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US Report: CDA II looking strong

Legislation that would ban open display of the vast majority of sexually explicit materials on the Internet passed through a House committee without a scratch Thursday, all but clinching a Supreme Court challenge sometime next year.
Written by Will Rodger, Contributor

In a session perhaps most notable for its lack of conflict, erstwhile proponents of an open Internet closed ranks with social conservatives to produce the Children's Online Protection Act, a bill with concessions opponents said were largely symbolic.

"As a result of the process we've just gone through, this is a better bill, though it won't solve all the problems before us," said Rick White, a Republican from the home district of Washington state's Microsoft who has traditionally supported high-tech companies' interests. "One of my biggest concerns about this bill is we will do what we often do, which is pass a bill that won't work."

The newly approved Children's Online Protection Act, or COPA, would ban any commercial Web site from carrying materials judged "harmful to minors" without first placing those materials in an area that could be accessed only by adults or minors 17 years old. Under the law, Web site owners could use credit card numbers, so-called "adult IDs" or other reasonably verifiable methods to segregate sexually explicit content from the rest of the Internet. It is expected to easily pass the vote of the full House and to be signed into law by President Clinton.

A similar law, the Communications Decency Act, was struck down last year by the Supreme Court as being unconstitutional. Justices said then that the law, in fact, would abridge adults' rights to "indecent" material if enacted. The new legislation attempts to avoid that problem by relying on the "harmful to minors" standard which bans only materials which appeal to a prurient interest and are "patently offensive" without any redeeming literary, artistic, political or scientific value for minors.

Since courts have repeatedly upheld such a standard in traditional media, backers say, they should do so online. "Common sense and 40 years of research in the field of child development clearly demonstrate that exposure to sexually explicit images causes significant harm to the psychological development of children," chief sponsor Michael Oxley, R-Ohio, said. "I believe it is our responsibility to act to protect young people from the corrosive, debasing effects of the voluminous graphic adult content readily available on the World Wide Web." But harmful-to-minors standards have also relied on the judgement of local authorities for enforcement. Since the Supreme Court has already thrown out attempts to legislate a single, national standard for obscenity, opponents reason they must do the same with COPA. Otherwise, they say, the most conservative prosecutor in America will be given veto power over the rest of the nation, submitting free-wheeling places such as San Francisco and New York, say, to the mores of Cincinnati or Biloxi in Mississippi.

Perhaps just as pernicious, opponents say, is the bill's loose definition of a "commercial" Web site. Since the bill sweeps in anyone selling things as a matter of course, they say non-profit sex-education sites, sites devoted to information about AIDS and other public service organisations could be shuttered to minors for nothing more than selling a few T-shirts. Those arguments were scarcely heard yesterday. Instead, Republican White pushed through an amendment calling for a study of the relative effectiveness of filtering technologies vs. laws in shielding children from inappropriate materials. In addition, Republicans successfully removed language which would have given the Federal Communications Commission authority to determine what materials were inappropriate for minors. Both amendments had previously passed a Commerce subcommittee.

Though civil liberties groups had made common cause with industry to fight the original Communications Decency Act in 1996 and 1997, the story was different this time. Industry lobbyists won safe harbours protecting search engines, Internet portals and other transmission facilities from prosecution. Once those fights were over, and COPA left most of the online industry untouched, former anti-CDA stalwarts such as America Online left the battlefield, Hill sources said. Still, Electronic Frontier Foundation President Barry Steinhardt said the vote seemed unavoidable in an election year. "I think the politicians are running scared," he said. "They're abandoning their principles and they're abandoning their previous positions. It would be nice if the Internet's supposed friends stood up and said something," he continued. "These members have said in the past that current laws are sufficient."

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