House Report 105-775 -- Child Online Protection Act
105th Congress
Report
HOUSE OF REPRESENTATIVES
2d Session
105 775
CHILD ONLINE PROTECTION ACT
October 5, 1998.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
Mr. Bliley, from the Committee on Commerce, submitted the following
REPORT
[To accompany H.R. 3783]
[Including cost estimate of the Congressional Budget Office]
The Committee on Commerce, to whom was referred the bill (H.R. 3783)
to amend section 223 of the Communications Act of 1934 to require
persons who are engaged in the business of selling or transferring, by
means of the World Wide Web, material that is harmful to minors to
restrict access to such material by minors, and for other purposes,
having considered the same, report favorably thereon with an amendment
and recommend that the bill as amended do pass.
CONTENTS
Amendment 2
Purpose and Summary 5
Background and Need for Legislation 6
Hearings 20
Committee Consideration 21
Rollcall Votes 21
Committee Oversight Findings 21
Committee on Government Reform and Oversight 21
New Budget Authority, Entitlement Authority, and Tax Expenditures21
Committee Cost Estimate 22
Congressional Budget Office Estimate 22
Federal Mandates Statement 24
Advisory Committee Statement 24
Constitutional Authority Statement 24
Applicability to Legislative Branch 24
Section-by-Section Analysis of the Legislation 25
Changes in Existing Law Made by the Bill, as Reported 29
The amendment is as follows:
Strike out all after the enacting clause and insert in lieu thereof
the following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Child Online Protection Act''.
SEC. 2. CONGRESSIONAL FINDINGS.
The Congress finds that--
(1) while custody, care, and nurture of the child resides first with
the parent, the widespread availability of the Internet presents
opportunities for minors to access materials through the World Wide Web
in a manner that can frustrate parental supervision or control;
(2) the protection of the physical and psychological well-being of
minors by shielding them from materials that are harmful to them is a
compelling governmental interest;
(3) to date, while the industry has developed innovative ways to
help parents and educators restrict material that is harmful to minors
through parental control protections and self-regulation, such efforts
have not provided a national solution to the problem of minors accessing
harmful material on the World Wide Web;
(4) a prohibition on the distribution of material harmful to minors,
combined with legitimate defenses, is currently the most effective means
by which to satisfy the compelling government interest; and
(5) notwithstanding the existence of protections that limit the
distribution over the World Wide Web of material that is harmful to
minors, parents, educators, and industry must continue efforts to
protect children from dangers posed by the Internet.
SEC. 3. REQUIREMENT TO RESTRICT ACCESS BY MINORS TO MATERIALS
SOLD BY MEANS OF THE WORLD WIDE WEB THAT ARE HARMFUL TO MINORS.
Part I of title II of the Communications Act of 1934 (47 U.S.C. 201
et seq.) is amended by adding at the end the following new section:
``SEC. 231. RESTRICTION OF ACCESS BY MINORS TO MATERIALS SOLD
BY MEANS OF WORLD WIDE WEB THAT ARE HARMFUL TO MINORS.
``(a) Requirement To Restrict Access.--
``(1) Prohibited conduct.--Whoever, in interstate or foreign
commerce, by means of the World Wide Web, knowingly makes any
communication for commercial purposes that includes any material that is
harmful to minors, without restricting access to such material by minors
pursuant to subsection (c), shall be fined not more than $50,000,
imprisoned not more than 6 months, or both.
``(2) Intentional violations.--In addition to the penalties under
paragraph (1), whoever intentionally violates such paragraph shall be
subject to a fine of not more than $50,000 for each violation. For
purposes of this paragraph, each day of violation shall constitute a
separate violation.
``(3) Civil penalty.--In addition to the penalties under paragraphs
(1) and (2), whoever violates paragraph (1) shall be subject to a civil
penalty of not more than $50,000 for each violation. For purposes of
this paragraph, each day of violation shall constitute a separate
violation.
``(b) Inapplicability of Carriers and Other Service Providers.--For
purposes of subsection (a), a person shall not be considered to make any
communication for commercial purposes to the extent that such person
is--
``(1) a telecommunications carrier engaged in the provision of a
telecommunications service;
``(2) a person engaged in the business of providing an Internet
access service;
``(3) a person engaged in the business of providing an Internet
information location tool; or
``(4) similarly engaged in the transmission, storage, retrieval,
hosting, formatting, or translation (or any combination thereof) of a
communication made by another person, without selection or alteration of
the content of the communication, except that such person's deletion of
a particular communication or material made by another person in a
manner consistent with subsection (c) or section 230 shall not
constitute such selection or alteration of the content of the
communication.
``(c) Affirmative Defense.--
``(1) Defense.--It is an affirmative defense to prosecution under
this section that the defendant, in good faith, has restricted access by
minors to material that is harmful to minors--
``(A) by requiring use of a credit card, debit account, adult access
code, or adult personal identification number; or
``(B) by any other reasonable measures that are feasible under
available technology.
``(2) Protection for use of defenses.--No cause of action may be
brought in any court or administrative agency against any person on
account of any activity that is not in violation of any law punishable
by criminal or civil penalty, and that the person has taken in good
faith to implement a defense authorized under this subsection or
otherwise to restrict or prevent the transmission of, or access to, a
communication specified in this section.
``(d) Privacy Protection Requirements.--
``(1) Disclosure of information limited.--A person making a
communication described in subsection (a)--
``(A) shall not disclose any information collected for the purposes
of restricting access to such communications to individuals 17 years of
age or older without the prior written or electronic consent of--
``(i) the individual concerned, if the individual is an adult; or
``(ii) the individual's parent or guardian, if the individual is
under 17 years of age; and
``(B) shall take such actions as are necessary to prevent
unauthorized access to such information by a person other than the
person making such communication and the recipient of such
communication.
``(2) Exceptions.--A person making a communication described in
subsection (a) may disclose such information if the disclosure is--
``(A) necessary to make the communication or conduct a legitimate
business activity related to making the communication; or
``(B) made pursuant to a court order authorizing such disclosure.
``(e) Definitions.--For purposes of this subsection, the following
definitions shall apply:
``(1) By means of the world wide web.--The term `by means of the
World Wide Web' means by placement of material in a computer
server-based file archive so that it is publicly accessible, over the
Internet, using hypertext transfer protocol or any successor protocol.
``(2) Commercial purposes; engaged in the business.--
``(A) Commercial purposes.--A person shall be considered to make a
communication for commercial purposes only if such person is engaged in
the business of making such communications.
``(B) Engaged in the business.--The term `engaged in the business'
means that the person who makes a communication, or offers to make a
communication, by means of the World Wide Web, that includes any
material that is harmful to minors, devotes time, attention, or labor to
such activities, as a regular course of such person's trade or business,
with the objective of earning a profit as a result of such activities
(although it is not necessary that the person make a profit or that the
making or offering to make such communications be the person's sole or
principal business or source of income). A person may be considered to
be engaged in the business of making, by means of the World Wide Web,
communications for commercial purposes that include material that is
harmful to minors, only if the person knowingly causes the material that
is harmful to minors to be posted on the World Wide Web or knowingly
solicits such material to be posted on the World Wide Web.
``(3) Internet.--The term `Internet' means the combination of
computer facilities and electromagnetic transmission media, and related
equipment and software, comprising the interconnected worldwide network
of computer networks that employ the Transmission Control
Protocol/Internet Protocol or any successor protocol to transmit
information.
``(4) Internet access service.--The term `Internet access service'
means a service that enables users to access content, information,
electronic mail, or other services offered over the Internet, and may
also include access to proprietary content, information, and other
services as part of a package of services offered to consumers. Such
term does not include telecommunications services.
``(5) Internet information location tool.--The term `Internet
information location tool' means a service that refers or links users to
an online location on the World Wide Web. Such term includes
directories, indices, references, pointers, and hypertext links.
``(6) Material that is harmful to minors.--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--
``(A) the average person, applying contemporary community standards,
would find, taking the material as a whole and with respect to minors,
that such material is designed to appeal to or panders to the prurient
interest;
``(B) depicts, describes, or represents, in a manner patently
offensive with respect to minors, an actual or simulated sexual act or
sexual contact, an actual or simulated normal or perverted sexual act,
or a lewd exhibition of the genitals or female breast; and
``(C) taken as a whole, lacks serious literary, artistic, political,
or scientific value for minors.
``(7) Minor.--The term `minor' means any person under 17 years of
age.''.
SEC. 4. NOTICE REQUIREMENT.
(a) Notice.--Section 230 of the Communications Act of 1934 (47 U.S.C.
230) is amended--
(1) by redesignating subsections (d) and (e) as subsections (e) and
(f), respectively;
(2) by inserting after subsection (c) the following new subsection:
``(d) Obligations of Interactive Computer Service.--A provider of
interactive computer service shall, at the time of entering an agreement
with a customer for the provision of interactive computer service and in
a manner deemed appropriate by the provider, notify such customer that
parental control protections (such as computer hardware, software, or
filtering services) are commercially available that may assist the
customer in limiting access to material that is harmful to minors. Such
notice shall identify, or provide the customer with access to
information identifying, current providers of such protections.''.
(b) Conforming Amendment.--Section 223(h)(2) of the Communications
Act of 1934 (47 U.S.C. 223(h)(2)) is amended by striking ``230(e)(2)''
and inserting ``230(f)(2)''.
SEC. 5. STUDY BY COMMISSION ON ONLINE CHILD PROTECTION.
