|Sen. James Exon|
Sixteen years ago today, Senator James Exon introduced the Communications Decency Act. Also, during that same year, the National Science Foundation completed the privitization of the NSFNET, giving birth to the public Internet as we know it.
Senator Exon stood on the floor of the Senate, with a folder filled with assorted undesirable content, and declared that we must stop the barbarians at the gate. At that time, most members of Congress had never been online, didnt know what the World Wide Web was, and could not spell "Internet" (of course, there were a few who did understand the potential of the Internet and championed it). For Congress, the equation was simple: whatever this Internet thing was, no Member of Congress was going to be seen as soft on pornography.
The Communications Decency Act was passed in 1996 as an amendment to the Telecommunications Act (the only reference to the Internet in that historic legislation). It was quickly challenged by the ACLU, struck down by a trial court, and (thanks to expedited review), quickly struck down by a unanimous Supreme Court.
It's been 15 years since the CDA was passed. What has transpired? Today, Cybertelecom will recount that 15 year history in a series of tweets - it will take most of the day. Below is an unabridged version of those tweets:
- 1995: Sen. Exon introduces the Communications Decency Act (CDA): "The information superhighway should not become a red light district."
- 1996: CDA passed as amendment to the Telecom Act, along with the Family Empowerment Act (Sec. 230) ("the greatest Internet law ever")
- 1997: CDA @ SCOTUS: unconstitutional "As the most participatory form of mass speech yet developed, the Internet deserves the highest protection from governmental intrusion."
- 1997: COPA: Not to be outdone by a unanimous SCOTUS, Sen. Dan Coats introduces the Son-of-CDA, the Children's Online Protection Act
- 1998: COPA is enacted into law, challenged by the ACLU, and declared unconstitutional by Fed. District Court: term "indecency" is vague bc you cant determine *local* community standards on global Internet
- 1998: Child Protection & Sexual Predator Punishment Act: requires ISPs to report child pornography to NCMEC
- 1998: Child Online Privacy Protection Act (COPPA not COPA): born out of abusive sites that give kids 5 points if they play game, 500 points if they give mommy & daddy's name, address, and salaries
- 2000: Children's Internet Protection Act (CIPA) conditions receipt of erate funding for tech in schools & libraries on having an Internet Safety policy in place
- 2000: COPA Commission Report: Concludes best responses to concern over children's exposure to offensive content is family education and involvement (not law nor technology).
- 2002: Dot Kids Implementation and Efficiency Act: creates sparsely used .kids.us domain name space
- 2002: National Academies Report: Youth, Pornography & Internet: Concludes we can put locks and chains around swimming pools; or we can teach children how to swim.
- 2002: COPA @ SCOTUS, rejects lower court finding that you cant determine local community standards online - "sure you can" says SCOTUS, but neglects to provide guidance on how.
- 2003: Truth in Domain Name Act prohibits use of deceitful domain names for purpose of attracting surfers to pornographic websites
- 2003: COPA @ Appellate Court, declares COPA unconsti for 2nd time: parental use of filtering technology is the least restrictive means of achieving government interests
- 2003: CIPA @ SCOTUS affirmed: "When Government appropriates public funds to establish a program, it is entitled to broadly define that program's limits."
- 2003: CIPA Report: "currently available parental control technology measures have the capacity to meet most, if not all, of online safety needs and concerns."
- 2004: COPA @ SCOTUS affirms Appellate Court conclusion that filtering technology is likely the least restrictive means of protecting children; remands to trial court for fact finding.
- 2005: Pub.Law. 108-447 requires Inventory of Federally Funded Internet Safety Programs for youth and to describe each program's purpose and scope
- 2006: Adam Walsh Act - made it illegal to knowingly embed words or digital images into the source code of a website with the intent to deceive a person into viewing material constituting obscenity or, for minors, material harmful to minors - and created state public online databases of sex offenders
- 2007: COPA @ trail Court: finally holds trail on facts, concludes COPA is not least restrictive means (parental control technology is better) and COPA is vague.
- 2007: Child Safe Viewing Act: proposes using closed captioning to mute offensive words on TV and Internet - requires report from FCC
- 2008 KIDS Act Required convicted sex offenders to register online identifiers
- 2008: COPA @ Appellate Court: Declares COPA Unconti for 3rd time: "It is apparent that COPA, like the CDA before it, 'effectively suppresses a large amount of speech that adults have a constitutional right to receive and to address to one another,'... and thus is overbroad. For this reason, COPA violates the First Amendment."
- 2008: Sen. McCain SAFE ACT old requirement for ISPs to report child pornography replaced with new requirement that ISPs report child pornography
- 2008: Broadband Improvement Act - promotes OnGuard Online - creates the Online Safety and Technology Working Group - requires CIPA online safety education
- 2008: UK Safer Children in a Digital World Report by Tanya Byron, who keeps saying that we are raising our children in captivity
- 2009: COPA @ SCOTUS, cert. denied - after 10+ years painful & expensive litigation, draining resources that could have helped kids be safe online, COPA is dead.
- 2010: Online Safety and Technology Working Group Report (OSTWG) - recommends digital media literacy education
- 2010: FCC Broadband Plan recommends "The federal government should create an interagency working group to coordinate child online safety and literacy work, facilitate information sharing, ensure consistent messaging and outreach and evaluate the effectiveness of governmental efforts."
15 years, most of it tangled in COPA litigation, what have we learned? In some ways, we keep revisited the lessons offered in the very first court case - but which seem to keep eluding us:
It is no exaggeration to conclude that the Internet has achieved, and continues to achieve, the most participatory marketplace of mass speech that this country -- and indeed the world -- has yet seen. The plaintiffs in these actions correctly describe the "democratizing” effects of Internet communication: individual citizens of limited means can speak to a worldwide audience on issues of concern to them. Federalists and Anti-Federalists may debate the structure of their government nightly, but these debates occur in newsgroups or chat rooms rather than in pamphlets. Modern-day Luthers still post their theses, but to electronic bulletin boards rather than the door of the Wittenberg Schlosskirche. More mundane (but from a constitutional perspective, equally important) dialogue occurs between aspiring artists, or French cooks, or dog lovers, or fly fishermen. . . . [T]he Internet may fairly be regarded as a never-ending worldwide conversation. The Government may not, through the CDA, interrupt that conversation. As the most participatory form of mass speech yet developed, the Internet deserves the highest protection from governmental intrusion. -- ACLU v. Reno , 929 F.Supp. 825 (ED.Pa. 1996), aff'd, 521 U.S. 844 (1997).
As the National Academies of Science stated
There is no single or simple answer to controlling the access of minors to inappropriate material on the Web. To date, most of the efforts to protect children from inappropriate sexually explicit material on the Internet have focused on technology-based tools such as filters and legal prohibitions or regulation. But the committee believes that neither technology nor policy can provide a complete - or even a nearly complete - solution. While both technology and public policy have important roles to play, social and education strategies to develop in minors an ethic of responsible choice and the skills to effectuate these choices and to cope with exposure are foundational to protecting children from negative effect that may result from exposure to inappropriate material or experiences in the Internet.
Every day presents a teaching moment. If we get it right, we can empower our children with strong online skills and digital literacy.