Minutes of the Child Online Protection Act (COPA) Commission meeting
Friday, April 28, 2000
Federal Trade Commission (Room 332)
9:00 a.m. to 4:00 p.m.
The following commissioners were present:
Larry Shapiro, Walt Disney Internet Group, participated by conference call.
Elizabeth Frazee served as a proxy for George Vradenburg, AOL; John Scheibel served as a proxy for Srinija Srinivasan, Yahoo! Inc.; and John LoGalbo served as a proxy for William L. Schrader, PSINet. Robert Cotner with Evesta.com was called away and could not attend the meeting.
9:00 a.m. to 12:30 p.m.
Don Telage, chairman of the Commission, welcomed the COPA Commissioners and asked for any additions to the meeting agenda. No additions were made.
Chairman Telage noted that the Commission's role is to lay out the range of technologies and methods that could be used to help reduce access by minors to "harmful to minors" material. Telage stated that a key task of the Commission will be to define the criteria that should be used in evaluating these technologies and methods.
Chairman Telage then gave an update on the funding situation for the Commission. He reported that the Commission has no funding, no sponsoring body or governmental secretariat, and no ethics officer. Chairman Telage has been told by congressional staff that the Commission has wide bipartisan support and that it should receive funding. Funding is, however, unlikely before mid-July and is dependent on the passage of an appropriate Supplemental Appropriations measure.
Commissioner William Parker recommended that the Commission contact House Speaker Hastert's office and have a designated staffer attend meetings. Commissioner Jerry Berman said that the Commission should be considered under the jurisdiction of Congress.
Commissioner Berman recommended sending a letter to the Commerce committee chairman and ranking members in both the House of Representatives and the Senate stating that the Commission is under the assumption that the Commission is under the jurisdiction of Congress and that Congress should clarify the Commission's status.
Chairman Telage noted that his understanding was that the legislative change eliminating funding and sponsorship was accidental, and that there was a significant possibility that the Commission would be funded.
Commissioner Bob Flores gave an update on the Largent amendment that was attached to the House Supplemental Appropriations bill. The amendment would provide $750,000 in funding for the COPA Commission. The bill passed the House, but there is no such amendment in the Senate at this time. Commissioner Flores said that another option would be to have the agencies of the ex officio Commissioners obtain funding for the Commission in anticipation of a Congressional appropriation.
Commissioner Rohde stated that the legislative change to "unfunded" was not, to his understanding, accidental, and suggested that the Commission go back to Congress with requests for funding.
The COPA Commission voted to send two letters to the House and Senate leadership as well as to Commerce Committee chairman and ranking members. The first letter will focus on Congress taking responsibility for the Commission. The second letter will outline the funding dilemma. Commissioners Berman and Flores will draft the letters and forward them to Chairman Telage for review. Chairman Telage will sign the letters on behalf of the Commissioners. A subset of the Commission will then arrange a meeting with leadership and members of the Commerce Committee. Commissioner Flores will head the subcommittee to meet with staff. Representatives designated by Commissioners Vradenburg and Srinivasan will join him.
Commissioner Al Ganier reported that Senate Majority Leader Lott is ready to have a meeting on the funding issue. Sen. Lott's chief of staff has told Commissioner Ganier that the error in funding was not deliberate. Commissioner Ganier will set up a meeting between Senator Lott, Don Telage and ENA's Vice President for Government Relations.
Chairman Telage reported that until the Commission receives funding, Commissioners can line up private support to help them personally, but not the Commission.
Chairman Telage said that there would be no guarantee of reimbursement for those that assist Commissioners. He noted that the Tax Advisory Commission had had an express statutory provision allowing gifts and grants, but that the COPA Commission had no such authority. He also noted that the Commission needed an authoritative source of ethics advice to assist with these questions.