(a) Establishment.--There is hereby established a temporary
Commission to be known as the Commission on Online Child Protection (in
this section referred to as the ``Commission'') for the purpose of
conducting a study under this section regarding methods to help reduce
access by minors to material that is harmful to minors on the Internet.
(b) Membership.--The Commission shall be composed of 17 members, as
follows:
(1) Industry members.--The Commission shall include--
(A) 2 members who are engaged in the business of providing Internet
filtering or blocking services or software;
(B) 2 members who are engaged in the business of providing Internet
access services;
(C) 2 members who are engaged in the business of providing labeling
or ratings services;
(D) 2 members who are engaged in the business of providing Internet
portal or search services;
(E) 2 members who are engaged in the business of providing domain
name registration services; and
(F) 4 members who are engaged in the business of making content
available over the Internet.
Of the members of the Commission by reason of each subparagraph of
this paragraph, an equal number shall be appointed by the Speaker of the
House of Representatives and by the Majority Leader of the Senate.
(2) Ex officio members.--The Commission shall include the following
officials:
(A) The Assistant Secretary (or the Assistant Secretary's designee).
(B) The Attorney General (or the Attorney General's designee).
(C) The Chairman of the Federal Trade Commission (or the Chairman's
designee).
(c) Study.--
(1) In general.--The duty of the Commission shall be to conduct a
study (and submit a report under subsection (d) on the study) to
identify technological or other methods, if any, to help reduce access
by minors to material that is harmful to minors on the Internet that--
(A) the Commission determines meet the requirements for use as
affirmative defenses for purposes of section 231(c) of the
Communications Act of 1934 (as added by this Act); or
(B) may be used in any other manner to help reduce such access.
Any methods so identified shall be used as the basis for making
legislative recommendations to the Congress under subsection (d)(3).
(2) Specific methods.--In carrying out the study, the Commission
shall identify and analyze various technological tools and methods for
protecting minors from material that is harmful to minors, which shall
include--
(A) a common resource for parents to use to help protect minors
(such as a ``one-click-away'' resource);
(B) filtering or blocking software or services;
(C) labeling or rating systems;
(D) age verification systems;
(E) the establishment of a domain name for posting of any material
that is harmful to minors; and
(F) any other existing or proposed technologies or methods for
reducing access by minors to such material.
(3) Analysis.--In analyzing technologies and other methods
identified pursuant to paragraph (2), the Commission shall examine--
(A) the cost of such technologies and methods;
(B) the effects of such technologies and methods on law enforcement
entities;
(C) the effects of such technologies and methods on privacy;
(D) the extent to which material that is harmful to minors is
globally distributed and the effect of such technologies and methods on
such distribution; and
(E) the accessibility of such technologies and methods to parents.
(d) Report.--Not later than 1 year after the enactment of this Act,
the Commission shall submit a report to the Congress containing the
results of the study under this section, which shall include--
(1) a description of the technologies and methods identified by the
study and the results of the analysis of each such technology and
method;
(2) the conclusions and recommendations of the Commission regarding
each such technology or method;
(3) recommendations for legislative or administrative actions to
implement the conclusions of the committee; and
(4) a description of the technologies or methods identified by the
study that may be used as affirmative defenses for purposes of section
231(c) of the Communications Act of 1934 (as added by this Act).
(e) Staff and Resources.--The Assistant Secretary for Communication
and Information of the Department of Commerce shall provide to the
Commission such staff and resources as the Assistant Secretary
determines necessary for the Commission to perform its duty efficiently
and in accordance with this section.
(f) Termination.--The Commission shall terminate 30 days after the
submission of the report under subsection (d).
(g) Inapplicability of Federal Advisory Committee Act.--The Federal
Advisory Committee Act (5 U.S.C. App.) shall not apply to the
Commission.
PURPOSE AND SUMMARY
The purpose of H.R. 3783 is to amend the Communications Act of 1934
by prohibiting the sale of pornographic materials on the World Wide Web
(or the Web) to minors. H.R. 3783 has been carefully drafted to respond
to the Supreme Court's decision in Reno v. ACLU, 117 S.Ct. 2329 (1997)
and the Committee believes that the bill strikes the appropriate balance
between preserving the First Amendment rights of adults and protecting
children from harmful material on the World Wide Web. Notwithstanding
H.R. 3783, the Committee recognizes that parents, educators, and
industry must continue to play a role and find ways to help protect
children from being exposed to harmful material that can be found on the
Internet.
H.R. 3783 prohibits a person from knowingly making, by means of the
World Wide Web, any communication for commercial purposes that is
harmful to minors, unless such person makes a good faith effort to
restrict access by minors. A person violating H.R. 3783 could be subject
to criminal and civil penalties. The bill explicitly states that only
entities engaged in the commercial business of making communications
that contain material harmful to minors could be held liable under the
bill. These entities include a person who knowingly causes the material
that is harmful to minors to be posted on the World Wide Web or
knowingly solicits such material to be posted on the World Wide Web. The
general prohibition would not be applicable to entities that merely
access, transport, or link the communications of another person.
The bill provides examples of ways a business would be in compliance
with the law by identifying ``affirmative defenses'' to prosecution.
Such examples include the use of a credit card, debit account, adult
access code, or adult personal identification number. There is also a
general affirmative defense for a business that makes a good faith
effort to restrict a minor's access to material harmful to minors. In
addition, the bill requires providers of interactive computer services
to notify customers, at the time the customer signs up for service, that
parental control protections, such as computer hardware, software, and
filtering services, are commercially available that may assist the
customer in limiting access to material that is harmful to minors.
Finally, the bill establishes a Commission on Online Child Protection
that is required to study technological and other methods to help reduce
access by minors to material that is harmful to minors on the Internet.
The Commission is required to submit its findings within one year from
the date of enactment of the bill.
H.R. 3783 presents no ban on the distribution or display of material
harmful to minors, nor does it impose any unreasonable burdens on
adults. Rather, it simply requires the sellers of such material to
recast their messages so that they are not readily available to
children. Thus, the Committee believes that H.R. 3783 is currently the
most effective, yet least restrictive, way to reduce a minor's access to
harmful material.
BACKGROUND AND NEED FOR LEGISLATION
I. Background
A. Electronic commerce
For over two hundred years, the Congress of the United States has
sought to protect and facilitate the development of interstate and
foreign commerce. From regulating matters regarding ports of entry into
the United States (18th century) to the creation of a national railroad
system (19th century) to establishing communications policy (20th
century), Congress' duty remains constant: to uphold the
responsibilities delegated to the Congress by the people with respect to
the regulation of commerce among the several States.
As the Nation approaches the next millennium, Congress must stand
ready to ``keep pace with the progress of the country, and adapt
[itself] to the new developments of time and circumstances.'' Pensacola
Tel. Co. v. Western Union Tel. Co., 96 U.S. 1, 9 (1878)). One such
development is the explosive growth of electronic commerce. In general,
electronic commerce is the term used to describe the buying, selling, or
transfer of goods and services over electromagnetic transmission media.
The media could include wireline and wireless networks, both of which
have been previously held to be interstate in nature. While electronic
commerce is becoming a more common way to conduct business, many
industries have been engaged in it for years. Bank-wire transactions,
the use of automatic-teller machines, credit card verifications, and the
purchase of goods or services over the telephone all constitute a type
of electronic commerce.
The growth of electronic commerce is having a profound impact on the
nation's economy. Over the past decade, the information technology
sector of our economy has grown rapidly and is seen by many as playing a
leading role in the current economic expansion. According to The
Emerging Digital Economy, a recent Department of Commerce report on
electronic commerce, the information technology sector now constitutes
8.2 percent of the nation's GDP, up from 4.5 percent in 1985. At the end
of 1997, approximately 7.4 million Americans were employed in this
field. Many are predicting even stronger growth in the future. Estimates
of the total value of economic activity conducted electronically in 2002
range from $200 billion to more than $500 billion, compared to just $2.6
billion in 1996. While other mediums have been used to enable electronic
commerce in the past, the growth and use of the Internet will likely be
the basis for additional growth in the future.
B. The Internet
The Internet was largely the domain of academic researchers from its
creation in the late 1960s until the start of the 1990s. In 1991, the
National Science Foundation lifted its restriction on commercial
activity on the Internet. Also in 1991, the World Wide Web was created.
In 1993, the first commercially available Web browser was introduced,
thus allowing millions of consumers and businesses an easy method of
navigating on the Internet. These events, combined with the widespread
availability of inexpensive yet powerful personal computers (that
allowed computer users to access graphics, audio, and video on the World
Wide Web in addition to text), led to the dramatic growth of the
Internet and online services.
C. Adult entertainment industry
One such market that has flourished on the Internet is sale of
pornography. According to Wired Magazine, there are approximately 28,000
adult Web sites promoting pornography on the Internet and these sites
generate close to $925 million in annual revenues. While legitimate U.S.
businesses should remain free from unnecessary government regulation,
the adult entertainment industry has traditionally been subject to
restrictions because of the danger posed by pornographic material to
children. Parents, educators, and civic groups agree that exposure to
pornography shapes a child's perspective on sexual activity in a manner
that may be inconsistent with the goal of healthy sexual development.
For example, some pornography consists of photographs, videos,
magazines, and games that are violent, abusive, and degrading, and
certainly counterproductive to learning about sexual activity in an
appropriate educational or home setting.
