Strike two: an analysis of the Child Online Protection Act's constitutional failures.

• Author: Miller, Heather L.

1. INTRODUCTION

   In 1995, Time magazine ran a cover story about the proliferation of pornography on the Internet.(1) The story was based on a study conducted by Marty Rimm, which was later discredited, but the Time article was indicative of the nation's concern about the accessibility of such material to children. This concern prompted Congress to pass the Communications Decency Act of 1996 (CDA).(2) However, the U.S. Supreme Court struck the Act down as unconstitutional in 1997.(3) Congress responded by drafting new legislation aimed at protecting children from online pornography and passed the Child Online Protection Act (COPA) in October 1998.(4) Congress stated in its report accompanying the COPA that the Act "has been carefully drafted to respond to the Supreme Court's decision in Reno v. ACLU."(5) The American Civil Liberties Union (ACLU) disagreed and filed suit, along with sixteen other plaintiffs, alleging that the COPA is unconstitutional under the First and Fifth Amendments.(6) The U.S. District Court for the Eastern District of Pennsylvania responded to the lawsuit by issuing a preliminary injunction against the COPA's enforcement in February 1999.(7)

   This Note demonstrates that although narrower in scope than the CDA, the COPA cannot withstand constitutional scrutiny. Part II provides general background information about the World Wide Web (Web). Part III discusses the availability of sexually explicit material on the Web. Part IV reviews the CDA, which was Congress's first attempt at regulating minors' access to sexually explicit material via the Internet. Part V begins the analysis of the COPA's constitutionality. Specifically, Part V first addresses the COPA's "harmful to minors" definition, reviewing the difficulty of applying this definition to the Internet medium. In addition, this Note explains why the "harmful to minors" definition is vague. Second, the analysis reviews the economic and technological unavailability of the COPA's affirmative defenses. Finally, the COPA analysis addresses the privacy and security concerns connected with the use of age verification procedures. Part VI concludes the Note with an explanation as to why legislation is an ineffective mechanism to address the problem of minors' access to online pornography.

2. THE WORLD WIDE WEB GENERALLY

   The Internet is not a physical entity, but rather "an international network of interconnected computers."(8) Many networks are connected in a way that allows the computers in one network to communicate with computers in any other network, thus forming the Internet.(9) The Internet is not controlled or administered by any single entity. Rather, the Internet is the result of independent computer operators and networks communicating with each other through common data transfer protocols.(10) Approximately fifty-four to sixty-five million computers worldwide are connected to the Internet.(11)

   The most common way computer users access information on the Internet is through the Web.(12) The Web is a type of "publishing forum,"(13) consisting of documents stored on different computers in any one of 150 different nations.(14) Web documents can consist of text, still images, sounds, and video.(15) Web documents use a common formatting language called hypertext markup language (html), which allows the documents to be displayed through browser programs, such as Netscape Navigator, Mosaic, or Internet Explorer. Computer users access Web content through the use of these browsers.(16)

   Computer users on the Web "must actively seek out with specificity the information they wish to retrieve."(17) Computer users can retrieve information in one of three ways. First, each Web site has an address called a Uniform Resource Locator (URL). Users can type a Web site's URL to directly access the site.(18)

   Second, a user can conduct a search through a search engine, such as Yahoo or Webcrawler, which are tools offered to Web users free of charge to help them navigate the Web.(19) Search engines are popular among Web users. Yahoo, for example, has forty million users.(20) A user utilizes a search engine by typing in relevant terms as a search request. In response, the search engine will provide the user with a list of sites matching the request.(21) Yahoo, for example, maintains a site directory. When a user enters a search request, Yahoo returns a list of the sites in its directory that match the request.(22) However, even the most comprehensive search engines only browse approximately one-third of the more than 320 million pages on the Web.(23)

   The third way in which users can access Web information is through links located on a Web site. Many sites contain links, which often consist of either blue or underlined text or images. Links refer to other Web documents, which can be located anywhere in the world, and when the user clicks on the link with a computer mouse, the linked document is displayed.(24)

