FOR EDUCATIONAL USE ONLY

Copr. West 2000 No Claim to Orig. U.S. Govt. Works

 

10 SHCLJ 1133

(Cite as: 10 Seton Hall Const. L.J. 1133)

 

Seton Hall Constitutional Law Journal

Summer 2000

 

Comment

 

*1133 CASTING A NET OVER THE NET: ATTEMPTS TO PROTECT CHILDREN IN CYBERSPACE

 

Jennifer Zwick

 

Copyright 2000 Seton Hall University, Seton Hall Constitutional Law

 

Journal; Jennifer Zwick

 

I. INTRODUCTION

 

Ten years ago, relatively few Americans had ever heard of the Internet, let alone logged onto it. By contrast, at the end of 1998, studies estimated that eighty‑four million Americans used the Internet from either home or work. [FN1] As of mid‑year 1999, that number had risen to over one hundred million users. [FN2] Consequently, the Internet "has gone from being a curiosity to being a daily source for e‑mail, shopping, research, and news." [FN3] A wealth of information from across the globe is now accessible with a few simple mouse clicks.

 

With every technological innovation comes drawbacks, and the Internet is no exception. While permitting instant communication, the worldwide dissemination of ideas, as well as easy access to the ideas of others, the Internet has also generated concern regarding its effects on the constitutional rights of its users, especially in the context of children.

 

This Note explores the implications of the Internet on the privacy rights of children, as well as the possible infringement of Web publishers' First Amendment rights resulting from attempts to protect children. The first section addresses both government and industry regulation of online speech in efforts to shield minors from inappropriate material. Thereafter, this Note examines such endeavors as Congress' Children's Online Protection Act ("COPA"), [FN4] which is *1134 currently under review in the Third Circuit, as well as attempts by Congress, the states and the public to force libraries to install filtering software, thereby prohibiting users from accessing questionable material. This section concludes that both the COPA and forced library filtering will likely be held unconstitutional.

 

The second section scrutinizes efforts to guard the informational privacy of children online. Special focus is placed on the Child Online Privacy Protection Act ("COPPA") [FN5] and its accompanying Rule [FN6] as set forth by the Federal Trade Commission ("FTC"). This Note concludes that the combination of federal mandate and industry initiative created by the COPPA is a reasonable formula by which to protect children from the collection of their personally‑identifiable data.

 

II. PROTECTING CHILDREN ONLINE AND THE FIRST AMENDMENT IMPLICATIONS

 

Jimmy is a fifteen‑year old boy and a sophomore in high school. He has thought for a long time that he might be gay but has been too scared to mention it to his family or friends. Needing someone to talk to, Jimmy decides to find Web sites and chat rooms for gay and lesbian teens. It seems like the perfect solution, allowing him to talk to others in his situation, while not having to reveal his name or any details about himself. His parents cannot afford a computer at home, and using a school computer is out of the question because one of his classmates could walk in at any time. Instead, Jimmy goes to the public library to use one of the computers there. Surely none of his friends would show up at the library.

 

Once there, Jimmy accesses the Internet on one of the library computers and attempts to locate an appropriate chat room. Unfortunately, the library has a policy of filtering its Web access; therefore, all chat rooms, as well as sites having to do with sex, have been blocked. While patrons may request that the librarian unblock legitimate sites that have been inadvertently filtered,Jimmy is hesitant to tell the librarian of the type of site he wishes to reach. His whole reason for wanting to access the chat room through the library was the anonymity it would provide. "Now what?" he laments to himself.

 

Across town, Brittany is researching a report for her fourth grade social studies class which is due on Friday. Her assignment requires her to write a two‑page paper concerning the United States government. With just a few mouse clicks on her home computer, she is connected to the Internet. Not understanding the difference between the top‑level domains, [FN7] she types *1135 in "www.whitehouse.com" and is greeted, not by the President, but rather by multiple pictures of topless women. [FN8] The warning to children under 18 is small and escapes Brittany's notice as she clicks on a picture labeled "First Ladies." [FN9] There, Brittany encounters both "Miss White House" and April, the "Intern of the Month," in two revealing photographs. [FN10] Realizing that this Web site is not going to help her with her report, Brittany decides a better way might be to run a search using Yahoo! (R) [FN11]

 

Although fictional, neither of these scenarios is far from reality. Chief Circuit Judge Sloviter, sitting for the Eastern District Court of Pennsylvania, aptly observed that ". . . content on the Internet is as diverse as human thought." [FN12] Human thought, however, is not always profound or academic. While we applaud the breadth and depth of information that the Internet has brought to our fingertips, we are at the same time cognizant of a slightly darker element that has found a home on the Web, one from which children should be protected. [FN13] Few would argue that Brittany's best interests are served by exposure to pornography without parental guidance. On the other hand, in protecting children from such exposure, we should not hinder Jimmy's quest for legitimate information regarding his sexuality. Most agree that something should be done. So far, however, neither industry initiative nor legislative action has been successful in *1136 achieving an acceptable balance between shielding minors from harmful material on the Internet and preserving the First Amendment right to free speech of publishers, as well as the adult population at large. [FN14]

 

A. Non‑Internet Attempts to Protect Children Through the Regulation of Speech

 

Not all types of speech receive the constitutional protection furnished by the First Amendment. [FN15] While the First Amendment generally guarantees the almost unlimited right to disseminate, as well as receive, ideas and information, [FN16] speech deemed unprotected [FN17] can be more heavily regulated by the Government based on its content. [FN18] For example, in 1957, the Supreme Court of the United *1137 States determined that the First Amendment's constitutional protection did not extend to obscene speech or speech containing obscene language. [FN19]

 

That same year, in Butler v. Michigan, [FN20] the Court addressed the injury that might befall a child from exposure to unprotected speech. [FN21] In Butler, a Michigan statute prohibited the sale of any literature "manifestly tending to the corruption of the morals of youth." [FN22] The book in question was sold, not to a child, but to a police officer. [FN23] Though the state argued that the purpose of the statute was to "shield juvenile innocence," the law simultaneously rid the general public of any material potentially harmful to minors. [FN24] Finding the law overly broad, the majority held that such material could not be completely banned, as adults should not be reduced to reading only that which is appropriate for children. [FN25]

 

Since Butler, the federal and state legislatures have continued to pass statutes aimed at protecting minors from sexually‑explicit materials. The Supreme Court, in Ginsberg v. New York, [FN26] upheld a state statute proscribing the sale of material considered obscene as to minors under the age of seventeen. [FN27] The *1138 Court found that protecting the well being of minors was a compelling state interest. [FN28] Furthermore, the New York statute was distinguishable from that struck down in Butler because adults were not hindered from purchasing such material. [FN29] Thus, the Court found that the statute was narrowly tailored and did not violate the First Amendment rights of adults. [FN30]

 

FCC v. Pacifica Foundation [FN31] marked the federal government's first successful attempt to regulate not just obscene, but "indecent" [FN32] speech in the name of protecting children. [FN33] The case evolved from a sanction levied by the Federal Communications Commission ("FCC") against Pacifica as a result of its radio broadcast of George Carlin's now infamous "Seven Filthy Words" monologue. [FN34] A father and his child heard the morning broadcast while listening to the car radio. [FN35] In addition to the time of day of the broadcast, the Court focused on the medium of communication utilized in upholding the FCC action. [FN36] Radio, the *1139 Court opined, was a scarce [FN37] and intrusive medium, which could come into the home when children might be in the audience. [FN38] A listener cannot simply avert her ears when something indecent is aired. [FN39] Consequently, speech may enter the home without warning, thereby taking the listener by complete surprise. [FN40] Additionally, the majority found that the scarcity of the broadcasting spectrum gave the Government more flexibility in its regulation for the public interest; accordingly, the Court upheld the FCC action. [FN41]

 

In contrast, the cable industry is not based upon the allocation of a limited broadcast spectrum and, in the past, has been treated differently by the courts than the radio and television broadcasting industries. [FN42] A more recent Supreme Court case, however, has put this tenet on unstable ground. In Denver Area Educational Consortium v. FCC, [FN43] the Court reviewed a federal statute, which regulated "indecency" on cable television and was aimed at "protect[ing] children from exposure to patently offensive sex‑ related material." [FN44] Refusing to apply strict scrutiny, a plurality of the Court cited the pervasive and intrusive character of cable television as similar to that of traditional broadcast media, which dictated a less demanding analysis. [FN45] The dissent disagreed, stating that strict scrutiny was, in fact, the appropriate test. [FN46] Thus, the dissent opined, the *1140 statute should have been found to violate the First Amendment. [FN47]

 

The Supreme Court also grappled with the constitutionality of prohibiting "dial‑a‑porn" in Sable Communications of California, Inc. v. FCC. [FN48] The California statute in Sable forbade both obscene material, as well as that which was simply indecent. [FN49] While recognizing a compelling state interest in protecting children from the harmful emotional effects of such communications, [FN50] the Court found that less restrictive means existed to achieve the Government's goal. [FN51] Applying strict scrutiny, the Court distinguished the medium of telephone communications from that of broadcast, thereby finding that the danger of exposing a child to the prohibited material was less likely. [FN52] Relying on the Butler decision, the Court advocated an approach that would protect the rights of the adult population, while simultaneously shielding children from pornographic speech. [FN53]

 

B. Attempts to Protect Children Through the Regulation of Speech Over the Internet

 

Unlike traditional broadcast media, the Internet is not a scarce medium of communication, [FN54] nor is it intrusive. [FN55] Similar to the telephone, in order to receive information, it must actively be sought. [FN56] The Internet is, however, the most pervasive medium the world has ever known and, as a result, great concern has arisen with regard to what children might see, read and, increasingly, hear on *1141 their computers. Both legislative action on the state and federal levels, as well as industry initiative, have endeavored to tackle this problem.

 

1. Proscription of Material Harmful to Minors

 

a. Federal Regulation

 

Congress' first attempt to regulate sexually explicit material on the Web came in the form of the Communications Decency Act ("CDA") [FN57] a small section of the Telecommunications Act of 1996. [FN58] Two provisions in particular were noteworthy. Section 223(a) prohibited the knowing transmission of any "communication which is obscene or indecent, knowing that the recipient of the communications is under [eighteen] years of age." [FN59] Section 223(d) prohibited the knowing transmission or display of any "communication that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs" to recipients under the age of eighteen. [FN60] The statute further provided an affirmative defense for those defendants who had made a reasonable, good faith effort to "restrict or prevent access by minors . . . [utilizing] any method . . . feasible under available technology." [FN61] A defense was also afforded to those who had attempted to employ restrictive measures such as the "use of a verified credit card, debit account, adult access code, or adult personal identification number." [FN62]

 

In the words of one academic, "[i]f we had sat down and purposely set out to write a statute that completely violated the First Amendment and [would] undoubtedly be struck down by the Supreme Court, we could not ourselves have come up with better language to accomplish that purpose." [FN63] The American *1142 Civil Liberties Union ("ACLU"), and ultimately the Supreme Court, apparently agreed. In ACLU v. Reno, the District Court for the Eastern District of Pennsylvania ruled that the "indecent transmission" and "patently offensive display" provisions of the CDA were overly broad, vague and thus, unconstitutional violations of the First Amendment and the Due Process Clause of the Fifth Amendment. [FN64] In 1997, the Supreme Court affirmed the district court's ruling, but solely on the basis of the First Amendment issue, [FN65] and only to the extent that the Act went beyond the prohibition of "obscene" material. [FN66]

 

The Court identified many problems with the language of the CDA. First, the terminology of the CDA was vague and inconsistent. Section 233(a) proscribed "indecent" speech, while section 233(d) forbade "patently offensive" speech; but nowhere within the Act was either term defined. [FN67] Not only would such ambiguity confuse potential speakers, the Court observed that it would further "undermine the likelihood that the CDA ha[d] been carefully tailored to the congressional goal of protecting minors from potentially harmful materials." [FN68]

 

Second, the Act was unconstitutionally broad. Applying strict scrutiny, Justice Stevens explained that, while the Court had "repeatedly recognized the governmental interest in protecting children from harmful materials," [FN69] the CDA had the effect of limiting communications to which adults were constitutionally entitled. [FN70] This burden on free speech, the Court surmised, would be especially onerous in the context of the Internet where, for example, among the many recipients of an indecent communication in a chat room, at least one minor could be expected to be in the audience. [FN71]

 

Additionally, the CDA did not distinguish between commercial and non‑ commercial speakers. [FN72] Therefore, the affirmative defenses provided would be *1143 prohibitively expensive and unavailable to many non‑ commercial defendants. [FN73] As a result, many potential publishers might decline to speak for fear of conflicting with the law. [FN74] Since such a restraint on protected speech would be a violation of the First Amendment, [FN75] the Supreme Court struck down the Communications Decency Act on June 26, 1997. [FN76]

 

Returning to the drawing board, on October 21, 1998, Congress enacted the Children's Online Protection Act (COPA) as part of the Omnibus Appropriations Act for the Fiscal Year 1999. [FN77] Within twenty‑four hours, the ACLU, along with sixteen other plaintiffs, [FN78] filed suit seeking an injunction to block enforcement of the COPA. On November 20, 1998, the date that the COPA was slated to take effect, the District Court for the Eastern District of Pennsylvania issued a temporary restraining order, [FN79] stating that "no one, the government included, has an interest in the enforcement of an unconstitutional law." [FN80] On February 1, 1999, the court granted a preliminary injunction. [FN81]

 

The COPA was an attempt by Congress to respond to the Supreme Court's comments in Reno, and has been alternatively referred to as "CDA II" or "Son of CDA." The COPA differs from the CDA in two main respects. First, the COPA discards the "indecent" and "patently offensive" language of the CDA and is directed instead to speech that is "harmful to minors." [FN82] Second, the COPA applies *1144 only to online speech for "commercial purposes." [FN83] However, telecommunication *1145 carriers, Internet Service Providers, and search engine operators are explicitly exempt from liability under the COPA. [FN84] Others found in noncompliance with the COPA might be subject to criminal and civil penalties. [FN85] The COPA, like its predecessor, provides affirmative defenses for those defendants who, in good faith, attempt to restrict access by children to communications that are harmful to minors. [FN86] Interestingly, the COPA does not include the CDA's requirement that such restrictions be "effective." [FN87]

 

Despite these statutory changes, Judge Reed ruled that the plaintiffs would likely prevail in a case on the merits, and thus issued a preliminary injunction enjoining enforcement of the COPA. [FN88] Defendant, Attorney General Janet Reno, has appealed the decision to the Third Circuit. Oral arguments were heard on November 4, 1999, but the court is not expected to issue an opinion for several months.