Publishers of pornography, like all publishers in the United States,
are protected by the First Amendment which provides that ``Congress
shall make no law . . . abridging the freedom of speech.'' U.S. Const.,
Amdt. 1. The amendment prohibits government restrictions on ``the
freedom of speech,'' but not all speech such as obscenity or child
pornography. Thus, while the Internet is the medium of choice for
electronic commerce, it is also the medium of choice that stimulates a
marketplace of ideas generated from Web pages, newsgroups, listservs,
chat rooms, e-mail, and bulletin board services, all of which have the
ability to reach more Americans on more topics, including pornography,
than we have seen from traditional mediums of communications in the
past.
D. The Communications Decency Act of 1996
As part of the Telecommunications Act of 1996 (the Telecommunications
Act), Congress enacted two statutory provisions designed to protect
minors from ``indecent'' and ``patently offensive'' communications on
the Internet. These statutory provisions were included in Title V of the
Telecommunications Act, known as the Communications Decency Act of 1996
(the CDA) and were codified as part of the Communications Act of 1934,
as amended (the Act). 47 U.S.C. 223. The first provision, Section 223(a)
of the Act, prohibited the knowing transmission of obscene or indecent
messages to any recipient under 18 years of age. The second provision,
Section 223(d) of the Act, prohibited the sending or displaying of
patently offensive messages in a manner that is available to a person
under 18 years of age.
The breadth of these provisions were qualified by two affirmative
defenses. One covers those who take ``good faith, reasonable, effective,
and appropriate actions'' to restrict access by minors to the prohibited
communications. Section 223(e)(5)(A). The other covers those who
restrict access to covered material by requiring certain designated
forms of age proof, such as a verified credit card or an adult
identification number or code. Section 223(e)(5)(B).
Immediately after the Telecommunications Act was signed into law, two
lawsuits were filed challenging the constitutionality of Sections
223(a)(1) and 223(d). The two cases were consolidated and the Federal
Court for the Eastern District of Pennsylvania held that part of Section
223(a)(1) was unconstitutional with respect to ``indecent''
communications (but not obscenity) and that all of Section 223(d) was
unconstitutional. ACLU v. Reno, 929 F.Supp. 824 (E.D.Pa. 1996), aff'd,
Reno , 117 S.Ct. at 2329. The government appealed the case to the
Supreme Court and in Reno , the Court affirmed the lower court's ruling.
117 S.Ct. at 2329. The Court concluded that the CDA lacks the precision
that the First Amendment requires when a statute regulates the content
of speech and that the CDA effectively suppresses a large amount of
speech that adults have a constitutional right to receive. Id. at 2346.
Specifically, the Court noted the lack of legislative hearings, the
use of different linguistic forms for ``indecent,'' the broad definition
of indecent, the heightened level of review because of the criminal
nature of the statute, the broad applicability of the statute to
commercial and noncommercial speech, the failure of the government to
consider less restrictive alternatives, and unreliable affirmative
defenses as fundamental problems with the CDA. Although the Court stated
that the ``CDA's burden on protected speech cannot be justified,'' id.
at 2346, it went on to say that such problems ``could be avoided by a
more carefully drafted statute.'' Id.
E. Section 230 of the Communications Act
In addition to Section 223, as part of the Telecommunications Act,
Congress added Section 230 to the Communications Act. 47 U.S.C. 230.
Section 230 states that providers and users of interactive computer
services shall not be treated as publishers of any information provided
by another information content provider. Section 230 also provides
liability protections for providers and users of interactive computer
services by permitting them to remove or restrict access to
inappropriate materials.
II. The Continued Need for Legislation
A. The growth of the Internet
Over the past several years, the popularity and use of the Internet
has grown dramatically. Since January 1996 (one month before the CDA was
enacted), the number of host computers (i.e., machines physically
connected to the Internet) has more than tripled from approximately 9.4
million hosts to more than 29.6 million hosts. The number of users has
also increased. According to a recent study by Nielsen Media Research,
approximately 70.2 million adults use the Internet in the United States.
This figure represents an increase from approximately 52 million adults
using the Internet a mere nine months ago. With respect to children
using the Internet, the Chairman of the Federal Trade Commission
recently stated that the population of minors on the Internet has almost
doubled to 16 million from a year ago. Testimony of Robert Pitosfsky,
Chairman, Federal Trade Commission, before the Senate Committee on
Commerce, Science, and Transportation (September 22, 1998).
In addition, a national effort is underway to connect every school
and library to the Internet. See In the Matter of Federal-State Joint
Board on Universal Service, Report and Order, CC Docket 96 45, FCC 97
157 (May 8, 1997). According to a 1997 U.S. Department of Education
survey, 78 percent of all public schools have access to the Internet. Of
these schools, approximately 27 percent of the classrooms that are used
for instructional purposes have access to the Internet, with at least 43
percent of the schools that have Internet access in 5 or more
instructional classrooms. Furthermore, the Department of Education
predicts that 95 percent of all schools will have access to the Internet
by the year 2000. Internet Access in Public Schools, National Center for
Education Statistics, U.S. Department of Education (Feb. 1998).
While clearly the Internet is not yet as ``invasive'' as
broadcasting, its popularity and growth because of electronic commerce
and expansive Federal subsidy programs make it widely accessible for
minors. The Committee recognizes that parents are responsible for the
custody, care, and nurture of the child, but the widespread availability
of the Internet presents opportunities for minors to access information
on the Internet that can frustrate parental supervision and control.
Moreover, because of sophisticated, yet easy to use navigating software,
minors who can read and type are capable of conducting Web searches as
easily as operating a television remote. While a four-year old may not
be as capable as a thirteen year old, given the right tools (e.g., a
child trackball and browser software) each has the ability to ``surf''
the Net and will likely be exposed to harmful material.
B. The availability of material harmful to minors
As the Internet has grown, so has the availability of on-line
pornography. In 1996, there were estimates that almost 50 percent of the
content available on the Web was unsuitable for children. ``Half of 'Net
Content Said Unsuitable for Children,'' Reuters Financial Service
(January 10, 1996). Two years later, as of 1998, the estimates have
increased to almost 70 percent of the traffic on the Web is
adult-oriented material. ``The Net's Dirty Little Secret: Sex Sells,''
Upside Publishing Company (April 1998). Sexually explicit material on
the Internet includes text, pictures, and communications via chat rooms.
Purveyors of such material generally display many unrestricted and
sexually explicit images to advertise and entice the consumer into
engaging in a commercial transaction. Currently, minors can move from
Web page to Web page, viewing and downloading this material without
restriction. Once posted on the Internet, sexually explicit material has
entered all communities.
While much of the sexually explicit material is accessed
deliberately, minors often stumble upon it by mistake. There are
numerous hard-core pornography sites on the Internet using ``copycat
URLs'' to take advantage of innocent mistakes to bring traffic to their
graphic sexual images. First, children searching the Internet for the
official Web site of the White House can be confronted by hard-core
pornography by mistyping ``www.whitehouse.com'' rather than
``www.whitehouse.gov.'' Second, children who mistype
``www.betscape.com'' instead of ``www.netscape.com'' or
``www.sharware.com'' instead of ``www.shareware.com'' will be confronted
with live sex shows and other X-rated pictures. Finally, brand names are
often misused in ways that direct people to sexually explicit material.
Testimony of Enough is Enough, Hearing on Legislative Proposals to
Protect Children from Inappropriate Materials on the Internet, House
Commerce Committee (September 11, 1998) (Committee Hearing). Another set
of examples involves children using Internet search engines to look up
innocent information. Searches for toys, dollhouses, girls, boys, pets,
teen, cheerleader, actress, gang, beanie babies, bambi, and doggy will
lead to material harmful to minors. Testimony of Enough is Enough,
Committee Hearing; Testimony of National Law Center for Children and
Families, Committee Hearing.
Moreover, even though some Web sites contain warnings that the
material on that Web site is adult-oriented, most provide no warnings,
or if they do provide a warning, there is sexually explicit material on
the same page as the warning. Consequently, the odds are no longer slim
that a user will enter a sexually explicit site by accident. Contra 929
F. Supp. at 16.
C. Exposure to sexually explicit material harms children
A child's sexual development occurs gradually throughout childhood.
Exposure to pornography shapes children's sexual perspectives by
providing them with information on sexual
activity intended for adults. The type of information provided
by pornography, however, does not provide children with a normal sexual
perspective. Unlike learning provided in an educational or home setting,
exposure to pornography is counterproductive to the goal of healthy and
appropriate sexual development in children. It teaches without
supervision or guidance, inundating children's minds with graphic
messages about their bodies, their own sexuality, and those of adults
and children around them. Dr. Gary Brooks, Assistant Chief of Psychology
Services, Department of Veterans Affairs, The Centerfold Syndrome
(1996).
Testimony before the Committee also highlighted the dangers of
exposing minors to harmful material. One witness testified that
pornography produces ``permission-giving beliefs'' for sexual pathology
and sexual violence and that pornography produces distortions that
change an individual's belief system. As a result, children exposed to
pornography can become victims or victimizers, encouraged by the strong
sexual images contained in pornography found on the World Wide Web.
Testimony of Dr. Mary Anne Layden, Committee Hearing. Similarly,
testimony has been inserted into the record describing the body of
research indicating that pornography has significant impact on attitudes
and values, and that such impact is clearly harmful to minors. Testimony
of Enough is Enough, Committee Hearing.
III. Constitutionality of H.R. 3783
A. Congress has a compelling interest in protecting children
The Supreme Court's precedent is clear in establishing the
government's compelling interest in protecting children from exposure to
sexually explicit material. The Court has repeatedly articulated such an
interest in Ginsberg v. New York, 390 U.S. 629, 636 43 (1968); FCC v.
