Child predators and child pornographers on the internet are out of control. Should we use our resources to create more laws or more enforcement of those already on the books related to internet child pornographers and child preditors?
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Wall Street Journal
Nov. 10) - The Internet is a fixture in most kids' lives, but there is broad disagreement over the best way to protect children from things they shouldn't see online – and what role, if any, new laws should play.
A federal court this month is revisiting the Child Online Protection Act, which threatens criminal penalties for commercial Web site operators that allow children to access material that is "harmful to minors." The law, passed by Congress eight years ago, has never gone into effect because of a legal challenge from free speech advocates. The Supreme Court has ruled the law is likely unconstitutional, and prevented the Justice Department from enforcing it until it is reviewed by a lower court.
The Justice Department and child safety groups say the law would stop pornography at its source by requiring sites to demand age verification, such as a credit card, before allowing access to explicit content. Opponents argue that the law is overly broad and poses a threat to free speech, since much of the material deemed inappropriate for children, such as news photographs or sexual health information, is legal for adults. One of the central disputes in the case is whether children can be adequately protected by Internet filtering software.
What is the best way to protect kids from inappropriate online content? The Wall Street Journal Online invited Richard Whidden of the National Law Center for Children and Families, a nonprofit group that has lobbied for COPA and similar measures, to debate the issue with John Morris, a First Amendment lawyer who argued the Supreme Court case that overturned COPA's predecessor, the Communications Decency Act.Their email conversation is below.
Mr. Whidden begins: In 2000, the Commission on Child Online Protection issued a report noting that the Internet "risks exposing children to sexually explicit material that many believe is inappropriate or harmful."
At about the same time in 2000, the National Center for Missing and Exploited Children (NCMEC) issued a report concerning online child safety. That report (Youth Internet Safety Survey or YISS-1) noted that one in five children received an unwanted online sexual solicitation and that 25% of children surveyed reported coming across unwanted exposure to sexual material.
In the six years that have ensued, filtering usage has increased and online safety efforts for youth have intensified. However, the problem of sexual solicitations and unwanted exposure of sexual material to kids has not diminished. In fact, it has increased. NCMEC reported earlier this year in YISS-2, the five year follow up to YISS-1, that children's unwanted exposure to sexual material had increased to 34%, [an increase of nine percentage points]. While YISS-2 also reported a slight decline in reported unwanted sexual advances online to children, it also reported that aggressive sexual advances -- sexual solicitations involving offline contact with the perpetrator through regular mail, by telephone, or in person or attempts or requests for offline contact -- did not decrease.
Clearly, the experiment of filtering advocated by some is not the panacea in protecting the innocence of children from unwanted exposure to sexual material or unwanted solicitations. We must go beyond filters and laying the burden solely on parents. Government, parents and the Internet industry should take another hard look at protecting children online and provide law enforcement the tools to investigate and bring to justice child predators and child pornographers.
Mr. Morris replies: Let me start by agreeing wholeheartedly with Richard that protecting kids -- both online and offline -- is a critical goal for our society. I agree that we need to redouble our efforts to bring child predators and child pornographers to justice. But I think Richard omits a key element of the child protection equation -- education.
The National Academy of Science issued what I think is the leading analysis of how best to protect children online. The 400-plus-page report entitled "Youth, Pornography and the Internet" was issued after two years of investigation and study by a blue ribbon panel headed by former Attorney General Richard Thornburgh. That report concluded that the best way to protect kids is a combination of educating kids about how to act online, the use of filtering tools, and the vigorous enforcement of existing criminal laws that protect kids. The report used a compelling metaphor: One can build fences and post signs around a swimming pool to keep kids out, but the best way to keep kids from drowning is to teach them how to swim. The same is true for the Internet -- just as we teach kids that there are risky parts of town, we need to teach kids that there are parts of the Internet that are not appropriate.
A critical conclusion of the National Academy report was that new criminal laws aimed at censoring the Internet are not likely to be effective in protecting kids. That is because a majority of the sexual content on the Internet is outside of the U.S. and thus beyond the effective reach of U.S. law. The most effective way to protect kids online is for parents to use filtering tools, which guard against sexual content wherever it is located. And both the YISS-2 study and research by the Pew Internet and American Life Project show that more than half of American parents use filtering tools, and that use is continuing to increase.
