To: Interested Persons
From: Marvin J. Johnson, Legislative Counsel
Date: May 20, 2002
Re: Analysis of H.R. 3833, the Dot Kids Implementation and Efficiency Act of 2002
H.R. 3833, the ""Dot Kids Implementation and Efficiency Act of 2002"" creates major causes of concern. The bill proceeds from a faulty premise, attempts to zone the Internet, and sets up a system of government censorship. For these reasons we urge you to oppose the bill.
H.R. 3833 creates a secondary domain within the .us top-level domain which is ostensibly ""kid-friendly,"" restricting the information in the domain to material that is ""suitable for minors"" and ""not harmful to minors."" The National Telecommunications and Information Administration (NTIA)[i] is tasked with overseeing the creation of the domain and insuring the ""effective and efficient establishment and operation of the new domain."" ""Minor"" is defined as a child under the age of thirteen.
Under the powers granted by H. R. 3833, the government will contract with a third party (hereafter ""registrar"") to censor the domain. The NTIA shall require the registrar to operate and maintain the domain to provide access only to material that is suitable for minors and not harmful to minors. The NTIA has the authority to take any action it considers ""necessary to establish, operate, or maintain the new domain in accordance with the purposes"" of the act. The registrar will have to provide written content standards for the new domain, however the NTIA shall not have any authority to establish those standards. The registrar will enforce and oversee the new domain and establish a process for removing the content that is not in accordance with the standards and requirements of the registry. The registrar must provide a process to provide registrants with an opportunity for a prompt, expeditious, and impartial dispute resolution process regarding any material of the registrant excluded from the new domain. The registrants will be prohibited from allowing ""two-way and multiuser interactive services,"" unless the registrant certifies that the service shall be offered in compliance with the content standards and will not compromise safety or security of minors. While ""two-way and multiuser interactive service"" is not defined, it appears to rule out e-mail and instant messaging, two of the most popular uses of the Internet by young people. Registrants are also prohibited from providing hyperlinks in the new domain that take the domain users outside of the new domain. Thus, users of the new domain will be placed in a small playpen and only able to see information the government's registrar has deemed appropriate.
The bill leaves many of the details to be coordinated between the domain registrar and the NTIA. A critique of those standards is therefore impossible.
The ACLU has no objection in principle to the creation of numerous top-level domains. Much of the criticism of the International Corporation for Assigned Names and Numbers (ICANN)[ii]has been because of its snail-like pace in approving new domains, thereby artificially restricting possible domain names. Our concern with this bill stems from the government establishing a domain that is then censored by a private contractor, chosen, and possibly replaced by the government, in all likelihood based on the censor's determination about what should be censored.
A government mandate to provide ""kid-friendly"" spaces on the Internet is unnecessary, and unwise, because the private sector can provide this service. There are already several proposals to create such spaces, some already exist[iii], and a proliferation of domains is likely to result in even more. The more such domains and spaces that exist, the more likely parents will find a space for their children that reflects their values and concerns. However, when the government steps in to require a ""kid-friendly"" space, and mandates the content that will be included, it often operates to restrict choices, and engages the government in censorship.
The bill begins with a faulty premise: that a significant portion of all materials available on the Internet is related to pornography.
The bill notes in its findings that ""studies indicate that a significant portion of all material available on the Internet is related to pornography."" While the bill does not cite any specific study, the most widely touted study supporting this proposition has been largely discredited.
The 1994-1995 study conducted at Carnegie Mellon University by undergraduate Martin Rimm, entitled ""Marketing Pornography on the Information Superhighway,"" detailed the pervasiveness of online pornography and became the centerpiece of a Time cover story on cyberporn. It was seized by Sen. James Exon (D-Neb.), and used as the underpinning for the Communications Decency Act.
Professors Donna Hoffman and Thomas P. Novak of Vanderbilt University criticized the Rimm study on ""conceptual, logical and process grounds."" They accused the study of ""misrepresentation, manipulation, lack of objectivity and methodological flaws[iv]
Law Professor Eugene Volokh of UCLA described the study as ""questionable"" and ""a form of junk science[v]while Electronic Frontier Foundation cyber law expert Mike Godwin told freedomforum.org: ""The Rimm study was funny from top to bottom. It's not just that the research was bad; I believe it was intentionally deceptive.""[vi]
In addition to relying on junk science, the findings are empirically incorrect. While pornography is available on the Internet, it is hardly as ubiquitous as this finding would make it seem. Anyone who has spent any time surfing the Internet can verify that the Internet is teeming with information and a relatively small percentage is devoted to pornography.
