It is our duty as parents to protect our children from the harms of the world, but as a mother of two young children I have learned that I cannot do it alone. The saying “It takes a village to raise a child” means more to me now than I ever could have imagined 10 years ago. One of my greatest concerns as a parent, in this day and age, is making sure that my children are safe when using technology. At home I restrict screen time and make sure that all computer use is done in the open where others may see what is being played, watched or accessed.
However, times are continuously changing. When I was a child, cellphones were something that you only saw on TV (think Zac Morris on Saved by the Bell), today people tell me that more than half of my son’s classmates received a cellphone on their first day of first grade. I will continue to attempt to keep my children safe by restricting their use of technology, but with school and friends around who require, allow or encourage its use, what is a mom to do but rely on the society in which we live to help implement regulations that provide an additional layer of protection for all children.
Legal Regulations Established to Protect Children
It is encouraging that countries throughout the world have started to put into place regulations that help protect children and their use of the internet. In the UK, the Age-Appropriate Design Code, passed in 2020, causing a chain reaction with other countries following suit, adopting or drafting similar laws.
In the U.S., states, no longer waiting for Congress to act on a federal level, have taken it upon themselves to create laws which protect internet users, especially children. Although many states are passing such laws, last week the California law was the third of its kind to be issued an injunction in the past two months. U.S. District Court Judge Beth Labson Freeman, granted the preliminary injunction, for the California law attempting to provide additional protections for children using the internet, due to the fact that the law probably violates the First Amendment and does “not pass constitutional muster.” Before the California injunction, injunctions were also issued against the Arkansas and Texas laws. In Louisiana and Utah similar lawsuits are currently pending.
One could wonder why these injunctions are being sought. Vera Eidelman, a staff attorney at the American Civil Liberties Union, stated, “They’re robbing users of anonymity while raising privacy and security concerns, the laws burden adult speech by purporting to protect kids.”
A History of Injunctions on Child Protection Laws in the U.S.
Of course, these were not the first U.S. laws attempting to protect children in their use of the internet to be struck down. Looking back there has been a history of such laws being struck down by the courts in the U.S. due to constitutional violations. In 1996, Congress passed the Communications Decency Act of 1996 („CDA“) which purported to regulate the access of minors to „indecent“ and „patently offensive“ speech on the Internet. The CDA was struck down by the Supreme Court in Reno v. ACLU, as violative of the First Amendment. Following this ruling Congress enacted the Child Online Protection Act (COPA) in 1998, which was struck down by the U.S. District Court, in Ashcroft v. American Civil Liberties Union.
These decisions by the courts are pushing lawmakers to refine the way they are attempting to achieve their stated goals. In Ashcroft v. American Civil Liberties Union, the Court of Appeals concluded that the statute was not narrowly tailored to serve a compelling Government interest, was overbroad, and was not the least restrictive means available for the Government to serve the interest of preventing minors from using the Internet to gain access to materials that are harmful to them (Ashcroft v. Am. Civil Liberties Union). Judge Timothy Brooks of the U.S. District Court for the Western District of Arkansas, stated in NetChoice, LLC v. Griffin, that the Arkansas law is unconstitutionally vague and fails to define which entities are subject to it.
Moving Forward – What can U.S. Lawmakers Do?
As a parent this looks like a setback to providing online protections hindering children’s ability to view inappropriate content online. However, after these decisions Howard Waltzman, Mayer Brown LLP’s regulatory practice co-chair who focuses on tech law and privacy compliance, stated, “lawmakers pushing age-checks in their states might also take heed and establish clearer definitions and obligations to avoid the same fate.” Hopefully, getting such laws in place is merely a matter of taking the court decisions, establishing appropriate measures and fixing the problems that the courts have pointed out in the laws.
The courts have continuously provided a roadmap for drafting a law that will pass constitutional muster. In the Netchoice, LLC v. Griffin an old court case was quoted:
“It is essential that legislation aimed at protecting children from allegedly harmful expression — no less than legislation enacted with respect to adults — be clearly drawn and that the standards adopted be reasonably precise so that those who are governed by the law and those that administer it will understand its meaning and application.” (Interstate Circuit, Inc. v. City of Dallas).
In the Am. Civil Liberties Union v. Reno the judge stated, “Attempts of Congress to serve compelling interests must be narrowly tailored to serve those interests without unnecessarily interfering with First Amendment freedoms.”
It is my hope that lawmakers throughout the U.S. currently in the process of creating these new laws will take these decisions into consideration so that their laws will hold up to the court’s scrutiny and that the lawmakers who have been reprimanded by the courts keep moving forward in an attempt to establish regulations that both protect our society’s most precious members and the constitutional rights of everyone.