Amended Statute
Child Online Protection Act
§ 231. Restriction of access by minors to materials commercially distributed by
means of world wide web that are harmful to minors
(a) Requirement to restrict access
(1) Prohibited conduct
Whoever knowingly and with knowledge of the character of the material, in
interstate or foreign commerce by means of the World Wide Web, makes any
communication for commercial purposes that is available to any minor and that
includes any material that is harmful to minors shall be fined not more than
$50,000, imprisoned not more than 6 months, or both.
(2) Intentional violations
In addition to the penalties under paragraph (1), whoever intentionally
violates such paragraph shall be subject to a fine of not more than $50,000 for
each violation. For purposes of this paragraph, each day of violation shall
constitute a separate violation.
(3) Civil penalty
In addition to the penalties under paragraphs (1) and (2), whoever violates
paragraph (1) shall be subject to a civil penalty of not more than $50,000 for
each violation. For purposes of this paragraph, each day of violation shall
constitute a separate violation.
(b) Inapplicability of carriers and other service providers
For purposes of subsection (a), a person shall not be considered to make any
communication for commercial purposes to the extent that such person is--
(1) a telecommunications carrier engaged in the provision of a
telecommunications service;
(2) a person engaged in the business of providing an Internet access service;
(3) a person engaged in the business of providing an Internet information
location tool; or
(4) similarly engaged in the transmission, storage, retrieval, hosting,
formatting, or translation (or any combination thereof) of a communication made
by another person, without selection or alteration of the content of the
communication, except that such person's deletion of a particular communication
or material made by another person in a manner consistent with subsection (c) or
section 230 shall not constitute such selection or alteration of the content of
the communication.
(c) Affirmative defense
(1) Defense
It is an affirmative defense to prosecution under this section that the
defendant, in good faith, has restricted access by minors to material that is
harmful to minors--
(A) by requiring use of a credit card, debit account, adult access code, or
adult personal identification number;
(B) by accepting a digital certificate that verifies age; or
(C) by any other reasonable measures that are feasible under available
technology.
(2) Protection for use of defenses
No cause of action may be brought in any court or administrative agency
against any person on account of any activity that is not in violation of any
law punishable by criminal or civil penalty, and thatthe person has taken in
good faith to implement a defense authorized under this subsection or otherwise
to restrict or prevent the transmission of, or access to, a communication
specified in this section.
(d) Privacy protection requirements
(1) Disclosure of information limited
A person making a communication described in subsection (a)--
(A) shall not disclose any information collected for the purposes of
restricting access to such communications to individuals 17 years of age or
older without the prior written or electronic consent of--
(i) the individual concerned, if the individual is an adult; or
(ii) the individual's parent or guardian, if the individual is under 17 years
of age; and
(B) shall take such actions as are necessary to prevent unauthorized access
to such information by a person other than the person making such communication
and the recipient of such communication.
(2) Exceptions
A person making a communication described in subsection (a) may disclose such
information if the disclosure is--
(A) necessary to make the communication or conduct a legitimate business
activity related to making the communication; or
(B) made pursuant to a court order authorizing such disclosure.
(e) Definitions
For purposes of this subsection, the following definitions shall apply:
(1) By means of the world wide web
The term "by means of the World Wide Web" means by placement of
material in a computer server-based file archive so that it is publicly
accessible, over the Internet, using hypertext transfer protocol or any
successor protocol.
(2) Commercial purposes; engaged in the business
(A) Commercial purposes
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.
(B) Engaged in the business
The term "engaged in the business" means that 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.
(3) Internet
The term "Internet" means the combination of computer facilities
and electromagnetic transmission media, and related equipment and software,
comprising the interconnected world-wide network of computer networks that
employ the Transmission Control Protocol/Internet Protocol or any successor
protocol to transmit information.
(4) Internet access service
The term "Internet access service" means a service that enables
users to access content, information, electronic mail, or other services offered
over the Internet, and may also include access to proprietary content,
information, and other services as part of a package of services offered to
consumers. Such term does not include telecommunications services.
(5) Internet information location tool
The term "Internet information location tool" means a service that
refers or links users to an online location on the World Wide Web. Such term
includes directories, indices, references, pointers, and hypertext links.
(6) Material that is harmful to minors
The term "material that is harmful to minors" means 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.
(7) Minor
The term "minor" means any person under 17 years of age.
CREDIT(S)
2000 Pocket Part
(Pub.L. 105-277, Div. C, Title XIV, § 1403, Oct. 21, 1998, 112 Stat.
2681-736.)
HISTORICAL AND STATUTORY NOTES
Revision Notes and Legislative Reports
1998 Acts. Statement by President, see 1998 U.S. Code Cong. and Adm. News, p.
582.
Congressional Findings
Pub.L. 105-277, Div. C, Title XIV, § 1402, Oct. 21, 1998, 112 Stat.
2681-736, provided that:
"The Congress finds that--
"(1) while custody, care, and nurture of the child resides first with
the parent, the widespread availability of the Internet presents opportunities
for minors to access materials through the World Wide Web in a manner that can
frustrate parental supervision or control;
"(2) the protection of the physical and psychological well-being of
minors by shielding them from materials that are harmful to them is a compelling
governmental interest;
"(3) to date, while the industry has developed innovative ways to help
parents and educators restrict material that is harmful to minors through
parental control protections and self-regulation, such efforts have not provided
a national solution to the problem of minors accessing harmful material on the
World Wide Web;
"(4) a prohibition on the distribution of material harmful to minors,
combined with legitimate defenses, is currently the most effective and least
restrictive means by which to satisfy the compelling government interest; and
"(5) notwithstanding the existence of protections that limit the
distribution over the World Wide Web of material that is harmful to minors,
parents, educators, and industry must continue efforts to find ways to protect
children from being exposed to harmful material found on the Internet."
