Is COPA a cop out? The Child Online Privacy Protection Act as proof that parents, not government, should be protecting children's interests on the Internet.

• Author: Hersh, Melanie L.

The real danger is not pornography. The biggest danger is meeting strangers on line--being molested or killed. (1)

INTRODUCTION

The Internet (2) is a rapidly growing tool that enables children and adults alike to instantly access information, resources, and other people. (3) In addition to its role as an information provider, the Internet is a communication medium for thousands of political debates and social exchanges. (4) Regulations of materials on and communication through the Internet have just begun to be issued. As a consequence, it is relatively easy for children to encounter materials that they would otherwise be carefully restricted from viewing. In fact, by using a Web browser and knowing how to type simple words, a child can easily come upon material many would find inappropriate. (5) Parents find it difficult to restrict access, because children are often more savvy than their parents at finding and accessing Internet materials. (6)

Past government regulations, both federal and state, have attempted to protect children from encountering pornographic materials on the Internet, (7) but a child is at risk of encountering more than just pornography. (8) There is also the risk of encountering dangerous people (9) on bulletin boards (10) or in chat rooms. (11) The people children encounter, sometimes pedophiles, can lure them into disclosing personal information about themselves and their families. (12) But unlike pornography, the threat posed by people luring children into dangerous situations is one that has not yet been dealt with by law enforcement or statutory regulation.

Growing awareness of online predators has focused parental and governmental attention on the possible dangers the Internet poses for children and the apparent need for protection. In particular, many parents and privacy advocates think privacy regulation is needed to protect children from disclosing information about themselves and their families. (13) But regulating the Internet cuts close to censorship. (14)

Attempts to regulate the Internet are failing. (15) Commentators and advocates disagree over who should be protecting children from the dangers of the Internet--the government, the Internet industry, or parents--and whether there even need be protection at all. The decision of which group should regulate is complicated not only by the legality of giving this power to one group, but, more importantly, by which group would be the most effective protector.

Many argue the government should not have any power to regulate the Internet; others believe government regulation will encourage new technological advances because people will have to be creative to conform to new laws. (16) The Internet, according to some, can regulate itself better than any legislative action. Others counter that government is not subject to the same economic considerations that tend to jade industry regulations.

The Internet is a unique industry in that it consists of different communities of users, each holding different beliefs about what behavior and terminology is acceptable. (17) People interact with the Internet differently than other previously regulated media. Unlike radio or television, with which a child need only flip a switch to be barraged with information, on the Internet a child must make a conscious effort to interact with someone or something. Unlike dial-a-porn phone lines, which are configured to discourage access by children, children are generally encouraged by parents and schools to interact with the Internet. This interaction is much more like the real world, and in that way, harder to regulate. Regulating Internet communication is like trying to regulate whom children can speak with on the street or playground.

There have been two major attempts to protect children's interests on the Internet, both of which have failed. The Communication Decency Act ("CDA") of 1996 (18) and the Child Online Protection Act ("COPA") of 1997 (19) dealt with the protection of children from exposure to obscene materials. Both of these laws mandated governmental control of regulatory issues on the Internet, and both were found unconstitutional. (20) In response to these failed acts, The Child Online Privacy Protection Act of 1998 ("COPPA") was enacted in April 21, 2000 to deal with a different problem--privacy. (21) COPPA grants more freedom to parents by allowing them to choose whether or not their children can access sites, in a way that is similar to regulation of other industries. However, it still places too much of the burden of regulation on website providers and the government, which leads to parental complacency. COPPA is not the answer; it is simply the latest failed attempt at statutory regulation, proving self-regulation to be far preferable to less useful statutes. (22)

Part I of this Note presents a historical background of media regulations protecting children, explaining the atmosphere into which COPPA was born. This part also introduces COPPA and sets forth its goals. Part II presents the arguments fueling the debate about who should regulate the Internet--the government or non-government entities. Part III argues that in light of COPPA's shortcomings and faulty attempts to emulate regulations of other media, the government should step back and allow parents to maintain the bulk of regulatory responsibility. Part IV then suggests a future course of action for successfully regulating the Internet to protect children's privacy while taking into account the Internet's dissimilarity to previously regulated media. This Note concludes that although it may not be the perfect solution, giving responsibility for protecting children to parents and the Internet industry will best accomplish the goals underlying COPPA.

1. PROTECTION OF CHILDREN

   1. Constitutional Basis for Protection

      Children cannot always protect themselves because they do not always recognize dangers that surround them. (23) For this reason, it has been held that both parents and the government have a legal basis for protecting children. (24) Traditionally, though, parents have been more actively responsible for regulating what their children see and encounter. (25) Parents, in fact, have a distinct liberty interest in how their children are raised. (26) As Justice Harlan explained in his dissent in Poe v. Ullman: (27)

      The home derives its pre-eminence as the seat of family life. And the integrity of that life is something so fundamental that it has been found to draw to its protection the principles of more than one explicitly granted Constitutional right. (28) In addition, the government has the power to enact protective laws, (29) and parents can find themselves legally accountable if they do not take all necessary steps to protect their children as prescribed by the government. (30) Because children can access pornography and encounter dangerous people on the Internet, the government has a justification for regulating access to the Internet. (31)

      However, it is unclear whether this power extends to protection of children from people who solicit their personal information. All previous court holdings have related to a child's encounters with preexisting materials, such as pornography; there has not yet been a court holding protecting a child from disclosing the child's personal information. This would be much like a law that attempts to forbid a child from talking to strangers on the street; it is improbable that such a law would withstand judicial scrutiny.

   2. History of Legislation

      Governmental regulations protecting children now affect all different media industries, including the Internet. Each enactment has given differing amounts of power to either parents or the government. Although such regulatory efforts have been successful in media such as radio, cable, and television, these regulations do not necessarily translate well to the world of the Internet.

      All federal attempts to treat Internet regulation as an extension of telephone, cable, or even radio regulations have been challenged and struck down in court. (32) Courts have recognized the Internet as a new technology, not subject to the same broadcast limitations found in other communications media. (33) In fact, it has been noted that each media "is a law unto itself." (34) This is why each must be regulated separately, and often in different ways. (35) "The Internet's predecessors ... television, radio, and telephone, presently offer the same global capability as the Internet, but are still comparatively easy to regulate." (36) In particular, the analogy to cable television and radio fails because the Internet's loose regulatory system "is not `reasonably ancillary' to the FCC's obligation to regulate broadcasters or common carriers." (37) In addition, the costs of Internet use--including start-up costs and maintenance--are generally appreciably lower than those of other forms of mass media, so there are many more people who have access to this particular medium. (38)

      Internet regulation has faced further challenges in the courts. Grappling with the balance between protecting children from harm and preserving First Amendment rights has proven difficult. The two major attempts to protect children from accessing pornographic material on the Internet, CDA and COPA, were both found unconstitutional. (39) The Supreme Court has expressly recognized the complexity of Internet regulation and the possibility that government may be overstepping its bounds attempting to regulate it: "[T]he Internet may fairly be regarded as a never-ending worldwide conversation. The Government may not ... interrupt that conversation. As the most participatory form of mass speech yet developed, the Internet deserves the highest protection from governmental intrusion." (40)

      Further, it is difficult to determine in which jurisdiction cases involving Internet regulation should be prosecuted, and whether these regulations even apply to...