March 22, 2007 10:42 AM PDT

Net porn ban faces another legal setback

Congress' efforts to muzzle pornography on the Web were dealt another serious setback on Thursday, when a federal judge ruled a 1998 law was unconstitutional and violated Americans' First Amendment rights.

U.S. District Judge Lowell Reed in Philadelphia permanently barred prosecutors from enforcing the Child Online Protection Act, or COPA, saying it was overly broad and would undoubtedly "chill a substantial amount of constitutionally protected speech for adults." The lawsuit was filed by the American Civil Liberties Union.

Even though politicians enacted COPA nearly a decade ago as part of an early wave of Internet censorship efforts, the courts have kept it on ice and it has never actually been enforced. The law makes it a crime for commercial Web sites to make "harmful to minors" material publicly available, with violators fined up to $50,000 and imprisoned for up to six months.

A representative for the Justice Department said on Thursday: "We're still reviewing the court's opinion and we've made no determination what the government's next step will be." The Bush administration has the option of appealing its loss to the 3rd Circuit Court of Appeals.

Because of an odd legal twist, COPA has been bouncing around the legal system without a final resolution. The law already has been reviewed by the U.S. Supreme Court once--which agreed with a temporary ban on enforcement--but the justices said they wanted more information about the current state of filtering technology and stopped short of a definitive ruling on its constitutionality.

Reed's 84-page opinion (PDF) appears to be intended to provide ample grounds for the Supreme Court to strike down the law for good. The opinion includes a detailed review of the current state of filtering technology and concludes the programs are "fairly easy to install" and are "more effective than ever before."

The almost-forgotten law made headlines last year after Justice Department attorneys preparing to defend COPA in Reed's Pennsylvania courtroom sent subpoenas to Google, Microsoft, Yahoo and AOL asking for millions of search records. Only Google fought the subpoena in court, and it managed to persuade a California judge to limit what information prosecutors would receive.

The Justice Department gave excerpts of the search engines' databases (and, in some cases, anonymized search terms) to its expert, a Berkeley statistics professor named Philip Stark.

In response, Stark and a colleague prepared a report that said 1.1 percent of the Web sites cataloged by Google and MSN are sexually explicit. They also found that, in response to Web pages returned in response to the most popular search terms, AOL's filter performed the best and blocked 98.7 percent of sexually explicit Web pages. Some filters, however, blocked less than 90 percent of such pages.

In his ruling on Thursday, Reed cited the testimony of one of the ACLU's witnesses, Carnegie Mellon University professor Lorrie Faith Cranor, who found that filters generally block 95 percent of sexually explicit material. He also said that two congressionally-mandated studies "have confirmed that content filters can be effective at preventing minors from accessing harmful materials online" and are therefore more effective than criminal penalties.

First Amendment precedent makes this a crucial point: Anti-porn laws can only be upheld as constitutional if they're the least restrictive and most effective way to shield minors from salacious material. Otherwise, they're viewed as unconstitutional.

What if the Bush administration wins?
If the courts eventually uphold COPA as constitutional, a wide variety of Web publishers--from news to sex education to adult pornography--would have to revamp their sites or face criminal prosecution.

"Teaser" images on U.S. porn sites would likely vanish, since COPA says Webmasters who employ measures such as credit card verification or require an "adult access code" can't be prosecuted because such mechanisms would typically keep out minors. Other sites would simply move overseas, where U.S. law doesn't apply.

But COPA's use of the term "harmful to minors" is broad enough to sweep in more mainstream publishers as well. The term is defined as material that lacks "scientific, literary, artistic or political value" for minors and that is offensive to local "community standards."

That's why plaintiffs in the COPA case include the American Booksellers Foundation for Free Expression, Salon.com, ObGyn.net, Philadelphia Gay News and the Internet Content Coalition. CNET Networks, publisher of News.com, was a member of the now-defunct Internet Content Coalition.

Reed acknowledged that Congress "apparently intended" COPA to apply to commercial pornographers. But he ruled that the actual wording of the law is broad enough that mainstream publishers could "fear prosecution."

