Internet Child User 'Protection' Law Struck Down

A controversial 1998 law that set a minimum federal penalty of $50,000 in fines and six months' imprisonment for anyone providing minors with access to "harmful" material via the Internet, was soundly struck down this morning in US District Court in Philadelphia. Judge Lowell Reed, Jr., affirmed in his decision today that Web filtering programs may do a better job of protecting minors from objectionable content than federal regulations.

"[The government's] own study shows that all but the worst performing filters are far more effective than COPA would be at protecting children from sexually explicit material on the Web," wrote Judge Reed in his decision this morning.

The judge's ruling may bring to a close the ACLU v. Gonzales case brought by the American Civil Liberties Union last October, challenging the federal government's assertion in the Child Online Protection Act of 1998 that it's the responsibility of Internet access providers to block any material that could conceivably harm a youngster. While proponents of COPA generally referred to it as an anti-pornography law, pornography per se was only one qualifier for material that could be deemed "harmful." Another was any kind of content that "the average person, applying contemporary community standards, would find, taking the material as a whole and with respect to minors, is designed to appeal to, or is designed to pander to, the prurient interest."

US Code may not adequately define "the average person," legal scholars have argued.

But the third qualifier was perhaps the most vague, referring in very broad strokes to content that was just plain bad, or that "taken as a whole, lacks serious literary, artistic, political, or scientific value for minors."

At one time, enforcement of COPA was ordered suspended, in a preliminary injunction emerging from the ACLU Pennsylvania case. An appeals court upheld the injunction, but then the US Supreme Court overturned it, remanding the case back to the district level for further review. At that point, it was argued that technological measures would perhaps be more effective than legislation, in an argument that tipped the burden over to the government to prove why legislation was the best course of action.

The Supreme Court then ruled the government had provided insufficient evidence that technological measures could not do the job better than legislation. It then decided to uphold the injunction, clearing the way for the ACLU to focus on the effectiveness of Web blocking tools as central to its new argument. The AP reports that the ACLU called on experts from adult entertainment content providers, among others, for demonstrations to the court.

In a statement this afternoon, ACLU staff attorney Chris Hansen wrote, "Technology evolves at an incredibly rapid pace, and our laws face the challenge of trying to keep up...Americans have the right to participate in the global conversation that happens online every moment of every day, and Congress does not have the right to censor that conversation."

The New York Times cites US attorney Peter D. Keisler as having responded this morning, "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."

Today's ruling may have an effect on federal investigative policy that may have nothing whatsoever to do with children or pornography: The Justice Dept. will now have one less foundation stone against which to leverage the issuance of investigative subpoenas, such as a series of January 2006 orders for Google, MSN, Yahoo and others to provide access to their databases of user search information. Those subpoenas were ostensibly issued in a massive search for subjects who could later be prosecuted under the COPA law.

MSN and Yahoo reportedly complied with the DOJ's demands, though Google chose to contest its subpoena. In March of that year, US District Judge James Ware ruled Google would have to turn over some, though not all, of the information the DOJ requested. In his ruling then, Judge Ware addressed some of the skepticism about the DOJ's possible motives for requesting the scope of information it was seeking, saying, "Any information sought by means of a subpoena must be relevant to the claims and defenses in the underlying case."

For its own investigation, the government agreed to only sample 50,000 URLs from a given week, Judge Ware noted, and produce aggregate data based on that sample. The DOJ said it would use this data to ascertain the relative value of filtering software, in either affirming or contesting the ACLU's arguments.

But the judge wondered whether the value of the data obtained from such a sample, in the suggested manner, would be relevant to COPA or any case whatsoever. "In such a study, the Court imagines, the URLs would be categorized, run through the filtering software, and the effectiveness of the filtering software ascertained as to the various categories of URLs," the judge wrote in March 2006. "The Government does not even provide this rudimentary level of general detail as to what it intends to do with the sample of URLs to evaluate the effectiveness of filtering software, and at the hearing neither confirmed nor denied the Court's speculations about the study. In fact, the Government seems to indicate that such a study is not what it has in mind," he continued, citing a DOJ statement that the data would only be used to ascertain trends and not yield evidence that could be used at trial.

In a footnote, Judge Ware also noted the government had a difficult time explaining how it planned to determine whether filtering software could distinguish real-world terms from sexually-connotative colloquialisms, and provided a few choice examples. He even implied the DOJ could not make references to these terms without apparently giggling.

In this morning's decision, Judge Reed alluded to the government's apparent inadequacy in defining what it was looking for in any or all the data it was sampling, saying, "The fact that Web publishers are faced with criminal prosecution for an alleged violation of COPA only serves to exacerbate the chilling effect resultant from the vagueness of the terms employed in COPA."

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