Additionally, if the finding was correct, one would expect the porn sites to be the most popular sites on the Web. In fact, according to the Nielsen Netratings, porn sites do not even rate on the top 25. The top five most visited sites are: AOL Time Warner, Yahoo!, MSN, Microsoft, and Lycos Network[vii]
Most recently, the National Research Council reported that ""globally, sexually explicit Web pages constitute a few percent of the 2+ billion publicly accessible Web pages."" NATIONAL RESEARCH COUNCIL, YOUTH, PORNOGRAPHY, AND THE INTERNET, at ES-3 (Pre-publication, 2002). Thus, this most recent study demonstrates the contrary of the finding that ""a significant portion"" of the information on the Internet is sexually explicit.
This rationale for zoning the Internet because of the prevalence of pornography is little more than political demagoguery.
The government is attempting an end-run around the Constitution.
H. R. 3833 sets up a censorship scheme, overseen by the government, but carried out by a third-party registrar. It is somewhat like authorizing the Ku Klux Klan to burn a cross on someone's lawn and then denying responsibility because you were not there holding a torch.
It is highly dubious that the government could carry out the scheme with the government acting as the registrar. As noted above, H.R. 3833 restricts information in the domain to that which is ""suitable for minors and not harmful to minors."" The criterion for inclusion in the domain is therefore clearly based on content.
""Content-based regulations are presumptively invalid."" R.A.V. v. City of St. Paul, 505 U.S. 377, 382 (1992); see also Regan v. Time, Inc., 468 U.S. 641 (1984). In order to overcome the presumption of unconstitutionality, content-based restrictions must meet the strict scrutiny standard. Turner Broadcasting System v. Federal Communications Commission, 114 S.Ct. 2445 (1994). This test requires that the challenged statute or regulation is necessary to serve a compelling governmental interest, and is narrowly drawn to achieve that end. Arkansas Writer's Project, Inc. v. Ragland, 481 U.S. 221, 231 (1987). ""It is not enough to show that the Government's ends are compelling; the means must be carefully tailored to achieve those ends."" Sable Communications of California, Inc. v. FCC, 492 U.S. 115, 126 (1989).
Because determinations of what is and is not allowed in the domain is based on the content of the material, it is likely a court will apply the strict scrutiny analysis to any court challenges of exclusion. While the government occasionally is able to meet the strict scrutiny test, the cases decided under that test are more often determined against the government.
Here, however, the government sets up the general criteria, then leaves the details to the third party registrar, who acts on behalf of the government. The registrar then monitors and runs the domain according to government specifications.[viii] H. R. 3833 exempts the registrar from liability for ""any action voluntarily taken in good faith to restrict access through the new domain to, or availability through the new domain of, material that such person or entity considers to be harmful to minors, obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected."" [Emphasis added.][ix] Thus, constitutionally protected material may be excluded if it is found ""otherwise objectionable."" This broad phrase empowers the registrar to exclude virtually any information inconsistent with its viewpoint, a power normally denied the government.[x]
For example, the Harry Potter novels are widely acclaimed children's books, and are responsible for getting millions of children interested in reading. Nonetheless, there are those who would ban Harry Potter because the books deal peripherally with witchcraft and fantasy violence. Thus, Harry Potter books, while constitutionally protected could be excluded from the dot kids domain at the whim of the registrar as ""otherwise objectionable,"" and the registrar would be immune from liability.
As noted above, it is highly questionable whether the government could constitutionally engage in such viewpoint discrimination on its own. Congress is not free to change the scope of the First Amendment by merely passing legislation. United States v. Eichman, 496 U.S. 310 (1990) (Flag Protection Act of 1989 violated the First Amendment); City of Boerne v. Flores, 521 U.S. 507 (1997) (Congress' attempt to redefine scope of free exercise clause by enacting the Religious Freedom Restoration Act of 1993 found unconstitutional). Requiring the policy to be implemented by a third-party registrar does not resolve the issue. The Government ""cannot avoid its constitutional obligation by contracting out its decision making to a private entity."" Mainstream Loudoun v. Board of Trustees of Loudoun County Library, 24 F.Supp. 2d 552, 570 (E.D. Va. 1998).
Essentially, by contracting out the decision making and insulating the registrar from liability, the Government is attempting to accomplish indirectly something it could not do directly. ""[T]he government, however, may not seek to achieve an unlawful end either directly or indirectly."" Elrod v. Burns, 427 U.S. 347, 360, fn. 13 (1976). Yet this is what H. R. 3833 seeks to do.
Although H. R. 3833 attempts to contract out the duties of censor, the fact still remains that any censorious acts are in reality the act of the government. While the registrar will establish the written criteria for inclusion in the domain, the NTIA is tasked with oversight authority to ""ensure the effective and efficient establishment and operation of the new domain."" Furthermore, the NTIA can fail to renew the contract with the registrar if it believes the purposes of the bill are not being met. Therefore, the registrar is not truly independent.