Study by Commission on Online Child Protection
Pub.L. 105-277, Div. C, Title XIV, § 1405, Oct. 21, 1998, 112 Stat.
2681-739, as amended Pub.L. 106-113, Div. B, § 1000(a)(9) [S. 1948, Title V, §
5001(b) to (f)], Nov. 29, 1999, 113 Stat. 1536, 1537-___, provided that:
"(a) Establishment.--There is hereby established a temporary Commission
to be known as the Commission on Online Child Protection (in this section
referred to as the 'Commission') for the purpose of conducting a study under
this section regarding methods to help reduce access by minors to material that
is harmful to minors on the Internet.
"(b) Membership.--The Commission shall be composed of 19 members, as
follows:
"(1) Industry members.--The Commission shall include 16 members who
shall consist of representatives of--
"(A) providers of Internet filtering or blocking services or software;
"(B) Internet access services;
"(C) labeling or ratings services;
"(D) Internet portal or search services;
"(E) domain name registration services;
"(F) academic experts; and
"(G) providers that make content available over the Internet.
"Of the members of the Commission by reason of this paragraph, an equal
number shall be appointed by the Speaker of the House of Representatives and by
the Majority Leader of the Senate. Members of the Commission appointed on or
before October 31, 1999, shall remain members.
"(2) Ex officio members.--The Commission shall include the following
officials:
"(A) The Assistant Secretary (or the Assistant Secretary's designee).
"(B) The Attorney General (or the Attorney General's designee).
"(C) The Chairman of the Federal Trade Commission (or the Chairman's
designee).
"(3) Prohibition of pay.--Members of the Commission shall not receive
any pay by reason of their membership on the Commission.
"(c) First meeting.--The Commission shall hold its first meeting not
later than March 31, 2000.
"(d) Chairperson.--The chairperson of the Commission shall be elected by
a vote of a majority of the members, which shall take place not later than 30
days after the first meeting of the Commission.
"(e) Study.--
"(1) In general.--The Commission shall conduct a study to identify
technological or other methods that--
"(A) will help reduce access by minors to material that is harmful to
minors on the Internet; and
"(B) may meet the requirements for use as affirmative defenses for
purposes of section 231(c) of the Communications Act of 1934 (as added by this
title) [47 U.S.C.A. § 231(c)].
Any methods so identified shall be used as the basis for making legislative
recommendations to the Congress under subsection (d)(3).
"(2) Specific methods.--In carrying out the study, the Commission shall
identify and analyze various technological tools and methods for protecting
minors from material that is harmful to minors, which shall include (without
limitation)--
"(A) a common resource for parents to use to help protect minors (such
as a 'one-click-away' resource);
"(B) filtering or blocking software or services;
"(C) labeling or rating systems;
"(D) age verification systems;
"(E) the establishment of a domain name for posting of any material that
is harmful to minors; and
"(F) any other existing or proposed technologies or methods for reducing
access by minors to such material.
"(3) Analysis.--In analyzing technologies and other methods identified
pursuant to paragraph (2), the Commission shall examine--
"(A) the cost of such technologies and methods;
"(B) the effects of such technologies and methods on law enforcement
entities;
"(C) the effects of such technologies and methods on privacy;
"(D) the extent to which material that is harmful to minors is globally
distributed and the effect of such technologies and methods on such
distribution;
"(E) the accessibility of such technologies and methods to parents; and
"(F) such other factors and issues as the Commission considers relevant
and appropriate.
"(f) Report.--Not later than 2 years after the
enactment of this Act [Oct. 21, 1998], the Commission shall submit a report to
the Congress containing the results of the study under this section, which shall
include--
"(1) a description of the technologies and methods identified by the
study and the results of the analysis of each such technology and method;
"(2) the conclusions and recommendations of the Commission regarding
each such technology or method;
"(3) recommendations for legislative or administrative actions to
implement the conclusions of the committee; and
"(4) a description of the technologies or methods identified by the
study that may meet the requirements for use as affirmative defenses for
purposes of section 231(c) of the Communications Act of 1934 (as added by this
title) [47 U.S.C.A. § 231(c)].
"(g) Rules of the Commission.--
"(1) Quorum.--Nine members of the Commission shall constitute a quorum
for conducting the business of the Commission.
"(2) Meetings.--Any meetings held by the Commission shall be duly
noticed at least 14 days in advance and shall be open to the public.
"(3) Opportunities to testify.--The Commission shall provide
opportunities for representatives of the general public to testify.
"(4) Additional rules.--The Commission may adopt other rules as
necessary to carry out this section.
"(l)[sic] Termination.--The Commission shall terminate 30 days after the
submission of the report under subsection (d) or November 30, 2000, whichever
occurs earlier.
"(m)[sic] Inapplicability of Federal Advisory Committee Act.--The
Federal Advisory Committee Act (5 U.S.C. App.) shall not apply to the
Commission."
47 U.S.C.A. § 231
47 USCA § 231