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H.R. 2417, the Dot Kids Name Act of 2001.
Subcommittee on Telecommunications and the Internet
Mr. Bruce A. Taylor
Mr.
Chairman and Members of the Committee:
Thank you for the opportunity to provide
testimony on H.R. 2417. As
President and Chief Counsel of the National Law Center for Children and
Families, it is my primary function to provide advice and assistance to
legislators, law enforcement agencies, and public officials on the enforcement
and improvement of federal and state laws prohibiting the unlawful traffic in
child pornography, obscenity, pornography that is obscene for minors, and
indecency, as well as on racketeering, prostitution, and the regulation of
sexually oriented businesses. I
have been prosecuting obscenity and vice offenses under state and federal laws
since 1973, when I was an Assistant Prosecutor for the City of Cleveland,
including over five years as a federal prosecutor with the Justice
Department's Child Exploitation and Obscenity Section.
I think I have prosecuted more obscenity cases than any attorney in this
Country's history, amounting to about a hundred jury trials and a couple
hundred appeal briefs on First Amendment related issues in such cases.
Since joining the National Law Center's staff six years ago, I have
been constantly involved in advising Congressional sponsors on several Internet
related bills to restrict or control the unlawful or harmful traffic in
pornography, especially in its accessibility to minor children. I have been a strong proponent of improving laws and legal
remedies in this area, but have also supported immunities to enable Good
Samaritan efforts by the Internet industry to voluntarily restrict access to
pornography, hate sites, controlled substances and weapons, and other
objectionable materials, as well as encouraged increased diligence and
involvement by parents, educators, and others who share a role in safeguarding
and educating our children and grand-children in their online experiences.
In this latter regard, I served on the Steering Committee for the
Internet-Online Summit a couple years ago to assist and encourage the Industry
to formulate methods of supplying appropriate content and better safety for
children and to provide and enable real protections for minors and tools for
adult and parental supervision and protection of minor children while online.
In support of the creation of a Dot Kids domain
for the World Wide Web, I'd like to offer some thoughts on why such a domain
could help children, what legislative and constitutional issues should be
addressed, and how Congress can better assure that the new domain will
accomplish its purpose of being a safe and educational online place for our kids
to learn and play.
The first statement I will make, therefore,
shall be in support of the intent and purpose of this proposed act: to provide
an Internet accessed WWW domain that will contain content, services, and
facilities for use by minor children that is free of harmful and pornographic
materials; that safeguards the privacy and safety of such adolescent users; and
which provides a forum where minors have access to information and entertainment
that is safe, lawful, and appropriate, while giving content providers access to
children under conditions of agreement to comply with the pre-requisites
mandated and intended by Congress for these purposes.
In short, I submit that a Dot Kids domain can
be a great service to our youth, is a constitutional means of accomplishing this
result, and can be achieved with proper guidance from the Congress.
I.
A Dot Kids domain furthers a substantial governmental purpose:
This act will help solve the problem we face
today of giving our children and grand-children access to an Internet, WWWeb,
and Usenet that have inordinate amounts of "adult" and pornographic and
inappropriate materials, while balancing the ability of adults to use
interactive computer services for lawful purposes without endangering such
younger users. Among all the
beneficial and potential means of balancing the means for making the Internet
safe for children and/or providing a safe haven on the Internet for children, a
separate and safeguarded Kids domain could provide an online playground, school,
and library that real kids could enjoy and learn from without interfering with
the content on the rest of the domains of the World Wide Web or other online
services for adults or children. Building
kids their own space in cyberspace is the least we can do for them amid the vast
universe of information and services that the rest of us need or desire for
ourselves. Whatever we adults do
with our space, under the law or outside the law, need not and should not
pollute the computer environment for those younger ones who need us for their
protection, nurturing, education, and entertainment.
Whatever
success or frustration there may be to make "the Internet more safe for
children", whether through laws, law enforcement, voluntary Good Samaritan
efforts, or parental supervision, a Dot Kids domain can be that safe-haven for
the kids to go until we adults achieve more success in giving them safe-access
to the public areas of cyberspace or until, if we continue to fail, they are old
enough to fend for themselves as adults in the electronic adult world they will
inherit. For
these reasons, I support efforts to create a children's domain on the Web
where the rules are written for their protection and the adults who build and
supply that domain are bound by those rules.
