COPA anti-Net porn law: Down but not out

The U.S. Department of Justice has been fighting an extended legal battle since 1998 to enforce a federal law that targets Web sites deemed "harmful to minors." On Tuesday, it lost again.

This week's ruling (PDF) by the Philadelphia-based Third Circuit Court of Appeals means Web site operators can continue to relax, at least for now, about the Child Online Protection Act being enforced against them. COPA includes criminal penalties, including fines and six months imprisonment, for anyone found guilty of violating it.

The court concluded that COPA "cannot withstand a strict scrutiny, vagueness, or overbreadth analysis and thus is unconstitutional" and upheld a lower court's ruling from March 2007 that said the federal law was unconstitutional.

As a side note, because the law was written so long ago, it's surprisingly limited. It applies only to material delivered "by means of the World Wide Web"--meaning it doesn't cover peer-to-peer file sharing, the Usenet newsgroups that alarm New York's attorney general, games like Virtual Hottie 2, those naughty things happening in Second Life, videos watched via a third-party iPhone application, or streaming porn viewed through the VLC, RealPlayer, or Windows Media Player desktop applications.

Still, it's too early to say that this is the end of COPA. The Bush administration is guaranteed to appeal to the U.S. Supreme Court, which has come up with some surprising rulings in the two times it has already reviewed the law.

That's not a typo. The Supreme Court has handed down two preliminary rulings, once in 2002 and again in 2004. The first time it sent the case back to the Third Circuit with instructions to broaden its legal analysis beyond the law's interaction with community standards; the second time it wanted a review of whether "technological developments" have affected the law's constitutionality.

Now the court seems ready for a final ruling probably by next summer--and the more conservative justices conceivably could assemble a majority to uphold COPA as constitutional.

It could work like this: The Supreme Court's ruling in 2004 against the Justice Department and in favor of the ACLU commanded a narrow 5-4 majority, with justices Stephen Breyer, William Rehnquist, Sandra Day O'Connor, and (separately) Antonin Scalia dissenting.

The Breyer-written dissent said that COPA places "minor burdens on some protected material--burdens that adults wishing to view the material may overcome at modest cost. At the same time, it significantly helps to achieve a compelling congressional goal, protecting children from exposure to commercial pornography. There is no serious, practically available 'less restrictive' way similarly to further this compelling interest. Hence the Act is constitutional." Scalia went even further.

In the last four years, of course, John Roberts has succeeded Rehnquist and Samuel Alito has succeeded O'Connor, who was often a swing vote on free speech matters. The question for next year is whether the court's conservatives can pick up a majority, which would uphold COPA as constitutional and breathe life into a decade-old law that everyone else has forgotten about.

[Lerianis]

Frankly, there is nothing legitimate about 'protecting children from pornography'. Nothing legitimate. I saw it as a child, and it did not harm me whatsoever, unless you are going to include a more 'liberal' standard of sexual normality as being harm.

The fact is that sex is NORMAL for everyone, children included. If anything, we should be EXPOSING them to pornography, in order to teach them "Hey, sex is normal at any age, but forcing someone into sex is NOT normal!"

[chash360]

Here is the simple answer: Instead of restricting content, just require a standardized content flagging similar to TV Ratings, such that parents and end users can decide for themselves, and filter out what they don't want. Write it in such a way that no one is held liable for the material itself, thereby not infringing free speech and expression, and only hold liable those who do not provide the content flagging on publically published/available content. This does not restrict free speech. The flagging could even be done by the public itself, how many blogs have a button that allow you to tell them the posting is offensive? Just require the standardized rating system be provided, without even requiring the rating and have the unrated material be filterable too. (this would protect unviewed/unrated content from incurring penalty) Those too uptight can filter out that which offends them, and those who wish to decide for themselves retain the freedom to do so, Problem Solved.

[David_Burt]

Hmm, I'm skeptical that Kennedy will flip to the Roberts side on this Declan. He's the swing vote again.

What would the potential impact of the Supreme Court reversing COPA on the filtering industry be? Not much, in my opinion. As I told the New York Times in 2004 after the last Supreme Court ruling:

Had the law been upheld, it would merely have sent providers of pornography overseas, said David Burt, a consultant to the government on antipornography legislation and an executive of Secure Computing, a company that sells filtering software. He joked that the Child Online Protection Act, which goes by the acronym COPA, could more properly be called the ?Cyber Offshoring of Pornography Act.?

Not only would there still be lots of porn to filter, but pornography isn?t even the most important reason for filtering sales anymore. The vast majority of the revenue for filtering software is to businesses, and the main reason businesses purchase filters today is for security (blocking malware sites, phishing sites, etc.)

Lots more, including all the legal documents for the entire history of COPA on my blog here at www.filteringfacts.org

David Burt

[thynks11]

The pressure from NY AG against Newsgroups is getting to be ridiculous by having ISPs police its users over content that can easily be found on a variety of different channels. It appears to me that Usenet is targeted because of the effectiveness and the willingness of ISPs to pull the plug completely on the service, giving political credibility to the NY AG and its affiliates.
For me, Ive moved away from ISP related Usenet and found a great service that even offers a discount on ISP customers for an alternative.
Check it out: http://www.newsdemon.com

[play7]

Look a online game called SECOND LIFE...........

Is full of underage kids 17 lower. the mean age of the underage on Second Life is 13 to 16 males. Pretending to girls to make $1000.00(s) of real money a month. Online Sex is on Second Life is more of joke then anything else. Why Linden Lab continues to push Second Life as the place to be for VR sex is continuing to causing more problems for their current users that have sence to stay far away from such things. The state and countries need to continue to stop such online **** trends for the well being of the underage population protection. Linden Labs is the same company that talked a online Sex site to setup shop a few years back. Linden Lab when to the extend to continue ( this unnamed online porn site ) a VR club with all the details.....Protect the childred for online sex perverts

[play7]

As many of you might know Linden Lab a Online world that use its users in simulated sexual activities has had and still have child porn activities within its world. But has the laws proting child stopped Linden Labs and their sick and strange sexual life style of its users? No, they say their are not held for users actions. Well there you go people without a care. Now thats YOUR WORLD YOU IMAGENATION for you. SEX LIFE.