 

b. State Regulation

 

To date, attempts by state legislators to regulate speech on the Web have also been unsuccessful. In American Library Ass'n v. Pataki, [FN89] the District Court in the Southern District of New York struck down a New York statute criminalizing the knowing communication to children of material deemed harmful to minors over the Internet. [FN90] In granting a preliminary injunction, the court found *1146 that the statute violated the Commerce Clause [FN91] in three ways. [FN92] First, the communications falling within the purview of the statute were not intrastate in nature given the worldwide scope of the Internet and thus, could not be regulated by a state government. [FN93] Second, the court found that the burden on interstate commerce created by the statute outweighed any benefit to be derived. [FN94] Finally, the court recognized that federal regulation would be more appropriate given the widespread nature of the Internet, and thus New York was pre‑empted from legislating such communications. [FN95]

 

In November of 1999, the Tenth Circuit Court of Appeals enjoined a similar New Mexico statute through the use of the First Amendment, as opposed to the New York court's Commerce Clause analysis. [FN96] Affirming the District Court of New Mexico's grant of preliminary injunction, in ACLU v. Johnson, [FN97] the Tenth Circuit held that the statute was unconstitutionally broad, burdening otherwise protected adult communications on the Internet. [FN98] Furthermore, the court briefly addressed the Commerce Clause implications of the statute and found that, as in Pataki, the Act created "an extreme burden on interstate commerce." [FN99]

 

*1147 c. Filtering in Libraries

 

Libraries have traditionally been the purveyors of constitutionally protected expression. That which a library may stock on its shelves, as well as that which a library may remove from its shelves, has long been a source of heated debate. [FN100] In striving to provide their patrons with a wealth of information, almost three quarters of public libraries across the country offer public Internet access. [FN101] As concern regarding sexually‑explicit material on the Web has increased, however, so has pressure on libraries to restrict public access.

 

The American Library Association (ALA) has long supported a policy of unrestricted access to information, regardless of content. [FN102] Additionally, the Library Bill of Rights provides that access shall not be denied on the basis of age. [FN103] The ALA interprets this right to mean that libraries, unlike schools, do not stand in loco parentis, [FN104] thereby forcing parents to bear the responsibility for what their children view. [FN105]

 

Despite these policies, many libraries have nonetheless decided to install filtering software on their computers. [FN106] Filters essentially block access to Web sites that are either on the blocking software's "blacklist" or contain certain *1148 words that have been deemed unacceptable. [FN107] Consequently, in the earlier hypothetical situation, if Brittany's parents had installed such filtering software on her computer, the program would have examined "www.whitehouse.com" before the site was displayed. Most likely, the software would have blocked Brittany's access. However, in Jimmy's scenario, the filtering software worked to the user's detriment, effectively blocking access to information that was not pornographic, but of legitimate concern.

 

Indeed, filters have been known to block access to Web pages that are in fact not obscene, but rather designed to help people. [FN108] Software screening for the word "breast," for example, may inadvertently block Web sites for breast cancer support groups or even Web sites providing recipes in which an ingredient is chicken breasts. Moreover, many blocking software producers will not allow potential purchasers to review their "blacklists" before buying their software. [FN109] Thus, these software manufacturers have total discretion as to which sites are blocked and could potentially limit access to sites that criticize their blocking techniques. [FN110]

 

One library in Virginia installed such software on all of its computers and consequently, found itself in a lawsuit with the ACLU. In Mainstream Loudoun v. Board of Trustees of the Loudoun County Library, [FN111] the District Court for the Eastern District of Virginia found that the library's policy of prohibiting access to all sites containing "material deemed harmful to juveniles," [FN112] was a prior restraint on free speech, thereby violating the First Amendment. [FN113] The library argued that its policy was enacted not to control expression, but to prevent the sexual harassment of its staff and to conform to laws protecting minors from obscenity and child pornography. [FN114] Accordingly, the library asserted that the *1149 policy was content‑neutral. [FN115]

 

Judge Brinkema, however, found that these stated objectives were not legitimate secondary effects because ". . . neither [could] be justified without reference to the content of the speech at issue." [FN116] Conversely, the court concluded that the policy was an attempt to regulate speech based on its content, mandating the application of strict scrutiny. [FN117] Judge Brinkema further found that although the library's contended interests were compelling, no demonstrable problems existed for which the policy was intended to cure. [FN118] Therefore, the library's interests were not advanced by its chosen course of action. [FN119] Recognizing that circumscribing the access of all patrons to only materials fit for minors was over‑inclusive, the court emphasized that less restrictive alternatives existed. [FN120]

 

In addition, the policy, as adopted, lacked the standards and procedural safeguards necessary to survive strict scrutiny. [FN121] Decisions to censor were left to the discretion of the blocking software manufacturer. [FN122] As the court explained, "a defendant cannot avoid its constitutional obligation by contracting out its decisionmaking to a private entity." [FN123] While the policy included a method by *1150 which patrons could request the unblocking of materials that were wrongfully blocked, the court noted that requiring a patron "to publicly petition the Government for access to disfavored speech ha[d] a severe chilling effect." [FN124]

 

The court concluded by pointing out that it was the choice of the library to provide Internet access to its patrons. [FN125] In so doing, the library was obligated to follow the mandates of the First Amendment in any attempt at limiting such access. [FN126] The policy of the Loudoun County Library, however, was not in accordance with the constitutional guarantee of free speech. [FN127] The Board of Trustees subsequently decided not to appeal and removed the filtering software from its computers. [FN128]

 

Although free speech advocates might consider this a victory, it is a small one because the Mainstream Loudoun decision binds only the Eastern District of Virginia. [FN129] To have nationwide precedential value, the case must be heard and affirmed by the United States Supreme Court. Until another case of its kind makes its way through the court system, libraries will remain uncertain as to whether filtering is an appropriate means by which to protect young patrons from pornographic material. [FN130]

 

One such case, with an interesting variation, has been filed in California. Rather than patrons suing to have filters removed from library computers, this plaintiff sued the city and its public library to have filters installed. A parent, known only as Kathleen R., filed suit after her 12‑year‑old son, on multiple occasions, distributed print outs of pornographic images he had downloaded to a disk from a library computer. [FN131] The plaintiffs initially filed suit on public nuisance *1151 grounds. [FN132] That lawsuit was dismissed by virtue of a viable provision of the CDA which exempts access providers from liability for third‑party speech. [FN133] Plaintiffs then amended their complaint and returned to court, arguing that permitting unrestricted access to the World Wide Web was a violation of a citizen's constitutional right to protection against the arbitrary actions of the state under the Fourteenth Amendment. [FN134] Plaintiffs contended that "the library actively places children in danger of severe psychological harm by providing them with obscene pornography." [FN135] On January 13, 1999, the judge dismissed the second complaint without an opinion, [FN136] and in July of 1999, the plaintiffs filed an appeal with the California Court of Appeals. [FN137] That decision is pending.

 

Kathleen R. is not the only party trying to force libraries to limit Internet access. Library filtering has also been the focus of several federal bills. Arizona Senator, John McCain, introduced the Childrens' Internet Protection Act in January of 1999. [FN138] This Act would require all schools and libraries receiving E‑rate funding, that is, discounts for Internet access, to install filtering software. [FN139] The American Library Association has stated that it will fight the bill in court if it is signed into law. [FN140] Representative Bob Franks of New Jersey introduced a *1152 similar bill in the House. [FN141] The Neighborhood Children's Internet Protection Act, introduced in August of 1999by Senator Rick Santorum, a Republican from Pennsylvania, is slightly less rigid in that the installation of filters would not be made mandatory. [FN142] Instead, each community would be required to adopt a plan to best protect its children from harmful materials on the Internet. [FN143] The Act would require only a certification either that a system to filter or block inappropriate material had been implemented or that an Internet use policy addressing the issue had been adopted. [FN144] All three of these bills allow each community to determine what is inappropriate for minors to view. Finally, the Child Protection Act of 1999, [FN145] or Istook Amendment to the Labor/HHS Appropriations bill, requires public schools and libraries receiving Federal funds "for the acquisition or operation of computers to install software to protect children from obscenity." [FN146]

 

As of July of 1998, thirty thousand schools and libraries had applied for E‑ rate funding, [FN147] giving the ultimate outcome of these bills a significant effect. The ALA has reluctantly endorsed the approach proposed by Senator Santorum, finding it more reasonable than that of Senator McCain. [FN148] However, the ALA would ultimately prefer no federal mandate. [FN149]

 

It appears that the libraries cannot win. Although one court has held that filtering is unconstitutional, [FN150] the federal government nonetheless continues in its *1153 attempts to obligate libraries to filter. [FN151] Until a coherent decision is reached, some libraries have implemented alternative policies, thereby attempting to find a compromise between the conflicting concerns. One such method is the "Tap on Shoulder" approach. [FN152] If a librarian happens to see a patron viewing material that is inappropriate, the Internet user will be tapped on the shoulder and told to stop. [FN153] This, of course, raises the issue of providing librarians with unlimited discretion in determining what library patrons may view. [FN154] Alternatively, some libraries have placed privacy screens over their monitors, making it more difficult for anyone, other than the immediate user, to view what is on the computer screen. [FN155] Other libraries have created a kid's computer section, thus installing filtering software on only some of their computers. [FN156] Finally, and probably most disturbing, some libraries have decided to discontinue the availability of Internet access to their patrons altogether. [FN157]

 

2. Industry Initiatives

 

In order to avoid more potential federal regulation of Internet content, several initiatives have been undertaken by the industry to regulate itself. Web‑based search engines, including AltaVista&reg: and Yahoo!&reg:, have established family friendly search engines, which purport to "reduce objectionable content from your search results." [FN158] In addition, industry leaders are developing rating systems *1154 to better allow users to filter content based on their own opinions and values.

 

The World Wide Web Consortium has advanced a protocol to bring such ratings systems to fruition called the Platform for Internet Content Selection (PICS). [FN159] The PICS is not a rating system in and of itself, "specif[ying] little more than the syntax and protocols used to label content and transmit the labels." [FN160] Essentially, Web site publishers or third parties label content according to a standard generated with the PICS. [FN161] Users then choose from an assortment of existing ratings systems, [FN162] configure their browsers or PICS software to use that ratings system and finally, determine the level of information they want to allow. [FN163] Such ratings systems could conceivably allow users to filter out not only violent and indecent materials, but also opinions with which they don't agree. [FN164] The dangers of such a system stem from the imperfections of ratings systems in general, including imprecision and, of course, mislabeling by content creators. [FN165] Moreover, labels are subjective, and what might be obscene or indecent to one, may be art to another. [FN166]

 

In September of 1999, representatives from world governments, the Internet and media industries, as well as the Internet‑user community, gathered in Munich, Germany to discuss the possibility of an international rating scheme. [FN167] *1155 One proposal considered involves a voluntary rating system by which content creators would label their materials. [FN168] It further makes available to the end user a choice of many blocking systems, reflecting the various ideologies and cultures of the world. [FN169] Some applaud the effort, believing it to not only enable parents to protect their children more effectively, but also to stave off government regulation. [FN170] Others, however, see it as the first step towards a government‑mandated, uniform labeling system in a space where the government should have no involvement. [FN171]

 

III. PROTECTING CHILDREN's PRIVACY

 

As one commentator has noted, "privacy is central to freedom and autonomy and the rights of the individual to have a private life." [FN172] Individuals have become more concerned than ever over protecting their informational privacy, and the widespread collection of such personal data over the Internet into huge databases has only heightened the concern. [FN173] The gathering of personally‑identifiable information regarding children has become an especially hot topic. Involved in the debate are privacy groups who wish to protect children from exploitation, as well as those doing business on the Web, who recognize the economic value in mining information regarding this group to whom advertisers market heavily. [FN174]

 

*1156 A. Background

 

While no express grant of a right to privacy can be found within the language of the Federal Constitution, the Supreme Court has long recognized certain personal privacy rights. [FN175] Such protections prohibit government intrusion into the lives of individuals concerning particular intimate decisions. [FN176] Nonetheless, to date, the Supreme Court has not acknowledged a right to have personal information kept private, [FN177] although the Court did briefly address this issue in Whalen v. Roe. [FN178] In dicta, the Court recognized that as technology allows for the increased collection of personal information in computerized databases, an implicit threat to privacy arises. [FN179] While admitting that a privacy right may be implicated, the Court declined to address the possible issues that might become manifest from the unjustified disclosure of such information. [FN180]

 

In spite of, or perhaps due to, the Court's unwillingness to interpret the Constitution as providing an individual right to informational privacy, a patchwork of federal and state legislation has emerged. In the public sector, the Privacy Act of 1974, [FN181] the Computer Matching and Privacy Protection Act (CMPPA) of 1988, [FN182] and the Freedom of Information Act (FOIA) of 1966, [FN183] all serve to *1157 provide a basis for privacy protection of information stored within government files. The private sector, on the other hand, remains largely unregulated in its collection and disclosure of personal information. Statutes that do govern private enterprise cover only specific industry sectors, [FN184] leaving other areas of industry relatively uninhibited in their data collection practices. [FN185] For example, the Fair Credit Reporting Act (FCRA) of 1970 prevents private sector misuse of an individual's informational privacy, but the FCRA does little to restrict the sale or exchange of such personal data. [FN186] A consumer report may be provided to anyone for whom the consumer reporting agency has reason to believe has "a legitimate business need for the information." [FN187] Notice to the individual of disclosure of a credit report, however, is required only in limited situations, such as where it is used as a ground for the rejection of a consumer‑initiated insurance, credit or employment benefit request. [FN188]

 

State and common law have filled in some of the gaps left by federal legislation. Most notable is the 1972 amendment to the California State Constitution providing an express, inalienable privacy right, [FN189] which includes informational *1158 privacy [FN190] and is enforceable against both private and public entities. [FN191] At common law, there are four invasion‑of‑privacy torts, first articulated by William Prosser, [FN192] and adopted by the Restatement (Second) of Torts. [FN193] Still, these provide little assistance to one seeking to protect personally identifiable information, because such a breach of privacy is generally based upon the disclosure of facts that are highly offensive or embarrassing. [FN194]

 

*1159 As citizens of the information age become ever more paranoid that George Orwell's "Big Brother" [FN195] is developing into a reality, increasing attention is being focused on protecting informational privacy and, in particular, the informational privacy of children. Although Supreme Court cases, such as Vernonia School District 47J v. Acton [FN196] and New Jersey v. T.L.O., [FN197] recognized a child's right to privacy, these cases examined the issue of search and seizure in schools. Indeed, in these cases, the Court found that a child's right to privacy was actually diminished in settings demonstrating "special needs," such as a school. [FN198]

 

*1160 B. Efforts to protect children's privacy online

 

In general, a child's informational privacy has been regulated not in terms of a right belonging to the child, but rather as an interest of the parent or guardian. The Supreme Court, in Ginsberg v. New York, [FN199] interpreted the Constitution to include a parent's right to control the raising of her children. [FN200] Additionally, with the Family Educational Right to Privacy Act (FERPA), Congress provided parents with control over the collection, maintenance and use of data gathered and contained in their children's educational records. [FN201]

 

On the Internet, the privacy of children is not so easily granted or maintained. Web site operators can seamlessly collect data openly as well as covertly. [FN202] Many sites invite children to sign a "guest book," while others require children to convey personal information in order to participate in activities within the site or to register for contests. [FN203] In addition, the use of "cookies" permit an operator to follow a user's clickstream, that is, to track the user as she browses through a site, observing how long she stays, what links she follows, and how often she returns. [FN204] Thus, a Web site operator may compile multitudes of information *1161 about a person and her online behavior both with and without her knowledge or consent. [FN205] More importantly, a Web site operator may compile such information about an unsuspecting child without the parent's knowledge or consent.

