Commissioner J. Robert Flores, Esq.|
Vice President and Senior Counsel
National Law Center for Children and Families
This Commission was tasked by Congress to evaluate technical and non-technical means of protecting minors from harmful to minors (HTM) material. Congress did not ask the Commission to recommend new legislation or comment on the COPA's constitutionality. The fact that the Commission did neither should not be construed as anything except our adherence to our Congressional mandate. Though we accomplished a great deal, the lack of federal funding made it impossible to conduct independent evaluations of technologies or industry claims. Nonetheless, the Commission made a number of findings in areas that have been the subject of endless debate. It is that accomplishment, I trust, that will enable Congress to move forward to assist parents, communities, and others to protect children.
The Commission received testimony on the effectiveness of filtering, blocking, and monitoring technologies. Librarians, parents, and business executives, who use or produce such products, convincingly demonstrated that the use of these technologies will reduce exposure to pornography. Though none of the technologies, either alone or in tandem, provides perfect protection, we do not live in a world where either the law or reality permits or encourages only perfect solutions. Moreover, the record before us demonstrates that past criticisms of filter technology are no longer valid in light of improvements in accuracy and customizability. Today, there is no basis to believe that the user of these tools will not be able to access a chicken breast casserole or get directions to Middlesex County.
Some have attempted to assign total responsibility for protecting children from HTM material to parents. While I agree with the premise that I, as a parent, am responsible for my children and their welfare, those who furnish HTM material also have an obligation to take reasonable steps to protect children. I am entitled to expect my children will not be targeted for exploitation or abuse.
The Commission heard testimony about three current technologies that can effectively be used by distributors and providers of HTM material to protect children: self-labeling; age verification IDs; and Age verification Credit Cards. While the effectiveness and accessibility of these technologies may vary in particular settings, the Commission found that self-labeling would satisfy the criteria to be treated as an affirmative defense. Congress's decision to identify the other two technologies as affirmative defenses is supported by Commission findings that both ranked high in their effectiveness at keeping minors away from HTM materials.
Witnesses from the law enforcement community were unanimous in their belief that those engaged in the distribution of hard-core pornography, child pornography, and HTM materials do not believe they will be caught or prosecuted. FBI, state, and local officials told this Commission that the risk to children using the Internet of sexual abuse or exploitation continues to grow. Most chilling, is that the situation has gotten so bad that law enforcement is now forced to pursue only those cases where a child is being stalked.
This situation of limited law enforcement action has paralleled an exponential increase in Internet available obscenity. This material is now marketed in ways that make it nearly impossible to avoid. Pornographic spam, mousetraps, and other deceptive practices that have gone unpunished with the exception of recent FTC actions, have contributed to the mentality that "anything goes," on the Net. Law enforcement's inaction on this issue has sent the unintended message that if you are not involved in stalking children you are safe. That message also contributes to the notion that child pornographers and pedophiles can hide among the pornographic flotsam and jetsam, sending obscene e-mail and instant messages, and looking for children to exploit.
The Commission recommends launching an aggressive effort to address obscenity on the Internet because it is clearly linked to the problem of HTM material. This effort may be initiated using existing laws, is targeted at a narrow category of material, and sends a significant deterrent message. As a former prosecutor, I believe that without a credible threat of prosecution the distribution of illegal obscenity on the Internet will not diminish.
There is no way to restore innocence lost and a diet of pornographic fare will lead to disasters in fighting sexual harassment, STDs, and sexual or domestic violence. Congress, parents, other adults, and certainly the pornography industry must take steps to stop our children from being hurt. If we fail to act, our children will be right to blame us for what we have allowed.
The work of any commission depends greatly on the quality of its staff. I would like to thank Chadwick L. Groover, counsel at the National Law Center, for his extraordinary contributions to the report and the Commission's success.
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