H.R. 4328, MAKING OMNIBUS CONSOLIDATED AND EMERGENCY SUPPLEMENTAL
APPROPRIATIONS FOR FISCAL YEAR 1999
Signed by the President October 21, 1998
DIVISION C--OTHER MATTERS
TITLE XIV--CHILD ONLINE
PROTECTION
SEC. 1401. SHORT TITLE.
This title may be cited as the "Child Online Protection Act".
SEC. 1402. CONGRESSIONAL FINDINGS.
The Congress finds that--
(1) while custody, care, and nurture of the child resides first with the
parent, the widespread availability of the Internet presents opportunities
for minors to access materials through the World Wide Web in a manner that
can frustrate parental supervision or control;
(2) the protection of the physical and psychological well-being of minors
by shielding them from materials that are harmful to them is a compelling
governmental interest;
(3) to date, while the industry has developed innovative ways to help
parents and educators restrict material that is harmful to minors through
parental control protections and self-regulation, such efforts have not
provided a national solution to the problem of minors accessing harmful
material on the World Wide Web;
(4) a prohibition on the distribution of material harmful to minors,
combined with legitimate defenses, is currently the most effective and
least restrictive means by which to satisfy the compelling government
interest; and
(5) notwithstanding the existence of protections that limit the
distribution over the World Wide Web of material that is harmful to minors,
parents, educators, and industry must continue efforts to find ways to
protect children from being exposed to harmful material found on the
Internet.
SEC. 1403. REQUIREMENT TO RESTRICT ACCESS BY MINORS TO MATERIALS
COMMERCIALLY DISTRIBUTED BY MEANS OF THE WORLD WIDE WEB THAT ARE HARMFUL TO
MINORS.
Part I of title II of the Communications Act of 1934 (47 U.S.C. 201 et
seq.) is amended by adding at the end the following new section:
"SEC. 231. RESTRICTION OF ACCESS BY MINORS TO MATERIALS COMMERCIALLY
DISTRIBUTED BY MEANS OF WORLD WIDE WEB THAT ARE HARMFUL TO MINORS.
"(a) Requirement To Restrict Access.--
"(1) Prohibited conduct.--Whoever knowingly and with knowledge of the
character of the material, in interstate or foreign commerce by means of
the World Wide Web, makes any communication for commercial purposes that is
available to any minor and that includes any material that is harmful to
minors shall be fined not more than $50,000, imprisoned not more than 6
months, or both.
"(2) Intentional violations.--In addition to the penalties under paragraph
(1), whoever intentionally violates such paragraph shall be subject to a
fine of not more than $50,000 for each violation. For purposes of this
paragraph, each day of violation shall constitute a separate violation.
"(3) Civil penalty.--In addition to the penalties under paragraphs (1) and
(2), whoever violates paragraph (1) shall be subject to a civil penalty of
not more than $50,000 for each violation. For purposes of this paragraph,
each day of violation shall constitute a separate violation.
"(b) Inapplicability of Carriers and Other Service Providers.--For purposes
of subsection (a), a person shall not be considered to make any
communication for commercial purposes to the extent that such person
is--
"(1) a telecommunications carrier engaged in the provision of a
telecommunications service;
"(2) a person engaged in the business of providing an Internet access
service;
"(3) a person engaged in the business of providing an Internet information
location tool; or
"(4) similarly engaged in the transmission, storage, retrieval, hosting,
formatting, or translation (or any combination thereof) of a communication
made by another person, without selection or alteration of the content of
the communication, except that such person'sdeletion of a particular
communication or material made by another person in a manner consistent
with subsection (c) or section 230 shall not constitute such selection or
alteration of the content of the communication.
"(c) Affirmative Defense.--
"(1) Defense.--It is an affirmative defense to prosecution under this
section that the defendant, in good faith, has restricted access by minors
to material that is harmful to minors--
"(A) by requiring use of a credit card, debit account, adult access code,
or adult personal identification number;
"(B) by accepting a digital certificate that verifies age; or
"(C) by any other reasonable measures that are feasible under available
technology.
"(2) Protection for use of defenses.--No cause of action may be brought in
any court or administrative agency against any person on account of any
activity that is not in violation of any law punishable by criminal or
civil penalty, and that the person has taken in good faith to implement a
defense authorized under this subsection or otherwise to restrict or
prevent the transmission of, or access to, a communication specified in
this section.
