SHIELDING CHILDREN FROM PORNOGRAPHY BY INCENTIVIZING PRIVATE CHOICE.

• Author: Hinkley, Karen

INTRODUCTION

In March of 2016, Playboy stopped publishing images of naked women in their magazines. (1) According to the company's chief executive, Scott Flanders, "[the] battle has been fought and won.... You're now one click away from every sex act imaginable for free. And so it's just passe at this juncture." (2) In stark contrast to the world of past generations, "[n]ow every teenage boy has an Internet-connected phone.... Pornographic magazines, even those as storied as Playboy, have lost their shock value, their commercial value and their cultural relevance." (3)

One consequence of modern technological advancements is that online pornography has become both prevalent and highly accessible to children. (4) Though some children access pornography intentionally, many are exposed to pornography unintentionally, often at very young ages. (5) Some adults are dismayed by this new normal, arguing that exposure to pornography and its inherent messages is harmful to children. (6) Others argue that there is evidence that pornography may not be harmful after all, at least when it comes to its consumption by teenagers. (7) Still others seem to approach the issue from a more neutral perspective, viewing the prevalence of online pornography as an inevitable new reality we simply need to learn how to live with. (8) This difference in perspective raises the question of whether children's easy access to online pornography is a problem we should address.

Part I of this Note argues that children's easy access to online pornography is indeed a problem, and it is time for Congress to revisit this issue. Part II provides an overview of Congress's attempts to deal with the problem up to this point, most of which have been unsuccessful. Part III proposes that Congress pass legislation that awards financial incentives to Internet Service Providers (ISP) and Mobile Data Providers (MDP) who provide default filtering that adult customers can easily turn off. Part III also explains why passing this type of legislation is constitutionally permissible. Finally, Part IV argues that passing this type of legislation is normatively a good idea.

1. CHILDREN'S EASY ACCESS TO ONLINE PORNOGRAPHY IS A PROBLEM THAT CONGRESS SHOULD REVISIT

   This Part first presents evidence that children's exposure to pornography on the Internet is both prevalent and harmful. It then argues that Congress can and should revisit this issue and take further action to shield children from exposure to online pornography.

   1. The Prevalence of Exposure to Online Pornography During Childhood and the Harm It Causes

      The great majority of America's youth--93 percent of boys and 62 percent of girls--are exposed to pornography online before their eighteenth birthdays. (9) On average, a child is first exposed to online pornography at the age of eleven, (10) and twelve to seventeen-year-olds consume more online pornography than any other age group. (11) Alarming percentages of children have seen dark, disturbing, and even illegal types of pornography online, including bondage, bestiality, depictions of rape or sexual violence, and child pornography. (12) In a 2005 study, 42 percent of all youth who used the Internet had been exposed to online pornography in the previous year, and 66 percent of those youth reported that all of their exposure had been unwanted. (13) Vulnerable populations of youth reported higher rates of exposure, including those showing indications of depression, a history of interpersonal victimization, or tendencies towards delinquency. (14)

      Though more research is needed concerning the potential impact of exposure to pornography online, (15) continued exposure can be harmful to children in many ways. (16) "Exposure and/or easy access to adult pornography, X-rated media, or child pornography" is one of many risk factors that can make a child more vulnerable to sexual abuse. (17) In addition, pornography often normalizes sexual harm, (18) promotes aggression towards women, (19) shapes negative attitudes and behaviors towards women, (20) diminishes the capacity to establish and maintain healthy intimate relationships, (21) and can lead to addiction.- (2) Consumption of pornography by children and teenagers has been associated with viewing society through an oversexualized lens, normalizing sexual promiscuity, believing sexual abstinence is abnormal and unhealthy, choosing to engage in sexual intercourse at a younger age, commodifying sex, objectifying others, and having unrealistic and harmful expectations about sex. (23) "While children and young people are sexual beings and deserve age-appropriate materials on sex and sexuality, pornography is a poor, and indeed dangerous, sex educator." (24)

