at schools or libraries. Perhaps this is because there is already a law on the books that requires schools and libraries who receive e-rate funding to monitor children's Internet use and to employ technology blocking children or preventing children from viewing obscene and harmful content. Many schools and libraries already block Web sites such as MySpace. This legislation is largely redundant and raises many constitutional concerns."

He added that "This legislation will actually drive children to go to unsupervised places, unsupervised sites to go online, where they will become more vulnerable to child predators."

However, Rep. Stupak voted for the bill.

Rep. Jay Inslee (D-WA) stated that this bill is "a good press release, but it is not effective legislation".

He argued that had this bill already been law it would not have saved a single child. He elaborated that very few abused children are online, and of the few who are, it is home access, rather than school access that leads to abuse.

He argued that, instead of the language in this bill, the Congress should do three things. "Number one, we have to give resources to law enforcement to prosecute these horrendous monsters. We had detective after detective come to our hearings and say, give us some money; we can prosecute these people. This doesn't give them a penny."

"Number two, we need to protect the data. What the detectives told us is that this data, once it disappears, they can't find the culprits. Now we could require the data to be maintained for a year or two, like we are trying to do. This bill doesn't do that." That is, he argues for a data retention mandate.

"Third, what this bill could do is provide some real meaningful tools for our schools to educate our children on how to avoid these monsters on the Internet. This doesn't do that", said Rep. Inslee.

But, he too voted for the bill.

Rep. John Dingell (D-MI) stated that "So here we are passing legislation, I suspect, to help some of my panicky Republican colleagues save themselves in a difficult election". He added that "It is, in a nutshell, Mr. Speaker, going to be as useful as side pockets on a cow in addressing the problem about which we are all deeply concerned".

But, he too voted for the bill.

Rep. Ron Paul (R-TX) voted for this bill.

There were only 15 votes against this bill. All were cast by Democrats. Rep. Zoe Lofgren (D-CA) and Rep. Mike Honda (D-CA), who represent Silicon Valley, both voted against the bill.

House Commerce Committee Hearing on HR 5319. In addition, the HCC held a hearing on this bill on July 11, 2006.

Greg Abbott, the Attorney General of Texas, wrote in his prepared testimony [PDF] that "The dangers to children created by social networking websites and chat rooms are very real." He said that "many of the sites also subject children to a world of predators, pedophiles and pornographers."

Abbott (at right) said that "the great weight of the problem must be shouldered by the very creators and hosts of these networking sites and chat rooms that provide the previously non-existent opportunity for child predators. Social networking sites and chat rooms have created an environment in which predators target their next victim and plot their next attack. Predators use these web locations as a starting point for raping a child! The creators and hosts of these networking sites are not the predators who commit the crime, but they create the opportunity for the criminal to carry out his crime. ... The sites should be structured so that such material is not accessible without age verification."

Abbott also said that "I wish the solution to the growing problem was as easy as hitting a delete button. Unfortunately, it is much more complex."

Beth Yoke of the American Library Association (ALA) wrote in her prepared testimony [9 pages in PDF] that the ALA has three concerns with the bill: "1) that the broad scope of this legislation will limit access to essential Interactive Web applications; 2) that the legislation would widen the digital divide by limiting access for people who use library and school computers as their primary conduits to the Internet; and 3) that education and parental involvement are and have always been the best tools to keep kids safe online and to ensure that they can make the right decisions."

Chris Kelly of Facebook, a social networking web site, wrote in his prepared testimony [5 pages in PDF] that "any Congressional action should encourage the deployment of technology to protect children and be very conscious of avoiding discouragement of the pro-social aspects of online sites."

See also, prepared testimony [5 pages in PDF] of Amanda Lenhart (Pew Internet and American Life Project), prepared testimony [5 pages in PDF] of Ted Davis (Fairfax County Public Schools), prepared testimony [65 pages in PDF] of Parry Aftab (WiredSafety.org), and prepared testimony [PDF] of David Zellis (Office of the Bucks County District Attorney).