Not to spend too much time debating statistics, but it is important to recognize that the YISS figures on "unwanted" exposure to sexual content includes situations where a minor intentionally accessed the content. YISS-2 study also was performed at the height of the Internet's problems with spyware and spam, something that the industry has since aggressively worked to control. The industry has made great strides in improving and promoting filtering and other tools to protect kids.
Mr. Whidden: John calls upon us to focus on education efforts as the way to solve this problem. The National Law Center supports education efforts to help children identify online threats and provide parents the ability to understand the Internet. These efforts have led to some success; however, more needs to be done. Education does not prevent the actions of some who would expose children to unwanted illegal sexual material for their own sick personal gratification or for profit.
In YISS-2, the researchers for NCMEC suggest that aggressive marketing of sexual material via the Internet has contributed in part to the increase in unwanted sexual material being seen by our kids. The NCMEC report noted, "Pornography marketers use methods such as pop-up ads, adware, and various other sorts of hidden and malicious software, which do things such as hijacking browsers and directing computers to pornography Web sites." This technology was not prevalent when YISS-1 was issued in 2000.
Vigorous enforcement of existing child pornography, child sexual exploitation laws and obscenity offenses against children must be continued and stepped up. The Department of Justice's Project Safe Childhood and Obscenity Task Force are good starts but their efforts need to be increased. The National Law Center is working to help support enforcement of child sexual exploitation crimes and obscenity laws by producing a series of seminars across the nation for state and local law enforcement officials and prosecutors.
Additionally, we should be looking at potential legal civil liability against those who expose children to unwanted sexual material. With the exposure of kids to unwanted sexual material increasing, this civil liability concept should be reevaluated.
To expand the metaphor in John's email, there are those who would poison the pool John advocates teaching our kids to swim in. The life guards at these metaphorical pools, our law enforcement professionals, must be able to protect the swimmers from those who would poison that pool. Just as a lifeguard does not watch a pool without a life preserver, law enforcement should have tools it needs to protect our children. Filtering and education, while helpful, have not filled that need.
Mr. Morris: Richard and I are in clear agreement that education is a vital tool to help protect kids online, and we also agree that there should be vigorous enforcement of existing laws that protect kids. Where we part company, however, is that Richard appears to want to impose more and more regulation onto the Internet.
It is critical at this point that we clearly delineate what we are talking about. Far too often, allies of Richard conflate the fight against child pornography and child predation (both of which are clearly and unquestionably illegal) with the desire to suppress nonobscene adult content (which is equally clearly legal and constitutionally protected). Indeed, in April of this year, the U.S. Department of Justice sent a proposed bill up to Congress that DOJ named the "Child Pornography and Obscenity Prevention Amendments of 2006" -- even though of the three provisions contained in the proposal, only one related to child pornography, and none related at all to obscenity. Instead, the real impact of DOJ's proposal was to burden speech that is perfectly lawful for adults to access over the Internet.
So looking first at child pornography and child predation -- both of which are abhorrent and have no place in any civilized society -- there are already clear federal laws that criminalize such conduct. When my colleagues and I challenged the Communications Decency Act in 1996, we specifically did not challenge the prohibition of obscenity and child pornography on the Internet, nor did we challenge the prohibition against someone specifically targeting a minor with adult content. I could not agree more that these laws should be vigorously enforced, and I commend the Bush Justice Department for its success against child pornographers both in the U.S. and (working with international authorities) overseas. In this area, law enforcement already has strong tools to fight this type of conduct.
But Congress has never been content to target clearly illegal content, and instead it has repeatedly enacted plainly unconstitutional laws aimed at suppressing completely legal content on the Internet. Congress passed the Communications Decency Act (CDA) in 1996, and then the Child Online Protection Act in 1998. In a case I helped to lead, the Supreme Court struck down the CDA, and the Court has since twice upheld injunctions against COPA. All in all, over the past 10 years, the federal government has spent well over $10 million to defend plainly unconstitutional laws -- money that could have gone to increase enforcement of the child pornography laws, or help to educate parents about the Internet. Many members of Congress seem to be more interested in being able to issue a press release condemning the Internet than they are in actually doing something to protect kids online.