Pacifica Foundation, 438 U.S. 726, 748 50 (1978); New York v. Ferber,
458 U.S. 747, 757 (1982); Sable Communications of Cal. v. FCC, 492 U.S.
115, 126 128 (1989); Denver Area Ed. Tel. Consortium v. FCC, 116 S.Ct.
2374, 2391 (1996); and 117 S.Ct. at 2346, 2348. As stated by the Court
in Ferber: ``It is evident beyond the need for elaboration that the
State's interest in safeguarding the physical and psychological
well-being of a `minor' is `compelling'.'' 458 U.S. at 757. ``This
interest extends to shielding minors from the influence of literature
that is not obscene by adult standards.'' 492 U.S. at 126. Whether the
restrictions have required pornography to be sold behind the counter at
a drug store, on blinder racks at a convenient store, in a shrink wrap
at a news stand, or broadcast between certain hours of the night, the
restrictions have sought to shield children from exposure to material
that could distort their views of sexuality. The purpose of H.R. 3783 is
to extend those protections in cyberspace by restricting the sale of
material harmful to minors over the World Wide Web.
Though the primary responsibility for protecting the welfare of
children resides with the parent, the parent deserves the support of the
law. This principle is of particular importance as it relates to
shielding children from exposure to sexually explicit material over the
Web, where they may be exposed to such material outside the home, at a
friend's house, at the local library or school. ``While the supervision
of children's reading may be best left to their parents, the knowledge
that parental control or guidance cannot always be provided and
society's transcendent interest in protecting the welfare of children
justify reasonable regulation of the sale of material to them.'' People
v. Kahan, 15 N.Y.2d 311, 312, 206 N.E.2d 333, 334 (1965), cited in
Ginsberg, 390 U.S. at 640.
B. H.R. 3783 is narrowly tailored
The Committee recognizes the First Amendment rights of adults and
carefully drafted H.R. 3783 not to impose an unnecessary burden on those
rights. For example, the prohibition on making communications that are
harmful to minors applies only to material posted on the World Wide Web.
The World Wide Web is one type of remote information retrieval system,
among many. H.R. 3783 does not apply to content distributed through
other aspects of the Internet such as one-to-one messaging (e-mail),
one-to-many messaging (list-serv), distributed message databases (USENET
newsgroups); real time communications (Internet relay chat); real time
remote utilization (telnet) or remote information retrieval other than
the World Wide Web (ftp and gopher).
H.R. 3783 is also limited to the commercial distribution of material
harmful to minors and does not affect noncommercial speech. In addition,
the bill defines harmful to minors in a manner that parallels many State
statutes that have been upheld by the Supreme Court and only restricts
access for minors 16 years old or younger. Finally, H.R. 3783 provides
maximum flexibility for entities engaged in the business of selling
pornography by providing them with a host of good faith defenses from
prosecution if they adopt reasonable measures to restrict a minor's
access to material that is harmful.
C. H.R. 3783 is consistent with Reno v. ACLU
H.R. 3783 addresses the specific concerns raised by the Supreme Court
in Reno v. ACLU. In ruling against the indecency portions of the CDA,
the Court stated that ``the government interest in protecting children
from harmful materials . . . does not justify an unnecessary broad
suppression of speech addressed to adults.'' 117 S.Ct. at 2346. H.R.
3783 was crafted in a way to respond to the Supreme Court's concerns and
thus should not result in an unnecessary broad suppression of speech.
1. The definition of harmful to minors
The principal concern of the Court with the CDA was that the
``indecency'' and ``patently offensive'' content standards used in the
challenged sections of the CDA were overly vague as applied to the
Internet. The Court also noted that the CDA's definition of
``indecency'' did not conform with Ginsberg because it lacked an element
ensuring that material of serious literary, artistic, political, or
scientific value would not be swept up in the statute. 117 S.Ct. at
2345.
H.R. 3783 conforms to the standards identified in Ginsberg, as
modified by the Supreme Court in Miller v. California, 413 U.S. 15
(1973). H.R. 3783 modifies the ``patently offensive'' language by
explicitly describing the material that is harmful to minors. In
particular, it includes
material that displays an actual or simulated sexual act or
sexual contact, actual or simulated normal or perverted sexual acts, or
a lewd exhibition of the genitals or female breast. H.R. 3783 mirrors
many of the State laws already in place, which have been upheld by the
Supreme Court. The new harmful to minors definition also includes the
requirement that the material is harmful to minors only if ``taken as
whole, lacks serious literary, artistic, political, or scientific value
for minors.''
The ``harmful to minors'' standard is also familiar to the Federal
courts, even though that standard is not used in present Federal
statutes, since the Federal district courts and Federal appellate courts
have routinely heard challenges to State ``harmful to minors'' display
laws and upheld those laws on a regular basis over the years. See, e.g.,
Crawford v. Lungren, 96 F.3d 380 (9th Cir. 1996), cert. denied, 117 S.
Ct. 1249 (1997); American Booksellers v. Webb, 919 F.2d 1493 (11th Cir.
1990); American Booksellers Ass'n v. Com. of Va, 882 F.2d 125 (4th Cir.
1989); Upper Midwest Booksellers v. City of Minneapolis, 780 F.2d 1389
(8th Cir. 1985); M.S. News Co. v. Casado, 721 F.2d 1281 (10th Cir.
1983).
2. Scope limited to commercial transactions
The Court in Reno also criticized the CDA for its breadth with
respect to commercial and non-commercial transactions. The Court stated
that the ``[b]readth of the CDA's coverage is wholly unprecedented.
Unlike the regulations upheld in Ginsberg and Pacifica, the scope of the
CDA is not limited to commercial speech or commercial entities. Its
open-ended prohibitions embrace all non-profit entities and individuals
posting indecent messages or displaying them in the presence of
minors.'' 117 S.Ct. at 2347. By contrast, H.R. 3783 applies only to
commercial transactions involving the display of material that is
harmful to minors over the World Wide Web. It does not prohibit
non-commercial activities over the Web, or over the Internet for that
matter, and thus the concerns raised by the Supreme Court are no longer
applicable. The Committee notes that a large quantity of information
will still be available to minors who are capable of accessing these
non-commercial sites on the Web and on the Internet. As a result, as
part of Section 5 of H.R. 3783, the Committee anticipates that the
industry will suggest legislative proposals on how to address the
difficult issue of restricting a minor's access to inappropriate
material with respect to these aspects of the Internet.
3. Age verification systems are technologically and
economically feasible
The Court in Reno also was concerned that age verification systems
under the CDA were not technologically feasible for certain
non-commercial, private, and on-line services such as e-mail and chat
rooms. 117 S.Ct. at 2347. Or, even where technological feasibility was
acknowledged, the Court was concerned that such measures would be cost
prohibitive to some non-commercial content providers. Id. The Court
recognized, however, with regard to restricting access by minors by
requiring use of a verified credit card or adult verification, that
``[s]uch verification is not only technologically available but is used
by commercial providers of sexually explicit material. These providers,
therefore, would be protected by the defense.'' 117 S.Ct. at 2349.
H.R. 3783 provides a legitimate defense for commercial purveyors of
pornography. As discussed above, H.R. 3783 does not apply to
noncommercial sites, nor does it apply to those aspects of the Internet
outside the World Wide Web. Thus, the Committee agrees with the Supreme
Court that commercial distributors of material harmful to minors will be
protected by these defenses if they make a good faith effort to restrict
a minor's access to harmful material.
Unlike other restrictive approaches, age verification systems stop a
minor's access at the source of the communication and require no
independent judgments to be made about the content of the material. The
Committee notes that the FCC's dial-a-porn regulations, which were
upheld in Dial Information Services Corp. v. Thornburgh, 938 F.2d 1535
(2d Cir. 1991), cert. denied, 502 U.S. 1072 (1992), and cited with
approval in Sable, 429 U.S. 115 (1989), provided a defense to
prosecution by allowing a provider, before the transmission of a
message, to restrict customer access by requiring either payment by
credit card or authorization by access or identification code. In Sable
, the Court found that such commercial restrictions would be effective
in excluding most juveniles, stating: ``the FCC's technological approach
to restricting dial-a-porn messages to adults who seek them would be
extremely effective, and only a few of the most enterprising and
disobedient young people would manage to secure access to such
messages.'' 429 U.S. at 130.
In fact, the use of the age verification means prescribed under H.R.
3783 are standard practice among some commercial distributors of
pornography on the Web. Testimony before the Committee revealed that
adult verification services are effective and can be used successfully
to screen minors from adult material. Testimony of Laith Paul Alsarraf,
Cybernet Ventures, Committee Hearing. One such service is sold by
Cybernet Ventures, an industry leader in age verification systems. This
service utilizes age verification software that contains a script that
is embedded into a Web page. The script is placed at the entrance of a
website that may contain material that is harmful to minors thus
preventing further access or exposure of the website's content by
requiring a personal identification number, which is only available to
adults. If a consumer does not have a personal identification number
(PIN), a link is provided for them to obtain one from the age
verification system associated with that site. Consumers may obtain a
PIN instantly by submitting an application to an age verification
system. The credit card and other information submitted by a consumer
are verified by a proprietary age verification system to determine
validity. If the information is deemed to be valid, a working adult PIN
is issued. The process of verifying the information submitted generally
takes less than one minute and often only 5 to 10 seconds. Consumers may
also apply for a PIN by fax. Id. Testimony received by the Committee
shows that there are at least 25 organizations assigning adult PINs and
age verification services today. Testimony of National Law Center for
Children and Family, Committee Hearing (Tab K).