The fact that the domain is purely voluntary at this point and that those unpopular viewpoints can be located in another domain is irrelevant. The government advanced a similar argument in its attempt to defend the Communications Decency Act (CDA). The government claimed that even though the CDA effectively censored discourse on many of the Internet's modalities--such as chat groups, newsgroups, and mail exploders--it was nonetheless constitutional because it provided a ""reasonable opportunity"" for speakers to engage in the restricted speech on the World Wide Web. The Court was not persuaded, noting ""the Government's position is equivalent to arguing that a statute could ban leaflets on certain subjects as long as individuals are free to publish books."" ""'[O]ne is not to have the exercise of his liberty of expression in appropriate places abridged on the plea that it may be exercised in some other place.'"" Reno v. ACLU, 521 U.S. 844, 117 S.Ct. at 2349 (1997), quoting Schneider v. New Jersey, 308 U.S. 147, 163 (1939).
Furthermore, ""mission creep"" may occur, rendering what is voluntary today mandatory tomorrow. For example, there may be attempts to limit children to only that domain. If that occurs, the only practical way for a speaker to reach an audience of children is to be listed in that domain. If a speaker's viewpoint differs from that of the registrar, there is little recourse, and a speaker is effectively muzzled.
""Mission creep"" in government programs is not unusual. Consider the voluntary ratings used in the entertainment industry. There are currently bills pending in Congress to make these ratings mandatory, and punish anyone who sells unrated entertainment. Or, consider the Social Security number. Americans were told it would have very limited application and used for one single purpose. Now, the government uses it as an identification number, and military identification numbers are now a soldiers' Social Security number.
Although H. R. 3833 attempts to disguise the fact, it is in the end government censorship.
H.R. 3833 strangles information and chills innovation.
H.R. 3833 allows the government, through its registrar, to determine what is ""appropriate"" material in the domain, and remove any information ""not in accordance with the standards and requirements of the registry."" The overall effect is to strangle information and chill innovation because it is always safer to stay ""in the middle"" and avoid entanglement with the government.
The bill not only requires the registrants to enter into written agreements to abide by the rules, but the registrar must also provide ""rules and procedures for enforcement and oversight that minimize the possibility that the new domain provides access to content that is not in accordance with the standards and requirements of the registry."" Thus, the Government, through its registrar, makes the decision regarding what information is allowed in the domain. Essentially, the content of a proposed site will have to be reviewed and the site ""licensed"" before it may appear in the domain, a classic form of prior restraint.
""Prior restraints on speech and publication are the most serious and least tolerable infringement on First Amendment rights."" Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 559 (1976). The Supreme Court has frequently stated that ""[a]ny system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity."" New York Times v. United States, 403 U.S. 713, 714 (1971).
In order for a licensing or permit system to be constitutionally valid, there must be procedural safeguards in place. H.R. 3833 requires the registrar to provide a process ""to provide registrants to the new domain with an opportunity for a prompt, expeditious, and impartial dispute resolution process regarding any material of the registrant excluded from the new domain."" Although this provision attempts to provide some mechanism for an impartial hearing, it does not appear to provide the full range of necessary safeguards.
First, the system must provide for a prompt decision made by the government, or, in this case, the registrar, as to whether the speech will be allowed. See, e.g. Teitel Film Corp. v. Cusack, 390 U.S. 139 (1968) (a 50 day delay before seeking an injunction, during which time the speech could not be disseminated, violated the First Amendment). The bill does, at least, require a prompt hearing.
Second, there must be a full and fair hearing before speech is prevented. See, e.g. Carroll v. President and Commr. of Princess Anne County, 393 U.S. 175 (1968) (ex parte court orders are impermissible in restraining speech because of the lack of adversarial presentation). H.R. 3833 only requires a hearing after the material is excluded, and does not delineate whether this is an adversarial administrative process, a judicial hearing, or merely a presentation before a neutral party.
Third, there must be a prompt and final judicial determination of the validity of any preclusion of speech. See Nationalist Socialist Party of America v. Village of Skokie, 432 U.S. 43 (1977) (improper to leave an injunction in place pending an appeal that could take up to a year; either the injunction had to be lifted or the appeal had to be expedited). The process proposed in the bill is not specific whether any judicial review is afforded.
While the intent of this review of exclusion provision may have been to provide procedural protection, it appears to be constitutionally insufficient.
A similar informal censorship scheme was declared unconstitutional in Bantam Books, Inc. v. Sullivan, 372 U.S. 58 (1963). In Bantam Books, the Rhode Island Commission to Encourage Morality in Youth issued pronouncements regarding what books and magazines were ""objectionable for sale, distribution or display to youths under 18 years of age."" Id. at 62. Notices were sent to distributors soliciting their ""cooperation"" and reminding them of the Commission's duty to recommend to the Attorney General prosecution of purveyors of obscenity.
