US Laws, Codes, Statutes & Cases

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[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
  January 24, 2002 and December 19, 2002]
[CITE: 47USC231]

 
          TITLE 47--TELEGRAPHS, TELEPHONES, AND RADIOTELEGRAPHS
 
                 CHAPTER 5--WIRE OR RADIO COMMUNICATION
 
                     SUBCHAPTER II--COMMON CARRIERS
 
                    Part I--Common Carrier Regulation
 
Sec. 231. Restriction of access by minors to materials 
        commercially distributed by means of World Wide Web that are 
        harmful to minors
        

(a) Requirement to restrict access

                       (1) Prohibited conduct

        Whoever knowingly and with knowledge of the character of the 
    material, in interstate or foreign commerce by means of the World 
    Wide Web, makes any communication for commercial purposes that is 
    available to any minor and that includes any material that is 
    harmful to minors shall be fined not more than $50,000, imprisoned 
    not more than 6 months, or both.

                     (2) Intentional violations

        In addition to the penalties under paragraph (1), whoever 
    intentionally violates such paragraph shall be subject to a fine of 
    not more than $50,000 for each violation. For purposes of this 
    paragraph, each day of violation shall constitute a separate 
    violation.

                          (3) Civil penalty

        In addition to the penalties under paragraphs (1) and (2), 
    whoever violates paragraph (1) shall be subject to a civil penalty 
    of not more than $50,000 for each violation. For purposes of this 
    paragraph, each day of violation shall constitute a separate 
    violation.

(b) Inapplicability of carriers and other service providers

    For purposes of subsection (a) of this section, a person shall not 
be considered to make any communication for commercial purposes to the 
extent that such person is--
        (1) a telecommunications carrier engaged in the provision of a 
    telecommunications service;
        (2) a person engaged in the business of providing an Internet 
    access service;
        (3) a person engaged in the business of providing an Internet 
    information location tool; or
        (4) similarly engaged in the transmission, storage, retrieval, 
    hosting, formatting, or translation (or any combination thereof) of 
    a communication made by another person, without selection or 
    alteration of the content of the communication, except that such 
    person's deletion of a particular communication or material made by 
    another person in a manner consistent with subsection (c) of this 
    section or section 230 of this title shall not constitute such 
    selection or alteration of the content of the communication.

(c) Affirmative defense

                             (1) Defense

        It is an affirmative defense to prosecution under this section 
    that the defendant, in good faith, has restricted access by minors 
    to material that is harmful to minors--
            (A) by requiring use of a credit card, debit account, adult 
        access code, or adult personal identification number;
            (B) by accepting a digital certificate that verifies age; or
            (C) by any other reasonable measures that are feasible under 
        available technology.

                 (2) Protection for use of defenses

        No cause of action may be brought in any court or administrative 
    agency against any person on account of any activity that is not in 
    violation of any law punishable by criminal or civil penalty, and 
    that the person has taken in good faith to implement a defense 
    authorized under this subsection or otherwise to restrict or prevent 
    the transmission of, or access to, a communication specified in this 
    section.

(d) Privacy protection requirements

                (1) Disclosure of information limited

        A person making a communication described in subsection (a) of 
    this section--
            (A) shall not disclose any information collected for the 
        purposes of restricting access to such communications to 
        individuals 17 years of age or older without the prior written 
        or electronic consent of--
                (i) the individual concerned, if the individual is an 
            adult; or
                (ii) the individual's parent or guardian, if the 
            individual is under 17 years of age; and

            (B) shall take such actions as are necessary to prevent 
        unauthorized access to such information by a person other than 
        the person making such communication and the recipient of such 
        communication.

                           (2) Exceptions

        A person making a communication described in subsection (a) of 
    this section may disclose such information if the disclosure is--
            (A) necessary to make the communication or conduct a 
        legitimate business activity related to making the 
        communication; or
            (B) made pursuant to a court order authorizing such 
        disclosure.

(e) Definitions

    For purposes of this subsection,\1\ the following definitions shall 
apply:
---------------------------------------------------------------------------
    \1\ So in original. Probably should be ``section,''.
---------------------------------------------------------------------------

                 (1) By means of the World Wide Web

        The term ``by means of the World Wide Web'' means by placement 
    of material in a computer server-based file archive so that it is 
    publicly accessible, over the Internet, using hypertext transfer 
    protocol or any successor protocol.

          (2) Commercial purposes; engaged in the business

        (A) Commercial purposes

            A person shall be considered to make a communication for 
        commercial purposes only if such person is engaged in the 
        business of making such communications.

