Creating Kid-Friendly Webspace: A Playground Model for Internet Regulation* (2003)

The level of discourse reaching a mailbox simply cannot be limited to that which is suitable for a sandbox.1 I. Introduction Today, more than 25 million children the United States, or 40% of children two to seventeen years old, are using the Internet.2 This is three times the number of children who were online 1997, and the number is expected to increase to 44 million by 2005.3 The growth Internet usage among children reflects the pervasiveness of computers homes, schools, and libraries across the country.4 With this growth children's use of the Internet comes a growing concern for their online safety.5 This concern has focused primarily on the issues of children's privacy, their access to pornography, and their safety from predators while online. So far, efforts to address these issues have produced mixed results. Past attempts to protect children on the Internet have focused on regulating and controlling Internet content as a whole and on keeping children out of areas of the Internet deemed inappropriate for them. The latest effort this battle for the protection of children online has turned the focus inside out. Instead of keeping kids out, the new focus is on keeping kids in. The idea is to create a separate, kid-friendly webspace-a fenced-in virtual playground, free from adult content, potential predators, and privacy breaches. This new idea has given rise to new legislation involving the .us domain name system. The Dot Kids Implementation and Efficiency Act of 2002 calls for the creation of a new, second-level Internet domain within the United States country code domain dedicated solely to age-appropriate, children's content.6 This Note examines the kids.us legislation, its ability to withstand constitutional challenges, and its implications on the future of children's Internet use. Part II discusses the early attempts to protect children online through federal and state regulation and various private, commercial, and technological efforts. Part III discusses the legal implications for the kids.us domain's attempts to regulate content, protect privacy, and provide an environment safe from predators. Part IV suggests a scheme for implementation and governance of the kids.us domain. This Note concludes that, light of all of the failed past attempts to regulate the Internet as a whole, the development of a webspace dedicated solely to children's content represents a viable alternative to traditional regulatory schemes and, ultimately, a better way of addressing the issues of child online safety and Internet content regulation. II. Early Attempts to Protect Children Online A. Federal Regulation The first attempt at federal regulation of sexually explicit material on the Internet came from Congress the form of the Communications Decency Act of 1996 (CDA).7 Two provisions of the CDA, codified as 47 U.S.C. § 223(a) and § 223(d), dealt specifically with sexually explicit material on the Internet. Section 223(a) prohibited the knowing transmission of obscene or indecent messages to any recipient under eighteen years of age.8 Section 223(d) prohibited the knowing sending or displaying of any communication that depicted in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs to anyone under eighteen years of age.9 Basically, the CDA made it a felony to transmit or knowingly display indecent material over the Internet to minors. This first attempt to regulate Internet content, however, was doomed to fail.10 In ACLU v. Reno,11 the United States District Court for the Eastern District of Pennsylvania granted an injunction against enforcement of both § 223(a) and § 223(d), declaring them overly broad and vague and thus unconstitutional under the First Amendment.12 In 1997, the Supreme Court of the United States affirmed the district court's ruling.13 Ultimately, the CDA lack[ed] the precision that the First Amendment requires when a statute regulates the content of speech. …