House subcommittee passes CDA II

In the wake of the House's rush to post the sexually explicit Starr report on the Net last week, lawmakers today pushed forward a bill that to the naked eye would seem to make it a crime for commercial Web sites to do the same thing.

The House Commerce telecommunications subcommittee passed the Child Online Protection Act, which could penalize commercial sites from Playboy Enterprises to CNN with up to a $50,000 fine or six months in jail for posting online material deemed "harmful to minors."

The full Commerce Committee must approve the bill before the House can vote on it.

Ironic timing aside, Congress is hedging toward the first online content restrictions since a major part of the Communications Decency Act (CDA) was ruled unconstitutional by the Supreme Court last summer.

The infamous provision of the CDA made it a felony to transmit "indecent" material to minors via the Net and could have applied to content within an array of topics including art and medical science.

Rep. Mike Oxley's (R-Ohio) Child Online Protection Act mirrors another bill, the so-called CDA II by Sen. Dan Coats (R-Indiana) , which the Senate passed in July as part of an appropriations bill.

The proposals could pass Congress through various avenues.

Coats's bill could be ushered into law during an expected conference committee meeting to hammer out differences between both houses' fiscal 1999 appropriations bills for the Commerce, State, and Justice departments. That is the most likely scenario.

But the conference committee could reject the provision, which is not included in the House version of the spending bill. In that case, the legislation restricting commercial Web sites could still become law if the House passes Oxley's child protection bill and the Senate votes again to pass Coats' bill as a stand-alone proposal.

The timing of the subcommittee's action baffles opponents of both bills. Just last Friday it was the House that turned to sites such as Netscape's Netcenter to help ease the traffic onslaught when it voted 363-63 to publish online the 445-page report on the White House sex scandal from independent counsel Kenneth Starr. The report not only accuses President Clinton of perjury, it also graphically describes his sexual encounters with former White House intern Monica Lewinsky.

In another twist, a majority of those who voted for the CDA in 1996 also favored publishing the Starr report online.

"How can you object now to Johnny going on the Playboy Web site when you can go on the House Web site and read about Monica and the cigar?" said Jon Katz, a media critic and First Amendment Center scholar at the Freedom Forum.

"These were the very people that two years ago overwhelmingly passed a law that would have made 'indecent' speech on the Net a federal crime," he added. "Last Friday, they enthusiastically released material on the Net that is far more pornographic and explicit than many other adult sites."

But a spokesman for Oxley's office said comparing the Starr report to pornographic Web sites is like comparing apples to oranges.

"The Starr report is not 'harmful to minors,'" said Peggy Petterson of Oxley's office. "The bill uses a three-prong test for 'harmful to minors' and the Starr report meets none of them--it's completely protected speech."

Since the CDA was ruled unconstitutional by the Supreme Court last summer, legislators have been searching for ways limit children's access to online adult material.

"The Oxley bill is narrower than the CDA, but it still raises a number of constitutional issues, and it is not the most effective way to protect children," said Deirdre Mulligan, staff counsel for the Center for Democracy and Technology.

"In the CDA decision, the Supreme Court said that this is a new medium and that Congress has to use the least restrictive means when it comes to legislation that affects online speech--this bill isn't it," she added.

The White House and many in the online industry have endorsed the use of technology--not laws--to bar minors' entry to certain sites.

Oxley's bill also calls for the National Telecommunications and Information Administration to study the proposed creation of a special red-light district domain, such as "adult.us." The idea of a ".xxx" domain has come up before and could make it easier to filter out adult entertainment sites.

"If passed in their present form, these bills may give parents the false sense of security that the Net is safe," said Brian O'Shaughnessy, director of public policy for the Internet Alliance .

Coats and Oxley maintain that their legislation is tailored, doesn't hinder speech, and lets sites skirt prosecution if they attempt to verify age through credit card numbers or adult access codes, for example.

The bills define "harmful to minors" as any communication or image that depicts or describes "in a patently offensive way?an actual or simulated sexual act?that taken as a whole, lacks serious literary, artistic, political, or scientific value for minors."

But news sites, which covered the Starr report, for example, aren't accustomed to checking the age of readers before letting them access stories.

The Internet Free Expression Alliance sent a letter to the subcommittee explaining the concern.

"While the bill is ostensibly aimed at 'commercial' Web sites, that term is so broad that it covers anything from an online bookseller like Amazon.com to a nonprofit Web site that sells books or T-shirts," states the letter signed by groups such as the Electronic Privacy Information Center, the Society of Professional Journalists, and News.com's publisher, CNET: The Computer Network.

"The age verification affirmative defense of the bill--which precisely duplicates the CDA's defense--ignores the [Supreme Court's] finding that there simply is no way to verify age on the Internet," the letter continues. "As the Supreme Court noted, the vast majority of Web sites are not financially or technically capable of requiring a credit card or other form of identification to verify the age of users."