Not surprisingly, booksellers removed books from the shelves rather than face the wrath of the Commission. The Court noted: ""People do not lightly disregard public officers' thinly veiled threats to institute criminal proceedings against them if they do not come around, and Silverstein's [one of the book distributor's] reaction, according to uncontroverted testimony, was no exception to this general rule."" Id. at 69.
The Commission contended it did not regulate or suppress obscenity, but simply exhorted booksellers and advised them of their legal rights. Thus, there was no formal compulsion, as the Commission had no power to apply formal legal sanctions. The Court found this position ""untenable,"" holding that Rhode Island had established a system of prior administrative restraints.
The concern here, as in Bantam Books, is that determination by the domain registrar that material is ""harmful to minors"" or not ""suitable for minors"" may practically be construed as a determination that it is illegal, leading to self-censorship.
Another concern is the bill's reliance on ""contemporary community standards"" in the context of the Internet.[xi] While such standards may make sense in a brick-and-mortar context, they have no relevance to an international medium like the Internet. Because there is no way for web providers to know the geographic location of their users, the .kids domain owner would have broad discretion to limit content to comply with the standards of the least tolerant community. For example, what parents may find suitable for their children in New York may differ drastically from what parents in Tennessee prefer for their children. This continued reliance on ""contemporary community standards"" leaves the definition unclear. The registrar has no way of determining the appropriate community, because there is no geography on the Internet. It appears the registrar would have broad discretion, which is clearly disfavored when analyzing prior restraints.
The Supreme Court has generally required that there must be clear standards leaving almost no discretion to the licensing authority. Discretion can be used for content-based censorship. For example, in City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750 (1988), the Supreme Court declared unconstitutional a city's ordinance that required a permit for placing a newspaper vending machine on public property and gave the mayor complete discretion to decide whether to issue a permit. The Court noted that its prior decisions clearly established that ""a licensing statute placing unbridled discretion in the hands of a government official or agency constitutes a prior restraint and may result in censorship."" Id. at 757. Moreover, the Court said that without clearly defined standards, it is too easy for licensing officials to invent some reason for denying a permit, and it is too difficult for courts to review the administrative discretion.
Conclusion
The private sector is already moving toward creating ""kid-friendly"" spaces on the Internet, and, in this context, more is better. It increases the likelihood that parents will find spaces that are congruent with their values. Additionally, and, most importantly, it avoids the problem of government censorship inherent in government mandates. We therefore urge you to vote against H.R. 3833, The Dot Kids Implementation and Efficiency Act of 2002.
ENDNOTES
i The National Telecommunications and Information Administration (NTIA), an agency of the U.S. Department of Commerce, is the Executive Branch's principal voice on domestic and international telecommunications and information technology issues. http://www.ntia.doc.gov/ntiahome/ntiafacts.htm
ii The Internet Corporation for Assigned Names and Numbers (ICANN) is the non-profit corporation that was formed to assume responsibility for the IP address space allocation, protocol parameter assignment, domain name system management, and root server system management functions previously performed under U.S. Government contract by IANA and other entities. http://www.icann.org/general/abouticann.htm
iii For example, .kids already exists in an alternate root on the Internet.
iv David Hudson, ""Pornography and the Internet: Tackling an old issue in a new medium,"" at http://www.freedomforum.org/packages/first/cybersmut/part1.htm
v Id.
vi Id.
vii http://pm.netratings.com/nnpm/owa/NRpublicreports.toppropertiesmonthly
viii As noted previously, the NTIA provides oversight for the registrar. While NTIA may not set the written standards for the new domain, the NTIA may not contract with, or renew any current contract with a registrar to operate the new domain unless the registrar agrees to run the domain according to the bill's specifications. Furthermore, the NTIA has the authority to take ""any other action that the NTIA considers necessary to establish, operate, or maintain the new domain in accordance with the purposes of"" the bill. It is thus likely the NTIA will threaten non-renewal of the contract if the registrar allows material of which the NTIA disapproves.
ix While this language does not appear in H. R. 3833, the bill treats the registrar as an ""interactive computer service"" for purposes of section 230 (c), in which this language does appear.
x City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 804 (1984) (""T]he First Amendment forbids the government to regulate speech in ways that favor some viewpoints or ideas at the expense of others."")
xi While the Supreme Court in Ashcroft v. American Civil Liberties Union, May 13, 2002, held that reliance on ""contemporary community standards"" in regard to the Internet did not in and of itself render a statute unconstitutional, the issue here is the discretion invested in the registrar to use standards from the least tolerant community to exclude viewpoints with which it may disagree.