Combating sexual predators online and conflicts with free speech: an analysis of legislative approaches in New Jersey.

I. INTRODUCTION

Assemblymen Peter Biondi, during the 2006-2007 session of the New Jersey Assembly, and Senator Kevin O'Toole, during the 2008-2009 session of the New Jersey Senate, each introduced bills related to the posting of false or defamatory information on the Intemet. (1) While Biondi's bill targeted "operators of interactive computer services" and "Internet service providers" for civil liability, (2) O'Toole's provided criminal liability for individuals who knowingly posted content for the purpose of harassment] Both of the bills were oriented toward erecting constraints on the posting of content on the Internet in New Jersey. Not surprisingly, neither bill sought to curb free speech. Instead, the bills were meant to confront the danger posed by unsupervised minors communicating with strangers online.

The legislators were prompted by the story of a 12-year-old from Nutley, New Jersey. (4) In February of 2006, an unknown person posted a profile for Monirae Hickey on the popular social networking website MySpace.com that resulted in a barrage of unwanted phone calls. (5) The profile contained Hickey's name, cellphone number, a picture of "a provocatively dressed woman," and represented Hickey as a stripper. (6)

Another incident that attracted the attention of legislators involved a 14-year-old girl from Roselle. (7) The girl, Judy Cajuste, was found strangled to death in a dumpster in Newark, possibly after meeting with an older man she met through MySpace. (8) It is incidents like these, made possible by the anonymity and accessibility of the Internet, that the introduced bills aim to prevent. And while the Hickey, Cajuste, and similar cases from around the country have attracted attention to the problem of online predators, (9) they do not entirely resemble the cases that have generated controversy over criminal libel laws and the Internet in the last ten years. Consequently, it is curious that Senator O'Toole has opted to target and deter this dangerous behavior through the mechanism of a statute that criminalizes the posting of false information about another individual on the Internet. (10)

In order to understand this disconnect and properly analyze the propriety of the pending bill, it is useful to view the legislation within the context of existing regulations geared toward preventing similar behavior, the history of criminal libel, and the resurgence of criminal libel via the Internet. (11) To establish this context, this note will first examine the history of criminal libel in the United States prior to the ascendancy of the Interact. Next, it will look at the seeming resurgence of criminal libel by considering a number of recent Internet-related criminal libel cases. Finally, this note will contemplate the utility of the two New Jersey bills given the existence of other regulations that have endeavored to accomplish the same objective: protecting individuals (and children in particular) online.

II. A BRIEF HISTORY OF CRIMINAL LIBEL

A. Criminal Libel in the United States

Typically, when an incident occurs that gives rise to criminal libel charges, journalists offer their traditional commentary lamenting the antiquated statute's offensiveness to free speech and point to the fact that most states no longer have such laws. (12) While some scholars and journalists protest more vociferously than others, opposition to criminal libel laws is the norm. Gregory C. Lisby concisely articulates the arguments against criminal libel:

   [Criminal libel] is contrary to the rights guaranteed by the First
   Amendment to the Constitution, it is inimical to the free
   expression of ideas in the United States, and it is antithetical to
   any and every form of representative government for the following
   reasons: First, it is a historical "throwback to pre-Magna Carta
   England and to the common-law principles the monarchy used to
   justify keeping its heel on critics' necks" and, therefore,
   contrary to the principles of free expression enshrined in the
   First Amendment. Second, its authoritarian philosophical and
   political foundations cannot be reconciled with the democratic,
   libertarian ideals on which America was founded. Third, it
   functionally serves the same purpose as civil libel, as American
   courts have now allowed truth to be a defense for the crime.
   Fourth, its "breach of the peace" rationale has been discarded by
   American courts, making its purpose no different from that of civil
   libel. Fifth, the American experience with criminal libel and its
   concomitant abuse of prosecutorial discretion is humiliating,
   embarrassing, shameful and reprehensible. (13)

Lisby's critique of criminal libel is likely one of the more vitriolic, but it nonetheless largely captures the evolution of thought regarding criminal libel in American jurisprudential and legislative history.

This evolution culminated with the Supreme Court opinion in the seminal criminal libel case Garrison v. Louisiana (14) and is discussed thoroughly within that opinion. In Garrison, the Court built on its opinion in New York Times Co. v. Sullivan, (15) striking down a Louisiana criminal defamation statute and holding that false statements about public officials could only be punished if "made with knowledge of their falsity or in reckless disregard of whether they are true or false." (16) In arriving at their decision, the Court noted that with regard to the criticism of public officials, there was no "merit in the argument that criminal libel statutes serve interests distinct from those secured by civil libel laws," (17) and that in the past, even when criminal libel was seen as a device to prevent breaches of the peace, there was a "preference for the civil remedy." (18) Additionally, the Court reasoned that "[c]hanging mores and the virtual disappearance of criminal libel prosecutions" (19) supported the notion that maintenance of the peace no longer required criminal prosecution for private defamation and that constitutional principles "preclude[d] attaching adverse consequences to any except the knowing or reckless falsehood." (20) In striking down the Louisiana statute, the Court made clear its conception of criminal libel as redundant and anachronistic. Nonetheless, it unmistakably stopped short of declaring criminal libel altogether unconstitutional.

The Court's establishment of an actual malice requirement resulted in the striking down or repealing of criminal libel statutes in a number of states. (21) The failure to replace these statutes with more carefully tailored ones is indicative, along with the diminishing number of criminal libel prosecutions generally, (22) of a growing appreciation for criminal libel as obsolete. Despite the appearance of a growing consensus on the anachronistic nature of criminal libel, which was spurred by the decision in Garrison, (23) it bears emphasizing that the decision also offered a rationale for the utility of criminal libel in its dicta. (24)

Though speaking to comments made against public officials, Justice Brennan's majority opinion noted that "[t]he use of "calculated falsehood" (25) was a different question than that reached by the Court's holding, and "'of such slight social value as a step to truth that any benefit that may be derived is clearly outweighed by the social interest in order and morality.'" (26) It is this sentiment that the proposed New Jersey bills draw upon. The behavior targeted by the prospective legislation lends credence to this viewpoint, because it is difficult to conceive of the social value of allowing individuals to post information on the Internet that elicits sexual advances or other unwanted communications toward unsupervised and naive children, or other similarly vulnerable individuals. Moreover, the only manner in which such communications can be characterized as a "step to truth" would be in their ability to demonstrate the debasement of adult Internet users through evidence of their pursuit of illegal, underage companionship. The type of speech contemplated by Senator O'Toole's bill appears valuable only in its capacity to disturb "order and morality." (27) Accordingly, despite the numerous arguments and the historical tide rising against criminal libel, there are tangible reasons to consider criminalizing behavior that constitutes a potential threat to the security of the community: the posting of false information about others on the Internet.

B. The Resurgence of Criminal Libel

While recent statistical analysis is inconclusive about the prevalence of criminal libel cases, (28) including the number of cases related to the Internet, media coverage (29) suggests that Internet-related criminal libel cases are becoming increasingly common. Intuitively, the Internet seems a fertile breeding ground for criminal libel cases, primarily due to the decentralized and anonymous nature of the Internet. In addition, the attitude that "'anything goes' on the Internet could lead Internet speakers to more freely engage in speech that threatens or incites lawless action, and that speech could be more widely and quickly received." (30) Furthermore, even if these characteristics do not provide the impetus for people to engage in fringe speech, the Internet nonetheless provides a forum for such speech to appear, be recorded, and be disseminated to a wide audience--elements useful to the filing of, or investigation into, criminal libel charges. In the past few years, a number of incidents, though not reaching the level of statutory challenges, have illustrated the Internet's role in criminal libel cases and have provided an indication as to the type of harm that can be caused by the posting of false information about individuals online.