The Center for Democracy & Technology supports vigorous enforcement of the existing laws against child pornographers and child predators. But when Congress seeks to suppress legal content, Congress goes too far. And, as the National Academy report makes clear, filtering tools and education are in any event far more effective at allowing parents to keep their kids from viewing adult content than any criminal law could be.
Mr. Whidden: John calls for more enforcement of the existing laws. However, the CDT's track record in supporting law enforcement efforts is suspect.
For example, when law enforcement is faced with a child pornography investigation, increasingly there is an Internet component. A problem that law enforcement comes across is Internet service providers do not have a standard retention schedule. The practical result is that before law enforcement can begin a full investigation of child pornography, the records that could have helped identify the source of the child pornography may be deleted by the ISP.
Recently, [Attorney General Alberto Gonzales] and law enforcement have suggested that there be a standard data retention period by ISPs to store this information. This retention period would help child pornography investigations. A CDT memorandum addressed to "interested persons" stated that this was not needed and opposed these efforts.
CDT asserted four pages of comments and objections but time today does not permit addressing each and every point. One particular CDT objection I will note is assertion that law enforcement would have "mission creep" and would tap into this stored data for things other than child pornography.
The NLC has trained over 150 law enforcement officials and prosecutors of child exploitation cases and met with many others across the nation. To imply they would misuse this access for "mission creep" is tragic. We see in these professionals a dedication not only to protecting children but to the rule of law as well.
While we agree that the issue of exploitation is one that threatens our children and families, labels of censorship have provided no solutions and do nothing to address exploitation and harm to a child.
Mr. Morris: As we do in a broad range of areas relating to surveillance and other infringements of citizens' Fourth Amendment right to be protected from unreasonable searches and seizures, CDT does look in the data retention debate for concrete evidence that law enforcement has an actual problem that needs to be solved. And in the data retention context, it appears that there are ample tools for law enforcement -- but in some cases law enforcement is failing to use those tools.
Of critical importance is that almost all major ISPs already voluntarily retain "IP address allocations" for at least six months. And under existing law, ISPs and other service providers already promptly report all possible instances of child pornography to the National Center for Missing & Exploited Children, and NCMEC in turn promptly passes on any cases to the appropriate law enforcement agency. All of this happens within a matter of days of the first discovery of the alleged illegal content. Then, upon receipt, the law enforcement agency is already empowered under federal law to issue a "data preservation letter" which instructs the relevant ISP to preserve all data about a particular alleged child pornographer. A significant problem arises because the law enforcement agency often sits on the complaints for months at a time before taking any action. If DOJ had more resources to pursue child pornography cases (something CDT has consistently supported), it would perhaps be able to get to the cases more promptly, and certainly within the six months that ISPs are generally retaining IP address data.
And let me correct a misunderstanding that Richard has. When CDT expressed concern about "mission creep," we were not suggesting that the child exploitation investigators or prosecutors would misuse the data. To the contrary, our concern is that a broad range of other prosecutors, divorce lawyers, advertising executives, and hackers would misuse the data. If Congress were to require ISPs to retain extensive amounts of data, such databases would be gold mines for abuse, including unwanted marketing and identity theft. Given the already significant voluntary data retention that is taking place, and the ability of law enforcement to require data preservation, it is far from clear that additional statutory measures are needed.
This highlights a serious problem on Capitol Hill -- the urge to attach a litany of surveillance measures to bills that can be characterized as child protection bills, whether or not there is any actual demonstrated need for the measures. Because DOJ knows that few members of Congress will vote against a bill that claims to be for child protection, DOJ loads such bills up with a range of other invasive measures.
And yes, CDT does vigorously fight back against such attempts to turn the Internet into a tool of a surveillance state, especially when there is no concrete evidence that the existing law enforcement tools are insufficient for the task at hand. And CDT's concern about creating a surveillance state is shared by broad range of political advocacy groups from across the political spectrum.
Mr. Whidden: With all due respect to John and CDT, I do not believe I misunderstand this statement in CDT's memo regarding data retention dated June 2, 2006 posted on CDT's Web site.
"It is all but certain that the vast databases that ISPs and telecom providers will create will be tapped by law enforcement for other purposes unrelated to child porn investigations." (emphasis added).
The NLC strongly agrees that a "surveillance state" is wrong and antithetical to the foundations of American society and law. However, the retention of data by an ISP to facilitate an investigation of a child being harmed does not go to the Orwellian-like extremes alluded to by John.
