When Senator Dan Coats (R-Indiana) introduced legislation (S. 1482) that would punish commercial online distributors of material deemed harmful to minors with a US$50,000 fine and up to six months in prison, the bill was immediately labelled “Communications Decency Act (CDA) II.” When Coats attached his bill to the appropriations bill without debate, most observers called it politics as usual.
The Coats bill, together with legislation (S. 1619) sponsored by Senator John McCain (R-Arizona) that would require public schools and libraries that receive federal funding to use filtering software, passed as part of the appropriations bill in late July 1998.
The CDA II legislation is intended to sidestep the constitutional problems of the original CDA statute that was overturned by the U.S. Supreme Court in 1997. CDA II is supposed to apply only to commercial pornographic sites, but ambiguous language would affect any commercial site on the Internet.
Supporters of the legislation argue that the bill doesn’t ban anything and only requires Web sites that contain material that is “harmful to minors” to use methods—like credit card numbers—that restrict access to adults.
Most policy analysts and civil liberties experts maintain the problem is in how material is defined as being “harmful to minors” and who defines the terms. Requiring users to register with a Web site also denies anonymous access to material that would be accessible without identification anywhere else.
Some legal experts say that CDA II has the potential to be upheld as constitutional. The original CDA restricted speech that was “indecent” and “patently offensive,” terms the Supreme Court found to be overly vague. CDA II seeks to restrict material that is “harmful to minors,” a term that is still undefined, but not nearly as vague as its predecessor. The “harmful to minors” language has been upheld by state and federal courts and is defined in some obscenity statutes as “material which, taken as a whole, appeals to a minor child’s prurient interests, is patently offensive to a minor, and lacks serious literary, artistic, political, or scientific value.”
On July 14, 1998, thirteen civil liberties organizations delivered a letter to the Senate questioning the constitutionality of the proposed legislation. Opponents to the CDA II bill argue that Web sites that are not purveyors of pornography—including online film distributors, booksellers, and non-profit sites with commercial components—would be affected by the law because the legislation is so broadly written.
In mid-September 1998, only days after the House of Representatives published the sexually explicit Starr report on the Web, the House version of CDA II, Representative Michael Oxley’s (R-Ohio) Child Online Protection Act (HR. 3783) passed the House Commerce subcommittee on telecommunications, trade, and consumer protection.
Representative Oxley’s bill passed the full house in early October 1998.
Also in early October 1998, the Senate voted to pass Senator Coats’ amendment to the Internet Tax Freedom Act that would withhold tax breaks from any commercial Web site that fails to restrict children’s access to pornographic material. Specifically, the Coats amendment would exempt Web pornographers from the two-year tax moratorium “unless such person or entity requires the use of a verified credit card, debit account, adult access code, or adult personal identification number, or such other procedures as the Federal Communications Commission may prescribe, in order to restrict access to such material by persons under 17 years of age.”
By mid-October 1998, CDA II was attached to the US$1.7 trillion budget agreement and sent to President Clinton. President Clinton signed the provision into law days later.
Two days after CDA II became law, civil liberties groups—including the American Civil Liberties Union (ACLU), the Electronic Frontier Foundation (EFF), and the Electronic Privacy Information Center (EPIC)—filed a lawsuit against U.S. Attorney General Janet Reno.
In mid-November 1998, U.S. District Judge Lowell Reed, Jr. temporarily blocked enforcement of CDA II, saying that the new law probably violates the First Amendment. On January 14, 1999 Judge Reed extended his temporary block on enforcement of the law.
On January 14, 1999 three conservative members of the House of Representatives—Thomas Bliley (R-Virginia), Michael Oxley (R-Ohio), and James Greenwood (R-Pennsylvania) filed a 38-page brief in defense of the law, arguing that credit-card verification is both cheap and easy. In the alternative, the brief proposes, the “use of a math algorithm, if shown to the satisfaction of the court to screen out almost all fake credit-card numbers that a minor could make up, would ... impose an incidental burden on adults with real card numbers.”
The conservative brief conveniently sidesteps the issue of requiring users to register with a Web site in order to access material that would be accessible without identification on the corner newsstand.
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