The two House bills await final action. The Child Online Protection Act - dubbed "CDA II" by free speech advocates - easily cleared the House Committee on Commerce and was reported to the House Floor on September 24, 1998. At this writing it has not been scheduled for Floor action, but it is ripe for attachment to one of the appropriations bills now being rushed through the House as the election recess looms. The bill currently has 64 co-sponsors, and seems to draw more Congressional flies each day.

The Safe Schools Internet Act - the Internet Filtering bill - was attached last June to the $81.9 billion appropriations bill for health and human services, labor, and education. Time and space don't permit a discussion of the filtering and blocking issues here. I will just point out that the negative impact of this bill will fall almost entirely upon poor and underfunded schools and public libraries that will [be required to] rely on subsidies from Universal Service Fund in order to connect their computers to the Internet. For more information I recommend the following reports: "Censorship in a Box: Why Blocking Software is Wrong for Public Libraries" ; "Fahrenheit 451.2: Is Cyberspace Burning?" ; and "Blacklisted by Cyber Patrol: From Ada to Yoyo" (A Report from The Censorware Project.)

Background information, documents, and public statements on these issues (as well as the original CDA) are available at the major Internet free-speech sites:

• American Civil Liberties Union
• Electronic Frontier Foundation
• Electronic Privacy Information Center

Official House documents - including the texts of the bills, their current status, sponsors, amendments, etc. - are available at the Library of Congress' Thomas web site.

CDA Part I: The torching of the Internet

This monster was slain in the courts, resulting in a landmark holding of the US Supreme Court establishing full free-speech rights in cyberspace (Reno v. ACLU, No. 96-511, 1997 U.S. LEXIS 4037 [June 26, 1997]). The Court remarked that if an earlier law banning dial-a-porn "amounted to "`burn[ing] the house to roast the pig'", then "The CDA, casting a far darker shadow over free speech, threatens to torch a large segment of the Internet community."

This movie had a happy ending but, true to its genre, the seeds of future evil were sown as the final credits began to roll. First, there was a troubling partial dissent by Justice Sandra Day O'Connor, joined by Chief Justice William H. Rhenquist. O'Connor endorsed the idea of creating "adult zones" on the Internet, as well as establishing an "obscenity" standard for minors. Although she acknowledged that the technology wasn't yet in place - and therefore agreed that most of the CDA had to be struck down - she expressed confidence that soon it would be possible to establish in cyberspace the two characteristics that are essential to creating valid "adult zones" in the physical world: "geography and identity." These issues weren't decided by the majority, and are still up for grabs. Second, of course, proponents of the CDA vowed to try again.

CDA Part II: Nightmare on the Web

The bill's drafters tried to tiptoe around the many problems raised by the Supremes in the CDA case.

• First, instead of "torch[ing} a large segment of the Internet community" the bill limits its destruction to the World Wide Web.
• Second, the bill purports to target only commercial sites ("engaged in the business of selling or transferring...material that is harmful to minors").
• Third, the age of minority is reduced from the CDA's 18 years of age, to 17, in order to bring it in line with valid state laws restricting minors' access to physical-world pornography.
• Finally, and apparently taking encouragement from Justice O'Connor, the bill defines material as "harmful to minors" if it meets the 3-prong obscenity test established in Miller v. California, 413 U.S. 15 (1973), although modified in the bill to a standard of what is "suitable" for minors - in essence, an obscenity standard for kids.

On the surface it would appear that this bill reflects a good faith effort to address the major First Amendment problems raised in the original CDA case. But serious flaws remain, and they are rooted in a simple, enduring fact: Despite their greater facility with the language and technology of the Internet, they still don't get it. (When they do get it, of course, we won't see an end to speech regulations on the Internet - their approaches will instead become more sophisticated, and difficult to combat. I conclude with the trailer for that coming attraction.)

First, let's look at the apparent limitation to commercial sites. The House bill includes a definition of "engaged in the business" that is broad enough to include any Web site - profit and nonprofit alike - that is intended to produce income or revenues, including the display of banner ads, the sale by nonprofits of T-shirts or publications, commercial book sites such as Amazon.com, and so on, as well as garden variety porno. In fact, there is no requirement that the site actually derive revenues from the materials deemed "harmful" - it is apparently enough if there is an income-producing motive in there, somewhere. Many commentators have noted the delicious irony that commercial media Web sites could have been held liable under this bill for mirroring or excerpting the Starr Report.

The Senate provision is narrower, although still troublingly vague and potentially far-reaching: "Whoever ... is engaged in the business of the commercial distribution of material that is harmful to minors...." (I can't resist a small stretch to note that this appears to be a mission statment for MSNBC.) More seriously, even the Senate version would seem to target any Web site dedicated to unconventional views about sex or other bodily functions, as well as sites providing education on controversial topics of sex, disease prevention, and emotional health - so long as the site contained a mechanism for exchanging something for money.