One such case occurred in 1998, in which a rape and abuse shelter in Florida was barraged by calls from "erotic thrill-seekers" who found the shelter's phone number on a web site advertising lesbian phone sex. (31) The State Attorney's Office subpoenaed America Online records in order to trace the posting but did not file charges because they could not prove who had access to the account from which the posting came. (32) No civil suit was filed either, but the shelter's executive director was understandably upset with the situation, describing the victimization of the shelter's workers as "macabre." (33)

Another case, one year later, involved Gary E. Upton, a police officer from Oklahoma who pleaded no contest to a misdemeanor charge of criminal libel and received a deferred sentence. (34) Upton, who was the Webmaster for the police department in Tulsa, posted an advertisement on the Internet that included a local woman's name, home address, phone number, and suggested that she owned a sex toy business and was a vendor for pornographic websites. (35) As part of his plea agreement, Upton would have the case dismissed if he completed one year of probation, performed 40 hours of community service and paid a fine. (36) Essentially, Upton received a slap on the wrist for harassing a woman and causing her to receive unwanted phone calls.

Also in 1999, Amy Patton, a woman from Louisiana, was charged with criminal defamation for suggesting in an Internet posting that a local police officer had engaged in a lewd act behind a restaurant. (37) Patton pleaded no contest and was given a suspended sentence subject to her performance of two days of community service. (38) Again, the comment at issue was one that would likely have been forgotten if made in passing, but thanks to the Internet, it was immortalized and drew wide attention.

In 2000, Waukesha County, Wisconsin proved to be a hotspot for criminal libel investigations. Three citizens in three separate incidents were charged with defamation due to activity on the Internet. (39) In one, a man was charged with defamation after posting on a website, an advertisement in the name of his female ex-boss that requested "sex on the side" and caused her to receive dozens of unwanted phone calls and e-mails. (40) The defendant, David J. Dabbert, pleaded no contest and was sentenced to fifteen days in jail and two years of probation. (41) As a condition of his probation, Dabbert was ordered to perform 100 hours of community service, pay restitution, and undergo counseling. (42) In the second case, Walter Karnstein was charged with defamation for allegedly posting nude photographs of his ex-girlfriend along with a "written solicitation for sexual encounters." (43) In the third case, a man allegedly posed as his ex-wife's new husband and posted an advertisement on a swingers web site soliciting men interested in a threesome. (44)

In 2006, criminal libel cases appeared in the news repeatedly. In Colorado, a man was sentenced to twenty-three years in prison after being found guilty of twenty-six felony counts, including criminal libel. (45) In addition to his other criminal acts, Davis Stephenson created a web site in a professor's name, identified her as a sexual deviant, asked anyone reading to come rape her, and then posted her home address. (46)

Elsewhere in Colorado, charges were filed against a seventeen-year-old who allegedly posed as a high school teacher and "sent sexually suggestive messages to other students" on MySpace.com. (47) The teenager supposedly created a fake profile on MySpace using pictures from the teacher's actual profile and then sent messages to several girls. (48)

Ultimately, what is instructive about these incidents concerning criminal libel arising from speech on the Internet is the varying gravity of the "offensive" behavior. In one sense, it is easy to imagine the fear and unease felt by a woman who repeatedly pauses to respond to the ringing of her home phone and picks it up, only to find strange, lascivious voices on the other end seeking sexual gratification. It is evident that people deserve protection from this type of intrusion, especially when someone can solicit an inexhaustible number of others to carry it out merely by posting a phone number and misleading information on the Internet. On the other hand, it is difficult to comprehend the function of criminalizing the depiction of someone as a KISS groupie or of calling someone the town drunk. (49) While perhaps more impolite than humorous, such behavior is probably better ignored than dragged into a courtroom. Nonetheless, the seemingly growing problem of impersonation on social networking websites and other places on the Internet is worrisome and poses genuine danger that requires some type of resolution.

In New Jersey, legislators are currently attempting to address this problem. In the 2006-2007 term of The New Jersey Assembly, and in the 2008-2009 term of the New Jersey Senate, each body had a bill before it, approaching the problem from a distinct angle. In the following section, these two bills will be analyzed in the context of existing case law and statutory regulation.

III. ANALYZING THE NEW JERSEY BILLS

In order to assess the propriety of the New Jersey bills, they must be evaluated in a number of ways. First, by looking at criminal libel statutes from other states, seeing how they have fared recently, and then comparing them with the prospective New Jersey regulations, an understanding of the new bills' probable impact can be hypothesized. With this in mind, we can then proceed to a brief consideration of the history of criminal libel regulation in New Jersey to determine the reasons behind the gap in regulation, and illustrate the need for additional legislation to fill it. Finally, this section will conclude with a look at alternative attempts and approaches to regulating this type of speech on the Internet.

A. Recent Challenges to Criminal Libel Statutes

Currently, twenty states still have some variety of criminal libel statute(s) in effect. (50) This passage, however, will focus on two that have seen the most recent activity and have been challenged in court.

In 2000, in perhaps the most well known of recent Internet related criminal libel cases, Ian Lake, a teenager from Utah, referred to the principal at his high school as "the town drunk" and to female classmates as "sluts" on his personal website. (51) Lake was arrested, detained for seven days in a juvenile detention center, and his computer was seized. (52) Lake was subsequently charged with criminal libel, (53) and criminal slander, imputing unchastity to a female. (54) Ultimately, as a result of a facial challenge by Lake, the criminal libel statute he was charged under was struck down by the Supreme Court of Utah. (55)

The court held that since the statute "punish[ed] false statements regarding public figures made without knowledge or recklessness and true statements regarding public figures" the law was overbroad and unconstitutional. (56) The statute did not fare well under the court's scrutiny because it blatantly lacked, as compelled by Garrison, the requirement of "actual malice" for statements concerning public officials and did not provide "immunity for truthful statements." (57) Specifically, the fact that the statute placed on the defendant the burden of establishing a "justifiable motive" and overcoming the presumption of malice proved problematic for the court. (58)

Considering the nature of the comments in question, it may come as a surprise that criminal charges were brought. After all, the number of similarly offensive comments made in schools across Utah everyday is surely too great to count, and yet, none of those triggered a state investigation or prosecution. The fact that the speech appeared on the Internet seems likely to have affected the reaction to it. (59)

A second recent challenge to a criminal libel statute occurred in 2004, when Thomas Mink, the publisher of an online newsletter called "The Howling Pig," was threatened with a charge of criminal libel for depicting a business professor at the University of Northern Colorado in an altered photograph on his website. (60) The image made the professor, Junius Peake, look like KISS guitarist Gene Simmons and was accompanied by text stating that "Mr. Junius Puke" was a former KISS roadie who made a fortune by riding "the tech bubble of the nineties like a $20 whore." (61)

Mink's computer was quickly seized by the police, but the investigation was soon halted by court order after the American Civil Liberties Union sued Colorado Attorney General Ken Salazar and a county prosecutor on Mink's behalf in federal court. (62) The police never actually charged Mink with violating the criminal libel statute. (63) This turned out to be the downfall of Mink's facial challenge of the statute, as his lawsuit was dismissed in the District Court because, having not been charged under the law, he lacked the standing to challenge it. (64)

The demise of the Utah criminal statute does not suggest the same fate for the prospective New Jersey legislation. Undoubtedly, the New Jersey drafters will have considered the obvious pitfalls presented by Supreme Court jurisprudence prior to introducing new legislation. (65) The more pertinent question is whether a Constitutionally sound criminal libel law can actually reach the conduct it is trying to punish and deter. In other words, if the Utah criminal libel statute had contained an actual malice requirement, would Lake's conduct have been punishable under it? More appropriately, would speech made online by the killer of Judy Cajuste, tempting her to meet in person, be punishable under the New Jersey statute? This question is crucial in deciding whether there is in fact a point in passing the criminal libel law contemplated by Senator O'Toole.

