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Commissioner Jerry Berman
Center for Democracy and Technology

The Center for Democracy and Technology participated in the work of this Commission with two goals in mind. First, CDT sought to empower parents to protect children online in a manner consistent with their own values as individual families. Second, CDT sought to protect First Amendment values on the Internet - a democratizing medium that expands the power of citizens to engage in speech in unprecedented ways.

The recommendations of this report endorse the policy CDT pursued. Acknowledging the unique, global character of the Internet, the Commission concludes that new laws would not only be Constitutionally dubious, they would not effectively limit children's access to inappropriate materials. The Commission instead finds that empowering families to guide their children's Internet use is the only feasible way to protect children online while preserving First Amendment values. The Commission cites public education, user empowerment and enforcement of existing laws against obscenity and child pornography as the most effective means to assure the safety of children online. To realize the full potential of these approaches to protecting children, the Commission's recommendations call for a redoubled commitment of resources for further development and deployment of tools and educational materials.

The Nature of the Internet and the Protection of Children
The Commission On Online Child Protection has done what Congress has not - it has examined how to protect children online in ways consistent with the Internet's architecture and Constitutional requirements. The Commission reviewed testimony describing the global reach of the Internet, the decentralized nature of its architecture, and its ability to promote the speech of a wide range of speakers representing diverse values. The Commission rejects a legislative approach to protecting children not only because laws restricting distribution of or access to harmful to minors materials are Constitutionally suspect, but also because United States law cannot affect the flow of content originating in other countries and therefore cannot effectively protect children.

The Commission also considered whether any of the technologies and methods it reviewed could serve as an affirmative defense to a violation of the criminal provisions of the Child Online Protection Act. Keeping in mind the Internet's unique character, the Commission finds that none of the approaches could adequately serve as an affirmative defense in a manner respectful of the First Amendment.

Finally, the Commission rejects the creation of a top-level Internet domain for material harmful to minors. The Commission recognizes that such an approach could only succeed if mandated by law, and that such mandatory zoning would present serious First Amendment problems and chill protected speech.

The Commission's Recommendations
The Commission recommends increased education for children and their families. Public education is a powerful tool to protect children and does not restrict protected speech. But to succeed, public education must be deployed with serious commitment and substantial resources. When we educate children at home and at school, we impart important values to them - we teach them to use seat belts, not to smoke, and to stay away from illicit drugs. Our message to children about safe activity online must be as clear and strong. Industry and government must also commit the resources necessary to promote widespread family awareness of the importance of protecting children online and the practical ways in which families can protect children.

The Commission recommends, and CDT concurs, that education must be coupled with empowerment tools. While monitoring and filtering technologies are available to parents, it is critical they be evaluated, assessed and tested, so that families know what tools are available to them, what they do, and how well they work. Information about these tools must be widely available, so that families have the information they need to make choices about their children's online experience that reflect their values.

Finally, recognizing that new laws against harmful to minors materials would not survive judicial scrutiny, the Commission urges Congress and law enforcement to focus on better enforcement of existing laws against obscenity and child pornography. These laws target unprotected speech and are clearly Constitutional. Historically, enforcement of these laws online has suffered from insufficient funding. A renewed commitment to their robust enforcement and full funding can assure that children can safely take advantage of the positive resources the Internet offers.

A Word of Thanks
It has been a pleasure to serve on this Commission. With no resources from the Congress, the Commission worked diligently and in good faith. This report reflects the effort of Commissioners representing diverse perspectives on the question of how best to protect children online. It is an example of how individuals holding a range of opinions can, through a thoughtful, deliberative process, find common ground.

The work of the Commission was facilitated by the tremendous effort of people who care about protecting children. I would like to thank the Chairman and my fellow Commissioners. I would also like to acknowledge the work of Dittus Communications, the contribution of the law offices of Wilmer, Cutler and Pickering, and the funding by companies who stepped in with resources when the Congress did not. Finally, I must thank Alan Davidson, Paula Bruening, and Rob Courtney of the Center for Democracy and Technology, whose efforts behind the scenes were critical to the success of this endeavor.

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