 

Of course, personally identifiable information is collected, bought and sold everyday in the brick and mortar world. Junk mail arrives in our mailboxes on a daily basis from companies, of which we have never heard, let alone given our names to, revealing the common practice of selling names through mailing lists. We are inundated with opportunities to apply for new credit cards, donate to charities and purchase items from catalogues. Information is valuable, especially to companies wishing to market their products to the consumers most apt to make a purchase. [FN206] Despite this offline parallel, Internet users seem to be especially protective of their personal information gathered online. [FN207]

 

Data collection on the Internet does, however, serve a non‑clandestine purpose, as it allows Web site operators to better serve returning visitors. For example, by remembering the type of bands a cyber guest researches when surfing through a music Web site, an operator can alert that guest to upcoming concerts, new album releases and general news concerning those bands through e‑ mails. *1162 Alternatively, an operator might program the home page to retrieve the user's preferences upon her next visit and display such information. The consumer benefits from this personalization because she avoids clicking through a myriad of pages in which she has no interest. Instead, the information she most desires is provided immediately to her.

 

The problem, however, and the basis for much of the wariness associated with greater utilization of the Internet, is that this data collection also allows for the aggregation of huge amounts of personally‑identifiable information into digital databases, which can be manipulated with considerable ease. [FN208] Not only is the amount of accumulated information daunting, but the manner in which its collectors are controlling it is cause for serious concern. [FN209] Moreover, instances of inadvertent Web site mishaps have been known to reveal personal data to the masses. [FN210] In its report to Congress regarding online privacy, the Federal Trade Commission (FTC) cautioned that while the online marketplace has the potential for robust, worldwide economic activity, such activity would likely be stunted without consumer confidence regarding the use of private information. [FN211]

 

Although the federal government has been studying the need for adequate privacy controls on the Internet, its main focus has been in the context of commerce. In 1995, the Clinton Administration's National Information Infrastructure Task Force (NIITF), an interagency work group led by Vice President Al Gore, issued its Principles for Providing and Using Personal Information, thereby seeking to sustain "information privacy, information integrity, and information quality." [FN212] Hoping to encourage industry self‑regulation, the NIITF *1163 put forth general maxims by which all online companies should abide. [FN213] *1164 The principles were meant to further the global electronic marketplace and thus, did not specifically address the privacy needs of children. [FN214] However, the NIITF principles have served as a starting point for subsequent attempts to protect informational privacy in general by focusing on notice and consent as the two key elements. [FN215]

 

In July of 1997, under the leadership of then Senior Advisor to the President for Policy Development, Ira Magaziner, the NIITF published A Framework for Global Electronic Commerce (Framework). [FN216] With the objective of fostering "increased business and consumer confidence in the use of electronic networks for commerce," [FN217] the NIITF again looked to the private sector to monitor itself and provided broad guiding principles without government involvement. [FN218] In terms of privacy, the Framework recommended that Web site operators work to assure personal privacy. [FN219] Specifically,

 

[d]ata gatherers should tell consumers what information they are collecting and how they intend to use it. Consumers should have meaningful choice with respect to the use and re‑use of their personal information. Parents should be able to choose whether or not personal information is collected from their children. In addition, redress should be available to consumers who are harmed by improper use or disclosure of personal information or if decisions are based *1165 on inaccurate, outdated, incomplete or irrelevant personal information. [FN220]

 

Compared to the self‑regulatory approach of the United States, The European Union (EU) has taken a decidedly more hands‑on stance. [FN221] In October 1995, the Data Privacy Directive (EU Directive) was published, adopting rules for the collection and use of the private information of EU citizens. [FN222] Member States were given three years in which to pass legislation implementing the Directive. [FN223] Aside from requiring unambiguous consent before any personal information can be collected and used, [FN224] the EU Directive demands "specified, explicit and legitimate purposes" for the collection of such data. [FN225] Article 25 of the Directive, compelling countries outside of the EU to guarantee "an adequate level of protection" before any personal data will be transferred, has the most direct impact on the United States. [FN226]

 

In response, on November 15, 1999, the U.S. Department of Commerce issued a draft of International Safe Harbor Privacy Principles (Draft) in an attempt to assist American companies in adhering to the EU Directive. [FN227] As issued, *1166 the Draft focuses on notice, choice of the subject to opt‑out of data disclosure, security of the information, data integrity, access to one's own personal information and enforcement to ensure compliance. [FN228] The EU has not yet agreed to the Draft, because concern still exists that the guidelines fail to meet the EU's standard of an "adequate" level of control over personal information. [FN229] Recognizing that without the ability to gather data regarding EU citizens U.S. industry will be significantly hampered, the Department of Commerce is making progress in attempting to balance the European Union's privacy concerns with those of American enterprise.

 

While the U.S. has generally allowed the private sector to lead the way in its handling of online privacy issues, the Administration has been willing to take a more active role when it comes to the collection, use and exchange of personally identifiable information of children under the age of thirteen. In general, it is widely held that children in this age bracket do not understand the ramifications of conveying personal data such as name, address and phone number to unseen information compilers, [FN230] nor are they capable of legitimately giving their consent for the use and dissemination of this information. [FN231]

 

The fear of exposing children to exploitation is not unfounded. On October 14, 1997, the FTC took a "snapshot" of Web sites geared towards children to examine the level of informational privacy protection accorded minors. [FN232] The results were far from impressive. Of the 126 sites visited, eighty‑six percent were found to collect personal information directly from children. [FN233] Less than thirty percent of those Web sites furnished a privacy policy outlining their information collection procedures, [FN234] and only four percent provided a method for obtaining parental consent. [FN235]

 

*1167 The FTC conducted a second survey in 1998. [FN236] Of the 212 child‑directed Web sites analyzed, eighty‑nine percent (188 sites) collected personal data. [FN237] Forty‑two percent of those (seventy‑nine sites) posted a privacy policy, and less than eleven percent (twenty sites) attempted to secure permission from parents. [FN238] While online business was showing some improvement, it did not seem to be taking the initiative to voluntarily regulate itself.

 

Indeed, the deceptive practices of Web site operators, who collect and use the personally identifiable information of children, were brought to the forefront through three FTC opinions. The first involved a petition from the Center for Media Education (CME), alleging unfair and deceptive operation of the Web site "KidsCom," a site directed at children and a self‑described "[a] Communications Playground for kids ages 4 to 15." [FN239] The site required children to register, which included the completion of a survey asking for such information as the child's name, sex, birthday, e‑mail address, home address, number of family members and grade. [FN240] Activity sections also requested that children provide preferences regarding products and activities. [FN241]

 

While the FTC declined to take action against KidsCom due to the site's modification of its information collection procedures, [FN242] the Commission used the opportunity to comment upon the informational privacy of children and to *1168 suggest steps to avoid potential, future law enforcement action. [FN243] The FTC defined personally identifiable information as including the child's name, e‑mail address, home address, and/or telephone number. [FN244] The Commission also identified parental consent and notice to parents regarding the intended use of the child's information as the linchpins of fair data collection practices. [FN245]

 

The second FTC enforcement action was brought in 1998 against GeoCities, a popular California‑based company known for providing such services as free e‑ mail accounts to over two million members, in addition to hosting and organizing members' personal home pages into "virtual neighborhoods." [FN246] Members under the age of thirteen, numbering 50,000, were encouraged to join the "Enchanted Forest," a community created especially for children. [FN247] Additionally, the "GeoKidz Club" allowed minor users to enter special online contests. [FN248] *1169 Registration for membership, as well as participation in each contest, required filling out online forms requesting additional personal information. [FN249]

 

Although their privacy policy stated that GeoCities would "NEVER give [a customer's] information to anyone without [her] permission," [FN250] the FTC alleged that in reality, GeoCities had sold, rented, or otherwise marketed or disclosed this information, including information collected from children, to third parties who ha[d] used this information for purposes other than those for which members [had] given permission. [FN251]

 

In addition, GeoCities characterized itself as the sole moderator of the Enchanted Forest, its accompanying promotions and its data collection practices. [FN252] According to the FTC, however, GeoCities played no part in these activities. [FN253] In fact, third parties directly collected and maintained the information gathered from child members. [FN254] The FTC deemed these acts unfair, deceptive and in violation of Section 5(a) of the Federal Trade Commission Act. [FN255]

 

Ultimately, GeoCities settled the matter with the FTC in a consent agreement reached in August of 1998, which ordered GeoCities to discontinue its misrepresentations regarding the collection and use of its members' personal information. [FN256] To comply with the order, GeoCities agreed to place a "clear and prominent" notice to customers on its Web site, explaining its procedures with respect to information collected online. [FN257] The order also prohibited the collection of information from a minor when GeoCities had actual knowledge of a lack of parental consent. [FN258] Thus, GeoCities is now required to obtain express permission *1170 from a child's parent before any personally identifiable information is collected. [FN259] GeoCities was given the flexibility to comply with this provision by alerting parents via e‑ mail and advising them how to grant consent if they so choose. [FN260] Information already obtained from minors, prior to the order, was to be deleted unless the parent affirmatively gave permission for its continued retention and use. [FN261] In addition, the agreement required GeoCities to request that third parties, to which information was previously disclosed, delete such information. [FN262]

 

Most recently, the FTC lodged a complaint against Liberty Financial Companies, Inc. (Liberty Financial), a Massachusetts asset management corporation, for its deceptive practices in gathering information from children. [FN263] Liberty Financial invited minors to complete its "Young Investor Measure Up Survey." [FN264] In addition to eliciting the child's name and e‑mail address, the survey requested financial information including the amount of the child's weekly allowance, the typesof financial gifts the child received (e.g. stocks, bonds and mutual funds), spending habits, plans for college, and family finances. [FN265] In exchange for this information, the child was promised an e‑mail newsletter. [FN266] Participants were further urged to register for a quarterly drawing to win a prize. [FN267]

 

Three misrepresentations were cited by the Commission's complaint. First, Liberty Financial had claimed that any data obtained would remain "totally anonymous," meaning that it would be impossible to determine who had provided *1171 what information. [FN268] All data collected, however, were stored in one central database. [FN269] Thus, responses to the "Young Investor Measure Up Survey" could, in fact, be connected to the names and e‑ mail addresses of those who had provided the information. [FN270] Second, no e‑mail newsletter was ever sent to the survey participants as promised. [FN271] Lastly, no prizes were ever distributed in conjunction with the quarterly drawings. [FN272] In fact, there was no evidence that the drawings ever took place. [FN273]

 

Liberty Financial agreed to a consent order similar to that of GeoCities. [FN274] The order prohibited Liberty Financial from making future misrepresentations regarding their data collection and maintenance practices for children under the age of eighteen. [FN275] As in the GeoCities matter, when actual knowledge exists that a child under the age of thirteen does not have a parent's consent to supply personal information, such information may not be collected. [FN276] In addition, any *1172 information collected from minors prior to the agreement must be deleted. [FN277] Finally, a "clear and prominent" statement of the Web site's privacy policy must be displayed in areas directed at children. [FN278] This statement must include "what information is collected, its intended uses, to whom it will be disclosed, and the means by which a parent can access and remove the information that has been collected." [FN279]

 

Dissatisfied with the online business community's attempts toward self‑ regulation, Congress enacted the Children's Online Privacy Protection Act of 1998 (COPPA). [FN280] The COPPA seeks to protect children under the age of thirteen from unfair and deceptive conduct in the collection of personally identifiable information over the Internet. [FN281] It codifies the "actual knowledge" standard, as articulated by the FTC in its opinions regarding KidsCom, GeoCities and Liberty Financial. [FN282] Thus, when a general‑ audience Web site attempts to collect information from a minor and actual knowledge exists that the parent has not granted consent, such collection is impermissible. [FN283] Finally, the COPPA directs the FTC to promulgate regulations implementing the Act. [FN284]

 

One year later, on October 20, 1999, the FTC released its final version of the rule implementing the COPPA. [FN285] The COPPA Rule is scheduled to take effect *1173 on April 21, 2000, thereby giving Web site operators six months to comply. [FN286] Five general requirements of Web sites or online services directed to children are outlined. According to the COPPA Rule, an operator [FN287] must:

 

(a) Provide notice on the website or online service of what information it collects from children, how it uses such information, and its disclosure practices for such information; [FN288]

 

(b) Obtain verifiable parental consent prior to any collection, use, and/or disclosure of personal information from children; [FN289]

 

(c) Provide a reasonable means for a parent to review the personal information collected from a child and to refuse to permit its further use or maintenance; [FN290]

 

(d) Not condition a child's participation in a game, the offering of a prize, or another activity on the child disclosing more personal information than is reasonably necessary to participate in such activity; [FN291] and

 

(e) Establish and maintain reasonable procedures to protect the confidentiality, security, and integrity of personal information collected from children. [FN292]

 

The COPPA Rule provides for a "sliding scale" approach to verifiable parental consent which will sunset in April of 2002, two years after its effective date. [FN293] Under this approach, the amount of information collected, and the use of such information, will determine the level of permission required. [FN294] If a child *1174 wishes to take part in a chat room discussion or other activity involving disclosures, a more reliable method of consent will be required, including credit card or print‑and‑send verification. [FN295] If, on the other hand, information will be used only internally, an e‑mail from the parent will suffice to signify consent as long as the operator can verify that the e‑mail was not falsified. [FN296]

 

The COPPA Rule does carve out a few exceptions, however, to allow children to communicate without parental consent. [FN297] Children may, for example, send questions via e‑mail to online companies and enroll to receive e‑mailed newsletters. [FN298] In addition, Web sites offering chat rooms may avoid the verifiable parental consent requirement by adopting a practice of removing all personal information from the postings of a minor and deleting such information from the site's databases. [FN299] These exceptions will allow a child to utilize the interactive capabilities of the Internet while at the same time avoiding exploitation.