B. The Development of New Jersey Libel Law in the Internet Age

New Jersey has never been particularly hospitable toward the prosecution of criminal libel. It has never adopted general criminal libel legislation, and at the time of Garrison, the only criminal libel statutes in place in New Jersey related to "[s]ecuring publication, broadcasting or televising defamatory statements or representations" (66) or gave immunity to the press for the publication of certain official statements. (67) Furthermore, prior to Garrison, the only active statute restricting individual speech in New Jersey (68) was declared unconstitutional. (69) Nonetheless, courts in New Jersey have recognized common law libel. (70) This recognition is constrained not only by the limitations of the First Amendment, but by the New Jersey Constitution, which provided truth as a defense even before it was mandated by the decision in Garrison. (71) While there has not recently been significant litigation with regard to criminal libel in New Jersey, the civil remedy has been litigated and adapted to the Internet age. More importantly, the development of the law in this area lends insight into the perceived need for legislation and probably factored into the decision to introduce both of the New Jersey bills.

At the forefront of the problem with libel on the Internet is the difficult task of assigning liability. In a traditional libel case, a plaintiff typically faces no obstacle to determining whom to sue. If he reads a defamatory statement in the New York Times, he sues the newspaper (or possibly the author?). Conversely, a plaintiff in an Internet libel case might read an actionable passage about himself on an Internet message board run by America Online, but the passage itself is posted by an anonymous user. His first inclination would probably be to sue America Online. After all, "[s]uing the [Internet Service Provider] frees plaintiffs from having to discover the identity of the person who posted the message, and [ISPs] have plenty of money to satisfy defamation judgments." (72) Unfortunately for our plaintiff, his inclination would be misguided, as illustrated by the New Jersey case Donato v. Moldow. (73)

In Donato, two members of the Emerson Borough Council sued a Web site operator and numerous individuals after they used pseudonyms when posting on the Web site for "defamation, harassment, and intentional infliction of emotional distress." (74) The appellants argued that Stephen Moldow, the website operator, was liable for the damages because he was the publisher of the website. (75) Much to their chagrin, the trial judge found that Moldow was immune from liability under the Communications Decency Act, (76) and the appellate court agreed. (77) The court reasoned that:

   The allegation that the anonymous format encourages
   defamatory and otherwise objectionable messages 'because
   users may state their innermost thoughts and vicious statements
   free from civil recourse by their victims' does not pierce the
   immunity for two reasons: (1) the allegation is an unfounded
   conclusory statement, not a statement of fact; and (2) the
   allegation misstates the law; the anonymous posters are not
   immune from liability, and procedures are available, upon a
   proper showing, to ascertain their identities. (78)

While the procedures alluded to in Donato do indeed explain how to ascertain the identities of anonymous Internet posters in New Jersey, they do not provide an easy path toward accomplishing that goal.

The court in Dendrite International v. John Doe, No. 3 held that when a plaintiff makes an application seeking an order compelling an Internet Service Provider ("ISP") to disclose the identity of anonymous Internet posters, trial courts should implement a four-prong test. (79) First, plaintiffs must make efforts "to notify the anonymous posters that they are the subject" of the application and then "withhold action to afford the fictitiously-named defendants a reasonable opportunity to file and serve opposition to the application." (80) Second, plaintiffs must "identify and set forth the exact statements purportedly made by each anonymous poster" that are alleged to "constitute[] actionable speech." (81) Third, plaintiffs must "produce sufficient evidence supporting each element of its cause of action, on a prima facie basis," before the court orders the disclosure of the anonymous defendant's identity. (82) Finally, if the court finds that the plaintiff has established a prima facie case, it must then "balance the defendant's First Amendment right of anonymous free speech against the strength of the prima facie case presented and the necessity for the disclosure of the anonymous defendant's identity to allow the plaintiff to properly proceed." (83)

A closer reading of the court's four-prong analysis, however, identifies the difficulty plaintiffs now face when seeking an application to disclose the defendant's identity. As the court expressed in dicta, the four-prong standard "fails to provide a basis" for the analysis and balancing of a request for disclosure in light of the defendant's competing right to anonymity. (84) To address this concern in the execution of the test, the court emphasized the third prong's importance and recognized a distinction between the traditional application of a motion-to-dismiss standard and the one at stake in a court's balancing of rights when considering an application for disclosure. (85)

Specifically, the court agreed that "[p]re service discovery is akin to the process used during criminal investigations to obtain warrants" and is "necessary here to prevent abuse of this extraordinary application of the discovery process." (86) Consequently, the court supported the "flexible, non-technical application of the motion to dismiss standard" that might "depart from traditionally-applied legal standards in analyzing the appropriateness of such disclosure in light of the First Amendment implications." (87) In Dendrite, the court's four-part test, perhaps appropriately, resulted in the denial of the plaintiff's motion for disclosure. (88) However, the holding's greater significance lies in the establishment of a daunting obstacle for plaintiffs pursuing vindication of libel claims against anonymous defendants who post on the Internet.

C. Alternative Approaches to Protecting Children from Internet Speech

The result in Dendrite illuminates the potentially insurmountable dilemma that existing law poses for individuals pursuing civil libel claims against anonymous Internet posters. Notably, this problem confounds one of the traditional arguments against criminal libel: that it is superfluous because it serves the same purpose as the civil remedy. (89) With regard to anonymous Internet posters, the opposite appears to be true because civil libel may fail to provide redress. (90) This is perhaps the best justification for the adoption of a criminal libel statute. Nonetheless, before assuming that the passage of a criminal libel law is the solution to the problem of protecting children from anonymous posters, viable alternatives must be sought and considered.

First, existing statutes that bear on the protection of children online should be considered to determine what impact or application they might have and whether additional legislation is truly necessary. The CDA is an appropriate place to start this analysis. (91) As previously mentioned, the CDA severely constrains the civil liability of ISPs. (92) Perhaps to account for the gap in accountability caused by this limitation, the CDA was originally passed with language prohibiting any telecommunications contact that was intended to send "indecent" or "patently offensive" materials to minors. (93) While this broad provision likely would have encompassed the problem of minors being preyed upon online, it was struck down by the Supreme Court as an unconstitutional violation of the First Amendment. (94) As a result, the CDA in its current form largely fails to address the protection of children from online predators. The only manner in which the CDA advances the protection of children online is by offering immunity to ISPs as an incentive to encourage independent policing. (95)

On the other hand, the CDA potentially allows room for both criminal and state law to fill the gap it created. Section (e) of the CDA dictates that the statute "shall [not] be construed to impair the enforcement of ... any ... Federal criminal statute." (96) Additionally, it should not "be construed to prevent any State from enforcing any State law that is consistent with this section," but with the caveat that "[n]o cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section." (97) Thus, one would imagine that a Federal criminal statute or a state law, that did not either abridge the immunity granted ISPs by the CDA or violate the First Amendment rights of online posters, would be the ideal method to protect children from online predators.

After the verdict in ACLU v. Reno, Congress again attempted to tackle the problem of protecting children online by passing the Child Online Protection Act (COPA). (98) COPA attempted "both to limit commercial photographers from selling their work over the Internet to minors and to deal with teasers." (99) Essentially, COPA attempted to establish minimum standards (100) for implementation by commercial websites to ensure minors were not viewing "harmful material." (101) Although COPA applied to commercial communications, and probably would not have addressed independent or anonymous posters, it too was found unconstitutional for infringing on First Amendment rights. (102)

In light of these two failures, many were convinced that the government might be ill-equipped to protect the interests of children online through legislation. (103) Nonetheless, there are existing laws worth consulting because they may provide a template for creating legislation that addresses the behavior in question, but not through criminal libel.