When Congress was debating the law a decade ago, anti-pornography groups identified it as a key political priority and lent strong support to conservative Republicans such as Ohio's Michael Oxley, COPA's co-author, who is no longer a member of the House of Representatives.

The American Family Association once called COPA "Congress' latest attempt to protect innocent children from the devastating effects on Internet pornography." The Family Research Council filed a legal brief calling the Internet the "most intrusive, pervasive medium of communication ever created," which can offer a "particularly dangerous method of transmitting" pornography.

COPA represents Congress' second attempt to restrict sexually explicit material on the Internet. The Supreme Court in 1997 rejected the Communications Decency Act, which targeted "indecent" or "patently offensive" material, as unconstitutional.

CNET News.com's Candace Lombardi contributed to this report

See more CNET content tagged:
Child Online Protection Act, setback, minor, law, First Amendment

33 comments

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Good
See how nobody has anything to say about a decision that was based on correct principles? If the judge had ruled the gov't does have the right to censor free speech there'd be a million posts complaining. It just goes to show... A huge reason why so many people in positions of authority are more than willing to go blindly down the road to tyranny is because it typically makes them the center of attention. Pathetic but true.
Posted by scdecade (329 comments )
Reply Link Flag
Fix Cnet login page
So I guess CNet will fix their login page and take this note off the bottom? After all, it's unconstitutional.

"In compliance with the Children's Online Privacy Protection Act of 1998, CNET does not accept membership registrations from users who are under 13 years of age. By registering with CNET Networks, you represent that you are at least 13 years old."
Posted by jsmith1785 (30 comments )
Reply Link Flag
RE
Not everything was struck down. The provision limiting the collection and use of information from minors under 13 still remain in force.
Posted by unknown unknown (1951 comments )
Link Flag
So, don't give your kids access
The Internet is not a free thing. You need a computer, a subscription, to get access. Like cable TV, if you don't want your kids looking at Porn online, DON'T BUY THEM ACCESS!
Posted by jpreno (18 comments )
Reply Link Flag
With cable TV, I can purchase the channels I want
If the Internet worked that way, it wouldn't be a problem.
Posted by Hardrada (359 comments )
Link Flag
No....
They need to make a Criminalization Of Pregnancy Act for all these finger-pointing parents. I don't care what you think is decent. I find you to be indecent. I should write my congressman requesting legislation making your face illegal to be visibly accessible to others. All these Ned Flandereses are just ruining their kids into becoming the next 40 year old virgins.
Posted by soup_ignorant (17 comments )
Link Flag
What we really need...
is two separate Internets. One for porn and spam, and one for legitimate uses. Let people choose which one they want.
Posted by Hardrada (359 comments )
Reply Link Flag
It was unnessecary in the first place
I understand, somewhat, Congress' motivation to enact such a law. It was to keep younger children away from such. Afterall, If a child couldn't legally purchase or view an issue of Penthouse magazine in their local Barnes 'N Nobles or Borders bookstores, why should they be able to do so online? However, enacting a law punishing the websites at a rate of $50,000 USD per incident is just unnessecary in the first place. It is a parent's job to enforce what their child should be seeing and should not be. Not the websites'. It is essentially like fining a store $50,000 because someone under the age of 18 walks in, removes the plastic from an adult magazine, and starts reading. It wasn't the stores fault nor should it be the websites or the party in ownership. There is already software capable of blocking access to such material. NetNanny and CyberSitter seem to be the most recommended from what I understand. If someone wishes to block it, pay for the above programs or teach your kids not to look at it. To digress just a little bit though, chances are your kids have seen it by the time they're out of 3rd grade... If you want proof of that, just check your email inbox...
Posted by mgss0lidsnak3 (18 comments )
Reply Link Flag
Check your analogy
I'm glad you and the guy above are willing to argue on the
merits of the reasoning the judge used. After all, the first rule of
LSAT logic is to not get emotionally involved with the subject
material :)
Anyway, your analogy to walking into a store somewhere (say, a
7-11 gas station) is apt, especially since I think that's the
intention the law's drafters had in mind. However, there are 2
things wrong with it. First, you pair the $50k fine with a child
walking into a store, unwrapping a Playboy, and starting to read.
This is a mis-match. The fine is for websites who refuse to
block children in the first place. The correct analogous situation
is if 7-11 refused to wrap up the porn and put it up on the top
shelf. However, all gas stations do this, and it's not a big deal.