 

The COPPA Rule further provides a safe harbor for operators who adopt approved self‑regulatory guidelines. [FN300] TRUSTe and BBBOnline (R) are the most publicized independent self‑regulatory programs that might qualify for safe harbor status. TRUSTe is a non‑profit organization that has worked since 1996 to become one of the pre‑eminent "seals of approval" for Web site privacy policies. [FN301] Sites that comply with TRUSTe's privacy principles are licensed to display *1175 a "trustmark," [FN302] which links directly to that Web site's privacy statement. [FN303] If a Web site is geared towards children under thirteen, the site must also meet TRUSTe's seal requirements for children. [FN304] Generally, these requirements mirror those of the COPPA Rule, demanding notice of privacy policies, the ability to access personal information and verifiable parental consent before the collection and/or distribution of a minor's data. [FN305] TRUSTe's program is slightly stricter than the COPPA Rule, however, in that it also prohibits the offline collection of identifiable information from children without prior verifiable parental consent. [FN306] Monitoring its licensees through periodic reviews, TRUSTe also provides consumers with a resolution process in the event that a licensee violates its posted privacy policy. [FN307] Microsoft (R), AOL (R), eBay (R) and Yahoo! (R) are listed as some Web publishers meeting TRUSTe's standards. [FN308]

 

BBBOnline (R) is a competitor program launched in March of 1999 by the Council of Better Business Bureaus. [FN309] Like TRUSTe, licensees of BBBOnline (R) to display the BBBOnline (R) privacy seal. [FN310] To display the BBBOnline (R) Kid's Privacy seal, sites designed for children under thirteen, and those which collect information from minors known to *1176 be under thirteen, must also file a separate Children's Supplemental Assessment Questionnaire. [FN311] In addition to random, surprise audits of its licensees' Web sites, the seal program further requires participants to adhere to the BBBOnline (R) Dispute Resolution Policy and abide by the decisions reached. [FN312] As of September 1999, however, only two of the eight claims received [FN313] have been found eligible for review. [FN314]

 

Both the BBBOnline (R) and TRUSTe programs are gaining influence in the industry. [FN315] Nevertheless, neither safeguard company has the ability to punish violators beyond removing the right to display their seals. [FN316] For example, the *1177 purpose of BBBOnline (R)'s Privacy Policy Review Service in its Dispute Resolution Process is "for determining the eligibility of a complaint and evaluating, investigating, analyzing, and making a decision on the merits of an eligible complaint." [FN317] However, privacy violations under the BBBOnline (R) regimen must be reported to the FTC to initiate any legal action. [FN318] The same holds true for TRUSTe's program. [FN319] In addition, at least one industry expert has expressed concern that the seal programs won't be completely understood by consumers and will only serve to provide a "false sense of consumer security . . . tend[ing] to raise a false expectation of privacy." [FN320]

 

The use of filtering software may enable the consumer to take a more active role in the protection of her informational privacy. Currently under development is the Platform for Privacy Preferences, better known as P3P, [FN321] a project of the World Wide Web Consortium (W3C). [FN322] P3P would allow users to specify and automate their desired privacy policies. [FN323] It would then identify Web sites having policies matching the preferences of the user, thereby availing users of sifting through endless privacy statements in search of those conforming to the *1178 user's wishes. [FN324] Furthermore, with the installation of P3P, parents may determine, in advance, how much information their children may disclose to Web sites, as well as how much information Web sites may disclose, if any, to third parties. [FN325]

 

A P3P‑compatible Web browser would be necessary to enjoy the benefits of P3P. [FN326] More importantly, Web sites would have to incorporate P3P specifications into their sites. [FN327] For this purpose, AT&T has developed a Proposal Generator based on the W3C's latest working draft, which would allow Web site operators the ability to easily generate a privacy statement in P3P code. [FN328]

 

A 1999 two‑week survey conducted by the Center for Media Education (CME) demonstrates that while the most‑visited children's Web sites are improving their informational privacy practices, others are not taking the concerns seriously. The CME reviewed 155 Web sites, consisting of a random sampling of seventy‑five sites and a second sample of eighty of the most popular children's sites. [FN329] The random sample revealed that ninety‑five percent (seventy‑one sites) collected personally identifiable information from children. [FN330] Of those, less than six percent attempted to obtain any kind of consent from parents, and only twenty‑seven percent posted a privacy policy. [FN331] The sample of popular children's Web sites fared slightly better. Of the eighty sites observed, eighty‑eight percent (seventy sites) were found to collect information from minors. [FN332] Of those seventy sites, less than twenty‑six percent (eighteen sites) attempted to obtain parental consent, but almost three‑quarters (fifty‑two sites) posted a privacy policy. [FN333] When compared with the 1997 and 1998 FTC surveys*1179 the progress is significant. Still, there is much room for improvement.

 

IV. CONCLUSION

 

Governing the Internet has proven to be no easy matter. While the intentions of legislators may be noble, their solutions are short‑sited. Congress has jumped too quickly in attempting to net the Net before its potential has been fully realized. Former Representative Rick White of Washington, who before losing his re‑election bid was known as one of the most "Net‑friendly" legislators in the House of Representatives, [FN334] has noted that Congress' view is too high‑level. [FN335] Because members of Congress have to know a little information about many topics, it is impossible for them to fully understand the intricacies of that which they seek to regulate. [FN336]

 

For example, despite improvements over its predecessor, the Children's Online Protection Act ("COPA") [FN337] will likely meet the same fate as that of the Communications Decency Act ("CDA"). [FN338] The Third Circuit will most likely find that the COPA suffers from many of the same problems as the CDA, thereby affirming the ruling of Judge Reed, of the Eastern District of Pennsylvania, that the COPA is unconstitutional because it still unduly burdens protected speech. [FN339]

 

Additionally, methods of adult verification called for by the COPA are prohibitively expensive. Therefore, potential speakers will be deterred from publishing questionable material on the Web. By the same token, adult users may be deterred from accessing information behind verification walls due to their desire to keep credit card numbers or other required information confidential. Moreover, the COPA only applies to commercial Web sites. [FN340] Since non‑commercial, as well as foreign‑based, sites will not fall under the scope of the Act, the COPA will prove to be an ineffective method by which to protect minors from harmful *1180 materials. Furthermore, the COPA is not the least restrictive means available. Tools empowering parents to filter out material that they find objectionable on their own computers may better serve the needs of families without government intervention. Finally, the COPA does not specify which community's standards would apply in deciding whether material is harmful to minors. [FN341] During oral arguments, the Third Circuit voiced concern over the implications of international transmissions imposing United States values on foreign countries or vice versa. [FN342]

 

Aside from being unconstitutional, the COPA, as with any Internet legislation at the national level, "fails to recognize the international nature of the Internet and electronic commerce." [FN343] In his statement to Congress regarding the COPA, Representative White asserted that it would "breed a false sense of security" in American Internet users because, in practice, it would not cover commercial sites residing internationally. [FN344] Additionally, he surmised that the bill as written might "lock us into the wrong technology [for shielding minors from exposure to sexually explicit materials], technology that is obsolete and will not do as good a job as technology that might come along in the future." [FN345]

 

Mandating filters on public library and school computers is an issue that will undoubtedly continue to cause controversy. The Mainstream Loudoun [FN346] decision *1181 was just the first step in attempting to determine how best to protect children using federally funded Internet access. [FN347] Kathleen R.'s appeal [FN348] will likely be dismissed, as were her first two attempts at a court‑ordered filtering policy because, although she has presented an imaginative cause of action, the Fourteenth Amendment [FN349] simply does not apply in Kathleen R.'s case. A library's decision not to install filters onto its computers does not constitute a state action violating the rights of its patrons as prohibited by the Fourteen Amendment. [FN350] Even conservative groups seem opposed to obligating public libraries and schools to install filtering software. [FN351] A letter written to Representative Thomas Bliley, Chairman of the House Commerce Committee, reflects the view of fourteen such groups [FN352] concerned about the implications of the Istook Amendment. [FN353] While the letter "applaud[s] Mr. Istook for his moral concern over this issue," [FN354] it states that private industry is better equipped to cope with the situation at a local level and, in fact, the Internet community has already begun to implement*1182 procedures to protect children online. [FN355]

 

Interestingly, while the government has introduced a proliferation of bills mandating policies to curb indecency on the Internet, its solution to the issue of protecting children's privacy was the result of compromise with the industry. The Children's Online Privacy Protection Act [FN356] and its accompanying FTC Rule [FN357] have been lauded by privacy groups and industry insiders alike. [FN358] Why the difference in strategy? It might be true that the sight of a nude woman in a suggestive pose has a more direct and immediate impact on a child's well being than the misuse of the same child's private information. Perhaps the more likely explanation, however, is that the government finds it more important to foster a robust online marketplace rather than a robust marketplace of ideas. The approach taken in formulating the COPPA Rule could be emulated in regulating sexually explicit material on the Web. A little bit of legislation can go a long way. [FN359] Too much legislation can be stifling.

 

An important outgrowth of the effort to protect children online is recognizing how the safeguards implemented will hinder their freedom of speech. While the First Amendment rights of children are not "co‑extensive with those of adults," [FN360] children should not be hindered in their use and enjoyment of the Internet. The COPPA Rule commands that Web sites, which require children to register, obtain verifiable parental consent before such information is collected. [FN361] Silence is therefore not enough. Parents must affirmatively express their permission before a child can register and enjoy Web site offerings including *1183 chat capabilities. [FN362] However, children may decide to surf away rather than take the time to get the permission necessary for them to gain access to the Web site. Children are thereby denied the opportunity to view whatever unique information may be presented on the Web. Additionally, children may want to access material without alerting their parents, especially when the information sought is of such a private nature that, due to fear or possibly embarrassment, children do not want their parents to know.

 

Children under the age of thirteen are part of a generation that will not remember life before the World Wide Web. Similar to those born after the advent of the telephone, who cannot imagine an existence without the ability to communicate with family and friends by simply picking up a handset and dialing, the children of today will be accustomed to immediate communication through e‑ mail and instant messaging. Their development and future success will no doubt be dependent upon their ability to utilize these ever‑evolving new technologies. Additionally, the wealth of information to which children have access today is far broader than any set of encyclopedia that parents of yesterday might have bought for their children. An understanding of the possibilities awaiting them on the Internet will enrich a child's learning experience and create a desire for knowledge.

 

Steps taken to protect children from sexually explicit material, as well as from exploitation of their informational privacy may, in the long run, hinder their ability to receive information and use the Internet to its fullest capacity. Parental supervision is still the most effective method in overseeing a child's Internet use, [FN363] but parents cannot always be present. Thus, future guidelines and legislation should recognize that in the process of protecting the privacy and safety of children, any interference with their right and ability to communicate should be carefully avoided.

 

[FN1]. See CyberAtlas, Internet Becoming a Daily Essential (last modified Apr. 7, 1999) <http://cyberatlas.internet.com/big_ picture/demographics/article/0,1323,5901_150321,00.html> (citing Strategis study estimating the number of Internet users as more than one hundred million).

 

[FN2]. See The Strategis Group, U.S. Internet Breaks The 100 Million Mark (visited Jan. 17, 2000) <http://www.strategisgroup.com/press/pubs/iut99.html>.

 

[FN3]. CyberAtlas, supra note 1 (quoting Jeff Moore, a Strategis Internet Consultant).

 

[FN4]. 47 U.S.C.A. 231 (West 1999) [hereinafter "COPA" ].

 

[FN5]. 15 U.S.C.A. 6501‑6506 (West 1999) [hereinafter "COPPA" ].

 

[FN6]. 16 C.F.R. 312 (1999) [hereinafter "COPPA Rule" ].

 

[FN7]. A top level domain (TLD) is made up of the letters coming after the "dot" in a domain name. See Heather N. Mewes, Memorandum of Understanding on the Generic Top‑Level Domain Name Space of the Internet Domain Name System, 13 Berk. T. L.J. 235, 236 (1998). Examples include ".com" and ".net." See id. In Brittany's case, ".gov" would have been the appropriate TLD signifying a government Web site. Brittany instead typed in ".com", which took her to a commercial Web site.

 

[FN8]. See WhiteHouse.com (visited Jan. 20, 2000) <http:// www.whitehouse.com>.

 

[FN9]. Id.

 

[FN10]. WhiteHouse.com, First Ladies (visited Jan. 20, 2000) <http:// www.whitehouse.com/tour1_ladies.html>.

 

[FN11]. See Yahoo! Search Engine (visited Jan. 20, 2000) <http:// www.yahoo.com/>.

