CDA II may slip into law

As it scrambles to adjourn, Congress could finally pass legislation that would make it a crime for commercial Web sites to give minors access to "harmful material," according to several sources.

Called the "Communications Decency Act II" by detractors, the legislation differs in the Senate and House versions. But both Sen. Dan Coats's (R-Indiana) bill and Rep. Mike Oxley's (R-Ohio) Child Online Protection Act would require site operators who offer "harmful" material to check visitors' identifications or face up to $50,000 in fines and six months in prison.

Proponents of the bills have been working just about every angle to get them passed, and they may finally have found a vehicle that appears bulletproof: a massive federal budget package that both chambers are trying to approve before they adjourn by midnight tomorrow.

Simply put, Congress has no more time to debate individual pieces of legislation and several critical spending bills. To avoid a government shutdown, lawmakers are expected to pass the omnibus spending bill for fiscal 1999, which includes a wide range of proposals.

Sources say Coats is trying again to attach the CDA-like measure to the spending legislation. But in a last-ditch effort before retiring this year, he is pushing Oxley's bill over his own because the House passed the proposal as a free-standing bill last week that is more likely to gain support. Coats's staff could not immediately be reached for comment.

The latest scenario has put civil liberties groups on red alert.

The Oxley bill brings up the same First Amendment concerns raised by the infamous portion of the CDA that made it a federal crime to use the Net to transmit or display "indecent" material that could be obtained by a minor. The Supreme Court rejected that law last June.

The Oxley measure could be attached to the Internet Tax Freedom Act, which sets up a national three-year moratorium on "discriminatory" taxes on Net access and services. The tax bill is expected to become a part of the spending package.

The Net tax bill already includes another Coats proposal, one to exempt commercial sites from the tax break if they give minors unfettered access to "harmful" material.

The "harmful" definition would apply to any communication, image, or writing that contains nudity or actual or simulated sex, or that "lacks serious literary, artistic, political, or scientific" value.

Opponents of the "CDA II" are worried that Congress will pass the provision because President Clinton supports the Net tax bill and because the stack of appropriations legislation is needed to keep the government in business.

"This is real problematic," one Net industry lobbyist said.

In July, the Senate unanimously passed the "CDA II" as part of the fiscal 1999 appropriations bill for the departments of Commerce, State, and Justice.

It was thought that the Coats bill would be pushed forward by the members of a conference committee reconciling the House and Senate versions of the appropriations bill.

However, as Congress's clock runs out, that avenue and others are dead-ends for Coats, who cosponsored the original CDA. That is why he may be maneuvering to piggyback the omnibus spending legislation.

Free-speech groups contend that the "harmful to minors" legislation is unconstitutional and are fighting its addition to the spending bill. The Justice Department also sent a letter to the House Commerce Committee last week laying out the same constitutional concerns.

"In striking down the first CDA, the Supreme Court found that it is very difficult, if not impossible, to determine the age of anyone on the Internet," said David Sobel, general counsel to the Electronic Privacy Information Center.

"If this is passed, Web site operators are likely to err on the side of removing controversial material from their sites or face prosecution if they can't verify a person's age," he added. "This also will set a national standard for 'harmful to minors,' which has only been applied at the local level. So a local prosecutor in a small, conservative town would have the ability to prosecute the operator of any Web site regardless of their physical location."