Child Online Protection Act to Be Included in Omnibus Appropriations Bill

(October 16, 1998, 9:00 AM ET)  The "Child Online Protection Act," known to its critics as "CDA II," will be included in the omnibus appropriations bill, which is likely to approved by both the House on Senate late today.

The bill bans sending to minors over the web material that is harmful to minors.  It is intended to replace the much more broadly worded Communications Decency Act, which was held unconstitutional by the Supreme Court last year.  The Clinton administration had opposed the bill, but caved in yesterday when supporters went public with their case.   (See, Press Statement of Rep. Oxley at the bottom of this page.)

Relate Pages

Summary of S 1482 and HR 3783, the "Child Online Protection Bill".
Copy of HR 3783 EH.
Copy of S 1482.
Summary of S 2326, the Children's Online Privacy Protection Act.
Copy of S 2326.

HR 3783, the "Child Online Protection Act" (COPA), passed the House by a voice vote on Wednesday, October 7.  The Senate did not take it up because of an objection by Sen. Patrick Leahy (D-VT).   However, Congressional negotiators stated on Thursday, October 15, that an agreement had been reached to have the bill included in the massive omnibus appropriations bill.  That bill must be approved, if the government is to remain in operation.  It will likely be passed by both houses of Congress late on Friday, and approved by the President.

The COPA bill is the House version of a bill originally introduced in the Senate by Sen. Dan Coats (D-IN) as S 1482.  Also, when the COPA bill was brought up on the House floor last week, the language of the "Children's Online Privacy Protection Act" was added.  S 2326, sponsored by Sen. Richard Bryan (D-NV), would require that website operators and online services that operate websites directed to children obtain parental consent before collecting information from children under the age of thirteen.   Unlike COPA, Sen. Bryan's bill is not controversial.

Under the rules of the Senate, small numbers of Senators can effectively delay consideration of a bill, and hence defeat it late in a session.  In the case of COPA, Sen. Leahy lead the delaying effort.  Including a bill in the omnibus appropriations package is a tactic used to obtain passage of a bill by the Senate late in the session.

The final hurdle was obtaining Presidential support.  Initially, the administration opposed COPA, and opposed including it in the omnibus appropriations bill.  White House negotiators also sought to maintain a low profile, and keep the debate out of public discourse.  Since the White House is already the setting for a pornographic saga, which was recently published on the Internet in the Starr report, Clinton and his negotiators were negotiating over this Internet porn bill from a very weak position.

Jake Siewart, Communications Director of the National Economic Bureau, stated to Tech Law Journal before the White House reversed its position that Rep. Oxley's statement "completely misrepresents our position."   However, he refused to state any details about what the White House position was, or what was inaccurate about Oxley's statement.

oxley.jpg (12221 bytes)

Rep. Mike Oxley

Rep. Mike Oxley (R-OH), the lead sponsor of COPA, took advantage of the President's inability to wage a credible debate regarding matters Internet pornography and sexual morality.  He went public with blunt accusations that the administration was attempting to derail COPA.  He held a press conference Wednesday, October 14, to condemn the administration.  He also issued a strongly worded statement (at bottom of page).

Oxley fumed that if "the White House has its way, pornographers will be able to continue to sell and distribute perversion and brutality to kids with complete impunity. By blocking our efforts, the White House is, in reality, lining the pockets of pornographers.  It's sickening that this is going on in our country, even more sickening that we have a White House that, apparently, tacitly approves."

The administration, and Democratic Congressional leaders, also did not what to hand Republicans candidates a widely popular campaign issue just weeks before the midterm elections.  During negotiations held on Thursday, the administration abandoned its opposition to COPA, and agreed to its inclusion in the omnibus bill, without any changes.

Liberal civil rights groups are disappointed, and are likely to bring a legal challenge to COPA.

The American Civil Liberties Union (ACLU), Electronic Privacy Information Center (EFF), and Electronic Frontier Foundation (EPIC) announced in a joint press release on Thursday that would bring a suit challenging the constitutionality of the law.  All were involved in the successful challenge to the Communications Decency Act.

Barry Steinhardt, President of EFF stated: "It is the height of irony that the same Congress that plastered the salacious Starr Report all over the Internet now passes a plainly unconstitutional law to suppress a vaguely defined category of 'harmful' material."  He added: "You would think Congress would have learned that 'harmfulness' is in the eye of the beholder."