"(d) Privacy Protection Requirements.--
"(1) Disclosure of information limited.--A person making a communication
described in subsection (a)--
"(A) shall not disclose any information collected for the purposes of
restricting access to such communications to individuals 17 years of age or
older without the prior written or electronic consent of--
"(i) the individual concerned, if the individual is an adult; or
"(ii) the individual's parent or guardian, if the individual is under 17
years of age; and
"(B) shall take such actions as are necessary to prevent unauthorized
access to such information by a person other than the person making such
communication and the recipient of such communication.
"(2) Exceptions.--A person making a communication described in subsection
(a) may disclose such information if the disclosure is--
"(A) necessary to make the communication or conduct a legitimate business
activity related to making the communication; or
"(B) made pursuant to a court order authorizing such disclosure.
"(e) Definitions.--For purposes of this subsection, the following
definitions shall apply:
"(1) By means of the world wide web.--The term `by means of the World Wide
Web' means by placement of material in a computer server-based file archive
so that it is publicly accessible, over the Internet, using hypertext
transfer protocol or any successor protocol.
"(2) Commercial purposes; engaged in the business.--
"(A) Commercial purposes.--A person shall be considered to make a
communication for commercial purposes only if such person is engaged in the
business of making such communications.
"(B) Engaged in the business.--The term `engaged in the business' means
that the person who makes a communication, or offers to make a
communication, by means of the World Wide Web, that includes any material
that is harmful to minors, devotes time, attention, or labor to such
activities, as a regular course of such person's trade or business, with
the objective of earning a profit as a result of such activities (although
it is not necessary that the person make a profit or that the making or
offering to make such communications be the person's sole or principal
business or source of income). A person may be considered to be engaged in
the business of making, by means of the World Wide Web, communications for
commercial purposes that include material that is harmful to minors, only
if the person knowingly causes the material that is harmful to minors to be
posted on the World Wide Web or knowingly solicits such material to be
posted on the World Wide Web.
"(3) Internet.--The term `Internet' means the combination of computer
facilities and electromagnetic transmission media, and related equipment
and software, comprising the interconnected worldwide network of computer
networks that employ the Transmission Control Protocol/Internet Protocol or
any successor protocol to transmit information.
"(4) Internet access service.--The term `Internet access service' means a
service that enables users to access content, information, electronic mail,
or other services offered over the Internet, and may also include access to
proprietary content, information, and other services as part of a package
of services offered to consumers. Such term does not include
telecommunications services.
"(5) Internet information location tool.--The term `Internet information
location tool' means a service that refers or links users to an online
location on the World Wide Web. Such term includes directories, indices,
references, pointers, and hypertext links.
"(6) Material that is harmful to minors.--The term `material that is
harmful to minors' means any communication, picture, image, graphic image
file, article, recording, writing, or other matter of any kind that is
obscene or that--
"(A) the average person, applying contemporary community standards, would
find, taking the material as a whole and with respect to minors, is
designed to appeal to, or is designed to pander to, the prurient
interest;
"(B) depicts, describes, or represents, in a manner patently offensive with
respect to minors, an actual or simulated sexual act or sexual contact, an
actual or simulated normal or perverted sexual act, or a lewd exhibition of
the genitals or post-pubescent female breast; and
"(C) taken as a whole, lacks serious literary, artistic, political, or
scientific value for minors.
"(7) Minor.--The term `minor' means any person under 17 years of
age.".
SEC. 1404. NOTICE REQUIREMENT.
(a) Notice.--Section 230 of the Communications Act of 1934 (47 U.S.C.
230) is amended--
(1) in subsection (d)(1), by inserting "or 231" after "section 223";
(2) by redesignating subsections (d) and (e) as subsections (e) and (f),
respectively; and
(3) by inserting after subsection (c) the following new subsection:
"(d) Obligations of Interactive Computer Service.--A provider of
interactive computer service shall, at the time of entering an agreement
with a customer for the provision of interactive computer service and in a
manner deemed appropriate by the provider, notify such customer that
parental control protections (such as computer hardware, software, or
filtering services) are commercially available that may assist the customer
in limiting access to material that is harmful to minors. Such notice shall
identify, or provide the customer with access to information identifying,
current providers of such protections.".