Second, the main line of reasoning the judge used is that the
only tolerable limit on speech for a good reason (protecting
children) is the easiest/least restrictive limit needed to achieve
the end (so far so good!). Assuming I understand the result
correctly, the judge concluded that filtering software as a proxy
for full-time parental attention is the most expedient means of
achieving the end. I challenge this assumption. Filtering
software would be fine if it weren't so colossally easy to
circumvent, either at the physical terminal itself or by surfing
from a proxy. The actual task for parents having to learn as
much as their children do about computers in order to defeat
these countermeasures is much harder than just locking the
front door to porn sites, most of whom now do so anyway either
because they were in compliance with COPA or they're pay sites.

Telling parents to police all internet activity is fine - I do it
myself with my 3 older children - but it's not the most expedient
solution. Internet porn is so ubiquitious and universally
available (like Google image search, for one) that it's like telling
parents to catch every drop of water coming out of a sieve. It's
much easier to plug up most of the holes first and have to catch
the few drops that get through. In the case of IRL porn, if
parents bore the sole burden of controlling access, they have to
either prevent kids' bookstore/gas station access altogether or
check out every single one - and those that carry porn really are
everywhere. By "wrapping" the web site "front cover" in a child-
restrictive manner, the web site is sharing the burden. This is
the exact approach used in the real life bookstore/gas station
example: both parents and sellers share the burden, and that is
the lighest overall restriction on free speech.
Posted by scottk0640 (23 comments )
Link Flag
Unfair characterization
Hey, I hate to break it to you but porn IS a legitimate use, providing
it's consensual, legal and viewed in an appropriate setting (ie, not
at work or school.) Lumping it in with worthless endeavors like
spam is unfair.
Posted by celluloid3119 (6 comments )
Reply Link Flag
Disagree. People may want it but it's still worthless.
Just like drugs and gambling. An addiction of pathetic weaklings and a lucrative business for the people who prey on them. It's absolutely ridiculous that the public Internet infrastructure should be subsidizing its distribution.
Posted by fcekuahd (244 comments )
Link Flag
Doing more harm than good
When will Neo-cons and "family value" groups realize that they are actually harming their own cause.

By lobbying for loosely worded catch-all legislation like this they are leaving it open to attack from every angle. What we need is a far more tightly worded bill that keeps harmful material away from children (but still accessible to adults, as per the First) while allowing legitimate websites such as art galleries and sex-ed sites freedom from the fear of prosecution
Posted by perfectblue97 (326 comments )
Reply Link Flag
I agree that the legislation needs to be clear.
I think that "keeping harmful material away from children (but still accessible to adults, as per the First) while allowing legitimate websites such as art galleries and sex-ed sites freedom from the fear of prosecution" is the objective of the legislation. I hope that it can be more clearly defined to meet these objectives.
Posted by fcekuahd (244 comments )
Link Flag
Targeting the wrong people
Washington is targeting the wrong people. What we need is not some catch-all legislation that will be struck down in five minutes. What we need is an education campaign.

Target parents, tell them about keeping their computer in a family area so that they can keep an eye on their kids internet access, and about installing home filters to block porn, and about choosing a family friendly ISP like AOL which filters at the server side.

At the end of the day, it will be far easier to educate parents than it will be to go up against an industry with so many highly paid lobbyists, and so much constitutional protection, behind it.
Posted by perfectblue97 (326 comments )
Reply Link Flag
Error in Story
This story says "The law (COPA) already has been reviewed by the U.S. Supreme Court once." This is incorrect.

COPA has been reviewed by the Supreme Court TWICE. Once in 2002, when the justices left the injunction in place and suggested that the appeals court take a look at it on constitutional grounds. And again, in 2004, when the justices said COPA was too broad and could prevent adults from accessing material.
Posted by Maya Reynolds (1 comment )
Reply Link Flag
 

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