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Analysis of Title 47 U.S.

Code 231
Restriction of access by minors to materials commercially distributed by means of
World Wide Web that are harmful to minors


Overview of, 47 U.S. Code 231 - Restriction of access by minors to materials commercially
distributed by means of World Wide Web that are harmful to minors
The intention of this law is to protect minors from, material that is harmful to minors
i
via the
internet. There is a broad definition of the harmful materials including the typical porn and in
general materials that pander to prurient interests and the like. All various formats of materials
are covered including images, recordings and writings. This law does allow for the publishers of
content deemed harmful to minors, to protect themselves from prosecution as long as they
provide a protected gateway between minors and the harmful content.

The pros of the selected law or policy as it pertains to accommodating technology innovation

One of the good points of this law is the provision that makes the law inapplicable in several
circumstances. Title 47 U.S.C. 231, excludes from prosecution, carriers and other service
providers
ii
. This includes telecommunication carriers, internet service providers and search tool
owners. What this does is inoculates, from prosecution, the providers of infrastructure, hardware
and software, but not publishers of the harmful content. This puts the burden of protecting the
minors squarely on the shoulders of those publishing the content and leaves the technology
involved in delivering information free to innovate and not burdened with content screening. If
the carriers and providers were forced to protect the minors the overhead would be a heavy
burden, increasing the cost to consumers and reducing the quality of the internet experience for
all.

Another strength, is part of paragraph (c) of 47 U.S.C. 231 which provides the content
publisher with an affirmative defense should they put in a good faith effort to block access to
minors. The listing of acceptable ways to prevent minor access is a plus. The methods listed
include the typical credit card or debit account which should be something that will be valid for
the foreseeable future. Additional forms of verification listed may also play a big role in the
future when it comes to age verification. They include an adult access code or personal
identification numbers and even digital certificates. One or more of these additional verification
methods may proliferate in the future. This shows that author of this paragraph at least tried to
anticipate the use of new and future technologies that would help with the task of age
verification.

The cons of the selected law or policy as it pertains to accommodating technology innovation

The listing of methods for blocking access to minors is good but the list ends on a weak note.
When referring to ways to restrict access to minors, it is stated that an aggressive defense can be
made if a good faith effort is made by any other reasonable measures that are feasible under
available technology
iii
. This is vague and will allow the argument that almost any measure to
restrict minors access will be acceptable. Any site that asks the simple Yes, No question,
are you a minor can use this vague language as a, get out of jail free clause.

Another problem with this statute is that it is specific to commercial websites. There is a very
broad definition that encompasses any website that has a way to generate revenue, profitable or
not. This does not protect the children from websites that do not have any means of revenue
generation. The statute as written does not cover those Engaged in the business
iv
of making
the offensive communications available via the World Wide Web just the sites that fall into the
definition of Commercial purposes
v
.

One final deficiency in Title 47 U.S.C. 231(e)(6)(c) which defines Material that is harmful to
minors
vi
as taken as a whole, lacks serious literary, artistic, political, or scientific value for
minors.
vii
This could potentially open the door for prosecution of many websites that would be
hard pressed to show they would have any content of redeeming value. One could argue that
social websites, gaming websites and many sites that appeal to children at their level could be
prosecuted under this definition. Ironically this would mean that many websites geared towards
children would require protections so that children cant enter and see the content. Not many
adults would consider a fan website about Barney, everyones least favorite purple dinosaur, as
having serious literary, artistic, political or scientific value for minors
viii
. The government
often crosses the line of common sense in using laws for purposes they were not intended just so
they could prosecute someone they had no other legal grounds to stand on.

A description of how you would change the law or policy to address the cons

Title 47 U.S.C. 231 can be improved to handle current and future technologies so as to better
protect minors from the adult content of the internet. The methods for blocking access to minors
could be improved by modifying 47 U.S.C. 231(c)(1)(C) to set a threshold as to the
effectiveness of the reasonable measures
ix
or specify that the measures would reasonably block
some percentage of typical minors from gaining access.

Title 47 U.S.C. 231(a)(1) contains language that restricts this subsection to websites with
Commercial purposes
x
. This may cover most offensive sites but there are a number of hobby
sites that contain objectionable material. Should the statute be updated to include all websites
instead of just commercial ones it would provide more protection to minors. Unfortunately
nowhere in the statute is the term Engaged in the business
xi
used. This term should be added
to the Prohibited conduct paragraph 47 U.S.C. 231(a)(1) where the commercial entities are
currently called out as the sole offenders. Title 47 U.S.C. 231(e)(2)(b) defines the term
Engaged in the business which would cover websites that do not fall into the commercial
category. Unfortunately nowhere in the statute does it use the term Engaged in the business
xii

probably an oversight that should be fixed. This would go a long way in covering future types of
websites that may find a way to wiggling out from Commercial category.

Title 47 U.S.C. 231 defines Material that is harmful to minors
xiii
and is too broad and should
just be removed. The two definitions prior in paragraphs (a) and (b) are more than enough to
capture the types of materials that the typical person would consider harmful to children.




i
Title 47 U.S.C. 231(e)(6)
ii
Title 47 U.S.C. 231(b)
iii
Title 47 U.S.C. 231(c)(1)(C)
iv
Title 47 U.S.C. 231(e)(2)(b)
v
Title 47 U.S.C. 231(e)(2)(a)
vi
Title 47 U.S.C. 231(e)(6)
vii
Title 47 U.S.C. 231(e)(6)(c)
viii
Title 47 U.S.C. 231(e)(6)(c)
ix
Title 47 U.S.C. 231(c)(1)(C)
x
Title 47 U.S.C. 231(a)(1)
xi
Title 47 U.S.C. 231(e)(2)(b)
xii
Title 47 U.S.C. 231(e)(2)(b)
xiii
Title 47 U.S.C. 231(e)(6)