It is not only economically feasible for commercial content providers
to comply with the bill, but profitable for them to do so. Adult
verification systems generally require the user to pay for entrance to a
site, although users have many ways to subscribe. Given that the scope
of the bill is limited to commercial activity, and that the age
verification system procedures prescribed under the bill represent
standard procedures for conducting commercial activity on pornographic
Web sites, the effect of the bill is simply to reorder the process in
such a way as to require age verification before pornography is made
available, essentially requiring the commercial pornographer to put
sexually explicit images ``behind the counter.'' The commercial
pornographer is not otherwise restricted in his trade.
4. Parents maintain control and minor is defined as those under 17
In Reno , the Court expressed concern that the CDA wrested primary
authority over the child from the parent if the statute is construed to
make criminal a parental choice to make sexually explicit material
available to a minor. 117 S.Ct. at 2348. H.R. 3783 contains no
restriction on the discretion of the parent to purchase material for
their children who are under the age of 17. In other words, a parent
should not be liable under H.R. 3783 for merely sharing sexually
explicit material with a minor. In addition, a minor is defined under
the bill as persons under 17 years of age.
5. Congress may regulate services offered over the Internet
The Supreme Court also questioned Congress's role in regulating the
Internet. The Court distinguished the Internet from other distribution
mediums and stated that ``[n]either before nor after the enactment of
the CDA have the vast democratic fora of the Internet been subject to
the type of government supervision and regulation that has attended the
broadcast industry.'' 117 S.Ct. at 2343. Regulation of the Internet
does, however, fall within the jurisdiction of the Congress under its
Article I, Section 8, Clause 3 authority. Regardless of whether Congress
exercises its authority under this section, the power of Congress to
regulate in this area remains constant. During the 105th Congress, bills
have moved through both House and Senate authorizing committees that
address intellectual property rights over the Internet, whether the
Internet should be taxed, and how communications over the Internet can
be kept secure through the use of encryption technologies. Merely
because the Internet itself has not been widely regulated because of its
organizational structure and lack of dominance by a single entity should
not imply that Congress cannot regulate certain activity conducted over
the Internet, including regulating the display of harmful material to
children on the Web. In fact, in Reno , the Supreme Court explicitly
upheld Congress's ability to regulate obscene communications transmitted
over the Internet. 117 S.Ct. at 2350.
6. Legislative hearings highlight the problem
In Reno, the Court noted that Congress did not hold legislative
hearings on the CDA, nor did Congress reach any detailed findings
addressing the problem of distributing indecent materials to minors over
the Internet. 117 S.Ct. at 2348. On the other hand, both the House and
Senate during the 105th Congress have extensively considered ways to
reduce a minor's access to harmful material. The Senate Committee on
Commerce, Science, and Transportation held a hearing to consider ways to
protect children on the Internet on February 10, 1998, as did the House
Committee on Commerce on September 11, 1998. The testimony received
highlighted the problem of children getting easy access to
pornography and the need for Congressional action to stop the widespread
distribution of material harmful to minors.
D. Alternatives considered by the committee
In light of the Reno decision, the Committee has thoughtfully and
thoroughly considered a number of ways to help protect children from
being exposed to harmful material. Each proposal has merit, but the
Committee concludes that H.R. 3783 is currently the most effective, yet
least restrictive approach that should be taken given the current state
of technology. The alternatives considered generally involve zoning and
blocking techniques that rely on screening material after it has been
posted on the Internet or retrieved by the end-user. The Committee
believes that it is more effective to screen the material prior to it
being sent or posted to minors, and that such a restriction imposes
minimal burdens on adults. The Committee's general conclusion is
supported by the Second Circuit in the Dial Information Services
decision, where the appellate court stated:
Common sense dictates that a presubscription
requirement, like requirements for payment by credit card
before a message is transmitted, for use of an authorized
access or identification card before transmission . . . is
more likely to achieve the goal sought than blocking after one
or more occasions of access. It always is more effective to
lock the barn door before the horse is stolen. 938 F.2d at
1542.
1. Market-based solutions in general
The industry has taken some significant steps to reduce a child's
access to inappropriate material. There have been a number of online
summits where policymakers and industry have discussed the ``ugly'' side
of the Internet (e.g., kidsonline.org and americalinksup.org). Given the
public policy sensitivities and potential demand for new products, the
industry has developed new technologies that will help screen material
for parents and educators. Some of the new products include Secure
Learning (Spyglass, Inc.), NetWatch (Netscape Communications), Kids
CyberHighway (AT&T), Cyber Patrol (The Learning Company), Disney's
Internet Guide (The Walt Disney Company), Parental Controls (AOL), Net
Nanny (Net Nanny Software, Inc.), X-Stop (Log On Data Corp.), Net
Shepherd (Net Shepherd, Inc.) and Internet Explorer that incorporates a
content advisor feature (Microsoft). In addition, there have been a
number of educational trade shows that help inform educators about new
products that enhance online safety for children. The Committee applauds
the efforts of industry and is confident that demand for new products
will continue to grow.
Unfortunately, industry-led efforts have not provided a national or
uniform solution to the problem of children accessing harmful material.
To quote the CEO of Net Nanny, one of the leading filtering software
developers in the nation:
Asking us to come up with one specific
technological solution to the child safety issue is an
extremely difficult proposition because we are not all in the
same line of business. Some of us are filtering companies,
others are ISPs and still others are search engine and browser
companies. No single company has complete control over the
access points to the Internet or is responsible for all the
content that is produced online.
Letter from Gordon Ross, President and CEO, Net Nanny Software
International, Inc. to The Honorable Joseph Lieberman and The Honorable
Rick White, Members of Congress (August 4, 1998). H.R. 3783 provides a
national solution and places the burden on the appropriate entity, the
person selling the harmful material on the Web.
2. Zoning techniques
A number of proposals have been suggested that would identify or
classify material harmful to minors. ``Zoning'' effectively places the
seller of pornography in a red-light district in cyberspace. While each
of these proposals are technically feasible today, mandating their use
raises a host of additional issues that jeopardize their success and
effectiveness. In addition, zoning techniques alone do not solve the
problem of minor's accessing harmful material. Zoning techniques must be
combined with a blocking or filtering service and may require the same
type of age verification system specified in H.R. 3783.
a. Tagging
Tagging is a term used to describe information about a Web page. Some
tags, known as ``meta tags,'' do not affect how the Web page is
displayed. Instead, meta tags provide information such as who created
the page, how often the page is updated, what the page is about, and
which keywords represent the page's content. Many search engines use
tags when building their indices. As a result of tagging, websites may
contain information that will alert users of adult content. In order for
tagging to be used as an effective zoning technique, a requirement of
tagging must be complied with by every provider of material harmful to
minors. A requirement would then need to be imposed on the hardware and
software community to develop products that would include capabilities
to block ``tagged'' material. The Committee does not believe that level
of regulation of the computer industry is warranted at this time, nor
does it believe that it has the luxury of time to wait for industry to
develop uniform blocking standards while material harmful to minors is
being distributed to children today.
b. Ratings
Voluntary ratings systems of Web sites have been somewhat successful.
Several systems have already been developed and show promise in allowing
parents to block objectionable material. The most popular rating systems
rely on the Platform for Internet Content Selection (PICS) protocol.
PICS is not a rating system, but rather a technical standard that can be
used
to enable the rating of sites. Two current rating systems
(RSACi and SafeSurf) allow websites to self-rate using the PICS
protocol. Under RSACi, the owner of the Website rates itself on a scale
of 0 4 in four categories (sex, violence, nudity, and language). A third
system, NetShepherd, uses a third party to rate all sites. The drawbacks
of rating systems are that few sites are actually rated today and it is
unlikely that commercial websites would rate themselves. Alexa Internet
reports that in August 1997 they searched a collection of 88,647 Web
pages . . . and found 2363 had RSACi labels and 483 had SafeSurf labels.
Technology Inventory, Internet Online Summit--Focus of Children
(7/29/98). To mandate self-rating would raise additional First Amendment
issues because entities such as online newspapers could be asked to rate
their content. Furthermore, without the use of filters or other
screening methods, ratings could actually help a minor find adult
material.
c. Domain name zoning
Segregating adult content was also considered by the Committee.
Schemes have been proposed to create a generic top level domain on the
Internet that would be specifically reserved for adult content. For
example, a set of domain names could be adult only, such as
``www.site1.adult'' or ``www.site1.xxx.'' There are no technical
barriers to creating an adult domain, and it would be very easy to block
all websites within an adult domain. Unfortunately, the domain name
registration system is in a state of flux. The Internet industry is
currently in the process of creating a self-governing structure that
will manage the future domain name system and IP number allocation
process. In addition, changes made to the top level domains under the
new self-governing structure, will have international consequences and
the United States should not act without reaching broad industry and
international consensus. With respect to the creation of a second level
domain within the .us domain, such as ``www.site1.xxx.us,'' which
clearly is within the control of the United States, zoning the adult
entertainment industry by itself does not solve the problem. Moving
commercial sellers of material harmful to minors into a ``.xxx.us''
domain, like tagging, must be combined with a blocking service. As
stated above, the Committee is reluctant to begin regulating the
computer industry or waiting for uniform blocking techniques to be
developed. Anything short of a mandate on regulating the source of the
pornographic material would not result in sufficiently protecting
children from accessing material that is harmful.
