Supreme Court Won’t Revive Child Online Protection Act
Bloomberg, 1/24/09 - The U.S. Supreme Court, rejecting a Bush administration appeal, refused to resurrect a federal criminal law that would have punished people for making pornography available to children through commercial Web sites.
The justices, without comment, today let stand a federal appeals court ruling that the 1998 Child Online Protection Act runs afoul of constitutional free speech protections. The law was never enforced.
The Bush administration argued in its appeal that the lower court ruling “would leave millions of children unprotected from the harmful effects of the enormous amount of pornography on the World Wide Web.”
The Supreme Court in 2004 stopped the law from taking effect, ruling that the measure may unduly restrict adult access to constitutionally protected material. The 5-4 ruling said that blocking and filtering software might be a less restrictive and more effective way to limit youth access to online smut.
That decision sent the case back to the lower court level to consider the effectiveness of filters in more detail. The Philadelphia-based 3rd U.S. Circuit Court of Appeals ultimately concluded that filters “are more effective” than the law because they give parents more flexibility and can block foreign Web sites.
In its appeal, the Bush administration said half of U.S. households with children and Internet access don’t use filters. For children in those homes, “filters alone are not an alternative at all, much less a more effective one,” the government argued.
The American Civil Liberties Union, which led the challenge to the law, urged the Supreme Court not to get involved. The group said filters “are more effective than a criminal statute that does not reach overseas sites, non-commercial or non-Web- based speech.”
COPA, as the law is known, would have required commercial Web site operators who displayed pornography to screen out children by requiring a credit card number or adult access code. Violators would have faced up to six months in jail.
The statute barred making available to children under age 17 material that appeals to “prurient interest” and “lacks serious literary, artistic, political or scientific value for minors.”
The statute would have applied to commercial Web sites that carry pornography in the “regular course” of business. E-mail, newsgroups and chat rooms were exempted.
The justices also considered COPA in 2002, when a splintered court rejected a challenge that relied on a different legal theory.
COPA marked Congress’s second attempt to cordon off minors from sexually explicit pictures, videos and writings on the Internet. The Supreme Court struck down an earlier law, known as the Communications Decency Act, in 1997.
The case is Mukasey v. ACLU, 08-565.
COPA - Judge Rules Against Internet Porn Law
AP, 3/24/07 - A federal judge on Thursday dealt another blow to government efforts to control Internet pornography, striking down a 1998 U.S. law that makes it a crime for commercial Web site operators to let children access "harmful" material.
In the ruling, the judge said parents can protect their children through software filters and other less restrictive means that do not limit the rights of others to free speech.
"Perhaps we do the minors of this country harm if (free speech) protections, which they will with age inherit fully, are chipped away in the name of their protection," wrote Senior U.S. District Judge Lowell Reed Jr., who presided over a four-week trial last fall.
The law would have criminalized Web sites that allow children to access material deemed "harmful to minors" by "contemporary community standards." The sites would have been expected to require a credit card number or other proof of age. Penalties included a $50,000 fine and up to six months in prison.
Sexual health sites, the online magazine Salon.com and other Web sites backed by the American Civil Liberties Union challenged the law. They argued that the Child Online Protection Act was unconstitutionally vague and would have had a chilling effect on speech.
The U.S. Supreme Court upheld a temporary injunction in 2004 on grounds the law was likely to be struck down and was perhaps outdated.
Technology experts said parents now have more serious concerns than Web sites with pornography. For instance, the threat of online predators has caused worries among parents whose children use social-networking sites such as News Corp.'s MySpace.
The case sparked a legal firestorm last year when Google challenged a Justice Department subpoena seeking information on what people search for online. Government lawyers had asked Google to turn over 1 million random Web addresses and a week's worth of Google search queries.
A judge sharply limited the scope of the subpoena, which Google had fought on trade secret, not privacy, grounds.
To defend the nine-year-old Child Online Protection Act, government lawyers attacked software filters as burdensome and less effective, even though they have previously defended their use in public schools and libraries.
"It is not reasonable for the government to expect all parents to shoulder the burden to cut off every possible source of adult content for their children, rather than the government's addressing the problem at its source," a government attorney, Peter D. Keisler, argued in a post-trial brief.
Critics of the law argued that filters work best because they let parents set limits based on their own values and their child's age.
The law addressed material accessed by children under 17, but applied only to content hosted in the United States.