One possible template is 18 U.S.C. [section] 2422, titled "Coercion and enticement." (104) The statute punishes

   [w]hoever, using the mail or any facility or ... means of
   interstate or foreign commerce ... knowingly persuades,
   induces, entices, or coerces any individual who has not attained
   the age of 18 years, to engage in prostitution or any sexual
   activity for which any person can be charged with a criminal
   offense, or attempts to do so. (105)

In a challenge to the constitutionality of the statute, the Eleventh Circuit reasoned that unlike the CDA, whose failure to define the terms "indecent" and "patently offensive" led to it being ruled unconstitutionally overbroad, the usage in 18 U.S.C. [section] 2422(b) of "the words 'entice' and 'induce' are not ambiguous or subject to varying standards...." (106) Unlike the provisions of the CDA that were deemed unconstitutional because they prohibited communication of "patently offensive" content, this statute does not delve into kinds of speech that are prohibited, but instead targets the general activities that accompany such speech.

Undoubtedly, while the statute does not address the posting of information on the Internet, it appears to reach the behavior that Senator O'Toole is concerned about. For example, in United States v. Panfil, a man appealed his conviction under 18 U.S.C. [section] 2422(b) for initiating a sexually explicit chat conversation and asking to engage in sexual activity, via private message, with a Secret Service Agent who identified himself as a 13-year-old female. (107) The man was arrested by authorities after arriving at the location he had arranged to meet with the putative "girl." The conviction was upheld and the statute was held not to be "unconstitutionally overbroad or vague." (108)

In another case challenging the constitutionality of [section] 2422(b), United States v. Rojas, (109) the statute appeared even more well-adapted to punishing child predators online. In Rojas, the defendant was convicted under [section] 2422(b) for similarly persuading an underage person to engage in sexual activity. (110) This time, [section] 2422(b) was again challenged as unconstitutionally void for vagueness, and the court upheld the statute, reasoning that the terms of the statute "had plain and ordinary meaning and the statute discouraged unscrupulous enforcement by ensuring 'that only those who "knowingly" engage[d] in the illegal conduct are subject to prosecution.'" (111) Additionally, the defendant argued that the statute was vague because it implied that some form of transportation in interstate commerce is involved in the offense, but the court found that Rojas' stipulation that "'the Internet is a facility or means of interstate and foreign commerce'" resolved the issue. (112)

In [section] 2422(b), the making of statements is not the activity targeted for punishment. Thus, the object of [section] 2422(b) can be distinguished from that of the statute struck down in Garrison (113) in that the former is not primarily concerned with protecting the reputation of the alleged victim. The object is the protection of minors from involvement in illegal sexual activity, and thus the knowing use of the mail or facility of interstate commerce is not punishable under [section] 2422(b) without its connection to the persuasion or inducement of a minor to engaging in prostitution or illegal sexual activity. (114) For this reason the statute scarcely impedes, and only incidentally concerns, individuals' rights to free speech. As a result, it is increasingly evident that [section] 2422(b) serves the purpose of protecting children from online predators, without resorting to usage of criminal libel as the means for doing so.

IV. CONCLUSION

A. The Legal Sufficiency and Practical Efficacy of the New Jersey Bills

Few are likely to dispute the existence of the problem posed by the Internet in serving as a conduit for child predators to seek and discover targets. Social networking sites frequented by minors, like MySpace and Friendster, raise concerns about child predators because they invite underage users to post information about themselves. In fact, New Jersey's Attorney General has asked these sites to cooperate with government officials "to make it easier for teens to report online sexual solicitations and other suspicious activity to police." (115) At the very least, this act validates the concerns of Assemblyman Biondi and Senator O'Toole as expressed in their proposed legislation designed to expand the scope of both criminal and civil liability with regard to Internet speech. Unfortunately, the passage and enforcement of the proposals do not appear to be the best way to assuage their concerns, and may not even be legally viable options.

Looking first at the legal sufficiency of the bills, it seems unlikely that Biondi's bill, making "certain operators of interactive computer services and Internet service providers liable to persons injured by false or defamatory messages posted on public forum websites," would withstand a challenge. (116) The bill proposes to create this liability by requiring ISPs to acquire the legal name and address of anyone who posted on the Internet and establish procedures for persons to obtain this information. (117) Failure to fulfill these requirements would provide a person harmed by false or defamatory messages posted with a right to sue the ISP. (118)

This appears to directly conflict with the spirit of and policy underlying the CDA. Although the CDA does not assert that ISPs are entitled to blanket immunity from libel and defamation claims, it does immunize them from liability for defamatory material posted through their services by third parties. (119) The Act's fundamental purpose is to encourage the growth of the Internet by protecting entities providing Internet access from potentially innumerable lawsuits based on the activities of users that they have a limited capacity to regulate. (120) New Jersey Assembly Bill 1327 is a blatant affront to the policy of the Federal Government, as explicitly expressed by Congress in the CDA. As a result, it seems improbable that a court, upon consideration of a facial challenge to the bill, would uphold the statute.

With regard to Senator O'Toole's bill, there appears to be no conflict with existing law. (121) Senate Bill 580 makes it a crime for a person "by means of an Internet web page, electronic message or through other similar uses of the Internet" to:

2. a. [K]nowingly post[ ] ... personal identifying information about a minor child, without ... prior written consent ... and such posting is for the purpose of harassment of the minor.

b. (1) [K]owingly misrepresent[ ] ... the age of a minor child, either directly through descriptive representations or indirectly through pictorial representation, and such misrepresentation is reasonably likely to encourage, promote, or otherwise induce another person to make unsolicited contact with the minor child for the purpose of harassment of the minor child; and (2) in conjunction with the misrepresentation of the age of the minor child, the person knowingly posts ... personal identifying information about the minor child without ... prior written consent....

3. [K]nowingly ... represent oneself, either directly or indirectly, to be another person without the express written authorization or written approval of that person, for the purpose of harassment of a minor child or inducing another person to make unsolicited contact with a minor child for the purpose of harassment of the minor child. (122)

Unlike 18 U.S.C. [section] 2422(b), the focus of Senate Bill 580 is squarely on the "posting of certain personal information on the Internet or misrepresentation of identity on the Internet for the purpose of harassment of a minor child." (123) The language of Senate Bill 580 resembles that of [section] 2422(b) in that it reflects the intention to protect minors from harassment instead of protecting their reputations. (124) Unlike [section] 2422(b), by targeting posts that are likely to make the harassment of a minor more probable, Senate Bill 580 comes closer to punishing communications made in isolation from the act of harassment itself. Its sole emphasis on the act of communication makes it closely resemble a traditional criminal libel statute.