3. Blocking or filtering techniques
Blocking and filtering techniques vary and can be as simple as
blocking access to particular sites or as complicated as reviewing each
page of material posted on the Web based on key words. In addition, some
techniques can be used in conjunction with the zoning methods discussed
above, while other approaches operate independently of zoning
techniques. While blocking and filtering techniques may be effective for
many parents, schools, and libraries, the Committee does not believe,
however, that they are as effective as the approach taken in H.R. 3783.
In fact, the Committee is concerned that a national mandate requiring
the use of blocking or filtering could lead to private censorship or
inadvertent blocking. The Committee also does not believe that any of
these approaches are currently any less restrictive than the age
verification services that are now widely used by the adult
entertainment industry and adults.
In general, blocking or filtering software programs work in
conjunction with Internet browsers such as Netscape Navigator and
Microsoft's Internet Explorer, and are either installed directly onto
individual computers or onto a host server used with a network of
computers. Blocking or filtering software could also be installed at the
site of the Internet access provider. Software to block access to
websites has existed for many years. Other products do not prohibit
access to sites, but provide parents with a record of which websites a
minor has visited.
In order to block Internet sites, a software vendor identifies
categories of material to be restricted and then configures the software
to block sites containing those categories of speech. Some software
blocking vendors employ individuals who browse the Internet for sites to
block, while others use automated searching tools to identify which
sites to block. New products are constantly being developed, however,
that could improve the effectiveness of the blocking software. For
example, at least one product has been designed that is capable of
analyzing the content being retrieved by the computer. By analyzing the
content, rather than a predefined list of sites, the product is capable
of screening inappropriate material from chat rooms, e-mail, attached
documents, search engines, and web browsers. Such products will help
parents and educators reduce a minor's exposure to sexually explicit
material.
Mandating blocking or filtering software, however, is not the
preferred solution. Because of the discretionary means to screen
information, there is a chance that protected, harmless, or innocent
speech would be accidentally or inappropriately blocked. Software that
blocks a minor's access to ``breast,'' for example, may also screen that
minor from accessing information about ``breast cancer.'' In addition,
simple blocking techniques that would screen tagged material are not
currently available in existing Internet browsers. Moreover, the
Committee notes that blocking and filtering software and services can be
expensive and may discourage adults or schools from using them. For
example, the cost of most products for home use range from $14.95 to
$199.50 depending on the quality of the software program. Presumably
parents would want to purchase the best product for their use. Other
software used for schools or multiple users may cost anywhere from
$1,050 to $4,250. See Internet World, ``www.internetworld.com'' (May 18,
1998). Even if a customer incurs a single nonrecurring cost, he or she
may also incur recurring costs because the software needs to be
continually updated to respond to the ever-changing content on the World
Wide Web. Filters may be very useful tools for parents and educators,
but the law should impose duties on the source of the problem, not the
victims.
Finally, the Committee remains concerned that all blocking software
requires the exercise of subjective human judgment by the vendor or
purchaser to decide what speech is acceptable and what is unacceptable.
In some cases, the library of restricted words, URLs, or content is not
visible to users and may result in hidden censorship if the blocking or
filtering service includes matters beyond adult content such as
addressing politics or religion.
E. International distribution of pornography
Throughout the legislative debate, opponents of H.R. 3783 have argued
that 40 percent or more of the pornography sold in the United States
originates from foreign countries and that a domestic legislative
solution will not stop material from being sent into the United States.
To date, however, no reliable statistics exist on the world-wide
distribution of pornography over the Internet. A 1996 finding by the
lower court ruling in Reno is often misquoted by opponents of
legislation. They argue that ``40% or more'' of the material that is
harmful to minors is produced outside of the United States. In fact, the
lower court concluded that ``[a] large percentage, perhaps 40 percent or
more, of content on the Internet originates outside the United States.''
929 F. Supp. at 848 (emphasis added). ``Content'' is not synonymous with
``material harmful to minors.'' While data regarding the origination of
material that is harmful to minors are unavailable, the fact remains
that much of the harmful material is produced and posted in the United
States. In describing the $8 billion dollar adult entertainment
industry, of which commercial pornography is included, the Executive
Director of the Free Speech Coalition testified that ``[t]hose eight
billions are homegrown American products, generating more dollars, jobs
and taxes in a burgeoning export trade.'' Testimony of Jeffrey J.
Douglas, Committee Hearing. Clearly domestic restrictions in the United
States will help reduce a child's access to pornography, and it may even
help protect children in foreign nations who are the recipients of this
``burgeoning export trade.'' To the extent that an international problem
exists, the Committee has requested that the Commission on Online Child
Protection study the matter and report back to Congress.
HEARINGS
On September 11, 1998, the Subcommittee on Telecommunications, Trade,
and Consumer Protection held a legislative hearing on methods to prevent
the distribution of material that is harmful to minors over the
Internet. The Subcommittee received testimony from: The Honorable Dan
Coats, U.S. Senate, State of Indiana; The Honorable Bob Franks, U.S.
House of Representatives, Seventh District, State of New Jersey; The
Honorable Ernest J. Istook, Jr., U.S. House of Representatives, Fifth
District, State of Oklahoma; Mr. Stephen R. Wiley, Chief, Violent Crimes
and Major Offenders Section, Federal Bureau of Investigations; Mr. Jerry
Berman, Director, Center for Democracy and Technology; Mr. Jeffrey J.
Douglas, Executive Director, Free Speech Coalition; Mr. Laith Paul
Alsarraf, President and CEO, Cybernet Ventures, Inc.; Dr. Mary Anne
Layden, Center for Cognitive Therapy, Department of Psychology,
University of Pennsylvania; Dr. Larry Lessig, Professor, Harvard Law
School; Mr. Peter Nickerson, Chief Executive Officer, N2H2; Mr. Andrew
L. Kupser, Chief Executive Officer, Northwest Internet Services, LLC;
Mr. John Bastian, Chief Executive Officer, Security Software Systems
Inc.; and Ms. Agnes M. Griffen, Director, Tucson-Pima Public Library.
COMMITTEE CONSIDERATION
On September 17, 1998, the Subcommittee on Telecommunications, Trade,
and Consumer Protection met in open markup session and approved H.R.
3783, the Child Online Protection Act, for Full Committee consideration,
amended, by a voice vote. On September 24, 1998, the Full Committee met
in open markup session and ordered H.R. 3783, reported to the House,
amended, by a voice vote, a quorum being present.
ROLLCALL VOTES
Clause 2(l)(2)(B) of rule XI of the Rules of the House requires the
Committee to list the recorded votes on the motion to report legislation
and amendments thereto. There were no recorded votes taken in connection
with ordering H.R. 3783 reported. An Amendment in the Nature of
Substitute offered by Mr. Oxley was adopted by a voice vote. A motion by
Mr. Bliley to order H.R. 3783 reported to the House, amended, was agreed
to by a voice vote, a quorum being present.
COMMITTEE OVERSIGHT FINDINGS
Pursuant to clause 2(l)(3)(A) of rule XI of the Rules of the House of
Representatives, the Committee held a legislative hearing and made
findings that are reflected in this report.
COMMITTEE ON GOVERNMENT REFORM AND OVERSIGHT
Pursuant to clause 2(l)(3)(D) of rule XI of the Rules of the House of
Representatives, no oversight findings have been submitted to the
Committee by the Committee on Government Reform and Oversight.
NEW BUDGET AUTHORITY, ENTITLEMENT AUTHORITY, AND TAX EXPENDITURES
In compliance with clause 2(l)(3)(B) of rule XI of the Rules of the
House of Representatives, the Committee finds that H.R. 3783, the Child
Online Protection Act, would result in no new or increased budget
authority, entitlement authority, or tax expenditures or revenues.
COMMITTEE COST ESTIMATE
The Committee adopts as its own the cost estimate prepared by the
Director of the Congressional Budget Office pursuant to section 402 of
the Congressional Budget Act of 1974.
CONGRESSIONAL BUDGET OFFICE ESTIMATE
Pursuant to clause 2(l)(3)(C) of rule XI of the Rules of the House of
Representatives, the following is the cost estimate provided by the
Congressional Budget Office pursuant to section 402 of the Congressional
Budget Act of 1974:
U.S. Congress,
Congressional Budget Office,
Washington, DC, October 1, 1998.
Hon. Tom Bliley, Chairman, Committee on Commerce,
U.S. House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has prepared the
enclosed cost estimate for H.R. 3783, Child Online Protection Act.
If you wish further details on this estimate, we will be pleased to
provide them. The CBO staff contacts are Mark Hadley (for federal
costs), Hester Grippando (for revenues), and Jean Wooster (for the
private-sector impact).
Sincerely,
June E. O'Neill, Director.
Enclosure.
H.R. 3783--Child Online Protection Act
Summary: H.R. 3783 would amend the Communications Act of 1934 to
require persons engaged in interstate or foreign commerce in the
distribution of material that is harmful to minors in or through the
World Wide Web to restrict access to such Internet material by persons
under 17 years old. The bill would impose civil and criminal penalties
on persons who violate this requirement and would establish a commission
to study ways of reducing access by children to harmful materials on the
Internet.
CBO estimates that implementing this bill would cost about $1 million
in 1999, assuming appropriation of the necessary amounts. Because the
bill would establish new criminal penalties and thus could affect
receipts, pay-as-you-go procedures would apply, but CBO estimates that
any changes in receipts would be less than $500,000 a year.