I adamantly oppose the creation of a "dot porn" or "dot sex"
domain, because I don't think we should elevate the pornography syndicates to
a seat at the World Wide Web consortium or legitimize their ill-gotten gains and
because I don't trust them to stay on their own vice domain and get off the
cash-cow of the dot com domain. They'll
take the red-light district and fill it with porn and prostitution, but
they'll never leave our children and families alone in the rest of cyberspace
anymore than they do today. The
pornography industry, by its very nature and purpose, has no respect for public
morality and no respect for human dignity.
Their nature is to exploit and their purpose is to seduce customers into
continual addiction in pursuit of profit. Those
are clear battle lines, on opposite sides of the law, and no one should expect
more clarity or compromise than that. On
the other hand, I do not oppose a Dot Kids domain, if created and operated for
their benefit instead of ours. There
are practical problems to face and solve, but I do not believe there should be
serious constitutional problems with carving out a safe-zone for children, even
though we don't surrender a vice-zone for adults. Constitutionally,
the creation of a domain for minor children that is limited to information and
images that are lawful and appropriate for them should be found by the courts to
be within the surpassing governmental interest in protecting and educating our
children. There will surely be
challenges to the act, similar to those lodged against the Communications
Decency Act of 1996 (CDA), Child Online Protection Act of 1998 (COPA), and the
Children's Internet Protection Act of 2000 (CIPA). Such challenges will not likely oppose the creation of the
Kids zone, but will seek to enjoin the rules set by Congress to restrict the
presence of pornography and other harmful or objectionable content within the
zone. There is even a probable
likelihood that a judge will enjoin the restrictive conditions for the Kids
domain during the years of litigation over the legal objections raised to those
conditions. Congress should
consider, therefore, making the existence of the domain conditional on the
application of the conditions for the domain, so that the domain will not remain
online as a "combat zone" for kids if the courts strike down the
restrictions against unprotected and inappropriate materials.
Instead of adopting a "severability" clause that could separate the
domain from its child-safety conditions, the act could require or allow the
domain to be closed in the event the protective conditions are taken away.
II.
A child-safe Dot Kids domain is Constitutional: A
separate domain for minor children can and should be governed by the
constitutional principles of what is lawful and appropriate for minors, rather
than adults, and the ability or effort to service and protect children in their
own zone would not affect the ability of adults to engage in protected
activities on any other domain. In
a children's zone, there would be no constitutional violation in prohibiting
the display or dissemination of sex or nudity that is "indecent", soft-core
adult pornography that is "harmful to minors" or "obscene for minors",
hard-core adult pornography that is "obscene" even for adults, or "child
pornography" that sexually depicts children.
Children have no constitutional right to any of those types of materials
and adults have no constitutional right to display or disseminate such materials
to minors. My
first suggestion is to amend Section 2 of the act, subsection (b)(2), to expand
the "Green Light Approach" to exclude not just that which is legally
"harmful to minors", but all unprotected materials from which minors may be
protected, to wit: "The
new domain shall be available for voluntary use as a location only of material
that is considered suitable for minors and shall not be available for use as a
location of any material that is harmful to minors or obscene for minors (as
used in 47 U.S.C. § 231 and explained in the Report
to accompany H.R. 3783, the Child Online Protection Act of 1998, H.
Rept. No. 105-775); indecent (as used in 47 U.S.C. § 223 and explained in the Joint
Explanatory Statement of the Committee of Conference, Report for Pub.
L. No. 104-104, the Communications Decency Act of 1996, 1996 U.S.C.C.A.N. Leg.
Hist. 200-11); obscene (as used in 18 U.S.C. §§ 1460-1470); or child
pornography (as used in 18 U.S.C. §§ 2251, 2252, 2252A, and 2256). Restricting
such materials from minors in a designated minors' facility would not infringe
any rights of adults or minors, since none of those materials are lawful or
protected for minors. The Supreme
Court has discussed the impropriety of removing materials from a school library
because of the ideas, message, politics, or religious views expressed, even
though materials may be restricted if found to be "pervasively vulgar" or
lacking "educational suitability". See:
Board of Education v. Pico, 457
U.S. 853, 870-72 (1982). The Court
has also ruled that "indecent" materials may be prohibited from certain
public media in order to protect minors and unconsenting adults, even the
broadcast indecency prohibited from radio and television by 18 U.S.C. § 1464
and interpreted by the FCC and the Court in FCC
v. Pacifica Foundation, 438 U.S. 726, 741-50 (1978).