If a court were to interpret it as such, Senate Bill 580 would likely withstand a challenge to its constitutionality. The language "for the purpose of harassment" could be deemed as satisfying the "actual malice" requirement, and the Bill primarily punishes the false representation of the age of a child or the identity of the poster. (125) However, it might be susceptible to the argument that it does not provide for truth as a defense, because it punishes the posting of "personal identifying information about a minor child" without regard to the truth of the information. (126)

Having considered the legal sufficiency of the two bills, the likelihood of their effectuating the changes they seek to engender with regard to the safety of individuals online can be contemplated. Even assuming it could withstand a challenge asserting its preemption by the CDA, Biondi's bill seems unlikely to accomplish its goals. While the CDA does eliminate an opportunity for the government to enforce the filtering out of online predators by allowing ISPs to opt out of administratively cumbersome registration requirements, its purpose is to create an incentive for ISPs themselves to take the initiative in such filtering. (127)

Furthermore, most ISPs already require the information, as a component of registration, and have established the procedures that Biondi proposes be required by law. (128) The problem then is not the failure of ISPs to act in creating these obstacles for online predators. The problem is that these measures are easily circumvented by users providing false information. (129) As the CDA contemplates, (130) depriving immunity to ISPs and adopting the paternalistic attitude advocated by Biondi might prompt ISPs to minimize their efforts to filter out dangerous people and content in order to avoid incurring additional liability. Moreover, the government would not be able to fill the void left by apathetic ISPs choosing not to engage in filtering because of the same First Amendment limitations that hampered the efforts of the CDA and COPA. (131)

Unlike Biondi's, Senator O'Toole's bill does not suffer the problem of contradicting existing law and policy. Nonetheless, it is not ideally suited to achieve its objective of protecting children from online predators. At best, it might punish defendants in the same manner as 18 U.S.C. [section] 2422 and alleviate the concern about defendants avoiding prosecution under that statute on the grounds that their usage of the Internet did not constitute use of a means of interstate commerce. While drafting a bill which more closely resembles [section] 2422 may have been preferable, Senate Bill 580 is not ill-suited because of faulty drafting, but rather because of the nature of the problem it endeavors to resolve. The bill does not account for the fact that the problem with online predators largely arises from the posting of information on the Internet by the targets themselves.

In other words, if a child posts no information on the Internet, a predator will be unable to find him. The posting of false information by a classmate or other prankster might turn predators onto a target, as was the fear with Monirae Hickey, (132) but the target must respond with crucial information that enables a real-life encounter. After all, while the classmate or prankster may be deserving of punishment, the real object of the criminal libel law is the person trying to create an opportunity to engage in illegal sexual conduct with a child in the position of Hickey.

As a result, it seems unlikely that attaching a penalty to the act of posting false or inaccurate information on the Internet would deter or prevent predators from preying on children. The important information here is that which is posted by the victim because it is proximate to the sex crime in that it enables a predator to set up a meeting with the victim. O'Toole's statute would punish the posting made by a classmate or other person who knew the victim, not the communications made to the victim by the predator. (133) This might prevent the creation of a number of leads for predators, but it would not impact the bulk of the problem, which results from direct contact between predator and prey.

Put another way, "[u]sers must actively seek out any information they wish to receive." (134) "[I]f the concern is that anonymity may allow deceptive communications in the luring of children from their homes ... parents must take an active role in guiding their child through the computer revolution." (135) It is largely the information coming from the endangered children themselves that puts them in harm's way, not information coming from individuals looking to harm them or from third parties. This attribute is what makes the problem so difficult to cure through legislation and more easily addressed through private action.

B. Corollaries to the National Situation

The difficulty in combating online predators through legislation is not unique to New Jersey. Currently, there are at least two bills that attempt to address the issue pending in Congress: the Deleting Online Predators Act (136) and the Keeping the Internet Devoid of Sexual Predators Act of 2007. (137) DOPA seeks to protect children by barring their access to blogs and social networking websites from schools and libraries, (138) while KIDS attacks the problem through a somewhat novel approach by requiring sex offenders to register their e-mail and instant messaging addresses with the National Sex Offender Registry. (139) KIDS also criminalizes the misrepresentation of age by people over eighteen with the intent to use the Internet to engage in criminal sexual conduct with a minor. (140)

Both DOPA and KIDS are susceptible to criticism that has no doubt become familiar over the course of this note. DOPA may infringe on First Amendment rights because it could burden constitutionally protected speech by preventing access to materials that are legal and by preventing some speech from taking place at all. (141) Meanwhile, KIDS, like Biondi's bill, could be easily circumvented by predators through the use of either false information or aliases other than the one they registered. (142)

Ultimately, it is apparent that both local and national attempts at legislating in this area are subject to the same obstacles and shortcomings. The reality is that legislation effectively targeting online predators is either illegal because it violates the CDA or the First Amendment or ineffectual because it is unable to reach and punish the behavior of predators before they act. In order to deal with the genuine problem of online predators, there appears, at present, to be one clear path. Along with an industry led effort to use technology to filter out predators, enforcement of laws like 18 U.S.C. [section] 2422 must be relied upon as deterrents, and parents must take the initiative in monitoring their children and instructing them not to talk to strangers, as they did prior to the advent of the Internet. Here, "[i]nstead of the unknown individual on the street, the stranger is the Internet. As a result, a child should be leery any time the 'Internet' requests ... [the disclosure of] personally identifiable information." (143) The appropriate role for the Government is to encourage the efforts of parents and the Internet industry and to enforce existing laws. (144)

(1.) Assemblyman Biondi introduced bill number 1327 and Senator O'Toole introduced bill number 580. According to the website of the New Jersey legislature, Assembly Bill 1327 was "Withdrawn from Consideration" on February 8, 2007. New Jersey Legislature, Bills, http://www.njleg.state.nj.us/bills/ Billview .asp (last visited Jan. 11, 2008).

(2.) Assemb. 1327, 212th Leg. 2006-07 Sess., (N.J. 2006).

(3.) S. 580, 213th Leg. 2008-09 Sess., (N.J. 2008).

(4.) See Margaret K. Collins, Some Push to Criminalize False Personal Info, Sept. 20, 2006, http://www.xtremeboomers.com/public/139.cfm (last visited March 24, 2008). Assemblyman O'Toole undertook the drafting of his bill after responding to a Wayne Council resolution initiated by Wayne Councilman Paul Margiotta. Id.

(5.) Id.

(6.) Id.

(7.) Id. The Judy Cajuste incident was also brought to O'Toole's attention by Margiotta. Id.

(8.) Id.; see also, Investigators Looking at MySpace, Predators Link, Feb. 6, 2006, http://cbs3.com/topstories/topstories_story_037213731.html.

(9.) See id.

(10.) S.B. 580, 213th Leg. (N.J. 2008). The bill makes it a crime in the fourth degree to:

   [K]nowingly post [on the Internet] ... personal identifying
   information about a minor child less than 16 years old, without the
   prior written consent ... that would permit or facilitate
   unsolicited contact with the minor.... and such posting is for the
   purpose of harassment of the minor.

Id. The bill also makes it a crime in the third degree to:

   [K]nowingly misrepresent[] [on the Internet] ... the age of a
   minor child less than 16 years old, and such misrepresentation is
   reasonably likely to encourage, promote, or otherwise induce
   another person to make unsolicited contact with the minor for the
   purpose of harassment ... [and] the person knowingly and without
   written authorization, posts personal identifying information about
   the minor....

Id. Finally, the bill makes it a crime in the fourth degree for a person to knowingly represent oneself to be another person without written authorization of that person for the purpose of harassment of a minor child or inducing another person to make unsolicited contact with a minor child for the purpose of harassment of that minor child. Id.

(11.) While both federal and state regulations will be examined in the course of this note, jurisdictional issues arising out of laws governing the Internet remain outside the scope of this note.

(12.) See, e.g., John. W. Dean, An Extremely Rare Criminal Libel Case, Currently Proceeding in Kansas, Raises the Question Whether Libel Should Ever Be Prosecuted, Dec. 6, 2002, http://www.writ.lp.findlaw.com/dean/200211206.html. (responding to a Kansas case involving the use of a criminal defamation statute); Anne Broache, Web Posts Spark Libel Complaint From Politician, Aug. 22, 2005, http://www.news.com/Web+posts+spark+libel+complaint+from+politican/ 2100-1030_3-5841806.html (responding to an incident in Oklahoma in which prosecutors considered filing criminal libel charges); Gregory C. Lisby, No Place in the Law: The Ignominy of Criminal Libel in American Jurisprudence, 9 COMM. L. & POL'Y 433, 435-37 (2004) (responding to the Kansas case involving the use of a criminal defamation statute).