 

[FN12]. American Civil Liberties Union ("ACLU") v. Reno, 929 F.Supp. 824, 842 (E.D. Pa. 1996).

 

[FN13]. See Sarah E. Warren, Filtering Sexual material on the Internet: Public Libraries Surf the Legal Morass, 73 Fla. B. J. 52, 53 (Oct. 1999) (quoting Jeannette Allis Bastian, Filtering the Internet in American Public Libraries: Sliding Down the Slippery Slope, First Monday Internet Journal (1997)). Ms. Bastian remarked, "[c]an and should the Internet be censored by filtering is a question bedeviling thousands of public librarians who have rushed to embrace this seemingly limitless and economical information source only to find that it includes a distinctly dark and dirty side." Id.

 

[FN14]. U.S. Const. amend. I (providing "Congress shall make no law... abridging the freedom of speech").

 

[FN15]. See Schenck v. U.S., 249 U.S. 47 (1919) (stating that not all speech is constitutionally protected); see also New York v. Ferber, 458 U.S. 747 (1982) (holding that child pornography, even if not legally obscene, is nevertheless unprotected speech); Brandenburg v. Ohio, 395 U.S. 444 (1969) (concluding that language directed at inciting imminent illegal conduct, which is likely to produce such conduct does not fall under First Amendment protection); New York Times v. Sullivan, 376 U.S. 254 (1964) (deciding that defamatory statements made with knowing or reckless falsity are afforded no constitutional protection); Roth v. U.S., 354 U.S. 476 (1957) (stating that obscenity is not within the area of constitutionally protected speech); Chaplinsky v. New Hampshire, 315 U.S. 568 (1942) (finding that fighting words are not protected under the First Amendment).

 

[FN16]. See Kleindeinst v. Mandel, 408 U.S. 753, 775 (1972) (Marshall, J., dissenting) (arguing that the First Amendment forbids the federal government from denying American citizens the opportunity to hear even the words of one with whose political views the Government disapproves); Stanley v. Georgia, 394 U.S. 557, 565 (1969) (opining that "[i]f the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch"); Griswold v. Connecticut, 381 U.S. 479, 482 (1955) ("The right of freedom of speech and press includes not only the right to utter or to print, but the right to distribute, the right to receive, the right to read... ").

 

[FN17]. Generally, categories of expression will be deemed unprotected if they "are of no essential part of any exposition of ideas [and] of... slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality." Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942).

 

[FN18]. See Warren supra note 13 and accompanying text. Regulation directed at the communicative impact of an expression requires a court to first determine whether the speech is protected or unprotected. If protected, the regulation is presumed unconstitutional and a strict scrutiny analysis is applied. The regulation will be sustained only if it serves a compelling government interest and is necessary in that it is narrowly tailored to achieve that objective. See Widmar v. Vincent, 454 U.S. 263, 269‑70 (1981) (finding that legislative acts limiting unprotected expression are subject to a lower level of scrutiny); but see R.A.V. v. City of St. Paul, 505 U.S. 377, 382‑ 84 (1992) (holding that while the government may proscribe unprotected speech, disagreement with the viewpoint of such speech is not a valid motive for doing so).

 

[FN19]. See Roth, 354 U.S. at 484 (stating that "implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance"); see also Miller v. California, 413 U.S. 15, 20 (1973) (refining the obscenity standard to the definition used today); Chaplinsky, 315 U.S. at 571‑72 (noting in dicta that the "prevention and punishment" of "lewd and obscene" expression does not violate the First Amendment).

 

[FN20]. 352 U.S. 380 (1957).

 

[FN21]. See id.

 

[FN22]. Id. at 381.

 

[FN23]. See id. at 382.

 

[FN24]. See id. at 383.

 

[FN25]. See Butler, 352 U.S. at 383.

 

[FN26]. 390 U.S. 629 (1968).

 

[FN27]. See id. at 637. The statute defined "harmful to minors" as:

... that quality of any description or representation, in whatever form, of nudity, sexual conduct, sexual excitement, or sado‑masochistic abuse, when it:

(a) Considered as a whole, appeals to the prurient interest in sex of minors; and

(b) Is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material for minors; and

(c) Considered as a whole, lacks serious literary, artistic, political and scientific value for minors.

N.Y. Penal Law 235.20 (McKinney 1999).

 

[FN28]. See Ginsberg, 390 U.S. at 639‑40.

 

[FN29]. See id. at 634.

 

[FN30]. See id.

 

[FN31]. 438 U.S. 726 (1978).

 

[FN32]. The Court defined "indecent" as that language not conforming to generally held standards of morality, but not necessarily appealing to a prurient interest. See id. at 740.

 

[FN33]. See FCC v. Pacifica Found., 438 U.S. 726 (1978).

 

[FN34]. See id. at 729‑30.

 

[FN35]. See id.

 

[FN36]. See id. at 731.

 

[FN37]. The broadcasting spectrum is limited. See id. at 731 n.2. Only a certain number of broadcasters may occupy the airwaves and use them to reach listeners. See id. Thus, the government may allocate the spectrum through licenses to those who are deemed to serve the public interest. See id. See also Red Lion Broad., Co. v. FCC, 395 U.S. 367, 394 (1969) (determining that the FCC's practice of licensing broadcasters for the public interest was consistent with the First Amendment due to spectrum scarcity).

 

[FN38]. See Pacifica, 438 U.S. at 731.

 

[FN39]. See Cohen v. California, 403 U.S. 15, 21 (1971) (holding that the proscription of speech is unwarranted where unwilling viewers or listeners may "avert[ ] their eyes" from the offensive material).

 

[FN40]. See Pacifica, 438 U.S. at 732.

 

[FN41]. See id. at 731 n.2.

 

[FN42]. See e.g., Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 637‑41 (1994) (finding that cable broadcasts should receive the full constitutional protection of the First Amendment).

 

[FN43]. 518 U.S. 727 (1996) (plurality opinion).

 

[FN44]. Id. at 743

 

[FN45]. See id. at 748.

 

[FN46]. See id. at 783 (Kennedy, J., concurring and dissenting in part).

 

[FN47]. See id. (Kennedy, J., concurring and dissenting in part).

 

[FN48]. See Sable Communs. of Cal., Inc. v. FCC, 492 U.S. 115 (1989).

 

[FN49]. See id. at 126.

 

[FN50]. See id.

 

[FN51]. See id.

 

[FN52]. See id. at 128. One must affirmatively pick up the phone and dial in order to receive the indecent messages with "dial‑a‑porn," whereas a radio broadcast may invade a listener's home without warning. See id.

 

[FN53]. See id. at 126.

 

[FN54]. The Internet is not based on a limited broadcast spectrum and therefore, does not require allocation by the government. Anyone with a computer and an imagination may set up a home page and make her ideas available to the masses.

 

[FN55]. See ACLU v. Reno, 929 F.Supp 824, 844 (E.D. Pa. 1996).

 

[FN56]. See id. at 845.

 

[FN57]. 47 U.S.C.A. 223 (Supp. II 1996) (repealed 1997).

 

[FN58]. See Pub. L. No. 104‑104, 110 Stat. 56 (codified as amended in scattered sections of 47 U.S.C. and 15 U.S.C.).

 

[FN59]. 47 U.S.C.A. 223(a) (1) (B).

 

[FN60]. 47 U.S.C.A. 223(d) (1) (B).

 

[FN61]. 47 U.S.C.A. 223(e) (5) (A).

 

[FN62]. 47 U.S.C.A. 223(e) (5) (B).

 

[FN63]. Dan L. Burk, Panel I: Direct/Government Regulation of the Internet, 15 N.Y.L. Sch. J. Hum. Rts. 1, 56 (1998).

 

[FN64]. ACLU v. Reno, 929 F.Supp. 824, 857 (E.D. Pa. 1997).

 

[FN65]. See Reno v. ACLU, 521 U.S. 844, 864 (1997).

 

[FN66]. See id. at 883.

 

[FN67]. See id. at 870‑71.

 

[FN68]. Id.

 

[FN69]. Id. at 875.

 

[FN70]. See id. at 875.

 

[FN71]. See Reno, 521 U.S. at 876.

 

[FN72]. A commercial speaker is one who publishes for a profit. As written, the CDA made liable all non‑profit Web publishers, including individuals. See id. at 877.

 

[FN73]. See id. at 876‑77.

 

[FN74]. See id.

 

[FN75]. See id.

 

[FN76]. See Reno, 521 U.S. at 876‑77.

 

[FN77]. 47 U.S.C.A. 231 (West 1999).

 

[FN78]. The plaintiffs included Androgyny Books, Inc. d/b/a/ A Different Light Book Stores, American Booksellers Foundation for Free Expression, Artnet Worldwide Corporation, Blackstripe, Addazi Inc., d/b/a Condomania, Electronic Frontier Foundation, Electronic Privacy Information Center, Free Speech Media, Internet Content Coalition, OBGYN.net, Philadelphia Gay News, Planetout Corporation, Powell's Bookstore, Riotgrrl, Salon Internet, Inc. and West Stock, Inc. See Reno v. ACLU, 521 U.S. 844, 864 (1997).

 

[FN79]. ACLU v. Reno, 1998 WL 813423, 3 (E.D.Pa. 1998).

 

[FN80]. Id. at 3‑4.

 

[FN81]. See ACLU v. Reno, 31 F.Supp.2d 473, 498‑99 (E.D.Pa. 1999).

 

[FN82]. See COPA, 47 U.S.C.A. 231(a) (1). COPA defines "harmful to minors" as:

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.

47 U.S.C.A. 231 (e) (6).

 

[FN83]. Id. The COPA defines "commercial purposes" as:

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.

47 U.S.C.A. 231(e) (2) (A).The COPA defines "engaged in the business" as:

... 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.

47 U.S.C.A. 231(e) (2) (B).

 

[FN84]. See 47 U.S.C.A. 231(b).

 

[FN85]. See 47 U.S.C.A. 231(a) (1) ‑ (3).

 

[FN86]. See 47 U.S.C.A. 231(c) (1) ‑ (3).

 

[FN87]. See COPA, 47 U.S.C.A. 231(c) (1) ‑ (3); see also CDA, 47 U.S.C.A. 223(e) (5) (A) (Supp. II 1996) (repealed 1997).

 

[FN88]. See ACLU v. Reno, 31 F.Supp.2d 473, 498 (E.D.Pa. 1999).

 

[FN89]. 969 F.Supp. 160 (S.D.N.Y. 1997).

 

[FN90]. See id. at 163. An individual was in violation of the law when:

Knowing the character and content of the communication which, in whole or in part, depicts actual or simulated nudity, sexual conduct or sadomasochistic abuse, and which is harmful to minors, [to] intentionally use any computer communication system allowing the input, output, examination or transfer, of computer data or computer programs from one computer to another, to initiate or engage in such communication with a person who is a minor.

Id. at 163 (citing challenged amendment to N.Y. Penal Law 235.21 (McKinney 1999)).

 

[FN91]. See U.S. Const. art. I, 8, cl. 3 (granting Congress the power "[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes"). Congress' power to regulate interstate commerce pre‑ empts the ability of the individual States to do so.

 

[FN92]. See Pataki, 969 F.Supp. at 169.

 

[FN93]. See id. The court defined interstate communications via the Internet as commerce for purposes of the Commerce Clause. See id. at 173.

 

[FN94]. See id. (explaining that the statute, in attempting to enforce New York law upon communications originating outside of New York, subjected Internet users to "inconsistent regulations," thereby burdening interstate commerce).

 

[FN95]. See id. at 182. "The Internet, like... rail and highway traffic..., requires a cohesive national scheme of regulation so that users are reasonably able to determine their obligations." Id.

 

[FN96]. See ACLU v. Johnson, 194 F.3d 1149, 1152 (10th Cir. 1999).

 

[FN97]. See id.

 

[FN98]. See id. at 1160.

 

[FN99]. Id. at 1162; see also Am. Library Ass'n ("ALA") v. Pataki, 969 F.Supp. 160, 179 (S.D.N.Y. 1997).

 

[FN100]. See Bd. of Educ. v. Pico, 457 U.S. 853, 866 (1982) (holding that "the State may not, consistently with the spirit of the First Amendment, contract the spectrum of available knowledge").

 

[FN101]. See American Library Association/OITP, The 1998 National Survey of U.S. Public Library Outlet Internet Connectivity (1998) (last modified Oct. 22, 1999) <http://www.ala.org/oitp/survey98.html>.

 

[FN102]. See ALA, Access to Electronic Information, Services, and Networks: an Interpretation of the Library Bill of Rights (last modified Nov. 11, 1999) < http://www.ala.org/alaorg/oif/electacc.html> (adopted by the ALA Council Jan. 24, 1996).

 

[FN103]. Article V of the Library Bill of Rights provides "[a] person's right to use a library should not be denied or abridged because of origin, age, background, or views." ALA, Library Bill of Rights of the American Library Association (visited Jan. 22, 2000) <http://www.ala.org/work/freedom/lbr.html>.

 

[FN104]. In loco parentis is defined as "in the place of a parent; charged, factitiously, with a parent's rights, duties, and responsibilities." Black's Law Dictionary 708 (6th ed. 1991).

 

[FN105]. See ALA, Access for Children and Young People to Videotapes and Other Nonprint Formats (visited Jan. 22, 2000) <http:// www.ala.org/alaorg/oif/acc_chil.html>.

 

[FN106]. See Warren, supra note 13, at 53 (stating that as of the summer of 1998, fifteen percent, or 1,700 libraries, used filtering software, and of those, over half had filters on all of their computers).

 

[FN107]. See PeaceFire, Blocking Software FAQ (visited Jan. 20, 2000) < http://www.peacefire.com/info/blocking‑software‑faq.html>.

 

[FN108]. See id.

 

[FN109]. See id.

 

[FN110]. By trial and error, PeaceFire has come up with a list of sites which are, or were at one time, blocked by filtering software. Under Cyber Patrol, for example, Web sites for Planned Parenthood and freedom of expression advocates, as well as newsgroups discussing atheism and feminism, are listed as blocked. See PeaceFire, Cyber Patrol Examined (visited Jan. 22, 2000) <http:// www.peacefire.com/censorware/Cyber_Patrol/>.