        (B) Engaged in the business

            The term ``engaged in the business'' means that the person 
        who makes a communication, or offers to make a communication, by 
        means of the World Wide Web, that includes any material that is 
        harmful to minors, devotes time, attention, or labor to such 
        activities, as a regular course of such person's trade or 
        business, with the objective of earning a profit as a result of 
        such activities (although it is not necessary that the person 
        make a profit or that the making or offering to make such 
        communications be the person's sole or principal business or 
        source of income). A person may be considered to be engaged in 
        the business of making, by means of the World Wide Web, 
        communications for commercial purposes that include material 
        that is harmful to minors, only if the person knowingly causes 
        the material that is harmful to minors to be posted on the World 
        Wide Web or knowingly solicits such material to be posted on the 
        World Wide Web.

                            (3) Internet

        The term ``Internet'' means the combination of computer 
    facilities and electromagnetic transmission media, and related 
    equipment and software, comprising the interconnected worldwide 
    network of computer networks that employ the Transmission Control 
    Protocol/Internet Protocol or any successor protocol to transmit 
    information.

                     (4) Internet access service

        The term ``Internet access service'' means a service that 
    enables users to access content, information, electronic mail, or 
    other services offered over the Internet, and may also include 
    access to proprietary content, information, and other services as 
    part of a package of services offered to consumers. Such term does 
    not include telecommunications services.

               (5) Internet information location tool

        The term ``Internet information location tool'' means a service 
    that refers or links users to an online location on the World Wide 
    Web. Such term includes directories, indices, references, pointers, 
    and hypertext links.

               (6) Material that is harmful to minors

        The term ``material that is harmful to minors'' means any 
    communication, picture, image, graphic image file, article, 
    recording, writing, or other matter of any kind that is obscene or 
    that--
            (A) the average person, applying contemporary community 
        standards, would find, taking the material as a whole and with 
        respect to minors, is designed to appeal to, or is designed to 
        pander to, the prurient interest;
            (B) depicts, describes, or represents, in a manner patently 
        offensive with respect to minors, an actual or simulated sexual 
        act or sexual contact, an actual or simulated normal or 
        perverted sexual act, or a lewd exhibition of the genitals or 
        post-pubescent female breast; and
            (C) taken as a whole, lacks serious literary, artistic, 
        political, or scientific value for minors.

                              (7) Minor

        The term ``minor'' means any person under 17 years of age.

(June 19, 1934, ch. 652, title II, Sec. 231, as added Pub. L. 105-277, 
div. C, title XIV, Sec. 1403, Oct. 21, 1998, 112 Stat. 2681-736.)


                             Effective Date

    Section effective 30 days after Oct. 21, 1998, see section 1406 of 
Pub. L. 105-277, set out as a note under section 223 of this title.


                         Congressional Findings

    Pub. L. 105-277, div. C, title XIV, Sec. 1402, Oct. 21, 1998, 112 
Stat. 2681-736, provided that: ``The Congress finds that--
        ``(1) while custody, care, and nurture of the child resides 
    first with the parent, the widespread availability of the Internet 
    presents opportunities for minors to access materials through the 
    World Wide Web in a manner that can frustrate parental supervision 
    or control;
        ``(2) the protection of the physical and psychological well-
    being of minors by shielding them from materials that are harmful to 
    them is a compelling governmental interest;
        ``(3) to date, while the industry has developed innovative ways 
    to help parents and educators restrict material that is harmful to 
    minors through parental control protections and self-regulation, 
    such efforts have not provided a national solution to the problem of 
    minors accessing harmful material on the World Wide Web;
        ``(4) a prohibition on the distribution of material harmful to 
    minors, combined with legitimate defenses, is currently the most 
    effective and least restrictive means by which to satisfy the 
    compelling government interest; and
        ``(5) notwithstanding the existence of protections that limit 
    the distribution over the World Wide Web of material that is harmful 
    to minors, parents, educators, and industry must continue efforts to 
    find ways to protect children from being exposed to harmful material 
    found on the Internet.''