H.R. 3783 would impose both intergovernmental and private-sector
mandates, as defined by the Unfunded Mandates Reform Act (UMRA), but CBO
estimates that the costs of the mandates would fall well below the
thresholds established in UMRA. (The thresholds are $50 million for
intergovernmental mandates and $100 million for private sector mandates,
adjusted annually for inflation after 1996.)
Estimated cost to the Federal Government: Under H.R. 3783, CBO
expects that the Federal Communications Commission (FCC) would issue a
regulation to prescribe procedures to be used to restrict access to
Internet material that is considered harmful to minors. Based on
information from the FCC, we estimate that this regulation would cost
less than $500,000 to promulgate. That spending would be subject to
appropriation of the necessary amounts, but under current law the FCC is
authorized to collect fees from the telecommunications industry
sufficient to offset the cost of its
regulatory program. Therefore, CBO estimates that this
provision would have no net cost to the government.
The bill also would amend the Communications Act of 1934 to impose
criminal and civil penalties on any person who violates the requirement
to restrict access to material that is harmful to minors. Enacting H.R.
3783 could increase governmental receipts from the collection of fines,
but CBO estimates that any such increase would be less than $500,000
annually. Criminal fines are deposited in the Crime Victims Fund and are
spent in the following year. Thus, any change in direct spending from
the fund would also amount to less than $500,000 annually.
Finally, the bill would establish a one-year commission to study ways
to reduce access by minors to harmful material on the Internet. Based on
information from the National Telecommunications and Information
Administration and the experience of similar commissions, CBO estimates
that implementing this provision would cost about $1 million in 1999,
subject to appropriation of the necessary amount.
Pay-as-you-go considerations: The Balanced Budget and Emergency
Deficit Control Act sets up pay-as-you-go procedures for legislation
affecting direct spending or receipts. CBO estimates that any increases
in governmental receipts and direct spending would each total less than
$500,000 a year.
Intergovernmental and private-sector impact: H.R. 3783 would impose
both intergovernmental and private-sector mandates, as defined in UMRA.
CBO estimates that the costs of the mandates imposed on providers of
interactive computer services, including public educational institutions
and perhaps some libraries, and on commercial interstate and foreign
distributors of ``material that is harmful to minors'' would be small
and would fall below the thresholds established in UMRA.
Section 5 would require that providers of interactive computer
services (most of which are private) notify customers that parental
control protections are commercially available. According to information
from representatives of private-sector Internet providers and their
trade association, most providers currently supply the required
information to their customers, and some also offer software or
filtering services. Furthermore, the cost to those public and private
providers that may not currently supply this information would be
minimal. Because some public college, universities, perhaps some public
libraries offer Internet access, this requirement would impose an
intergovernmental mandate on those entities. Based on information from
the National Association of State Colleges and Land Grant Universities
and the Public Library Association, CBO estimates that the cost of
complying with this requirement would be minimal since it would not
require significant alteration in most of the agreements currently used.
Section 3 would also impose a private-sector mandate on commercial
interstate and foreign distributors who knowingly cause or solicit
``material that is harmful to minors'' to be posted on the World Wide
Web. This section would require that those distributors restrict access
to minors of such material. The use of a credit card, debit account,
adult access code, adult personal identification number, or any feasible
measures would constitute compliance. Based on information from
representatives of the industry, commercial adult-content Web sites
currently require the use a credit card or some type of age verification
for membership or subscription payment. Thus, CBO estimates that those
commercial interstate and foreign distributors would not incur any
additional costs.
Previous CBO estimate: On March 30, 1998, CBO transmitted an estimate
of S. 1482, a bill to amend section 223 of the Communications Act of
1934 to establish a prohibition on commercial distribution on the World
Wide Web of material that is harmful to minors, as ordered reported by
the Senate Committee on Commerce, Science, and Transportation on March
12, 1998. That bill would not establish a new commission (as H.R. 3783
would); therefore, CBO estimated that S. 1482 would have no significant
net effect on the federal budget.
Estimate prepared by: Federal costs: Mark Hadley; Federal revenues:
Hester Grippando; Impact on the private sector: Jean Wooster.
Estimate approved by: Paul N. Van de Water, Assistant Director for
Budget Analysis.
FEDERAL MANDATES STATEMENT
The Committee adopts as its own the estimate of Federal mandates
prepared by the Director of the Congressional Budget Office pursuant to
section 423 of the Unfunded Mandates Reform Act.
ADVISORY COMMITTEE STATEMENT
No advisory committees within the meaning of section 5(b) of the
Federal Advisory Committee Act were created by this legislation.
CONSTITUTIONAL AUTHORITY STATEMENT
Pursuant to clause 2(l)(4) of rule XI of the Rules of the House of
Representatives, the Committee finds that the Constitutional authority
for this legislation is provided in Article I, section 8, clause 3,
which grants Congress the power to regulate commerce with foreign
nations, among the several States, and with the Indian tribes.
APPLICABILITY TO LEGISLATIVE BRANCH
The Committee finds that the legislation does not relate to the terms
and conditions of employment or access to public services or
accommodations within the meaning of section 102(b)(3) of the
Congressional Accountability Act.
SECTION-BY-SECTION ANALYSIS OF THE LEGISLATION
Section 1. Short title
Section 1 establishes the short title of the bill as the ``Child
Online Protection Act.''
Section 2. Congressional findings
Section 2 lists the Congressional findings.
Section 3. Requirements to restrict access by minors to
materials sold by means of the World Wide Web that are harmful to minors
Section 3 amends the Communications Act of 1934 by adding a new
section 231, entitled ``Restriction of Access by Minors to Materials
Sold by Means of the World Wide Web that are Harmful to Minors.''
New subsection 231(a) provides that whoever, in interstate or foreign
commerce, by means of the World Wide Web, knowingly makes any
communication for commercial purposes that includes any material that is
harmful to minors without restricting access to such material shall be
fined or imprisoned.
The Committee believes that this restriction will help reduce a
minor's access to sexually explicit material on the World Wide Web. The
restriction is narrowly drafted and is limited to entities making
communications for commercial purposes that include material harmful to
minors. The restrictions do not apply to other communications on the
Internet that involve electronic mail, newsgroups, or chat rooms. The
key words used in the prohibition, such as ``commercial purposes,'' and
``harmful to minors'' are defined in new subsection 231(c). In addition,
like any criminal statute, a person who is a conspirator or otherwise
aids and abets the offender may be prosecuted under this statute.
New subsection 231(b) clarifies that certain entities do not ``make
any communication for commercial purposes'' if they are engaged in
certain transmission or access related activities. In particular, this
subsection clarifies that, for purposes of subsection (a), a person
shall not be considered to be engaged in making communications for
commercial purposes to the extent that such person is (1) a
telecommunications carrier engaged in the provision of
telecommunications services; (2) a person engaged in the business of
providing Internet access services; (3) a person engaged in the business
of referring or linking users to an online location on the World Wide
Web and includes the provision of directories, indices, references,
points, and hypertext links services; or (4) similarly engaged in the
transmission, storage, retrieval, hosting, formatting, or translation of
a communication made by another person, without the selection or
alteration of the content of the communication.
The Committee believes that these entities do not knowingly cause the
material that is harmful to minors to be posted on the World Wide Web,
nor do they knowingly solicit such material to be posted on the World
Wide Web. The Committee notes, however, that subsection 231(b) applies
only ``to the extent that such person'' is engaged in these other
activities. For example, if an Internet access provider also has a web
site selling harmful material on the World Wide Web, then that site
would be subject to the general restriction set forth in new subsection
231(a).
New subsection 231(c) states that it is affirmative defense to
prosecution under this section if the defendant, in good faith, has
restricted access by minors to material that is harmful to minors. The
new subsection provides two ways to be eligible for the affirmative
defense. The first defense, subparagraph 231(c)(1)(A), permits the
person posting the harmful material on the Web to employ the use of a
credit card, debit account, adult access code, or adult personal
identification number as a means to prove age. The second defense,
subparagraph 231(c)(1)(B), allows the defendant to use any other
reasonable measures that are feasible under available technology. New
subsection 231(c) also permits a good faith defense for entities that
attempt to restrict or prevent the transmission of, or access to, a
communication specified in this section.
For purposes of this subsection, the Committee believes that
purveyors of material harmful to minors have sufficient tools available
today to make a good faith attempt to restrict access to their web
sites. Credit card verification is commonly used today in both the
dial-a-porn and Internet context and it should be easy to use and
implement for commercial entities that sell pornography on the Web. In
addition, adult access codes and adult personal identification numbers
could be issued by mail or fax after reasonably ascertaining that the
applicant is not a minor. The Committee does not consider data such as
zip codes, telephone numbers, or mere warning pages as a good faith
attempt to restrict access. This information is unrelated to the age of
the person wishing to access the material and thus should not constitute
a defense to prosecution.
The fact that some uncertainty exists surrounding what constitutes a
good faith effort to restrict access under subparagraph 231(c)(1)(B)
should not undermine the legitimacy of the criminal statute. Entities
selling material that is harmful to minors could utilize the
subparagraph 231(c)(1)(A) defenses until other defenses under
subparagraph 231(c)(1)(B) became available. The Committee believes that
technologies will evolve and new age verification systems, such as use
of digital certificates, tags, student identifiers, etc. could be used
to reduce access and thus, could become effective affirmative defenses.
As a result, the bill incorporates needed and limitless flexibility. In
addition, the Committee also tasked the industry to study age
verification methods pursuant to Section 5 of the bill, which could
provide additional help regarding the subparagraph 231(c)(1)(B)
defenses.