David Sobel, EPIC General Counsel said: "This law violates both the free speech rights and the privacy of Internet users. It requires, in effect, that any adult wishing to receive constitutionally protected material must register with a website before receiving information."

"We are not terribly pleased, not pleased at all, with the Oxley version of this legislation," said Tracy Hahn-Burkett, of People for the American Way.  PFAW is currently challenging the constitutionality of public libraries' use of blocking software to screen out Internet porn in the case Mainstream Loudoun v. Loudoun County Library.

"We have not come to a decision on" filing a court challenge, said Hahn-Burkett.  "We are looking at it, and talking to other groups."

Rep. Oxley's bill requires the operators of  commercial adult websites to take steps to screen out minors.  It employs a constitutionally tested "harmful to minors" standard, which has been upheld by the Supreme Court.  The bill also defines the standard to mirror current law for the print media.  Backers of the bill are confident that this bill, unlike the very broadly worded Communications Decency Act, will be upheld by the Supreme Court.

Related Stories

Hearing on Internet Indecency, 2/10/98.
Blocking Bills Introduced in Congress, 2/12/98.
Internet Bills Approved by Committee, 3/12/98.
Gore on Safe Schools Internet Act, 3/24/98.
Istook Bill Requires Net Filters, 7/2/98.
Filtering Bill Passes Senate Committee, 7/22/98.
Senate Passes 'CDA II' and 'Safe Schools Internet Act', 7/26/98.
House Holds Hearing on Internet Indecency, 9/12/98.
House Subcommittee Adopts Child Online Protection Act, 9/21/98.
House Committee Passes Child Online Protection Act, 9/25/98.
Rush Backs CDA II & Condemns Release of Starr Report, 9/25/98.
House Passes Child Online Protection Act, 10/8/98.

Press Statement of Rep. Mike Oxley.
Re: Child Online Protection Act.
Date: October 13, 1998.
Source: Office of Rep. Mike Oxley.  The document below was created by scanning and converting to HTML a paper copy of Rep. Oxley's statement.

Press Statement of
The Chairman Michael G. Oxley

I want to say it loud and clear that the White House is fighting our efforts in Congress to protect children from Internet porn. The White House and Al Gore are rejecting the inclusion of these provisions in the omnibus appropriations bill.

As you know, COPA would require that commercial pornographic Web sites block access by children under 17. It passed the House by voice vote and the Senate under unanimous consent. Rarely do you see such a meaningful bill gain nearly complete bipartisan agreement.

The changes the White House has proposed would render the bill meaningless. These include

---Removing the criminal penalties;
---Delaying the effective date for a year to wait for a commission to study the problem;
---Assigning the commission to come up with a weaker approach; and
---Including a gaping loophole that would exempt any diversified "entertainment" company whose "primary" line of business was not pornography.

Let's not mince any words. This is not "entertainment 'we're talking about. We're talking about hardcore pornography and the people who make money by harming kids.

Taken as a whole, these amendments are designed to weaken the bill, weaken the constitutional case for it, and delay its protections until the ACLU types and those segments of industry not interested in helping to solve the problem can come up with some bogus voluntary effort to replace it.

Needless to say, it seems a highly unusual fight for the White House to choose at this time.

Symbolic of the hypocrisy of this White House that at the same time Bill Clinton wants to hire new teachers to educate children, he prefers to do nothing about Internet pornography.

Shows a White House beholden to the liberal left and powerful technology interests but willing to sacrifice the innocence of childhood.

What does the White House want to do? Wait a year for a congressional commission to study the problem, That's a pretty small fig leaf

If the White House has its way, pornographers will be able to continue to sell and distribute perversion and brutality to kids with complete impunity. By blocking our efforts, the White House is, in reality, lining the pockets of pornographers.

It's sickening that this is going on in our country, even more sickening that we have a White House that, apparently, tacitly approves.

Isn't about time we raise our standards above the lowest common denominator in this society? Isn't about time we save kids from the trauma of being exposed to disturbing images on the Web?

A wise Person once said that all it takes for bad things to happen is for good men to stand by and do nothing. Not only is the White House doing nothing, it is exerting a sadly negative effect.

Here's a chance for the White House to lead. Here's a chance for the White House to regain its moral compass. I sincerely hope they join us in trying to lift this country up. The ready availability of hardcore pornography to kids on the Web is a problem we need to solve.