Discussion of Scope and Timeline Document included in briefing book:
The Commission has until October 21, 2000 to submit a report to Congress. The Commission may have to ask for an extension, but Chairman Telage said the Commission should work toward that deadline. He said that the Commission will create subcommittees to plan each of the three hearings and that the subcommittees should work in parallel on each hearing. The hearings would be scheduled for 1.5 days each, to be followed by a half-day Commission meeting.
Commissioner Balkam asked what the format of the hearings would be. Chairman Telage said he envisions experts testifying on balanced panels. There will be an open microphone to allow public comments at the conclusion of the hearing.
Commissioner Rohde added that the Commission should make hearing transcripts available on a web site and allow people to make comments over the Internet.
Commissioner Flores said that the Commission should talk to the Congressional Internet Caucus about posting COPA Commission content on the caucus's website.
It was decided that each planning subcommittee will develop an outline for the scope of the hearing and that the plan will then be reviewed by the entire Commission. Elizabeth Frazee emphasized that the planning subcommittees must be balanced.
Commissioner Karen Talbert said that the Commission should have a baseline understanding of "what is filtering." She said the Commission should develop guidelines and a scope and definition document for the various technologies. Commissioner Talbert also mentioned testing companies' financial plans.
Commissioner Donna Rice Hughes said that the Commission must set standards for products and test the claims of companies. Chairman Telage responded, saying that the goal is to discuss possible and existing technologies rather than particular products.
Discussion of a suggested timeline for hearings:
The Commission voted to tentatively schedule the following hearings:
June 8 and 9 - Resources that are one-click-away, age verification and creation of an adult domain.
Discussion of the report format:
Chairman Telage recommended that the Commission report be short and not too technical so that it is useful to Congress (perhaps 20-30 pages). The point was made that the appendix must include all appropriate information underlying the Commission's evaluations. It was recommended that a good record of the hearing be kept and that all of the public comments be included in the report.
Commissioner Flores said that the testimony must be reported and transcribed, and recommended that the ex officio members be responsible for recordkeeping for the hearings. He also recommended having exhibits at the hearings.
There was a discussion about who should keep all correspondence, papers and files for the Commission. It was decided that Kristin Litterst would keep files and a log of all information and phone calls. Commission members should send materials intended for the entire Commission to Litterst and Telage.
Commissioner DeRosier asked if the second hearing should build on the first hearing. Chairman Telage said that the hearings should be considered independently.
Discussion of subcommittees:
The following commissioners expressed interest in participating in the subcommittee on the filtering and labeling hearing: Commissioners Vradenburg, Schmidt, Rice Hughes, Parker and Balkam. Elizabeth Frazee, sitting in for Commissioner Vradenburg, agreed that Commissioner Vradenburg would to convene a conference call of the subcommittee participants and report this information back to Chairman Telage.
The following Commissioners volunteered to serve on the subcommittee planning the third hearing: Commissioners Bastian, Vradenburg, Berman, Srinivasan, Flores, Ganier and Schrader. Commissioner Bastian will convene a conference call and report back to Chairman Telage.
Rice Hughes asked the Chairman to consider assigning more than two co-chairs that have different philosophical points of view to the subcommittees. Commissioner Ganier said that one person could serve as the chairman of the subcommittee and one would serve as executive director.
The Commission voted to have Chairman Telage decide who should serve as co-chairs for the second and third hearings. Chairman Telage said he would take all comments into consideration and notify the Commission on Monday, May 1 of his decision by email.
Discussion of the Technologies and Methods document:
Chairman Telage introduced a matrix as a guide for evaluating each technology and method.
Commissioner Berman noted that "methods" (such as acceptable use policies and consumer education) should be added to the document.
Commissioner Flores recommended assigning technical experts in the various agencies so the Commission can query them. Flores asked whether the hearings were for merely looking at technology or also for analyzing the legal impact of a given technology. Telage responded that the matrix should be used to question witnesses at the hearing.
Commissioner Rohde stated that as the plan for each hearing is prepared, the plan should be circulated among the commissioners. The ex officio members would then take the material and give it to the proper people within their agencies to review and make suggestions (i.e., with respect to adding witnesses). The agencies would follow the same procedure when the report is being drafted.