             Study by Commission on Online Child Protection

    Pub. L. 105-277, div. C, title XIV, Sec. 1405, Oct. 21, 1998, 112 
Stat. 2681-739, as amended by Pub. L. 106-113, div. B, Sec. 1000(a)(9) 
[title V, Sec. 5001(b)-(f), Nov. 29, 1999, 113 Stat. 1536, 1501A-591, 
1501-592; Pub. L. 106-229, title IV, Sec. 401, June 30, 2000, 114 Stat. 
476, provided that:
    ``(a) Establishment.--There is hereby established a temporary 
Commission to be known as the Commission on Online Child Protection (in 
this section referred to as the `Commission') for the purpose of 
conducting a study under this section regarding methods to help reduce 
access by minors to material that is harmful to minors on the Internet.
    ``(b) Membership.--The Commission shall be composed of 19 members, 
as follows:
        ``(1) Industry members.--The Commission shall include 16 members 
    who shall consist of representatives of--
            ``(A) providers of Internet filtering or blocking services 
        or software;
            ``(B) Internet access services;
            ``(C) labeling or ratings services;
            ``(D) Internet portal or search services;
            ``(E) domain name registration services;
            ``(F) academic experts; and
            ``(G) providers that make content available over the 
        Internet.
    Of the members of the Commission by reason of this paragraph, an 
    equal number shall be appointed by the Speaker of the House of 
    Representatives and by the Majority Leader of the Senate. Members of 
    the Commission appointed on or before October 31, 1999, shall remain 
    members.
        ``(2) Ex officio members.--The Commission shall include the 
    following officials:
            ``(A) The Assistant Secretary (or the Assistant Secretary's 
        designee).
            ``(B) The Attorney General (or the Attorney General's 
        designee).
            ``(C) The Chairman of the Federal Trade Commission (or the 
        Chairman's designee).
        ``(3) Prohibition of pay.--Members of the Commission shall not 
    receive any pay by reason of their membership on the Commission.
    ``(c) First Meeting.--The Commission shall hold its first meeting 
not later than March 31, 2000.
    ``(d) Chairperson.--The chairperson of the Commission shall be 
elected by a vote of a majority of the members, which shall take place 
not later than 30 days after the first meeting of the Commission.
    ``(e) Study.--
        ``(1) In general.--The 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) of the Communications 
        Act of 1934 [47 U.S.C. 231(c)] (as added by this title).
        ``Any methods so identified shall be used as the basis for 
    making legislative recommendations to the Congress under subsection 
    (d)(3).
        ``(2) Specific methods.--In carrying out the study, the 
    Commission shall identify and analyze various technological tools 
    and methods for protecting minors from material that is harmful to 
    minors, which shall include (without limitation)--
            ``(A) a common resource for parents to use to help protect 
        minors (such as a `one-click-away' resource);
            ``(B) filtering or blocking software or services;
            ``(C) labeling or rating systems;
            ``(D) age verification systems;
            ``(E) the establishment of a domain name for posting of any 
        material that is harmful to minors; and
            ``(F) any other existing or proposed technologies or methods 
        for reducing access by minors to such material.
        ``(3) Analysis.--In analyzing technologies and other methods 
    identified pursuant to paragraph (2), the Commission shall examine--
            ``(A) the cost of such technologies and methods;
            ``(B) the effects of such technologies and methods on law 
        enforcement entities;
            ``(C) the effects of such technologies and methods on 
        privacy;
            ``(D) the extent to which material that is harmful to minors 
        is globally distributed and the effect of such technologies and 
        methods on such distribution;
            ``(E) the accessibility of such technologies and methods to 
        parents; and
            ``(F) such other factors and issues as the Commission 
        considers relevant and appropriate.
    ``(f) Report.--Not later than 2 years after the enactment of this 
Act [Oct. 21, 1998], the Commission shall submit a report to the 
Congress containing the results of the study under this section, which 
shall include--
        ``(1) a description of the technologies and methods identified 
    by the study and the results of the analysis of each such technology 
    and method;
        ``(2) the conclusions and recommendations of the Commission 
    regarding each such technology or method;
        ``(3) recommendations for legislative or administrative actions 
    to implement the conclusions of the committee; and
        ``(4) a description of the technologies or methods identified by 
    the study that may meet the requirements for use as affirmative 
    defenses for purposes of section 231(c) of the Communications Act of 
    1934 [47 U.S.C. 231(c)] (as added by this title).
    ``(g) Rules of the Commission.--
        ``(1) Quorum.--Nine members of the Commission shall constitute a 
    quorum for conducting the business of the Commission.
        ``(2) Meetings.--Any meetings held by the Commission shall be 
    duly noticed at least 14 days in advance and shall be open to the 
    public.
        ``(3) Opportunities to testify.--The Commission shall provide 
    opportunities for representatives of the general public to testify.
        ``(4) Additional rules.--The Commission may adopt other rules as 
    necessary to carry out this section.
    ``(h) Gifts, Bequests, and Devises.--The Commission may accept, use, 
and dispose of gifts, bequests, or devises of services or property, both 
real (including the use of office space) and personal, for the purpose 
of aiding or facilitating the work of the Commission. Gifts or grants 
not used at the termination of the Commission shall be returned to the 
donor or grantee.
    ``(l)[i] Termination.--The Commission shall terminate 30 days after 
the submission of the report under subsection (d) or November 30, 2000, 
whichever occurs earlier.
    ``(m)[j] Inapplicability of Federal Advisory Committee Act.--The 
Federal Advisory Committee Act (5 U.S.C. App.) shall not apply to the 
Commission.''

                  Section Referred to in Other Sections

    This section is referred to in section 230 of this title.