The Web sites that challenged the law said fear of prosecution might lead them to shut down or move their operations offshore, beyond the reach of the U.S. law. They also said the Justice Department could do more to enforce obscenity laws already on the books.
The 1998 law followed Congress' unsuccessful 1996 effort to ban online pornography. The Supreme Court in 1997 deemed key portions of that law unconstitutional because it was too vague and trampled on adults' rights.
The newer law narrowed the restrictions to commercial Web sites and defined indecency more specifically.
In 2000, Congress passed a law requiring schools and libraries to use software filters if they receive certain federal funds. The high court upheld that law in 2003.
COPA Trial Ends - Decision in Spring
Reuters, 11/21/06 - A U.S. law designed to prevent children from viewing pornography online would undermine the free speech of millions of adult Internet users, opponents of the measure said on Monday.
The law is so imprecisely written it would restrict most adult Internet users to material that is only suitable for children, lawyers for the American Civil Liberties Union and other plaintiffs said in closing arguments of a four-week trial.
The ACLU and others sued the U.S. government, claiming the Child Online Protection Act of 1998 violates the Constitution, and they argued on Monday that filtering was a more effective tool that does not curtail free speech.
But attorneys for the U.S. government called the law necessary to protect young people from sexually explicit material and said Internet filtering technology was not good enough to block offending Web sites from personal computers.
"Evidence shows that many parents do not actively use the filters," said Joel McElvain, an attorney for the U.S. Justice Department.
Judge Lowell Reed of the U.S. District Court for the Eastern District of Pennsylvania is expected to rule in spring 2007, and lawyers said the ruling was likely to be appealed because the case is seen as an important test of free speech limits on the Internet.
Among those suing are Nerve.com, an online magazine about sexual literature, art and politics that claims 1 million readers a month, and Urban Dictionary, an online dictionary of contemporary slang with 40 million readers.
The law, known as COPA, could force them to stop publishing, ACLU attorney Chris Hansen said.
"That's an awful lot of speech that would be chilled by COPA going into effect," Hansen said.
The law has never been implemented because it was challenged in court immediately after its signing by former President Bill Clinton.
It was held to be unconstitutional by federal district and appeals courts. The U.S. Supreme Court allowed an injunction against enforcement to stand, and referred the case back to the Pennsylvania court for a full trial.
The law would impose a maximum fine of $50,000 a day and up to six months in prison for anyone who uses the Internet to "make any communication for commercial purposes that is available to any minor and that includes any material that is harmful to minors."
Child Online Protection Act on Trial
AP, 10/23/06 - Eight years after Congress tried to criminalize material deemed "harmful to children," free speech advocates and Web site publishers took their challenge of the law to trial Monday.
Salon.com, Nerve.com and other plaintiffs backed by the American Civil Liberties Union are suing over the 1998 Child Online Protection Act. They believe the law could restrict legitimate material they publish online exposing them to fines or even jail time.
The Justice Department argues that it is easier to stop online pornography at the source than to keep children from viewing it.
The law, signed by then-President Clinton, requires adults to use some sort of access code, or perhaps a credit-card number, to view material that may be considered "harmful to children." It would impose a $50,000 fine and six-month prison term on commercial Web site operators that publish such content, which is to be defined by "contemporary community standards."
It has yet to be enforced, however.
The U.S. Supreme Court has twice granted preliminary injunctions, including one in June 2004 in which it ruled 5-4 that the plaintiffs were likely to prevail.
The ACLU argues that filters are a more effective way of policing the Internet. It notes that the law would not regulate any material posted overseas.
The government "will argue that parents are too stupid to use filters. It's an insulting argument and it's wrong," ACLU attorney Chris Hansen said in his opening statement Monday.
Eric Beane, a government attorney, acknowledged that it is tempting to defer to families on the question of what is appropriate for children, but said the patchwork of filters used by parents don't work.
"The evidence will show that a shocking amount of pornography slips through to children," Beane said.
The nonjury trial in front of U.S. District Judge Lowell Reed is expected to take about a month.
The plaintiffs, technology experts and even Supreme Court Justice Anthony M. Kennedy have expressed concerns that the law has already been surpassed by technology and the growth of the Internet. Kennedy noted, for example, that filters can block Web material posted offshore, but the law cannot control what foreigners post online.
In preparing for its defense of the law, the Justice Department sought internal files from search engine companies and Internet service providers. Google Inc. refused one such subpoena for 1 million sample queries and 1 million Web addresses in its database, although it primarily cited trade secrets, not privacy issues.
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