Chairman Telage noted that it is the responsibility of the Commission to choose a venue and to make decisions about how they want to set up each hearing.
Charges to the Commission:
1. Make editorial comments on the Scope and Timeline document. Send changes to Chairman Telage and Kristin Litterst by COB Friday, May 5.
Both documents will be revised and distributed to the Commission the week of May 8.
The co-chairs planning the first hearing will draft a scope and plan by COB May 5. The draft will be distributed by Kristin Litterst to the Commission. The deadline for a similar document for the other two hearings is May 12.
Alan Davidson said that any Commissioner that has expertise on resources that are one-click away, age verification, and top level domains should contact him.
Commissioner Lee Peeler asked if the Commission will consider push technologies - how the industry markets their products - at the first hearing. These technologies could be considered at both the first and third hearings.
Commissioner DeRosier commented that he is concerned that the elimination of funding from COPA was not inadvertent. He wants to make sure that Congress pays attention to the Commission and realizes all the work and expertise that is going into this report. He said the report deserves a congressional hearing at the end.
Commissioner Berman said that passing the statute was the focus of Congress. The Commission was an add-on made without much deliberation by Congress.
Chairman Telage said that the Commission must maintain a positive outlook. He reiterated that the central goal of the Commission is to reach a constructive conclusion.
Break for lunch 12:30 p.m. -2:00 p.m.
2:00 p.m.-4:00 p.m.
The afternoon session of the Commission meeting featured a panel discussion about the Communications Decency Act and the Child Online Protection Act legislation and litigation. The purpose of the panel was to further educate Commissioners about the history of these issues in Congress, the legislation, and the resulting litigation. The Commissioners need an understanding of these issues in order to be able to address the challenging questions that will come before the Commission during the hearing process.
David Crane is a professional staff member for the Senate Committee on Commerce, Science and Transportation, working for Sen. John McCain. Before coming to work for Chairman McCain, Crane served as legislative director for Sen. Dan Coats where he assisted in drafting the final Senate version of the CDA, managed the bill through final Congressional passage, and coordinated preparation of the Congressional brief in support of the CDA. In addition, Crane prepared the Senate version of COPA, managed it through final passage, and coordinated preparation of the Congressional brief in support of the COPA.
David Crane discussed the evolution of CDA and COPA legislation in Congress.
John B. Morris, Jr. is a partner in the Washington, D.C. office of Jenner & Block, where he practices in trial and appellate courts in the fields of the Internet, telecommunications, and First Amendment law. Mr. Morris was a lead counsel on behalf of the American Library Association, America Online, Microsoft, and other association and industry plaintiffs in the ACLU v. Reno/American Library Association v. U.S. Dep't of Justice challenge that overturned the Communications Decency Act. In that case, Mr. Morris had primary responsibility for the written and testimonial presentation of evidence about Internet technology to the courts. More recently, Mr. Morris was actively involved in an amicus curiae effort supporting the challenge to COPA.
John Morris gave an overview of the litigation surrounding both the CDA and COPA.
Bruce Taylor discussed the litigation and the definition of "harmful to minors."
Chris Hansen has been affiliated with the ACLU as an attorney since 1973, when he joined the staff of the ACLU-sponsored Mental Health Law Project. Since 1984, Mr. Hansen has worked as an attorney with the national ACLU, where he holds the position of senior staff counsel. In that capacity, he was lead counsel in Reno v. ACLU, the ACLU's historic and successful challenge to federal Internet content regulations. He is also lead counsel in the first -- and equally successful -- challenges to state censorship statutes in Georgia (ACLU v. Miller) and New York (ALA v. Pataki). In the New York case, the court found that states cannot regulate the Internet.
Chris Hansen discussed four principles that were considered during the CDA litigation.
After the panel concluded, the Commissioners asked questions. The meeting concluded at 4:30 p.m.
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