Tuesday, November 04, 2008

Broadband Data Improvement Act Title II: Protecting Children in the 21st Century Act

Congress spent a good part of Pre-Election and Post-Poor House September “ thinking about the children .”

As has already been blogged about, with the encouragement of Obama-Suppporter-Oprah , Congress passed Sen. Joe VP-Wannabe Biden's PROTECT Our Children Act – which sought to bolster law enforcement and forensics efforts, and put up a few hundred million to this end. Amended to Biden's legislation was Sen. Prez-Wannabe McCain's SAFE Act – which requires Internet services to report known content that exploits children to the National Center for Missing and Exploited Children – a requirement which has already been on the books for 10 years .

Now comes word that Congress was also thinking of the children when it passed S.1492 Broadband Data Improvement Act , sponsored by Sen. Inouye. Amended to Sen. Inouye's legislation was the Protecting Children in the 21st Century Act , originally introduced by Sen. Inouye's friend and fellow non-continental senator, Sen. Stevens ( S. 49 ).

Steven's Protecting Children in the 21st Century Act is Title II of Inouye's Broadband Data Improvement Act . Originally the Protecting Children in the 21st Century Act received a lot of negative reviews . In its current form, the legislative does a few specific, sometimes useful, sometimes confusing, things.

Sec. 212 calls on the Federal Trade Commission to engage in a public awareness campaign “to promote the safe use of the Internet by children.” The FTC already has such a campaign known as OnGuard Online (“OnGuardOnline.gov provides practical tips from the federal government and the technology industry to help you be on guard against Internet fraud, secure your computer, and protect your personal information.”). It's not really clear what Sec. 212 is adding to what the FTC already does. Thus, confusion.

Sec. 213 calls on the FTC to file a Report with Congress. I think the legislation meant for the report to address the FTC's activities in Sec. 212. Unfortunately the language calls on the FTC to file a report with regard to its activities pursuant to Sec. 103. Unfortunately, Sec. 103 of this Act deals with the Federal Communication Commission's obligations to determine whether broadband is being deployed to all Americans in a reasonable and timely manner. So I am just confused. [ REPORT COUNT : 1]

Sec. 214 calls on the Department of Commerce to establish the Online Safety and Technology Working Group, which would basically be a federal advisory group (but not under the federal advisory committee act (FACA) rules – a lot of these committees have been established recently with language to weasel out of FACA). This working group would look at industry efforts to promote online safety, and submit a report to congress within one year [ REPORT COUNT : 2].

Interestingly, the working group will look at internet services obligation to report online child exploitation pursuant to the 10 year old law, 42 USC 13032 but not Sen. McCain's new parallel obligation to report online child exploitation pursuant to the new PROTECT Our Children Act – I have previously groused over the intelligence of enacting two similar-but-not-the-same laws, leaving it to industry to pay attorneys lots of money to figure out the ambiguities of complying with both. Finally, the new task force will look at one of the Attorney General's long desire items, record retention by internet services – but wait! The new McCain Act in fact has a record retention provision in it (so not only was the McCain SAFE Act not harmonized with preexisting law, but it would appear that the McCain SAFE Act was not harmonized with the Steven's Protecting Children in the 21st Century Act. Or maybe just more confusion).

Sec. 215 imposes a new requirement on the FCC's Erate program . Currently, to receive federal subsidies to support Internet access in schools and libraries, those schools and libraries must certify that they have an Internet Safety Policy in place . Sec. 215 revises that obligation to specify that the Internet Safety Policy must include “educating minors about appropriate online behavior, including interacting with other individuals on social networking websites and in chat rooms and cyberbullying awareness and response.” The State of Virginia has already implemented such an educational program – making Internet safety a required part of the educational curriculum. Many other schools systems have done likewise. But now it's federally required.

Sec. 216 adds yet another statutory definition of the Internet. I may make fun of this in a separate post. What is bizarre is that we have so many different definitions of the Internet, and the definitions are different depending on what crime is involved or what law you have to comply with.

Finally Sec. 221 (yes, the Act jumps from Sec. 216 to 221 – attorneys can't add or I guess count) amends FCC authority so that the FCC has authority to punish “certain activities relating to material involving the sexual exploitation of minors” – in other words, child pornography. Sec. 2252 deals with such things as transportation, distribution, or shipment of this stuff.

Here is the statute as amended – the text in brackets is added so you can see what is going on - the text in bold is the new amended text.

(1) Any person who is determined by the Commission, in accordance with paragraph (3) or (4) of this subsection, to have—
(A) willfully or repeatedly failed to comply substantially with the terms and conditions of any license, permit, certificate, or other instrument or authorization issued by the Commission;

(B) willfully or repeatedly failed to comply with any of the provisions of this chapter or of any rule, regulation, or order issued by the Commission under this chapter or under any treaty, convention, or other agreement to which the United States is a party and which is binding upon the United States;

(C) violated any provision of section 317 (c) [ Acquiring information from station employees ] or 509 (a) [ Influencing, prearranging, or predetermining outcome (of broadcast contests) ] of this title; or

(D) violated any provision of section 1304 [Broadcasting Lottery Information] , 1343 [Fraud by wire, radio, or television] , or 1464 1464 [Broadcasting Obscene Language], or 2252 [Certain activities relating to material involving the sexual exploitation of minors] of title 18 ;

shall be liable to the United States for a forfeiture penalty.
This statute previously dealt with enforcement issues related to broadcast. The new amendment adds a reference to 18 USC 2252 which deals with the transportation, distribution, or possession of child pornography, not in the context of broadcast. Note that child pornography is already illegal to broadcast under FCC authority. 47 C.F.R. §§ 73.4165, 73.3999, 73.4170.

The FCC is an agency of limited resources with an enforcement staff geared towards its regulatory mission. If someone violated 18 USC 2252, for instance by stepping across a state border with a flash drive filled with bad content, this is not usually something that is the FCC's concern. Furthermore, if there is a violation of 18 USC 2252, it is usually DOJ and local police who are best situated to prosecute.

So, in sum, more confusion. I would love to hear from those with enlightenment on these issues.

For those keeping track, we now have six new reports to congress due that deal with online safety for children in one way or another.

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