 

[FN111]. 24 F.Supp.2d 552, 556 (E.D. Va. 1998).

 

[FN112]. Id.

 

[FN113]. See id. at 570.

 

[FN114]. See id. at 564.

 

[FN115]. See id. A law that regulates the activity of speaking for reasons other than the speech's content is considered "content‑neutral." See City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 47 (1986). It is less offensive to the First Amendment because the law does not seek to restrict or limit the idea expressed, and therefore must meet a lower level of scrutiny than a "content‑based" regulation. See id. In order to be constitutional, a law must serve a significant government interest (as opposed to compelling), be narrowly tailored to achieve such interest and leave open alternative channels by which information may be communicated. See id.

 

[FN116]. Mainstream Loudoun, 24 F.Supp.2d at 564.

 

[FN117]. See id.

 

[FN118]. See id. at 565‑66. Defendants cited only one complaint in another library in Virginia, and three other complaints in libraries nationwide. See id. In the Loudoun County Library, no incidents had been reported by either the library employees or library patrons of inappropriate Internet use. See id.

 

[FN119]. See id.

 

[FN120]. See id. at 567.

 

[FN121]. See Mainstream Loudoun, 24 F.Supp.2d at 569.

 

[FN122]. See id.

 

[FN123]. Id.

 

[FN124]. Id. at 570 (quoting Mainstream Loudoun v. Board of Trustees of the Loudoun County Library, 2 F.Supp.2d 783, 797 n.25 (1998) (citing Lamont v. Postmaster General, 381 U.S. 301, 307 (1965))).

 

[FN125]. See id.

 

[FN126]. See id.

 

[FN127]. See id.

 

[FN128]. See 2 Andrews Telecomm. Indus. Litig. Rep. 16 (June 1999) (citing Mainstream Loudoun v. Board of Trustees of the Loudoun County Library, No. 97‑2049‑A (E.D. Va., Alexandria Div., Apr. 19, 1999 vote)).

 

[FN129]. See Michael Schuyler, Porn Alley: Now at Your Local Public Library, 19 Cptr. Lib. 32 (1999).

 

[FN130]. See id. (asking for volunteers to involve themselves in a case that would settle the issue).

 

[FN131]. See Kathleen R. v. City of Livermore, Plaintiff's Complaint, PP 1‑14 (May 28, 1998) available at <http://www.filteringfacts.org/liv‑comp.htm>.

 

[FN132]. See id. PP 28‑30.

 

[FN133]. See Janet Kornblum, Library Filtering Suit Dismissed, C‑Net News.com, Oct. 21, 1998 <http://news.cnet.com/category/0‑1005‑200‑334499.html>; see also Pub. L. No. 104‑104, 110 Stat. 137 (codified at 47 U.S.C. 230(c) (1) (2000)).

 

[FN134]. See Janet Kornblum, Library Net access under renewed attack, C‑Net News.com, Jan. 4, 1999 <http://news.cnet.com/category/0‑1005‑200‑336932.html>.

 

[FN135]. Id.

 

[FN136]. See ACLU, Court Upholds Livermore Library's Uncensored Internet Access Policy (last modified Jan. 14, 1999) <http:// aclu.org/news/1999/n011499a.html>.

 

[FN137]. See Kathleen R. v. City of Livermore, No. A086349 (Cal. Ct. App. filed July 16, 1999).

 

[FN138]. See S.97, 106th Cong. (1999).

 

[FN139]. See id.

 

[FN140]. See Karen MacPherson, Compromise in the Works for Children's Internet Access, Pittsburgh Post Gazette, Nov. 14, 1999, at A12.

 

[FN141]. See Childrens' Internet Protection Act, H.R.896, 106th Cong. (1999).

 

[FN142]. See S.1545, 106th Cong. (1999).

 

[FN143]. See id.

 

[FN144]. See id.

 

[FN145]. See Child Protection Act of 1999, H.R. 2560, 106th Cong. (1999).

 

[FN146]. Id.

 

[FN147]. See ALA, Capitol Hill Rally Urges Rapid E‑Rate Implementation, American Libraries (July 27, 1998) (quoting Illinois Representative Bobby Rush) (available on the ALA Web site at http:// www.ala.org/alonline/news/1998/980727.html).

 

[FN148]. See Internet Content Update: Recent Legislative Actions, ALAWON (ALA, Washington, D.C.), Aug. 13, 1999 (available on the ALA Web site at http://www.ala.org/washoff/alawon/alwn8082.html).

 

[FN149]. See id.

 

[FN150]. See Mainstream Loudoun v. Board of Trustees of the Loudoun County Library, 24 F.Supp.2d 552 (E.D. Va. 1998).

 

[FN151]. See supra notes 138, 141, 145.

 

[FN152]. See Ann Beeson, Symposium, 15 N.Y. L. Sch. J. Hum. Rts. 1, 46‑ 47 (1998).

 

[FN153]. See id.

 

[FN154]. See id.

 

[FN155]. See Warren, supra note 13, at 55; see also Mainstream Loudoun, 24 F.Supp.2d at 565 (recalling that the only incident of complaint in a Virginia library was remedied by installing privacy screens which, according to the librarian, "work[ed] great").

 

[FN156]. See Warren, supra note 13, at 55.

 

[FN157]. See Anick Jesdanun, Libraries Caught in Internet Crossfire, Indianapolis Star, Dec. 11, 1999, at A19 (describing one such Michigan library).

 

[FN158]. Alta Vista, Family Filter Frequently Asked Questions (visited Jan. 22, 1999) <http://doc.altavista.com/help/search/family_help.shtml>. Alta Vista blocks "offensive images," chat rooms, information relating to drugs, tobacco, gambling, hate speech, sexual explicitness and violence, as well as those Web sites "deemed inappropriate by [their] editors." Id.

 

[FN159]. See W3C, Platform for Internet Content Selection (PICS), (visited Jan. 22, 2000) <http://www.w3.org/PICS/>.

 

[FN160]. R. Polk Wagner, Filters and the First Amendment, 83 Minn. L. Rev. 755, 764 (1999).

 

[FN161]. See id.

 

[FN162]. See id. at 767 (reporting that as of summer 1998, six self‑ rating systems had been developed as well as several third‑party PICS compatible ratings systems).

 

[FN163]. See id.

 

[FN164]. See id. at 765 (illustrating that one could create a personal ratings system which blocked out pieces by Rush Limbaugh).

 

[FN165]. See Wagner, supra note 160 at 762‑63, 765 (describing the problems associated with ratings systems).

 

[FN166]. See id.; see also Miller v. California, 413 U.S. 15, 40‑41 (1973) (Douglas, J., dissenting) (explaining that the determination of what is obscene deals with individually subjective tastes).

 

[FN167]. See Bertelsmann Foundation, Internet Content Summit (visited Jan. 22, 2000) <http://www.stiftung.bertelsmann.de/internetcontent/english/frameset_ home.htm>.

 

[FN168]. See id.

 

[FN169]. See id.

 

[FN170]. See Robert MacMillan, Munich Conference Worries Privacy Advocates, Newsbytes, Sept. 6, 1999.

 

[FN171]. See id. (quoting David Sobel of the Electronic Privacy Information Center ("EPIC")).

 

[FN172]. Frank James, Somebody's Watching You: Concerns About Privacy Issues Bridge the Political Divide in Washington, Greensboro News & Record, Oct. 31, 1999, at H1 (quoting Dierdre Mulligan, senior counsel for the Center for Democracy and Technology).

 

[FN173]. See id.

 

[FN174]. Groups supporting the individual's privacy rights include the Electronic Information Privacy Center ("EPIC") <http://www.epic.org>, the Center for Media and Education, ("CME") <http://www.cme.org> and the Center for Democracy and Technology ("CDT") <http://www.cdt.org>. Information gatherers such as DoubleClick <http://www.doubleclick.net>, which designs Internet advertising plans for companies wishing to reach Internet users, are on the other side of the spectrum.

 

[FN175]. See Griswold v. Connecticut, 381 U.S. 479, 484 (1965). The Court explained that "specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. Various guarantees create zones of privacy." Id.

 

[FN176]. See Paul v. Davis, 424 U.S. 693, 713 (1976). (identifying individual choices "relating to marriage, procreation, contraception, family relationships, and child rearing and education" as protected under a right to privacy); Loving v. Virginia, 388 U.S. 1, 12 (1967) (prohibiting the government's interference with an individual's right to marry); Griswold, 381 U.S. at 485‑86 (holding the right to marital privacy includes decisions regarding the use of contraceptives).

 

[FN177]. See Susan E. Gindin, Lost and Found in Cyberspace: Informational Privacy in the Age of the Internet, 34 San Diego L. Rev. 1153, 1185 (1997) (noting that no constitutional right to privacy of personal information has been found to exist either explicitly or implicitly).

 

[FN178]. 429 U.S. 589 (1977).

 

[FN179]. See id. at 605.

 

[FN180]. See id. at 605‑06.

 

[FN181]. 5 U.S.C. 552a (1999) (regulates collection and disclosure procedures regarding data of federal agencies).

 

[FN182]. 5 U.S.C. 552a (1999). An amendment to the Privacy Act, CMPAA establishes mechanisms to regulate the matching of personal information across federal databases. See id.

 

[FN183]. 5 U.S.C. 551 (1999). FOIA provides access to federal records, but precludes the disclosure of information constituting an unwarranted invasion of privacy such as medical files. See id.

 

[FN184]. See, e.g., Video Privacy Protection Act of 1988, 18 U.S.C. 2710‑2711 (1999); Right to Financial Privacy Act of 1978, 12 U.S.C. 3401‑3422 (1999).

 

[FN185]. See Elizabeth deGrazia Blumenfeld, Privacy Please: Will the Internet Industry Act to Protect Consumer Privacy Before the Government Steps In?, 54 Bus. Law. 349, 354 (1998). The article explained that "current federal privacy legislation takes an industry sectorial approach." Id. at 360. See also Maureen S. Dorney, Privacy and the Internet, 19 Hastings Comm. & Ent. L.J. 635, 642 (1997) (noting that laws regulate only "particular industries" within the private sector in the collection and use of personal information).

 

[FN186]. 15 U.S.C.A. 1681, 1681(a)‑(t) (West 1999); see also George B. Trubow, Protecting Informational Privacy in the Information Society, 10 N. Ill. U. L. Rev. 521, 531‑32 (1990) (discussing privacy protection in the private sector); Dorney, supra note 185, at 648.

 

[FN187]. 15 U.S.C. 1681b(a) (3) (F).

 

[FN188]. 15 U.S.C. 1681m(a) (1)‑(2).

 

[FN189]. Cal. Const. art I, 1 (stating "[a]ll people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy"); see also Ill. Const. art. I, 6, 12 (granting every person the right to be secure from invasions of privacy and also guaranteeing a remedy for such invasions).

 

[FN190]. See White v. Davis, 533 P.2d 222 (Cal. 1975) In seeking votes to pass the amendment, proponents of California's privacy initiative listed the objectives sought as:

... [preventing] government snooping and data collecting... [preventing] government and business interests from collecting and stockpiling unnecessary information about us and from misusing information gathered... [and providing] the ability to control circulation of personal information.

Id. at 233‑34.

 

[FN191]. See Hill v. NCAA, 865 P.2d 633, 644 (Cal. 1994) (en banc) (holding that the privacy amendment to the California State Constitution conferred upon individuals the right to bring invasion of privacy actions against private parties).

 

[FN192]. See William L. Prosser, Privacy, 48 Cal. L. Rev. 383, 389 (1960).

 

[FN193]. See Restatement (Second) of Torts 652B‑E (1977) (listing the causes of action associated with the invasion of one's privacy as (1) unreasonable intrusion upon the seclusion of another, (2) appropriation of another's name or likeness, (3) unreasonable publicity given to another's private life, and (4) publicity that unreasonably places another in a false light).Professor Samuel D. Warren and Justice Louis Brandeis are generally credited for first identifying a general right to privacy, which later led to Prosser's seminal work distinguishing the four privacy causes of action in tort. See Blumenfeld, supra note 185, at 349. Warren and Brandeis argued that technological innovations created a need to provide security of an individual's right "to be let alone," and that "[i]nstantaneous photographs and newspaper enterprise have invaded the sacred precincts of private and domestic life; and numerous mechanical devices threaten to make good the prediction that 'what is whispered in the closet shall be proclaimed from the house‑tops.' " Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193, 195 (1890).

 

[FN194]. Intrusion "upon the solitude or seclusion of another or his private affairs" protects an individual against the gathering of personal information without his consent. Restatement (Second) of Torts 652B (1977). The individual must not have voluntarily disclosed the information, and the intruder's conduct must be highly offensive to the reasonable person. See Restatement (Second) of Torts 652B cmt. c. "Misappropriation" protects the individual from the use of one's name or likeness by another for commercial gain without one's consent. Restatement (Second) of Torts 652C (1977). Generally, this tort is used by celebrities to prevent the unauthorized conversion of their names, images or voices. See, e.g., Midler v. Ford Motor Co., 849 F.2d 460 (9th Cir. 1988) (alleging misappropriation of Bette Midler's vocal style in a commercial for Ford when a "sound‑alike" was used). "Public disclosure of private facts" involves the dissemination of information highly offensive to the reasonable person. Restatement (Second) of Torts, 652D, cmt. c (1977). First Amendment free expression precludes this cause of action where such information is of a legitimate public concern. See id. Finally, the tort of "False Light" is triggered when a false representation is made to the general public subjecting the victim to ridicule and contempt, but not rising to the level of defamation. Restatement (Second) of Torts, 652E (1977).

 

[FN195]. George Orwell, Nineteen Eighty‑Four (Downtown Book Center 1966) (1949).

 

[FN196]. 515 U.S. 646 (1995). In Vernonia, the Supreme Court examined the Vernonia School District's program of randomly testing student athletes for drug use and created a three part test analyzing (1) the nature of the students' privacy interest, (2) the character of the intrusion, and (3) the nature and immediacy of the governmental concern, and the efficacy of the policy to address the problem. See id. at 654‑64. The majority found that the student athletes had a lower expectation of privacy in light of the element of communal undress associated with participation in sports and the voluntary nature of such participation. See id. at 657. Further, the Court opined that the character of the intrusion was "negligible" since the test as applied to all screened was designed to only detect drugs and the results were viewed only by certain school administrators. See id. at 658. Finally, the problem in Vernonia was an immediate crisis of "epidemic proportions." Id. at 662‑63. In implementing the drug testing program, the Vernonia School District had focused on the students it knew to be the source of the problem, the student athletes. See id. at 649‑50. The policy used to address the problem in Vernonia was therefore found to be effective in light of the nature and concern of the school. See id. at 664‑65.