(b) Conforming Amendment.--Section 223(h)(2) of the Communications Act of
1934 (47 U.S.C. 223(h)(2)) is amended by striking "230(e)(2)" and inserting
"230(f)(2)".
SEC. 1405. STUDY BY COMMISSION ON ONLINE CHILD PROTECTION.
(a) Establishment.--There is hereby established a temporary Commission
to be known as the Commission on Online Child Protection (in this section
referred to as the "Commission") for the purpose of conducting a study
under this section regarding methods to help reduce access by minors to
material that is harmful to minors on the Internet.
(b) Membership.--The Commission shall be composed of 19 members, as
follows:
(1) Industry members.--The Commission shall include--
(A) 2 members who are engaged in the business of providing Internet
filtering or blocking services or software;
(B) 2 members who are engaged in the business of providing Internet access
services;
(C) 2 members who are engaged in the business of providing labeling or
ratings services;
(D) 2 members who are engaged in the business of providing Internet portal
or search services;
(E) 2 members who are engaged in the business of providing domain name
registration services;
(F) 2 members who are academic experts in the field of technology; and
(G) 4 members who are engaged in the business of making content available
over the Internet.
Of the members of the Commission by reason of each subparagraph of
this paragraph, an equal number shall be appointed by the Speaker of the
House of Representatives and by the Majority Leader of the Senate.
(2) Ex officio members.--The Commission shall include the following
officials:
(A) The Assistant Secretary (or the Assistant Secretary's designee).
(B) The Attorney General (or the Attorney General's designee).
(C) The Chairman of the Federal Trade Commission (or the Chairman's
designee).
(c) Study.--
(1) In general.--The Commission shall conduct a study to identify
technological or other methods that--
(A) will help reduce access by minors to material that is harmful to minors
on the Internet; and
(B) may meet the requirements for use as affirmative defenses for purposes
of section 231(c) of the Communications Act of 1934 (as added by this
title).
Any methods so identified shall be used as the basis for making
legislative recommendations to the Congress under subsection (d)(3).
(2) Specific methods.--In carrying out the study, the Commission shall
identify and analyze various technological tools and methods for protecting
minors from material that is harmful to minors, which shall include
(without limitation)--
(A) a common resource for parents to use to help protect minors (such as a
"one-click-away" resource);
(B) filtering or blocking software or services;
(C) labeling or rating systems;
(D) age verification systems;
(E) the establishment of a domain name for posting of any material that is
harmful to minors; and
(F) any other existing or proposed technologies or methods for reducing
access by minors to such material.
(3) Analysis.--In analyzing technologies and other methods identified
pursuant to paragraph (2), the Commission shall examine--
(A) the cost of such technologies and methods;
(B) the effects of such technologies and methods on law enforcement
entities;
(C) the effects of such technologies and methods on privacy;
(D) the extent to which material that is harmful to minors is globally
distributed and the effect of such technologies and methods on such
distribution;
(E) the accessibility of such technologies and methods to parents; and
(F) such other factors and issues as the Commission considers relevant and
appropriate.
(d) Report.--Not later than 1 year after the enactment of this Act, the
Commission shall submit a report to the Congress containing the results of
the study under this section, which shall include--
(1) a description of the technologies and methods identified by the study
and the results of the analysis of each such technology and method;
(2) the conclusions and recommendations of the Commission regarding each
such technology or method;
(3) recommendations for legislative or administrative actions to implement
the conclusions of the committee; and
(4) a description of the technologies or methods identified by the study
that may meet the requirements for use as affirmative defenses for purposes
of section 231(c) of the Communications Act of 1934 (as added by this
title).
(e) Staff and Resources.--The Assistant Secretary for Communication and
Information of the Department of Commerce shall provide to the Commission
such staff and resources as the Assistant Secretary determines necessary
for the Commission to perform its duty efficiently and in accordance with
this section.
(f) Termination.--The Commission shall terminate 30 days after the
submission of the report under subsection (d).
(g) Inapplicability of Federal Advisory Committee Act.--The Federal
Advisory Committee Act (5 U.S.C. App.) shall not apply to the
Commission.
SEC. 1406. EFFECTIVE DATE.
This title and the amendments made by this title shall take effect 30
days after the date of enactment of this Act.