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
Hersh, Melanie L., Fordham Urban Law Journal
The real danger is not pornography. The biggest danger is meeting strangers on line--being molested or killed. (1)
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. …