 

[FN197]. 469 U.S. 325 (1985) (recognizing a student's Fourth Amendment right against unreasonable search and seizure in the context of a school setting, but finding that the search as conducted was reasonable).

 

[FN198]. See Vernonia, 515 U.S. at 653 (noting that certain settings demonstrate "special needs" and therefore do not require the Fourth Amendment formalities of probable cause and a search warrant). Due to the nature of an educational environment, courts have recognized schools as such a setting. See id. The role school administrators play as supervisors and tutors requires that they been given greater latitude in the dissemination of discipline. See id. Additionally, the constraints under which they work do not afford administrators adequate opportunity to retrieve a warrant. See id.

 

[FN199]. 390 U.S. 629, 639 (1968).

 

[FN200]. See id.; see also Meyer v. Nebraska, 262 U.S. 390, 399 (1923) (recognizing a liberty interest in child rearing).

 

[FN201]. 20 U.S.C. 1232g (1999) (giving the parents of minor students the right to inspect, correct and control the disclosure of educational information).

 

[FN202]. See The Privacy Exchange, Protecting Web Privacy (visited Jan. 4, 2000) <http://www.privacyexchange.org/tsi/webout.htm> (describing the methods in which personal information is given both knowingly and unknowingly).

 

[FN203]. See FTC, Staff Report: Public Workshop on Consumer Privacy on the Global Information Infrastructure IV.B. (Dec. 1996), available at <http:// www.ftc.gov/reports/privacy/privacy5.htm> [hereinafter "FTC Staff Report" ] (identifying the information collection practices of the Internet sites included in its survey).

 

[FN204]. See FTC, Privacy Online: A Report to Congress, II.B.1 n.4 (June 1998) [hereinafter "FTC, Privacy Online" ] (defining the "cookie" as used on the Web) (available on the Commission's Web site at http:// www.ftc.gov/reports/privacy3/priv‑23a.pdf).

'Cookie' technology allows a Web site's server to place information about a consumer's visits to the site on the consumer's computer in a text file that only the Web site's server can read. Using cookies a Web site assigns each consumer a unique identifier (not the actual identity of the consumer), so that the consumer may be recognized in subsequent visits to the site. On each return visit, the site can call up user‑specific information, which could include the consumer's preferences or interests, as indicated by documents the consumer accessed in prior visits or items the consumer clicked on while in the site. Web sites can also collect information about consumers through hidden electronic navigational software that captures information about site visits, including Web pages visited and information downloaded, the types of browser used, and the referring Web sites' Internet addresses.

Id.

However, the ability for users to set their browsers to reject all cookies diminishes the cookie's effect as an intrusion on one's privacy. See id.

 

[FN205]. See FTC Staff Report, supra note 203, at 4‑5.

 

[FN206]. See Trubow, supra note 186, at 521 (likening the holding of information to a "key to power" and "the foundation for rational decisions"); see also Erika S. Koster, Zero Privacy: Personal Data on the Internet, 16 NO. 5 Computer Law 7, 8‑9 (May 1999) (estimating that the private information of one individual could be worth as much as $500).

 

[FN207]. See CyberAtlas, Consumers Fear for Their Online Privacy, (last modified Nov. 1, 1999) <http:// cyberatlas.internet.com/markets/retailing/article/0,1323,6061_228341,00.html> (citing Forrester Research survey finding that "[n]early [ninety] percent of online consumres want the right to control how their personal information is used after it is collected").

 

[FN208]. See FTC, The FTC's First Five Years: Protecting Consumers Online, 19 (Dec. 1999) [hereinafter "FTC, Five Year Report" ] (citing FTC, Self Regulation and Privacy Online: A Report to Congress, 2 (July 1999), which states that "87 percent of experienced Internet users were somewhat or very concerned about threats to their privacy online") (available on the Commission's Web site at http://www.ftc.gov/os/1999/9912/fiveyearreport.pdf); see also Koster, supra note 206, at 7 (pointing to multiple surveys in which consumers named privacy concerns as the main reason for not engaging in online commerce).

 

[FN209]. See generally Trubow, supra note 186, at 531‑32; Blumenfeld, supra note 185, at 354.

 

[FN210]. See Koster, supra note 206, at 8 (citing occurrences of accidental disclosures over the Internet of large amounts of collected personal information by Yahoo!, Nissan and the federal government).

 

[FN211]. FTC Privacy Online, supra note 204, Executive Summary at i.

 

[FN212]. NIITF, Privacy and the National Information Infrastructure: Principles for Providing and Using Personal Information, I.1 (last modified June 6, 1995) <http://www.iitf.nist.gov/ipc/ipc/ipc‑pubs/niiprivprin_ final.html>.

 

[FN213]. Id. at I‑III. The principles state:

I.A. Personal information should be acquired, disclosed, and used only in ways that respect an individual's privacy.

I.B. Personal information should not be improperly altered or destroyed.

I.C. Personal information should be accurate, timely, complete, and relevant for the purpose for which it is provided and used.

II.A. Information users should:

Assess the impact on privacy in deciding whether to acquire, disclose, or use personal information.

Acquire and keep only information reasonably expected to support current or planned activities.

II.B. Information users who collect personal information directly from the individual should provide adequate, relevant information about:

Why they are collecting the information;

What the information is expected to be used for;

What steps will be taken to protect its confidentiality, integrity, and quality;

The consequences of providing or withholding information; and

Any rights of redress.

II.C. Information users should use appropriate technical and managerial controls to protect the confidentiality and integrity of personal information.

II.D. Information users should not use personal information in ways that are incompatible with the individual's understanding of how it will be used, unless there is a compelling public interest for such use.

Id.

 

[FN214]. See Dorney, supra note 185, at 653 (examining the approaches taken by the NIITF and the National Telecommunication and Information Administration (NTIA) to create fair guidelines that would not unduly hinder commerce, yet still protect consumer privacy).

 

[FN215]. See id.

 

[FN216]. National Information Infrastructure Task Force, A Framework for Global Electronic Commerce, Executive Summary (visited Jan. 7, 2000) <http:// www.whitehouse.gov/WH/New/Commerce/summary.html>.

 

[FN217]. Id.

 

[FN218]. See id. The first principle articulated in the NIITF Report reads, "[t]he private sector should lead. The Internet should develop as a market driven arena not a regulated industry. Even where collective action is necessary, governments should encourage industry self‑regulation and private sector leadership where possible." Id.

 

[FN219]. See id.

 

[FN220]. Id.

 

[FN221]. See Koster, supra note 206, at 11 (contrasting the three‑person Clinton Administration privacy team with the independent private agencies of the Netherlands, having fifty employees, and the United Kingdom, with one hundred employees, to monitor privacy procedures).

 

[FN222]. Council Directive No. 95/46/EC of 24 October 1995 on the Protection of Individuals with Regard to the Processing of Personal Data and on the Free Movement of Such Data, 1995 O.J. (L 281) 31 [hereinafter "EU Directive" ].

 

[FN223]. See id., art. 32(1), at 49.

 

[FN224]. See id., art. 7(a), at 40.

 

[FN225]. See id., art. 6(1) (b), at 40.

 

[FN226]. See id., art. 25 at 45‑46. While "adequate" is not explicitly defined within the EU Directive, case‑by‑case analysis of a country's privacy protection will include:

... the nature of the data, the purpose and duration of the proposed processing operation or operations, the country of origin and country of final destination, the rules of law, both general and sectoral, in force in the third country in question and the professional rules and security measures which are complied with in that country.

Id.

 

[FN227]. U.S. Department of Commerce, Draft: International Safe Harbor Privacy Principles (last modified Nov. 15, 1999) <http:// www.ita.doc.gov/td/ecom/Principles1199.htm>.

 

[FN228]. See id.

 

[FN229]. See id. at nn.1‑2.

 

[FN230]. See FTC Staff Report, supra note 203,' IV.A (acknowledging the vulnerability of minors and the legislation passed to protect them).

 

[FN231]. See Restatement (Second) of Contracts, 12 (1979) (allowing minors to disaffirm contractual obligations).

 

[FN232]. See FTC, FTC Surfs Children's Web Sites to Review Privacy Practices (last modified Dec. 15, 1997) <http:// www.ftc.gov/opa/1997/9712/kids.htm>.

 

[FN233]. See id.

 

[FN234]. See id.

 

[FN235]. See id.

 

[FN236]. See FTC Privacy Online, supra note 204.

 

[FN237]. See id at iii.

 

[FN238]. See id.

 

[FN239]. Jodie Bernstein, Letter to the President and Executive Director of the Center for Media Education (last modified July 15, 1997) <http:// www.ftc.gov/os/1997/9707/cenmed.htm> [hereinafter "KidsCom Letter" ] In her letter, Ms. Bernstein, the Director of the FTC's Bureau of Consumer Protection, responded to the CME's petition against the KidsCom Web site.

 

[FN240]. See id.

 

[FN241]. See id.

 

[FN242]. See id. In the interim between the CME's petition to the FTC and the release of Ms. Bernstein's letter, KidsCom revised its information collection practices. See id. The company began notifying parents via e‑ mail upon receiving a registration from a minor, thereby informing parents of the company's procedures regarding the collection of personally identifiable information. See id. In addition, parents were given the opportunity to choose whether to allow the release of their child's data to third parties. See id. No release of such information would occur without verifiable, "prior parental approval," i.e. a signed statement mailed or faxed to KidsCom. Id.

 

[FN243]. See id. For example, the Commission stated:

It is a deceptive practice to represent that a Web site is collecting personally identifiable information from a child for a particular purpose (e.g., to earn points to redeem a premium), when the information will also be used for another purpose which parents would find material, in the absence of a clear and prominent disclosure to that effect.

Id.

 

[FN244]. See id.

 

[FN245]. See KidsCom Letter, supra note 239. The Commission directed:

To be effective, any disclosure regarding collection and use of children's personally identifiable information must be made to a parent, given the limited ability of many children within the target audience to comprehend such information...

An adequate notice to parents should disclose: who is collecting the personally identifiable information, what information is being collected, its intended use(s), to whom and in what form it will be disclosed to third parties, and the means by which parents may prevent the retention, use or disclosure of the information.

Id.

 

[FN246]. FTC, In the Matter of GeoCities ‑ Complaint, P 4 (last modified Aug. 13, 1998) <http://www.ftc.gov/os/1998/9808/geo‑cmpl.htm> [hereinafter "GeoCities Complaint" ].

 

[FN247]. See id. PP 8‑9, 17.

 

[FN248]. See id. P 17.

 

[FN249]. See id.

 

[FN250]. Id. P 12.B.

 

[FN251]. GeoCities Complaint, supra note 246 at P 14.

 

[FN252]. See id. P 18.

 

[FN253]. See id. P 19.

 

[FN254]. See id.

 

[FN255]. See id. P 20.

 

[FN256]. GeoCities, 63 Fed. Reg. 44,624, Part I (F.T.C. 1999) [hereinafter "GeoCities Proposed Final Order" ].

 

[FN257]. See id. Part IV.

 

[FN258]. See id. Part III.

 

[FN259]. See id.

 

[FN260]. See id. Part V.

 

[FN261]. See GeoCities Proposed Final Order, supra note 256, Part VI.

 

[FN262]. See id. Part VI.H.2.

 

[FN263]. See In re Liberty Fin. Co., Inc., File No. 982‑3522 (F.T.C. May 6, 1999) [hereinafter "Liberty Financial" ].

 

[FN264]. Liberty Financial Complaint P 4 (FTC 1999) [hereinafter "Liberty Financial Complaint" ] (available on the Commission's Web site at http:// www.ftc.gov/os/1999/9905/lbrtycmp.htm); s ee also Liberty Financial, 64 Fed.Reg. 29,031‑02 (F.T.C. 1999).

 

[FN265]. See Liberty Financial Complaint, supra note 264 at P 4.

 

[FN266]. See id.

 

[FN267]. See id.

 

[FN268]. Id. PP 4‑5.

 

[FN269]. See id. P 6.

 

[FN270]. See id.

 

[FN271]. See Liberty Financial Complaint, supra note 264 at PP 7‑9.

 

[FN272]. See id. PP 7‑9.

 

[FN273]. See id. P 9.B.

 

[FN274]. See Liberty Fin. Co., Inc., Agreement Containing Consent Order, Part I (F.T.C. 1999) [hereinafter "Liberty Financial Agreement" ] (available on the Commission's Web site at http://www.ftc.gov/os/1999/9905/lbtyord.htm); see also FTC, Young Investor Website Settles FTC Charges (last modified May 6, 1999) <http://www.ftc.gov/opa/1999/9905/younginvestor.htm> (analyzing the Liberty Financial Agreement).

 

[FN275]. See Liberty Financial Agreement, supra note 274 at Part I. In the order, the Commission defines "personal information" as:

... individually identifiable information about an individual collected online, including first and last name, home or other physical address including street name and name of a city or town, e‑mail address, telephone number, Social Security number, or any information concerning the child or the parents of that child that the website collects online from the child and combines with an identifier described in this definition.

Id.

 

[FN276]. See id. Part II.

 

[FN277]. See id. Part V.

 

[FN278]. See id. Part III.

 

[FN279]. Liberty Financial Agreement, supra note 274 at Part III.

 

[FN280]. See COPPA, 15 U.S.C. 6501‑6 (1998).

 

[FN281]. See 15 U.S.C.' 6502.

 

[FN282]. See 15 U.S.C.' 6502(a) (1); see also KidsCom Letter, supra note 239; GeoCities Proposed Consent Order supra note 256; Liberty Financial Agreement supra note 274. In those cases, the FTC ordered the companies involved to refrain from the collection of any information from children, if the company had actual knowledge that the child did not have his or her parent's permission to provide the information.