      In light of the serious risks that exposure to online pornography poses to children, it is unsurprising that "[t]here has been extensive worry about the possible harms to youth ... expressed by the medical establishment, psychologists, the public, Congress, and even the [U.S.] Supreme Court." (25) Researchers have concluded that "[t]aken together, these expressions of concern suggest that there is a broad consensus that youth should be shielded from online pornography." (26) But, as this Note discusses in more detail below, most legislation that Congress has passed in an attempt to protect children from online pornography has been struck down by the Supreme Court, and Congress has largely given up on addressing this issue. (27)

   2. Congress Can and Should Do More to Protect Children from Exposure to Online Pornography

      This need not be the end of the story in the United States. Consider measures taken in the United Kingdom to protect British children from exposure to online pornography. On July 22, 2013, former Prime Minister David Cameron gave a speech "to talk about the [I]nternet, the impact it's having on the innocence of our children, how online pornography is corroding childhood and how, in the darkest corners of the [I]nternet, there are things going on that are a direct danger to our children and that must be stamped out." (28) He explained that the "growth of the [I]nternet as an unregulated space" posed two major challenges in protecting British children, one of which was "that many children are viewing online pornography and other damaging material at a very early age and ... the nature of that pornography is so extreme it is distorting their view of sex and relationships." (29) He announced that he had reached an agreement with British mobile phone providers, public Wi-Fi providers, and private ISPs to provide default filtering of adult content. (30) The mobile phone operators agreed to equip phones with automatic adult content filters that could only be deactivated by individuals who could prove they were over eighteen. (31) Public Wi-Fi providers agreed that "family friendly filters [would] be applied across public Wi-Fi networks wherever children are likely to be present." (32) And private ISPs agreed to equip new accounts with automatically selected filters that "can only be changed by the account holder, who has to be an adult. So an adult has to be engaged in the decisions." (33) The ISPs also agreed to contact all existing customers to present them "with an unavoidable decision about whether or not to install family friendly content filters." (34)

      The default filtering ultimately enacted in the United Kingdom arguably went too far, as the British government used the filters to block a wide variety of content that was not pornographic in nature. (35) But, as discussed below, U.S. lawmakers could avoid this pitfall by narrowly tailoring the type of content they incentivize ISPs and MDPs to filter by default. (36) With 92 percent of American teens using the Internet daily and (24) percent reporting that they go online "almost constantly," (37) the landscape is dramatically different today than it was even a few years ago. Thus, it is time for Congress to take further action to protect children from exposure to online pornography.

2. THE HISTORY OF CONGRESS'S ATTEMPTS TO DEAL WITH THE PROBLEM (38)

   This Part details the history of Congress's prior attempts to shield children from online pornography and the Supreme Court's responses to those attempts. Specifically, this Part will consider the Communications Decency Act of 1996, the Child Online Protection Act of 1998, and the Children's Internet Protection Act of 2000. Though the Court struck down the first two pieces of legislation as unconstitutional, it upheld the Children's Internet Protection Act.

   1. The Communications Decency Act

      Concerned about the "amount of sexually explicit materials available for viewing and distribution over the Internet," (39) Congress passed the Communications Decency Act (CDA) in 1996. (40) The CDA prohibited "knowingly" transmitting a "communication which is obscene or indecent, knowing that the recipient of the communication is under 18 years of age." (41) It also prohibited "us[ing] an interactive computer service to send to a specific person or persons under 18 years of age" or "display in a manner available to a person under 18 years of age" any "communication that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs." (42) The statute provided affirmative defenses for individuals who "ha[d] taken, in good faith, reasonable, effective, and appropriate actions under the circumstances to restrict or prevent access by minors to a communication" or "ha[d] restricted access to such communication by requiring use of a verified credit card, debit account, adult access code, or adult personal identification number." (43)

      In 1997, the Supreme Court considered a constitutional challenge to the CDA in Reno v. American Civil Liberties Union, (44) The Court noted "the legitimacy and importance of the congressional goal of protecting children from harmful materials." (45) But...