In conclusion, it has been said: "In the last several years, distributors of obscenity and child pornography have expanded into new areas, employing new technologies, and reaching new audiences. Neither our Constitution, our courts, our people, nor our respect for common decency and human suffering will allow this trafficking in obscene material -- which exploits women, children and men alike -- to continue."
This speaker understood the connection between child pornography, illegal obscene materials and exploitation. The statement could have been written last week. However, it was a remark by President Reagan in 1987.
This quote is a stark reminder that while some progress may have been made to protect children, it is not enough. Education and filters have not made our kids safer from the exploitation Ronald Reagan described nearly 20 years ago, the COPA Commission described six years ago and YISS-2 described this year. More must be done.
Some potential items for consideration include:
• Consideration of civil liability for those who expose children to unwanted illegal sexual material.
• Additional research on the harms associated with unwanted sexual material on kids. In YISS-2, the researchers pointed out that there is "virtually no research about the impact on youth of viewing pornography, either voluntarily or -- more relevant -- involuntarily. There is still no research that sheds light on whether, how, or under what circumstances involuntary exposure to pornography may trigger adverse responses in youth. Clearly the extent of exposure is great enough that even if adverse effects occur to only a small fraction of youth, the numbers in absolute terms could be fairly large."
• All ISPs reporting known child pornography to law enforcement.
• Additional tools and more resources for law enforcement to enforce the laws to protect children.
We must continue to protect our children. We must continue to support law enforcements' efforts to stop exploitation. It is a time to stop the clichés about censorship. It is time to work together to protect children from unwanted access to illegal sexual materials and to stop child predators from robbing them of their innocence.
Mr. Morris concludes: Just to clarify our mutual misunderstanding, CDT certainly believes that DOJ wants to use retained data for a broad range of non-child-related prosecutions, even though their rhetoric on Capitol Hill is that the data will only be used for child exploitation prosecutions. But CDT did not suggest that prosecutors who focus on child exploitation would themselves misuse data (which is what I thought Richard said above). In any event, we believe that DOJ should be honest about its goals, and should not try to enact general purpose data retention laws while claiming that they will only be used for the narrow purpose of fighting child pornography.
But on to Richard's concluding comments… A reference to Ronald Reagan is particularly apt, because Reagan's Attorney General Edwin Meese did not disguise his unmistakable agenda -- Meese wanted to stamp out all adult content in the U.S. -- not just illegal content (obscenity and child pornography). Meese sought to prevent adults from being able to access content that was clearly legal, and clearly constitutionally protected.
And 20 years later, legal content is the precise target of the Child Online Protection Act being litigated in Philadelphia as we debate. The COPA law does not target obscenity or child pornography -- both of which are already illegal, and can be prosecuted today. Instead, Congress aimed COPA at legal content, and that is why over the past eight years the federal courts have repeatedly upheld injunctions against COPA's enforcement.
At the end of the day, in the eight years since Congress enacted COPA, that statute has not protected even a single child in this country, while the Department of Justice has spent millions of dollars in a futile attempt to defend the law. At the same time, filtering tools are in use in tens of millions of houses across the country today, and are protecting tens of millions of kids, every day (including, by the way, my own). No one claims that filtering technology is absolutely perfect, but it is certainly is far more effective than the unconstitutional laws that Congress has passed.
As much as Ed Meese did not like the fact that adult content is legal in this country, it is legal under our Constitution, and Congressional efforts to outlaw it only waste precious resources that could go toward investigating and prosecuting purveyors of child pornography.
Although Richard and I do not agree on whether more laws are needed, we do agree that child pornography and child predator laws that are already on the statute books should be vigorously enforced. Rather than spending millions of dollars trying to restrict content that is by definition lawful (as COPA tries to do), the Department of Justice should use those resources against the true threats to children -- the child pornographers and child predators.
I've enjoyed this conversation, and I appreciate and respect the great energy that Richard and the National Law Center expend to further the protection of children. Although Richard may not agree, I do also believe that CDT's efforts to resist unconstitutional overreaching by Congress further protects the interests of our society, including its children. I certainly hope that my children will inherit a country that honors and protects the fundamental rights and freedoms set out in our Constitution and Bill of Rights. |