(13.) Lisby, supra note 12, at 437-38. Gregory C. Lisby is a Professor in the Department of Communication at Georgia State University and a member of the State Bar of Georgia. Id. at 433.

(14.) 379 U.S. 64 (1964).

(15.) 376 U.S. 254 (1964). The Court in New York Times established the constitutional limits of state power with regard to civil actions brought by public officials for criticism of their official conduct. Id. at 279-80. The Court held that state power was limited "to an award of damages for a false statement "made with 'actual malice'--that is, with knowledge that it was false or with reckless disregard of whether it was false or not." Id.

(16.) Garrison, 379 U.S. at 78. In addition to providing for the existence of absolute privilege and establishing a presumption of malice, the Louisiana statute stated:

Defamation is the malicious publication or expression in any manner, to anyone other than the party defamed, of anything which tends:

(1) To expose any person to hatred, contempt, or ridicule, or to deprive him of the benefit of public confidence or social intercourse; or

(2) To expose the memory of one deceased to hatred, contempt, or ridicule; or

(3) To injure any person, corporation, or association of persons in his or their business or occupation.

Whoever commits the crime of defamation shall be fined not more than three thousand dollars, or imprisoned for not more than one year, or both.

Id. at 66 n.1 (quoting LA. REV. STAT. ANN. [section] 14:47 (1950)).

(17.) Id. at 67.

(18.) Id. at 69.

(19.) Id.

(20.) Id. at 73.

(21.) Edward L. Carter, Outlaw Speech on the Internet: Examining the Link Between Unique Characteristics of Online Media and Criminal Libel Prosecutions, 21 SANTA CLARA COMPUTER & HIGH TECH. L.J. 289, 295 (2005). Criminal libel statutes were struck down in Mississippi, Pennsylvania, Arkansas, California, Alaska, Georgia, South Carolina, Colorado, New Mexico, Montana, Alabama, Utah, and Puerto Rico. Id.

(22.) Criminalizing Speech About Reputation: The Legacy of Criminal Libel in the U.S. after Sullivan and Garrison, MLRC Bulletin 2003 No. 1 (Media Law Res. Ctr., New York, N.Y., Mar. 2003). According to the Media Law Resource Center's report, seventy-seven cases of threatened and actual criminal libel prosecutions took place between the year Garrison was decided (1964) and 2002. Id. Of the seventy-seven, twenty-five took place in 1997, "roughly the time period in which use of the Internet became widespread." Carter, supra note 21, at 298 (citing Criminalizing Speech About Reputation: The Legacy of Criminal Libel in the U.S. after Sullivan and Garrison). Of these twenty-five, eight "involved speech on the Internet." Id.

(23.) Garrison, 379 U.S. at 78.

(24.) Not surprisingly, these rationales also help explain why the Court did not decide to declare criminal libel per se unconstitutional.

(25.) Garrison, 379 U.S. at 75.

(26.) Id. (quoting Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942)).

(27.) Id.

(28.) Carter, supra note 21, at 299. Due to the small number of criminal libel cases generally, it is difficult to discern whether the Internet has contributed to an increase in cases even though the average number of cases appears to have risen in the period from 1997 and 2002. Id.

(29.) And of course, the prospective adoption of a criminal libel statute in New Jersey.

(30.) Carter, supra note 21, at 315.

(31.) David Damron, Internet Prank Leaves Haven as its Victim--Confidential Shelter for Women Posted as Lesbian Phone Sex Site, ORLANDO SENTINEL, Feb. 15, 1998, at 1.

(32.) Id.

(33.) Id.

(34.) Bill Braun, Officer Receives Deferred Sentence, TULSA WORLD, May 22, 1999.

(35.) Id.

(36.) Id.

(37.) Melody Brumble, Defamation Case Goes to Court, SHREVEPORT TIMES, Sept. 20, 1999, at 1B.

(38.) Woman Sentenced for Internet Message, BATON ROUGE ADVOCATE, Sept. 22, 1999, at B3.

(39.) Lisa Sink & Linda Spice, Man Charged with Defamation, MILWAUKEE J. SENTINEL, June 7, 2000.

(40.) Lisa Sink, Man Convicted of Posting ex-Boss' Name on Sex Site, MILWAUKEE J. SENTINEL, Aug. 11, 2000.

(41.) Id.

(42.) Id.

(43.) Sink & Spice, supra note 38.

(44.) Id.

(45.) Electa Draper, Case Fuels Challenge to Libel Law, THE DENVER POST, Apr. 25, 2006, at B-05.

(46.) Shane Benjamin, Durango Man Gets 23 Years, THE DURANGO HERALD, Apr. 8, 2006.

(47.) Mike Wiggins, GJ Teen Accused of Posing as Teacher, THE DAILY SENTINEL, Sept. 13, 2006.

(48.) Id.

(49.) See infra Section III, Part A.

(50.) See Bill Kentworthy, Criminal-libel Statutes, State by State, FIRST AMENDMENT CENTER ONLINE, 2006, http://www.firstamendmentcenter.org/analysis.aspx?id= 17263. Among these states are Colorado, Florida, Georgia, Idaho, Illinois, Iowa, Kansas, Louisiana, Michigan, Minnesota, Nevada, New Hampshire, New Mexico, North Carolina, North Dakota, Ohio, Oklahoma, Virginia, Washington, and Wisconsin. Id. The breadth of the statutes varies from state to state. Additionally, the applicability of some of these statutes is limited by court decisions or by procedural requirements. Id.

(51.) High School Student Faces Criminal Libel Charges for Web Site Remarks, STUDENT PRESS LAW CTR. (Fall 2000), http://www.splc.org/report_detail.asp?id=445&edition=4.

(52.) David Hudson, Attorney for Utah Teen Says State's Criminal Libel Law Unconstitutional, THE FREEDOM FORUM ONLINE (July 7, 2000), http://www.freedomforum.org/templates/document.asp?documentID=2970.

(53.) UTAH CODE ANN. [section] 76-9-502 (1991) (repealed 2007). The criminal libel statute provides that "[a] person is guilty of libel if he intentionally and with a malicious intent to injure another publishes or procures to be published any libel." Id.

(54.) Id. [section] 76-9-507 (repealed 2007).

(55.) In re I.M.L., 61 P.3d 1038, 1048 (Utah 2002). It is worth noting that establishing standing for facial challenges to criminal statutes based on the First Amendment is relatively easy, in the sense that conduct need not be constitutionally privileged in order to do so. Id. at 1041 (citing Bigelow v. Virginia, 421 U.S. 809, 815-816 (1974)). Standing is allowed in such cases "because of the 'danger of tolerating, in the area of First Amendment freedoms, the existence of a penal statute susceptible of sweeping and improper application.'" Id. (quoting NAACP v. Button, 371 U.S. 415, 433 (1963)).

(56.) Id. at 1048.

(57.) In re I.M.L, 61 P.3d at 1044; See supra notes 14-20 and accompanying text.

(58.) In re I.M.L, 61 P.3d at 1045. Five years later, the Utah criminal libel statute proved problematic for Utah's legislature as well. On February 12, 2007, The Utah House of Representatives voted 70-0 in favor of Senate Bill 86, which proposed the repeal of the state's criminal libel and slander laws. Legislature at a Glance, DAILY HERALD, Feb. 15, 2007, at A5. The only thing preventing the laws' complete abolition at this point is the signature of Utah Governor John Huntsman Jr. See Jared Taylor, Utah Set to Repeal Criminal Libel Laws, STUDENT PRESS LAW CTR., (Feb. 16, 2007), http://www.splc.org/newsflash.asp?id=1444&year=.

