Free speech groups today are feverishly preparing to file a lawsuit against the government if the Child Online Protection Act is signed into law as expected.
After last-minute negotiations with the White House, Republican leaders in Congress said they will pass the bill as part of a major 1999 federal spending package that is essential to keep the government running.
The president is expected to sign Rep. Mike Oxley's (R-Ohio) bill, which requires commercial site operators who offer "harmful" material to either check visitors' identifications or face up to $50,000 in fines and six months in prison each time a minor gets access to the content.
The American Civil Liberties Union, the Electronic Privacy Information Center, the Electronic Frontier Foundation, and the Center for Democracy and Technology all said today that they will file a lawsuit to overturn the statute almost immediately after Clinton signs the bill. The plaintiffs will include musicians, artists, and online news companies, including CNET: The Computer Network, publisher of News.Com.
"These bills get passed in the guise of protecting children--in fact, they censor adults," Chris Hansen, senior staff counsel to the ACLU, said today.
"This will unconstitutionally restrict adults' access to a wide range of material," he added. "And it's not even effective because no overseas-based site has to comply with it at all."
It is hardly a surprise that Oxley's bill is on its way to being signed into law. Proponents of the bill, such as Sen. Dan Coats (R-Indiana), who introduced his own version of it, have been working just about every angle to get it passed. And the omnibus budget bill expected to clear Congress ended up being a bullet-proof vehicle.
The political process this week almost is an instant replay of what happened in 1996 when the massive telecommunications deregulation act was signed. It included an infamous provision of the Communications Decency Act that made it a felony to transmit or display any "indecent" material on the Net that could be accessed by minors.
As it did with the CDA, Congress pushed the Oxley legislation with the goal of protecting children from the Net's red-light districts. However, the Justice Department forewarned that the bill would be challenged because it is vague and could hinder adult access to constitutionally protected speech. Still, President Clinton is set to give in because the Net content bill is once again a part of a critical legislative package.
Before the ink could dry on the CDA, free speech advocates filed a lawsuit to get it scrapped, and they won. In a landmark ruling, the Supreme Court struck down that portion of the CDA last June.
Civil liberties groups already are set to file a similar challenge to the Child Online Protection Act, which they call the CDA II.
The groups will argue that the statute could stifle adults' access to an array of Web sites, chat rooms, or email that contain information about art, science, medicine, or sex. One high-profile example being thrown out is the slew of Web sites that published the Starr report, which includes former White House intern Monica Lewinsky's graphic descriptions of her sexual encounters with President Clinton.
"This law requires, in effect, that any adult wishing to receive constitutionally protected material must register with a Web site before receiving information," said David Sobel, EPIC's general counsel. "We are confident that the courts will continue to protect the right of all Americans to receive information without sacrificing their privacy."
But proponents of the Oxley bill, which passed the House last week, counter that the statute is narrowly tailored to only apply to commercial sites that offer any communication, image, or writing that contains nudity or actual or simulated sex, or that "lacks serious literary, artistic, political, or scientific" value.
Supporters say the bill will make Web site operators think twice before they slap up pornography or other sexual material without using an adult verification system or requesting a credit card number.
"It will force these commercial adult sites to take their 'teasers' and place them behind credit card technology--which is like putting a brown wrapper around material in cyberspace," Monique Nelson, chief executive of Enough is Enough, which lobbied for the legislation, said today.
"We are saying that this same material, that is not available to children on the street, should not be commercially available on the Web," she added. "We will fight hard to defend this legislation."
However, it is unclear if the Child Online Protection Act could adequately serve its purpose. In an October 5 letter to the House Commerce Committee, Anthony Sutin, acting assistant attorney general at the Justice Department, said he had severe reservations about the constitutionality of the bill and expressed concern that there would not be enough manpower to enforce the statute in addition to busting child pornographers on the Net among other criminal offenders.
"The department's enforcement of a new criminal prohibition such as that proposed in the [Child Online Protection Act] could require 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 multidistrict commercial distributors of obscene materials," Sutin wrote.
"Such a provision would likely be challenged on constitutional grounds, since it would be a content-based restriction applicable to 'the vast democratic of the Internet,'" he added, citing the Supreme Court decision in the CDA.
Unlike material that is "harmful to minors," it already is illegal to post "obscenity" on the Net.
Under the so-called Miller Test, material is "obscene" if it meets three criteria: "the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest"; "if the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law"; and "if the work, taken as a whole, lacks serious literary, artistic, political, or scientific value."
In addition to the commercial Web site provision, the Child Online Protection Act lays out other requirements.
The bill passed by the House also calls for a public-private commission to study emerging technologies that could limit minors' access to adult content, such as the creation of a special red-light district domain, such as "adult.us," which could be blocked by filtering products.