Children-Related Internet Content Regulation: Best Interests of the Child, Definition of Child, and Cyberspace Purism

Abstract

In this paper, I will explore Internet content regulations from the perspective of the interests of children, and argues that CIPA reflects the practical difficulties in using a bright-line age index in the definition of child, and that the principle of “best interests of the child” may play a necessary role in the existing First Amendment framework to accommodate deliberations on competing rights and interests in the domain of Internet governance. Considering the studies and theories supporting an expansive view of digital childhood, the paper attempts to explain the practical difficulties of age indexing in the definition of child, and suggests that it may be beneficial to reconsider the definition of child in Internet content regulations, to reflect studies and philosophical thoughts in this area. To some extent, this paper considers a hypothetical policy goal of a greater level of protection in children-related Internet content regulations that may or may not come about, to suggest the potential utility and necessity of rethinking the definition of child in Internet content regulations and incorporating the phrase “best interests of the child” into the existing First Amendment framework in examining Internet content regulations. Internet content regulation (or Internet content regulations) here is understood as the regulation of Internet content through legal measures as one aspect of Internet governance by governments and policy makers. More specifically, the paper will focus on the definition of child in federal Internet content regulations in the United States. Section I explores current Internet content regulations in two categories: content prohibitions and content-filtering measures; reviews the decision-making process of Internet content regulations; and argues that CIPA reflects practical difficulties in using a bright-line age index in the definition of child, and in effect has rendered the definition of child unnecessary within its statutory scheme. Section II reviews the origin and the development of the legal principle “best interests of the child” in American Family law; discusses the potential benefits of incorporating the phrase “best interests of the child” into current First Amendment analysis of Internet content regulations; and argues that the inclusion of “best interests” analysis will provide a more informed basis to balance competing rights and interests. Section III briefly reviews the concept of childhood and theories supporting a longer childhood in today’s digital era; explains the practical and theoretical difficulties in using age as the sole index in defining child; and argues the age of majority in the definition of child does not reflect theories and studies in this area. Section IV reviews some sources and reasons to anticipate a policy goal toward a greater level of Internet content protection, before concluding.