(59.) Carter, supra note 21, at 307-08. The reactionary response by the County Attorney in charging Lake may have been fueled by paranoia stemming from the recent shootings at Columbine High School in 1999. Id. That paranoia, coupled with the perception of the Internet as a "haven for lawbreakers," may have caused people to perceive of Lake's behavior as particularly anti-social and threatening. Id.

(60.) Editor of Satirical Web Site Won't Face Criminal Libel Charge, USA TODAY, Jan. 20, 2004, available at http://www.usatoday.com/tech/news/2004-01-20-howling-legal_x.htm.

(61.) Id.

(62.) Karen Abbott, Salazar Drawn into Battle over Libel Law; ACLU Challenges its Constitutionality in Web Satire Case, ROCKY MTN. NEWS, Feb. 20, 2004, at 7A. The case was dismissed in District Court. Mink v. Salazar, 344 F. Supp. 2d 1231, 1240-41 (D. Colo. 2004). However, the constitutionality of the criminal libel law is currently being challenged in another case. Draper, supra note 44, at B-05.

(63.) Press Release, Student Press Law Center, Student Press Law Center Argues for End to Criminal Libel Prosecutions (April 4, 2005), available at http://www.splc.org/newsflash.asp?id=996.

(64.) Id.

(65.) Senator O'Toole's Bill does in fact have a knowledge requirement. S. 580, 213th Leg., 2008-09 Sess. (N.J. 2008).

(66.) N.J. STAT. ANN. [section] 2A:120-1 (West 1985) (repealed 1978).

(67.) N.J. STAT. ANN. [section] 2A:43-1 (West 1952); State v. Browne, 206 A.2d 591, 597 (N.J. Super. Ct. App. Div. 1965).

(68.) N.J. STAT. REV. [section] 2:157B-5. The statute, a slander statute, criminalized "any speech, statement, or declaration, which in any way incites, counsels, promotes, or advocates hatred, abuse, violence or hostility against any group or groups of persons residing or being in this state by reason of race, color, religion, or manner of worship." Id. Although restrictive of free speech, this statute was clearly oriented more toward hate speech than statements made against individuals. Thus, it could at least overcome the criticism that it served no purpose since a parallel civil remedy was available.

(69.) State v. Klapprott, 22 A.2d 877, 881-82 (N.J. 1941). In Klapprott, the New Jersey Supreme Court emphasized the legitimacy of the "breach of the peace" rationale in restricting speech, but noted that the statements made by the plaintiffs did not reach the necessary "clear and present danger" threshold. Id. at 882. (citing Schenck v. United States, 249 U.S. 47, 52 (1919). It then declared the statute unconstitutional with regard to both section 5 of Article I of the New Jersey Constitution of 1844 and to the Fourteenth Amendment to the Federal Constitution. Id. at 882.

(70.) See Browne, 206 A.2d at 595.

(71.) Id. (quoting N.J. CONST. art. I, [paragraph] 6). The New Jersey Constitution states in pertinent part that "[n]o law shall be passed to restrain or abridge the liberty of speech or of the press" and that "in all prosecutions or indictments for libel, the truth may be given in evidence to the jury; and if it shall appear to the jury that the matter charged as libelous is true, and was published with good motives and for justifiable ends, the party shall be acquitted." N.J. CONST. art. I, [paragraph] 6.

(72.) Lyrissa Barnett Lidsky, Silencing John Doe: Defamation & Discourse in Cyberspace, 49 DUKE L.J. 855, 868-69 (2000).

(73.) 865 A.2d 711 (N.J. Super. Ct. App. Div. 2005).

(74.) Id. at 713.

(75.) Id.

(76.) 47 U.S.C. [section] 230 (2000) [hereinafter CDA or the Act]. The Communications Decency Act of 1996 was passed by Congress, inter alia, to further and "encourage the development" of the Internet and to remove disincentives for "development and utilization of blocking and filtering technologies that empower parents to restrict their children's access to objectionable or inappropriate online material." Id. [section] 230(b). The Act accomplishes this by establishing two rules. First, the Act states that "[n]o provider or user of an interactive computer service shall be treated as a the publisher or speaker of any information provided by another information content provider." Id. [section] 230(c)(1). Second, the Act states that "a provider or user of an interactive computer service" will not be held liable for good faith efforts to restrict access to obscene or otherwise objectionable material or for taking actions to supply information content providers with the means to restrict access to such material. Id. [section] 230(c)(2). The liability of ISPs for content appearing through their services is minimal as a result of these provisions. Consequently, the ability of individuals to seek satisfaction through civil libel claims arising from the Internet is similarly small, since they cannot sue easily identifiable parties (the ISPs), and instead must pursue the actual posters of information, who are often anonymous.

(77.) Donato, 865 A.2d at 713.

(78.) Id. at 725 (quoting Dendrite Int'l v. John Doe, No. 3, 775 A.2d 756, 760-61 (N.J. Super. Ct. App. Div. 2001)).

(79.) Dendrite, 775 A.2d at 760-61. This four-prong test was implemented by the trial court in this case and was adopted from a federal case in which an unknown defendant registered an Internet domain name and the plaintiff sought disclosure of his identity in pursuit of his trademark infringement claim. Id. at 766-67 (citing Columbia Ins. Co. v. Seescandy.com, 185 F.R.D. 573, 575-76 (N.D. Cal. 1999)).

(80.) Id. at 760. The court added that the effort to notify the defendants included the posting of a message on the relevant message board. Id.

(81.) Id. at 760.

(82.) Id.

(83.) Id. at 760-61.

(84.) Dendrite, 775 A.2d at 770.

(85.) Id.

(86.) Id. (quoting Seescandy.com, supra note 79 at 579-80).

(87.) Id. at 771.

(88.) Id.

(89.) See Lisby, supra note 12 at 437-38 and accompanying text.

(90.) See supra notes 72-88 and accompanying text.

(91.) See CDA, supra note 76.

(92.) Id.

(93.) 47 U.S.C. [section] 223 (Supp. 1997) (current version at 47 U.S.C. [section] 230 (2000)).

(94.) Reno v. ACLU, 521 U.S. 844, 874 (1997). The Court held the statute to be overbroad and lacking the precision needed for the statutory limitation of the First Amendment. Id. Foreshadowing the conflict between free speech and protecting children contemplated in this essay, Justice Stevens noted that the Court "presume[d] that governmental regulation of the content of speech is more likely to interfere with the free exchange of ideas than to encourage it. The interest in encouraging freedom of expression in a democratic society outweighs any theoretical but unproven benefit of censorship." Id. at 885.

(95.) Donato, 865 A.2d at 717.

(96.) 47 U.S.C. [section] 230(e)(1) (2000).

(97.) Id. [section] 230(e)(3).

(98.) 47 U.S.C. [section] 231 (2000) [hereinafter COPA].

(99.) Melanie L. Hersh, Is COPPA a Cop Out? The Child Online Privacy Protection Act as Proof That Parents, Not Government, Should be Protecting Children's Interests on the Internet, 28 FORDHAM URB. L.J. 1831, 1848 (2001). "'Teasers' are 'free sexually explicit images and animated graphic image files designed to entice a user to pay a fee to browse the whole site.'" Id. (quoting ACLU v. Reno, 31 F. Supp. 2d 473, 476 (E.D. Pa. 1999)).

(100.) 47 U.S.C. [section] 231(c). Access could be restricted to meet such standards by: "requiring use of a credit card, debit account, adult access code, or adult personal identification number, "accepting a digital certificate that verifies age," or "by any other reasonable measures that are feasible under available technology." Id.. [section] 231(c)(1).