New subsection 231(d) prohibits a person who collects information
about another individual for purposes of restricting access to material
that is harmful to minors from disclosing any information collected. The
Committee intends to ease the concerns of adults who may be required to
disclose certain information about themselves in order to gain access to
material that they have a right to receive.
New paragraph 231(e)(1) defines the World Wide Web as the placement
of material in a computer server-based file archive so that it is
publicly accessible, over the Internet, using hypertext transfer
protocol or any successor protocol.
In general, the Web utilizes a hypertext formatting language called
hypertext markup language (HTML), and programs that browse the Web can
display HTML documents containing text, images, sound, animation and
moving video. Any HTML document can include links to other types of
information or resources, so that while viewing an HTML document that,
for example, describes resources available on the Internet, one can
``click'' using a computer mouse on the description of the resource and
be immediately connected to the resource itself. Such hyperlinks allow
information to be accessed and organized in very flexible ways, and
allow people to locate and efficiently view related information even if
the information is stored on numerous computers all around the world.
Most sellers of material that is harmful to minors have home pages on
the Web that provide links to sexually explicit material, although the
home pages themselves often contain hard-core or soft-core pornographic
``teasers'' that contain material harmful to minors.
New paragraph 231(e)(2) defines commercial purposes as a person who
makes a communication when such person is engaged in the business of
making such communication. ``Engaged in the business'' is defined as a
person who makes a communication via the Web that is harmful to minors
and such person makes the communication as a regular course of such
person's trade or business. The Committee notes that the term ``engaged
in the business,'' 18 U.S.C. 1466, has been held constitutional and not
unconstitutionally vague as the term is applied to obscenity law. U.S.
v. Skinner, 25 F.3d 1314 (6th Cir. 1994).
New paragraph 231(e)(3) defines the Internet as a combination of
computer facilities and electromagnetic transmission media, and related
equipment and software, comprising the interconnected world-wide network
of computer networks that employ the Transmission Control
Protocol/Internet Protocol (TCP/IP) protocol or any successor protocol.
New paragraph 231(e)(4) defines Internet access service as a service
that enables users to access content, information, electronic mail, or
other services offered over the Internet, and may include access to
proprietary content, information, and other services as part of a
package of services offered to consumers, and paragraph (5) defines
Internet information location tool as a service that refers or links
users to an online location on the World Wide Web.
New paragraph 231(e)(6) defines material that is harmful to minors as
any communication that (A) the average person, applying contemporary
community standards, would find, taking the material as a whole and with
respect to minors, that such material is designed to appeal to or
panders to the prurient interest; (B) depicts, describes, or represents,
in a manner patently offensive with respect to minors, an actual or
simulated normal or perverted sexual act or contact, or a lewd
exhibition of the genitals or female breast; and (C) taken as a whole,
lacks serious literary, artistic, political, or scientific value for
minors.
The Committee intends for the definition of material harmful to
minors to parallel the Ginsberg and Miller definitions of obscenity and
harmful to minors, as those definitions were later refined in Smith v.
United States, 431 U.S. 291, at 300 02, 309 (1977) and Pope v. Illinois,
481 U.S. 497, at 500 01 (1987). In essence, the Committee intends to
adopt the ``variable obscenity'' standard for minors. The Committee
recognizes that the applicability of community standards in the context
of the Web is controversial, but understands it as an ``adult''
standard, rather than a ``geographic'' standard, and one that is
reasonably constant among adults in America with respect to what is
suitable for minors. In addition, when a person posts material on the
Web, he makes it available, simultaneously, to all communities in the
world where a computer can be plugged in. Thus, the person posting the
material is engaged in interstate commerce and is subjecting himself to
the jurisdiction of all communities in a manner similar to the way
obscenity laws apply today. See United States v. Thomas, 74 F.3d 701
(6th Cir. 1996), cert. denied, 117 S.Ct. 74 (1996); Sable, 492 U.S. at
126 27. Furthermore, it is well established that ``there is no
constitutional impediment to the government's power to prosecute
pornography dealers in any district into which the material is sent.''
United States v. Bagnell, 679 F.2d 826, 830 (11th Cir. 1982), cert.
denied, 460 U.S. 1047 (1983).
The Committee also notes that the ``harmful to minors'' standard has
been tested and refined for thirty years to limit its reach to materials
that are clearly pornographic and inappropriate for minor children of
the age groups to which it is directed. Cases such as Erznoznik v. City
of Jacksonville, 422 U.S. 205 (1975) and Board of Education v. Pico, 457
U.S. 853 (1982), prevent the traditional ``harmful to minors'' test from
being extended to entertainment, library, or news materials that merely
contain nudity or sexual information, regardless of how controversial
they may be for their political or sexual viewpoints.
New paragraph 231(e)(7) defines minor as any person under 17 years of
age.
Section 4. Notice requirement
Section 4 amends Section 230 of the Communications Act by requiring a
provider of interactive computer service to notify each customer, at the
time it enters into an agreement to sign up the customer, that parental
control protections (such as computer hardware, software, and filtering
service) are commercially available that may assist the customer in
limiting access to material that is harmful to minors.
The Committee believes that such a requirement will help inform
parents and educators on the availability of filtering software and
services that may assist with the shielding of harmful material. The
Committee also believes that this requirement is a necessary supplement
to the general prohibition in Section 3 and allows for marketplace
solutions to develop to address the difficult technical and legal
questions surrounding restricting a minor's access to harmful material
with respect to all communications that take place on the Internet.
Section 5. Study by commission on online child protection
Section 5 establishes a temporary Commission on Online Child
Protection for purposes of conducting a study regarding methods to help
reduce access by minors to material that is harmful to minors on the
Internet. The Commission will be composed of industry and government
representatives and is required to report its findings within one year
from the date of enactment of H.R. 3783. The Committee intends that the
Commission's findings may be used to make legislative recommendations to
Congress on additional ways to reduce access by minors to harmful
material and as an evidentiary basis for good faith defenses under
Section 3 of the bill. The Committee notes that the Commission is
required to study alternative ways to reduce material that is harmful to
minors on the Internet, which should include ways to reduce such harmful
material with respect to one-to-one messaging (e-mail), one-to-many
messaging (listserv), distributed message databases (USENET newsgroups);
real time communications (Internet relay chat); real time remote
utilization (telnet) and remote information retrieval systems. The
Commission is also free to comment on the approach taken in H.R. 3783
and on whether other legislative recommendations would be helpful, such
as a proposal to prohibit the distribution of unsolicited commercial
e-mail that contains material harmful to minors.
CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED
In compliance with clause 3 of rule XIII of the Rules of the House of
Representatives, changes in existing law made by the bill, as reported,
are shown as follows (existing law proposed to be omitted is enclosed in
black brackets, new matter is printed in italic, existing law in which
no change is proposed is shown in roman):
COMMUNICATIONS ACT OF 1934
* * * * * * *
TITLE II--COMMON CARRIERS
PART I--COMMON CARRIER REGULATION
* * * * * * *
SEC. 223. OBSCENE OR HARASSING TELEPHONE CALLS IN THE DISTRICT
OF COLUMBIA OR IN INTERSTATE OR FOREIGN COMMUNICATIONS.
(a) * * *
* * * * * * *
(h) For purposes of this section--
(1) * * *
(2) The term ``interactive computer service'' has the meaning
provided in section 230(e)(2) 230(f)(2).
* * * * * * *
SEC. 230. PROTECTION FOR PRIVATE BLOCKING AND SCREENING OF
OFFENSIVE MATERIAL.
(a) * * *
* * * * * * *
(d) Obligations of Interactive Computer Service.--A provider of
interactive computer service shall, at the time of entering an agreement
with a customer for the provision of interactive computer service and in
a manner deemed appropriate by the provider, notify such customer that
parental control protections (such as computer hardware, software, or
filtering services) are commercially available that may assist the
customer in limiting access to material that is harmful to minors. Such
notice shall identify, or provide the customer with access to
information identifying, current providers of such protections.
(d) (e) Effect on Other Laws.--
(1) * * *
* * * * * * *
(e) (f) Definitions.--As used in this section:
(1) * * *
* * * * * * *
SEC. 231. RESTRICTION OF ACCESS BY MINORS TO MATERIALS SOLD BY
MEANS OF WORLD WIDE WEB THAT ARE HARMFUL TO MINORS.
(a) Requirement To Restrict Access.--
(1) Prohibited conduct.--Whoever, in interstate or foreign commerce,
by means of the World Wide Web, knowingly makes any communication for
commercial purposes that includes any material that is harmful to
minors, without restricting access to such material by minors pursuant
to subsection (c), shall be fined not more than $50,000, imprisoned not
more than 6 months, or both.
(2) Intentional violations.--In addition to the penalties under
paragraph (1), whoever intentionally violates such paragraph shall be
subject to a fine of not more than $50,000 for each violation. For
purposes of this paragraph, each day of violation shall constitute a
separate violation.
(3) Civil penalty.--In addition to the penalties under paragraphs
(1) and (2), whoever violates paragraph (1) shall be subject to a civil
penalty of not more than $50,000 for each violation. For purposes of
this paragraph, each day of violation shall constitute a separate
violation.
(b) Inapplicability of Carriers and Other Service Providers.--For
purposes of subsection (a), a person shall not be considered to make any
communication for commercial purposes to the extent that such person
is--
(1) a telecommunications carrier engaged in the provision of a
telecommunications service; | |
