Challenges in Protecting Children on the Internet

U.S. children ages 8 to 18 spend over 7 hours a day using electronic media. This includes television, music, computer use, and video game use.¹ This also means that children may be exposed to age-inappropriate content, online marketing, online harassment and bullying, and inappropriate data collection activities. Parents, schools, and website providers all have different roles to play in protecting children when they are online. It is not unusual to hear about cases where website operators run afoul of the laws that attempt to protect children:

• In 2019, a social media company paid $170 million to settle charges with the Federal Trade Commission (FTC) and New York attorney general. The FTC alleged that the company violated the Children’s Online Privacy Protection Act (COPPA). The company collected persistent identifiers known as cookies from children before getting parental permission. The penalty was the largest ever imposed in a COPPA case.²
• In 2018, the FTC alleged that a company that provided internet-connected toys violated COPPA. It was the first time the FTC took action in a case involving privacy and internet-connected toys. The FTC said that the toy company collected the personal information of hundreds of thousands of children through a mobile application without notifying parents or obtaining their consent. The company also failed to use reasonable and appropriate data security measures to protect personal information it collected. Both activities violated COPPA.
• A student sued a local school board alleging that the school had violated the student’s First Amendment rights. The lawsuit alleged that the school’s internet filtering software blocked too much legitimate content. In this case, computers in the school library blocked access to websites that promoted gay rights, but allowed access to websites that opposed gay rights. The student did not challenge that federal law required the school to use filtering software to block obscene material. In 2012, a federal court judge found that the school’s blocking software configuration was unconstitutional. It ordered the school to reconfigure its software to make sure that it did not discriminate against different viewpoints.³

Although most people agree that children should be protected when they are online, they do not always agree on how that should be accomplished. For example, some people suggest that a parent should monitor a child’s internet access and decide if the child’s internet activities are acceptable. Others suggest that laws should be in place to protect the child even if a parent is not monitoring the child’s internet use. As you will see in this chapter, several laws have been enacted to protect children. Most of these laws are directed at the website operators who provide online content to children.

However, even when enacting laws, challenges still exist. These include:

• Identification of children—How can website operators distinguish between adults and children online?
• First Amendment and censorship—When does censoring certain types of content violate the First Amendment?
• Defining objectionable content—Where is the dividing line between material that is merely inappropriate for children and that which is truly objectionable?

Identification of Children

In 1993, the New Yorker published the now-famous cartoon by Peter Steiner with the caption, “On the Internet, nobody knows you’re a dog.” It is just as hard to separate children from adults on the internet. To protect children, you must be able to identify them. Although you can require identification from restaurant customers to ensure they are old enough to purchase alcohol, it is not easy to require identification when users access a website. Most users can easily remain anonymous when they are online. This creates a problem for website operators. Most of the laws that aim to protect children while they are online require website operators to be able to distinguish children from adults.

Website operators can use several methods to distinguish children from adults. These include:

• Requiring user input—A website can require users to identify if they are children or adults. For example, users can select a check box indicating they are over a certain age. They can be required to enter an age or a birth date. This is not a foolproof method, however, because people can simply lie about their age. If a child accesses an age-restricted website under false pretenses, the website operator can still be liable for providing objectionable content to a child.
• Requiring payment—If a website has material that should be restricted from children, it can require a payment to access the site. Payment can be made using a credit card, a PayPal account, or another method that a child is unlikely to be able to use. The payment may be a nominal fee, such as 99 cents. It could also be a larger fee designed to generate revenue. A payment requirement can be effective because children generally do not have access to means of payment.
• Using parental controls—Some operating systems include parental controls. So do many applications. Parental controls allow a parent to restrict their children’s access to objectionable material based on different ratings.
• Requiring parental consent—If a child wishes to access a particular website, that site can block the child’s access until a parent provides permission. This means that the website operator implements controls to verify that a parent is providing consent to access the website.

First Amendment and Censorship

The First Amendment, which is a part of the Bill of Rights, grants certain rights related to freedom of speech. It also protects freedom of the press and the free exercise of religion. First Amendment issues come into play on the internet in many different ways:

• Individuals online have a First Amendment right to view lawful content, including content that others might find troubling.
• Website operators and other content creators have a First Amendment right to post lawful content, including content that others might find troubling.

The U.S. Supreme Court has said that the right to freedom of speech applies to the internet.⁴ This means that the government cannot restrict an adult’s access to content on the internet. However, the government can restrict a child’s access to harmful online materials if the government has a compelling reason to do so.

When the government restricts a child’s access to objectionable online materials, other issues are raised. Does it violate a website operator’s rights to force it to censor material because a child might view it? If individuals are required to identify themselves before they can use a website, such as proving that they are not children, does that restrict their free speech? Does it restrict free speech if individuals are required to identify themselves by name in comments on a website? If libraries are required to use filters on computers to keep children from viewing objectionable content, does it restrict the free speech rights of adults who also use those same computers?

Many of these issues continue to evolve within the context of the laws discussed in this chapter.

Defining Obscenity

The laws discussed in this chapter protect the privacy of children. They also protect children from harmful content. For the most part, this harmful content is content that would be considered obscene. Most people agree that children should not see obscene material. However, it is difficult to legally define what obscene material is.

The U.S. Supreme Court addressed this in 1973. In Miller v. California the Court said that for material to be identified as “obscene,” it must meet three conditions. The conditions are based on the average person applying contemporary community standards to a review of the material. The three conditions are that the material:

• Appeals predominantly to prurient interests—prurient indicates a morbid, degrading, and unhealthy interest in sex
• Depicts or describes sexual conduct in a patently offensive way
• Lacks serious literary, artistic, political, or scientific value⁶

It is not always easy to apply this definition. What one person considers obscene, another person may consider healthy. Material that one person finds informative may be deemed tasteless by another. Material that is offensive to one person may be viewed as valuable by another. How a person views material is often influenced by societal, family, community, and religious values.