(101.) COPA defines "'harmful material'" as "any communication ... that is obscene or that ... (A) ... is designed to appeal to ... the prurient interest;' (B) depicts ... an actual or simulated ... sexual act ... and; (C) taken as a whole, lacks serious ... value for minors." Id. [section] 231(e)(6).

(102.) ACLU v. Reno, 217 F.3d 162, 181 (3d Cir. 2000).

(103.) See, e.g., Hersh, supra note 99, at 1878 (concluding that "[t]he government is too removed to have a substantial influence on children's Internet usage" and that "[a]lthough some form of regulation is arguably necessary ... the government has shown that it, alone, is not the appropriate regulating body in this matter."); Dorothy A. Hertzel, Don't Talk to Strangers: An Analysis of Government and Industry Efforts to Protect a Child's Privacy Online, 52 FED. COMM. L.J. 429, 450 (2000)(lamenting the yet unseen effectiveness of legislation in protecting children online and suggesting that parents are ultimately necessary to monitor their children's Internet usage).

(104.) 18 U.S.C. [section] 2422 (2006).

(105.) Id. at [section] 2422(b).

(106.) United States v. Panfil, 338 F.3d 1299, 1301 (11th Cir. 2003).

(107.) Id. at 1299-1300.

(108.) Id. at 1304.

(109.) 145 F. App'x. 647 (11th Cir. 2005).

(110.) Id. at 647.

(111.) Id. at 648 (quoting Panfil, 338 F.3d at 1301).

(112.) Id. at 649.

(113.) LA. REV. STAT. ANN. [section] 14:47, see supra note 14 and accompanying text.

(114.) See 18 U.S.C. [section] 2422(b).

(115.) Rick Hepp, State Asks Web Networks to Help Combat Predators, THE STAR LEDGER, Nov. 17, 2006, at 20. New Jersey is not the only state to seek cooperation from social networking sites in thwarting the efforts of online predators. Id. In October, 2006, Connecticut asked "MySpace to 'adopt strict age-verification measures' after a man was charged with assaulting five girls he met on the site. Id. In March, of the same year, Ohio sent a similar letter to MySpace after a 14-year-old girl reported a rape by a 21-year-old man she met on the site. Id.

(116.) Assemb. 1327, 212th Leg. (N.J. 2006).

(117.) Id.

(118.) Id.

(119.) 47 U.S.C. [section] 230 (2000).

(120.) Id. Specifically, the Act enumerates five policies:

1) to promote the continued development of the Internet and other interactive computer services and other interactive media; 2)to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation; 3)to encourage the development of technologies which maximize user control over what information is received by individuals, families, and schools who use the Internet and other interactive computer services; 4) to remove disincentives for the development and utilization of blocking and filtering technologies that empower parents to restrict their children's access to objectionable or inappropriate online material; and 5)to ensure vigorous enforcement of Federal criminal laws to deter and punish trafficking in obscenity, stalking, and harassment by means of computer.

Id.

(121.) The bill stipulates that it is not to be construed as extending liability to ISPs, presumably to avoid conflict with the CDA. S. 580, 213th Leg. [paragraph] 4 (N.J. 2008).

(122.) Id. at [paragraph][paragraph] 2-3. Under the statute a minor is a person less than 16 years old. 47 U.S.C. [section] 230 [paragraph] 1.

(123.) This statement constitutes the synopsis for the bill. S. 580.

(124.) Id. The term "harassment" is defined by reference to N.J.S.A. 2C:33-4, which, in pertinent part, deems the offense of harassment committed when a person:

a. Makes, or causes to be made, a communication or communications anonymously or at extremely inconvenient hours, or in offensively coarse language, or any other manner likely to cause annoyance or alarm;

b. Subjects another to striking, kicking, shoving, or other offensive touching, or threatens to do so; or

c. Engages in any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such person. N.J.S.A. 2C:33-4.

(125.) S. 580, [paragraph][paragraph] 2-3, 213th Leg. (N.J. 2008); See supra Section II. A.

(126.) Id. [paragraph] 2. (by analogy per R.13.7(c))

(127.) See supra notes 76 & 120.

(128.) For example, in order to sign up for Cablevision's Optimum Online, users are required to submit their name, address, and home phone number. Optimum, Get Service Today, https://www.optimum.com/order/get_service.jsp (last visited Feb. 26, 2007). Additionally, in its Terms of Service, Optimum Online says that it "has the right to monitor content electronically from time to time and to disclose any information as necessary to satisfy any law, regulation or other governmental request, to operate ... properly, including, but not limited to, monitoring of a Subscriber's access to certain content ... or to protect itself, its Subscribers or any Third-Party Providers." Cablevision, Terms of Service, [paragraph] 11(a), http://www.optimum.com/support/terms.jsp?t=res_ool (last visited Feb. 26, 2007).

(129.) For instance, in 2000, when "NBCi.com shut down all of the e-mail accounts of people registered as being under thirteen, hundreds of adult men complained their accounts had been shut down without warning." See Hersh, supra note 99, at 1853.

(130.) See supra note 120.

(131.) See supra notes 94, 100-102 and accompanying text.

(132.) See supra notes 4-6 and accompanying text.

(133.) It is worth considering that punishing such individuals is better suited to deterring culprits like the person in the Monirae Hickey case and those in the scenarios detailed in Section II. B. rather than those responsible for the murder of Judy Cajuste.

(134.) Jay Krasovec, Cyberspace: The Final Frontier for Regulation?, 31 AKRON L. REV. 101, 140 (1997).

(135.) Id. at 141.

(136.) Deleting Online Predators Act, H.R. 1120, 110th Cong. (2007) [hereinafter DOPA]. Deleting Online Predators Act, S.49, 110th Cong. (2007).

(137.) Keeping the Internet Devoid of Sexual Predators Act of 2007, H.R. 719, 110th Cong. (2007) [hereinafter KIDS]. Keeping the Internet Devoid of Sexual Predators Act of 2007, S. 431, 110th Cong. (2007). The bill was passed by the House of Representatives on November 14, 2007. See Govtrack.us, H.R. 719, Keeping the Internet Devoid of Sexual Predators Act of 2007, http://www.govtrack.us/congress/bill.xpd?bill=hll0_719 (last visited March 28, 2008).

(138.) DOPA, supra note 136, [section] 203.

(139.) KIDS, supra note 137, [section] 2(d)(1).

(140.) Id. [section] 5(c).

(141.) Ctr. for Democracy & Tech., Child Safety and Free Speech Issues in the 110th Congress, at 6, http://www.cdt.org/speech/20070215freespeechincongress.pdf (Feb. 15, 2007). In addition, it would discriminate against less well off children because while affluent children would be able to access blocked websites from their home computers, poorer children would have no such alternative. Id.

(142.) Joe Garfoli, Bill to Curb Online Sexual Predators Critcized, S. F. CHRON., Jan. 31, 2007, at A-2.

(143.) Hertzel, supra note 103, at 449.

(144.) DOPA may represent the beginning of the government's recognition of this role. It contains a provision for the issuance of an alert by the Federal Trade Commission "regarding the potential dangers to children of Internet child predators." DOPA, supra note 135, [section] 204(a)(1). Additionally, it calls for the establishment of a website to serve as a resource for "information ... regarding the potential dangers posed by use of the Internet by children, including information about the use of social networking websites and chat rooms through which personal information about child users of such websites may be accessed by child predators." Id. [section] 204(a)(2).

Terel Klein, J.D. candidate, May 2008, Rutgers School of Law--Newark; B.A., double major History and American Studies, Lafayette College, 2005. The author would like to thank his family and friends for all of their support over the years. The author would also like to express his appreciation to Linda Rushnak for her advice in the composition of this note and the 2007-2008 staff of the Rutgers Computer & Technology Law Journal for their work in preparing this note for publication.