   The Web is rapidly and constantly growing, making its size difficult to determine with any certainty, although current estimates range from 3.5 million Web sites(25)--which is an increase from the 1.2 million sites in 1997(26)--to 320 million Web pages.(27) The number of Internet users has been rapidly increasing as well.(28) According to Mediamark Research's Spring 1999 CyberStats report, 32.5% of adults use the Internet, which equals 64.2 million adult users.(29) According to a study conducted by Arbitron New Media, 62% of children ages eight to fifteen use the Web.(30) In addition, 78% of public schools have Internet access, and the Department of Education predicts that this figure will increase to 95% by the year 2000.(31)

3. SEXUALLY EXPLICIT MATERIAL ON THE WEB

   Sexually explicit or pornographic sites do not constitute a substantial portion of the content available on the Web, although determining the number of sexually explicit Web sites with any certainty is difficult.(32) The number of sexually explicit sites, however, has been increasing in recent years as the size of the Web has been increasing. In 1997, the New York Times reported that the Web was home to ten thousand pornographic sites.(33) In 1998, estimates ranged from twenty-eight thousand to seventy-two thousand sexually explicit sites.(34) Newsday reported in February 1999 that thirty thousand to sixty thousand Web sites featured sexually explicit material accessible to children.(35) Jeffrey Douglas, Executive Director of the Free Speech Coalition, the trade association of the adult entertainment industry, testified before Congress in September 1998 that the Internet is the area of "greatest growth and growth potential" for the pornography industry.(36)

   Compared to the overall size of the Web, however, the proportion of sites that are devoted to sexually explicit material is small. In his testimony in the 1996 case of Shea ex rel. American Reporter v. Reno,(37) the president of a blocking software manufacturer testified that even if the 1996 pornographic Web site estimates of five thousand to eight thousand were doubled, this would constitute only one-tenth of one percent of all Web sites.(38)

   Despite the small number of Web sites devoted to sexually explicit material, commercial pornography sites are among the most profitable sites on the Web.(39) In 1998, commercial pornography sites garnered between $750 million and $1 billion.(40) The adult Web site company Internet Entertainment Group expects to generate $100 million in revenue and $35 million in profit in 1999, and the "use of the name Pamela Lee Anderson, former `Baywatch' actress and Playboy nude model, generates about $77 million a year in online revenue."(41) Still, these figures are small in comparison to the money consumers spend on pornography from all media, which in 1997 reached an estimated $8 billion.(42)

   Nine million people visit sexually explicit Web sites each day.(43) The New York Times reported in 1997 that approximately eight percent of the thirty percent of Web users who visit sexually explicit sites are teenagers.(44) In 1998, Media Metrix estimated that forty-three percent of all Web traffic visited a sexually explicit Web site between May and August of that year.(45) In addition, a study conducted by the U.S. Commission on Pornography, appointed ten years ago, found that kids between the ages of twelve to seventeen are among pomography's primary consumers.(46)

   Although some sexually explicit sites are accessed deliberately by Web users--"sex," for example, is the most popular search term Web users request(47)--sexually explicit material can be accessed unintentionally. First, users may locate sexually explicit sites through an innocent search engine request. Children, for example, could request a search engine to locate sites on subjects such as toys, dollhouses, girls, and boys, which all will result in some sexually explicit material being located.(48) In fact, the sites girls.com and boys.com are both sexually explicit Web sites. Girls.com, for example, features "125,000 [sic] hardcore pics" and "Pam Anderson [and] Tommy Lee uncensored videos."(49)

   In addition, a search for "Sleeping Beauty," "Little Women," or "Babe" returns results for sites devoted to the movies as well as sites devoted to sexually explicit material.(50) An August 1999 search for "Little Women" using the Excite search engine, for example, returned links to a site that sells adult videos, a link to nude-amateurs.com, and a link to hard-coresexlive.com.(51) The same search using Yahoo returned the "Little Women Forum," which is a site "dedicated to small breasted women," as the first link on its list,(52) and Webcrawler returned links to pussygopher.com, hornyteenagers.com, and beautifulteens.com, which is "A Guide To XXX Teen Internet Sex Sites."(53)

   Similarly, a July 1999 search for "Sleeping Beauty" using the Webcrawler search engine located sexually explicit Web sites as well as Web sites featuring the fairy tale princess. In...