The Court has continued to recognize that minors are not entitled to
indecent depictions or descriptions of sexual subject matter, even though minors
may have a right to obtain non-indecent information about such subject matter.
It is not the message or issue that is restricted, only the indecent way
of conveying the message or illustrating the issue. The Court has, therefore, upheld the indecency standard when
limited to minors, even when striking down the use of that standard when the
restrictions would extend it to adults outside of the broadcast mediums, such as
in certain attempted dial-porn, cable TV, or Internet indecency restrictions.
See: Sable Communications of Cal.,
Inc. v. FCC, 492 U.S. 115, 126 (1989) (indecent dial-porn); Denver
Area Ed. Tel. Consortium v. FCC, 518 U.S. 727 (1996) (cable-casting
indecency), and United States v. Playboy
Entertainment Group, Inc., 529 U.S. 803 (2000) (scrambling indecency
on cable TV); and Reno v. American Civil
Liberties Union, 521 U.S. 844 (1997) (CDA's indecency provisions
for Internet and other interactive computer services). Unlike
the reasons accepted by the courts for declaring the indecency-display
provisions of the CDA unconstitutional, that the indecency standard was
overbroad when applied to public services of the Internet because they
supposedly lacked technically feasible ways to restrict minors from the
indecency without restricting it to adults, a Dot Kids domain can be avoided by
adults themselves and its safe-harbor protections are not imposed on the rest of
the Internet, Web, or Usenet so adults are not restricted from any indecency or
"harmful to minors" materials to which they may be entitled.
The reasonings adopted by the courts in the CDA and COPA litigations
would not apply to a children's domain, since adults would not be restricted
from any protected information on the rest of the Net.
Restricting indecency and harmful to minors pornography, as well as
obscenity and child pornography, from minors' areas would be consistent with
the limited venue restrictions against less-than-obscene pornography in other
contexts, such as prison-porn restrictions, Thornburgh
v. Abbott, 490 U.S. 401 (1989), and Amatel
v. Reno, 156 F.3d 192 (D.C. Cir. 1998); restricting porn on military
installations, General Media Communications,
Inc. v. Cohen, 131 F.3d 273 (2d Cir. 1997); restricting arts funding
by considerations that include indecency, National
Endowment for the Arts v. Finley, 524 U.S. 569 (1998); permitting
private indecency restrictions by cable TV operators, Loce
v. Time Warner, 191 F.3d 256 (2d Cir. 1999); and permitting state
governments to restrict pornography access on state-owned or funded computers, Urofsky
v. Gilmore, 216 F.3d 401 (4th Cir. 2000).
The Dot Kids domain would also be consistent with the intent of Congress
to provide filtered access by minors to federally subsidized Internet access in
public schools and libraries through the Children's Internet Protection Act of
2000. Due to the separate and
designated nature of the Kids-Friendly Domain to be created by this act, the
constitutionality of this act can and should be secure regardless of the
eventual result of the challenges to the COPA, CIPA, or other laws placing
restrictions for pornography on public areas of the Net.
A Kids domain makes a kid-safe part of the Internet, rather than
attempting to make other parts of the Internet safe for kids.
All classes of materials that are unprotected for minors may be
restricted from minors on the minors' domain without restricting any such
material for adults. Therefore, it is my opinion that this act is constitutionally
valid and enforceable. III.
Further clarifications and suggestions should be considered:
Congress can anticipate certain probable and
potential challenges and issues and I submit a few such areas of consideration:
For
all these reasons, the Dot Kids Domain Name Act of 2001 is a good and wise
effort to protect minor children and allow them to share in using the Internet
as it was meant to be used and as it was created by the Congress for the benefit
of all the world.
Respectfully submitted, November 1, 2001,
Bruce A. Taylor
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