Salvaging States' Rights To Protect Children from Internet Predation: State Power To Regulate Internet Activity Under the Dormant Commerce Clause

I. INTRODUCTION In June 2000, the National Center for Missing and Exploited Children ("NCMEC") released a sobering report, indicating that sexual predators on the Internet are targeting more children than previously thought. The report, entitled Online Victimization: A Report on the Nation's Youth,1 concluded that in the United States, approximately one in five children ages ten to seventeen received a sexual solicitation or approach over the Internet in the past year alone.2 The study also found that of children the same age, three percent had received an aggressive sexual solicitation, meaning that the solicitor had sought to meet the child, successfully talked to the child on the telephone, or sent the child letters, money, or gifts.3 One child in seventeen was threatened or harassed.4 Of children who received such Internet solicitations, twenty-five percent reported the incident to a parent, but fewer than ten percent of the victims ever reported these sexual solicitations to law enforcement authorities or to the Internet provider.5 In light of these problems, the report concluded that many traditional attempt and solicitation statutes may not sufficiently address Internet solicitation and that "[a]lthough it is a daunting task, criminal statutes need to be systematically reviewed with the Internet in mind to make sure that relevant statutes cover Internet behaviors,"6 In response to these concerns, state legislatures have revised their criminal statutes to create a new species of crime called "Internet luring," or "enticement."7 Such a crime is patterned after the traditional crimes of solicitation and attempt but specifically addresses the sexual solicitation of a minor over the Internet. However, a recent series of federal cases threatens the validity of these statutes. Several federal courts have held that similar state laws, which prohibit the dissemination of pornography to minors via the Internet, are per se invalid under the dormant Commerce Clause because they impose an undue burden on interstate commerce. The severe limitation on state police power posed by these decisions threatens to block the ability of state governments to protect their citizens. As one scholar explained, "the dormant Commerce Clause argument, if accepted, threatens to invalidate nearly every state regulation of Internet communications . . . . This explains why the dormant Commerce Clause has been called a 'nuclear bomb of a legal theory' against state Internet regulations."8 Although luring statutes have not yet been struck down under the dormant Commerce Clause, this line of reasoning provides Internet predators with grounds to challenge the constitutionality of these statutes. This Comment concludes that such challenges should fail because the per se approach used by certain federal courts is not warranted by Supreme Court jurisprudence.9 As such, courts should rely on the balancing approach set forth in Pike v. Bruce Church, Inc.,10 which would generally uphold state regulation of the Internet stemming from a legitimate concern to protect minors from sexual predation. Part II of this Comment describes state Internet luring statutes and the Supreme Court's dormant Commerce Clause jurisprudence, and Part III demonstrates the confusion resulting from the divergent federal and state applications of the dormant Commerce Clause to state Internet regulation. Part IV argues that the per se approach used by federal courts is improper in this context and that the Pike balancing test provides a more suitable analysis. Finally, Part V offers a brief conclusion that reviews the constitutionality and necessity of state Internet statutes. II. BACKGROUND A. Internet Luring Statutes Many states have recently enacted what may be termed Internet luring statutes, which criminalize any attempt to knowingly solicit a minor to engage in sexual activity by communicating through the Internet.11 These statutes come in a variety of forms but generally punish any person who (1) uses a computer or similar device; (2) to contact a person whom he knows or believes to be a minor; (3) to solicit, encourage, entice, or lure him or her; (4) for the purposes of engaging in sexual activity in violation of state laws. …