 

[FN283]. See 15 U.S.C.' 6502(a) (1).

 

[FN284]. See COPPA, 15 U.S.C.' 6502(b) (1).

 

[FN285]. See COPPA Rule, 16 C.F.R. Part 312 (1999); see also FTC, New Rule Will Protect Privacy of Children Online (last modified Oct. 20, 1999) < http://www.ftc.gov/opa/1999/9910/childfinal.htm>. The Rule was published on October 20, 1999 after a draft proposal in April of 1999 and a workshop to discuss the meaning of "verifiable parental consent." Id.

 

[FN286]. See id.

 

[FN287]. According to 312.2 of the COPPA Rule, an "Operator" is a person who runs a Web site for a commercial purpose and "who collects or maintains personal information from or about the users of or visitors to such website or online service, or on whose behalf such information is collected or maintained." COPPA Rule, 16 C.F.R. at 312.2. Thus, if the personal information collected flows to a third party, and the Web site or online service serves merely as a conduit having no further control over the information, it shall not be considered an operator. See id.

 

[FN288]. See COPPA Rule, 16 C.F.R. 312.4(b).

 

[FN289]. See 16 C.F.R. 312.5.

 

[FN290]. See 16 C.F.R. 312.6

 

[FN291]. See 16 C.F.R. 312.7.

 

[FN292]. See 16 C.F.R. 312.8.

 

[FN293]. See COPPA Rule, 16 C.F.R. 312 at 59902.

 

[FN294]. See id.

 

[FN295]. See id.

 

[FN296]. See id. Methods suggested by the FTC include confirming the consent through e‑mail, postal mail or telephone call.; see also Interactive PR, Teens Surf the Net Like Nobody Else, But That Doesn't Mean They Trust It, Dec. 10, 1999 (finding that 77 percent of 10‑to‑12 year olds surveyed would attempt to circumvent parental consent requirements by lying about their age).

 

[FN297]. See 16 C.F.R. 312.5(c) (1)‑(4).

 

[FN298]. See 16 C.F.R. 312.5(c) (3). Parents must be notified of their child's enrollment for the newsletter, however, and be given the opportunity to cancel it. See id.

 

[FN299]. See COPPA Rule, 16 C.F.R. 312.2(b). The practice of deleting a child's personally‑identifiable information before posting that child's message on an online chat room or bulletin board brings the operator into compliance with the COPPA Rule, because no information is deemed to have been collected. See id.

 

[FN300]. See 16 C.F.R. 312.10.

 

[FN301]. See generally TRUSTe, The TRUSTe Story (visited Jan. 4, 2000) < http://www.truste.org>; see also Koster, supra note 206, at 13.

 

[FN302]. TRUSTe, About TRUSTe: Frequently Asked Questions (visited Jan. 4, 2000) <http://www.truste.org/about/about_faqs.html#trustmark>.

 

[FN303]. See TRUSTe, Program Principles (visited Jan. 4, 2000) <http:// www.truste.org/webpublishers/pub_principles.html>.

 

[FN304]. See TRUSTe, Children's Privacy Seal Program (visited Jan. 4, 2000) <http://www.truste.org/webpublishers/pub_child.html>.

 

[FN305]. See id.

 

[FN306]. See id. The COPPA Rule "applies only to personal information submitted online, and, therefore, a parent's access rights under the Act do not generally extend to data collected offline." See COPPA Rule, 16 C.F.R. 312 at 59904.

 

[FN307]. See TRUSTe, TRUSTe Oversight (visited Jan. 4, 2000) <http:// www.truste.org/webpublishers/pub_oversight.html>; see also TRUSTe, Resolution Process (visited Jan. 4, 2000) <http://www.truste.org/webpublishers/pub_ recourse.html>.

 

[FN308]. A list of TRUSTe participants can be found at <http:// www.truste.org/users/users_lookup.html>.

 

[FN309]. See BBBOnline (R) (visited Jan.4, 2000) <http://www.BBBOnline.org>.

 

[FN310]. See BBBOnline (R), Eligibility Criteria for BBBOnline (R) Privacy Seal (visited Jan. 4, 2000) <http:// www.BBBOnline.org/businesses/privacy/eligibility.html> [hereinafter "BBBOnline (R) Eligibility" ].

 

[FN311]. See BBBOnline (R), Compliance Assessment Document (visited Jan. 4, 2000) <http://www.bbbonline.org/businesses/privacy/assess‑html.html>. The Questionnaire asks seal applicants to describe their privacy practices concerning the collection of information from minors, including procedures with regard to verifiable parental consent and disclosure to third parties. See id.

 

[FN312]. See BBBOnline (R) Eligibility, supra note 310. BBBOnline (R)'s Dispute Resolution Policy is available at <http:// www.BBBOnline.org/download/DR.html>.

 

[FN313]. See BBBOnline (R), Privacy Program Dispute Resolution Statistics (March 17, 1999‑September 30, 1999) available at <http:// www.BBBOnline.org/businesses/privacy/dr/statistics.html> [hereinafter "BBBOnline (R) Statistics" ]. The first eligible complaint involved a Web site that violated its privacy policy when it failed to act on complainant's request to have his e‑mail address removed from a mailing list. See id. The violation was remedied upon BBBOnline (R) contact with Respondent. See id. As of this writing, the second complaint is still under review and involves allegations of misuse of credit card information collected online. See id.

 

[FN314]. See id. Complaints are analyzed for eligibility by a subsidiary of the Council of Better Business Bureaus, Inc. called the Privacy Policy Review Service (PPRS). See BBBOnline (R), Privacy Program Dispute Resolution Process, 1.1 (Feb. 11, 1999) [hereinafter "BBBOnline (R) Dispute Resolution" ] (available on the BBBOnline (R) Web site at http:// www.bbbonline.org/download/DR.html). The PPRS found the remaining claims ineligible because they did not meet the criteria necessary for review. See BBBOnline (R) Statistics, supra note 313 (finding respondents were not involved in questionable data collection practices, did not have posted privacy policies to which to compare practices or were not participants in the BBBOnline (R) seal program).

 

[FN315]. See BBBOnline (R), Search Results (visited Apr. 4, 2000) <http:// www.BBBOnline.org/database/search/default.cfm> (boasting 4567 participants of BBBOnline (R)); see also TRUSTe, News & Views (visited Feb. 22, 2000) <http:// www.truste.org/about/about_1000th.html> (announcing approval of its 1000th Web site).

 

[FN316]. See BBBOnline (R) Dispute Resolution, supra note 314, 2.5 Available Remedies (making available to the complainant such corrective actions as the correction of the individual's information and modification of a respondent's privacy policy); see also TRUSTe, Resolution Process (visited Jan. 4, 2000) <http://www.truste.org/webpublishers/pub_recourse.html>.

 

[FN317]. BBBOnline (R) Dispute Resolution, supra note 314, 3.1 (explaining the function of the PPRS in the dispute resolution process).

 

[FN318]. See BBBOnline (R), BBBOnline FAQs, (visited Jan. 4, 2000) <http:// www.bbbonline.org/about/FAQs.html#privacy>.

 

[FN319]. See TRUSTe, Resolution Process (visited Feb. 22, 2000) <http:// www.truste.org/webpublishers/pub_recourse.html>.

 

[FN320]. Chris Oakes and James Glave, The Web Privacy Seal, Take 2, Wired News, Mar. 17, 1999, at 3, available at <http:// www.wired.com/news/news/politics/story/18517.html>.

 

[FN321]. See W3C, P3P Working Draft (last modified Nov. 2, 1999) <http:// www.w3.org/TR/P3P> (explaining the latest P3P specifications).

 

[FN322]. The World Wide Web Consortium (W3C) is an independent, international group co‑hosted by MIT's Laboratory of Computer Science as well as the National Institute for Research in Computer Science and Control (INRIA) in France and Keio University in Japan. See W3C, About the World Wide Web Consortium (last modified Mar. 2000) <http://www.w3.org/consortium>. The W3C works to create common standards to ensure the interoperability of the Web. See id.

 

[FN323]. See W3C, Platform for Privacy Preferences (P3P) Project (visited Jan. 4, 2000) <http://www.w3.org/P3P> [hereinafter "P3P" ]; see also W3C, P3P and Privacy on the Web FAQ (visited Jan. 4, 2000) <http:// www.w3.org/P3P/P3FAQ.html>.

 

[FN324]. See P3P, supra note 323.

 

[FN325]. See id.

 

[FN326]. See The Privacy Exchange, P3P (visited Jan. 4, 2000) <http:// www.privacy exchange.org/tsi/p3p.htm>.

 

[FN327]. See id.

 

[FN328]. See id.

 

[FN329]. See CME, Assessment of Data Collection Practices of Children's Web Sites (last modified July 20, 1999) <http://www.cme.org/ministudy.html>.

 

[FN330]. See id.

 

[FN331]. See id.

 

[FN332]. See id.

 

[FN333]. See id.

 

[FN334]. See Bilge Ebiri, Coming Down off the Hill, Yahoo! Internet Life from ZDWire, Nov. 1, 1999, available in 1999 WL 14789049.

 

[FN335]. See id.

 

[FN336]. See id.

 

[FN337]. 47 U.S.C.A. 231 (West 1999).

 

[FN338]. 47 U.S.C.A. 223 (Supp. II 1996) (repealed 1997).

 

[FN339]. See ACLU v. Reno, 31 F.Supp.2d 473 (E.D. Pa. 1999).

 

[FN340]. See 47 U.S.C.A. 231(e) (2) (A).

 

[FN341]. See U.S. v. Thomas, 74 F.3d 701, 710‑11 (6th Cir. 1996) (applying Tennessee community standards to a Web site originating in California and finding the operators liable for publishing obscenity).

 

[FN342]. See Pamela Mendels, Judges Raise Questions About Federal Anti‑ Pornography Law, New York Times Online, Nov. 5, 1999, available at <http:// www.nytimes.com/library/tech/9911/cyber/articles/05child.html> (quoting Third Circuit Judge Leonard I. Garth in the COPA appeal oral arguments, who stated, "[i]t seems to me that in terms of the World Wide Web, what the statute contemplates is that we would be remitted to the most severe, conservative community standards, perhaps those in Iran or Iraq where exposure of a woman's face is deemed to be inappropriate..."). Id.

 

[FN343]. Rep. George W. Gekas and James W. Harper, Annual Regulation of Business Focus: Regulation of Electronic Commerce, 51 Admin.L.Rev. 769, 790 (1999) (summarizing the comments of Rep. White cited in 144 Cong. Rec. H9908‑09 (daily ed. Oct. 7, 1998)); see also ACLU v. Reno, 929 F.Supp. 824, 848 (1997) (estimating that as much as 40% of all content on the Web originates abroad).

 

[FN344]. Gekas & Harper, supra note 343, at 790; see also Michael Hatcher et al., Computer Crimes, 36 Am. Crim. L. Rev. 397, 443‑44 (1999) (recognizing that "[a] universal jurisdictional standard has yet to be developed by the courts").

 

[FN345]. Gekas & Harper, supra note 343, at 790.

 

[FN346]. 24 F.Supp.2d 552 (E.D. Va. 1998).

 

[FN347]. See id. at 556.

 

[FN348]. See Kathleen R. v. City of Livermore, No. A086349 (Cal. Ct. App. filed July 16, 1999).

 

[FN349]. See U.S. Const. amend. XIV, 1.

 

[FN350]. See id. (stating "[n]o State shall make or enforce any law which shall abridge the privileges or immunites of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law")

 

[FN351]. See Letter to Honorable Thomas J. Bliley, (last modified Oct. 18, 1999) <http://www.eff.org/pub/Censorship/Internet_censorship_bills/1999_ bills/19991018_hr2560_conserv_letter.html>.

 

[FN352]. The letter was signed by members of the Technology Policy Free Congress Foundation, the Association of Concerned Taxpayers, Neighborhood Research/Mountaintop Media, Alabama Citizens for Truth, Citizens Against Repressive Zoning, Missouri Christian Coalition, the Eagle Forum of Wisconsin, the Wisconsin Information Network, the American Policy Center, Gun Owners of America, the Eagle Forum of Ohio, Tradition, Family, Property, Inc., the Liberty Coucil, and the Delaware Home Education Association. See id.

 

[FN353]. See id. (citing instances of filtering software blocking the Web sites of the American Family Association, Eagle Forum and Gun Owners of America, as well as the discretion given to teachers and librarians to use the software to block Web sites in opposition to their political beliefs, and concluding that filtering "harms conservative organizations as well as anyone with a website carrying a conservative message"); see also Child Protection Act of 1999, H.R. 2560, 106th Cong. (1999).

 

[FN354]. See id.

 

[FN355]. See id. (describing solutions already being implemented by the industry such as server‑level filtering and the Center for Democracy and Technology's project entitled GetNetWise, which advises parents, teachers and librarians attempting to shield children from inappropriate online material).

 

[FN356]. 15 U.S.C.A. 6501‑6506 (Wet 1999).

 

[FN357]. 16 C.F.R. Part 312 (F.T.C. 1999).

 

[FN358]. See Jeri Clausing, New Privacy Rules for Children's Web Sites, New York Times, Oct. 21, 1999, at G11.

 

[FN359]. See Wagner, supra note 160, at 801‑02 (suggesting that Congress take an "indirect" approach to regulating Internet labeling by legally mandating that operators label their Web sites according to the PICS standard or through the use of "market‑influencing techniques" tied to federal subsidization).

 

[FN360]. Tinker v. Des Moines Independent School District, 393 U.S. 503, 515 (1969) (Stewart, J., concurring).

 

[FN361]. See COPPA Rule, 16 C.F.R. 312.5(a) (1999).

 

[FN362]. See id.

 

[FN363]. See Cyberspace Communications, Inc. v. Engler, 55 F.Supp.2d 737, 752‑53 (E.D. Mich. 1999).

Although it is difficult in today's society to constantly monitor the activities of children, it is still the right, and duty, of every parent to teach and mold children's concepts of good and bad, right and wrong.... This includes setting limits, and either being there to enforce those limits, or utilizing the available technology to do so. With such less restrictive means to monitor the online activities of children, the government need not restrict the right of free speech guaranteed to adults.

See id.

 

END OF DOCUMENT