Neither version of the bill would have a serious impact on commercial pornography sites. Indeed, like the CDA before it, either one could fairly be called a "commercial pornography protection act." Free porno sites would be driven out, but the commercial sites would simply clean up their banners and move their free samples just inside an adult-check page, where they could then sell everything they do today. More people would pay for adult ID's, which would become even cheaper, and Persian Kitty's links pages would still prosper.

But everyone else would suffer. Even under the Senate verison, commercial sites not dealing in porno would eliminate anything from their sites that might conceivably be deemed "harmful to minors." Small commercial sites dealing in the unconventional or controversial would go out of business. General booksellers would face a choice between selling only to adults, or the impossible task of segregating their materials. A company like Amazon.com, that exists only on the Web, might go under. Under the House bill, many nonprofits who depend upon online sales of any kind to sustain their sites would be driven off the Web.

The reasons for this are twofold. First, most small-commercial and nonprofit sites simply can't afford to create or maintain the sophisticated databases required in order to screen access using credit cards or adult ID's. And second, the use of these mechanisms isn't a "safe harbor" that immunizes against legal action, but an affirmative defense if an action is brought. Such lawsuits are a normal cost of doing business in the porno trade, but not for others, who either can't afford to stay in court long enough to win, or who won't take the risk when their real business lies elsewhere.

The second prominent flaw in the House bill is the definition of material that is "harmful to minors." :

"(D) The term `material that is harmful to minors' means any communication, picture, image, graphic image file, article, recording, writing, or other matter of any kind that --

"(i) taken as a whole and with respect to minors, appeals to a prurient interest in nudity, sex, or excretion;

"(ii) depicts, describes, or represents, in a patently offensive way with respect to what is suitable for minors, an actual or simulated sexual act or sexual contact, actual or simulated normal or perverted sexual acts, or a lewd exhibition of the genitals; and

"(iii) taken as a whole, lacks serious literary, artistic, political, or scientific value for minors."

The Senate version is identical except for subsection (iii), which does not explicitly qualify the redeeming "value" to what is "suitable for minors." There are many problems with obscenity law generally, which I won't get into. The community standards issue, for example, is a problem not only on the Internet, but for dial-up computer bulletin board systems and any other medium, such as cable TV, that spans communities and crosses local jurisdictional lines. Inevitably, the communities with the narrowest, most prudish and punitive views bring the lawsuits and set the standards for everyone else. And, because these are mostly factual issues usually determined by juries, there's no avoiding an expensive day in court - except through self-censorship.

In the interest of full disclosure I will confess that I object in principle to the "obscenity" limitation on speech. It may not be that everything sexual is political. But I do think that all exercises of state power over the expression of consensual sex involving adults are ultimately political in their motivation, and therefore all such sexual expression must be protected as political speech. That aside, an obscenity standard for minors on the Internet, although less sweeping than the CDA's "indecency" standard, still encompasses a great deal of expression that is protected as to adults. It's one thing to prohibit selling skin magazines to minors in a conveninece store; it's quite another to subject nytimes.com to criminal liability for failing to limit access to the Starr Report.

Third, the age of "minority", even lowered to under 17, provides a one-size-fits-all standard that will do more to infringe the First Amendment rights of older adolescents than to protect younger kids. We can predict to a virtual certainty that the cases establishing the standard will involve children just old enough to reach a keyboard, and the standard will become what is "appropriate" for their tender eyes.

This prospect doesn't trouble Justice O'Connor, who opined in the CDA case: "In my view, the universe of speech constitutionally protected as to minors but banned by the CDA - i.e., the universe of material that is `patently offensive,' but which nonetheless has some redeeming value for minors or does not appeal to their prurient interest - is a very small one." But it should concern the rest of us who have some appreciation for the range of potentially enriching - even life-saving - materials which could be lost to older adolescents; and who believe that young people must begin to learn, as soon as they are able, how to cope with a complex, dangerous world out there that no law or parent or softare program can shield them from, and learn how to exercise the moral judgment they already have in a realm that will be a central part of their adult lives.

As is true with all civil liberties, whatever a young person lacks the right to accept, s/he cannot learn the responsibility to reject. It is foolish to believe that we should treat young people like five-year olds until they reach 17, and then dump them, unprepared, into the adult world of cyberspace. It is the universe of Justice O'Connor's imagination that is small here.

Preview of Coming Attractions

As for the future, we can expect to see more Congressional efforts focusing on technological approaches to shaping the Internet so that it resembles more closely the physical world they can easily regulate. A preview of one such coming attraction is found in a draft "Amendment in the Nature of a Substitute to H.R. 3783" which was not adopted this time around. Section 6 of that draft called for a "Study of Top Level Domains" by the National Telecommunications and Information Administration (NTIA) to assess the feasibility of "creating a second-level adult domain space (such as `adult.us')", and "transferring commercial distributors of information that is harmful to minors ... to that domain."