The Congressional charge to the Commission states that "[t]he Commission shall conduct a study to identify technological or other methods that (A) will help reduce access by minors to material that is harmful to minors on the Internet; and (B) may meet the requirements for use as affirmative defenses for purposes of section 231(c)." Section 231(c), in turn, describes these requirements in terms of actions taken to restrict access by minors to material that is harmful to minors by means of "any reasonable measures that are feasible under available technology." Section 231(a) and (b) already recognize use of credit card and other age verification systems as affirmative defenses.

The Commission discussed whether and how to respond to the Congressional charge in Section B quoted above, in light of the fact that the COPA statute has now been preliminarily enjoined as unconstitutional. The Commission agreed that the question presented to it is not whether or not a particular technology or method should or should not be considered an affirmative defense, much less whether any statute should be found constitutional or unconstitutional. We interpret the question presented to the Commission in Section B as asking whether there are any feasible technologies or methods that are currently available and that may constitute "reasonable measures" to restrict access by minors to harmful to minors materials.

The Commission studied many different technologies and methods that may be used to restrict access by minors to harmful to minors materials. Some technologies did not meet all the statutory requirements because they are not feasible or are not currently available. We determined, however, that some of the technologies we analyzed, for example first party labeling, may become "reasonable" means of preventing child access to harmful to minors material when such technologies become more widely adopted in the marketplace. We did not have the time or resources, however, to conduct a detailed inquiry into the "reasonableness" of the use of any particular technology in the hypothetical context of an assertion of an affirmative defense under COPA. Because of the limitations on its study, the Commission did not conclude that any particular technology "may meet the requirements for use as affirmative defenses for purposes of section 231(c)."

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