Proponents of the beleaguered Child Online Protection Act suffered yet another blow Tuesday when a federal appeals court deemed the law unconstitutional once again.
The 1998 law, known as “COPA,” aims to keep children from viewing pornographic materials on the Internet by making it a crime for commercial Web site operators to let children access “harmful” material. Penalties for violators include fines of as much as US$50,000 and up to six months’ imprisonment.
Following a similar ruling handed down in March of last year by U.S. District Court Judge Lowell Reed, the Philadelphia-based Third Circuit Court of Appeals this week affirmed the decision.
“It is apparent that COPA, like the Communications Decency Act before it, effectively suppresses a large amount of speech that adults have a constitutional right to receive and to address to one another, and thus is overbroad,” concluded the court. “For this reason, COPA violates the First Amendment.”
COPA has followed a tumultuous path since former President Clinton signed it.
A federal district court and a federal appeals court both ruled that the law violates the First and Fifth Amendments of the Constitution, and the Supreme Court upheld that decision in 2004, effectively banning the law’s enforcement. At that time, the case was sent back to the district court to determine whether there had been any changes in technology that would affect the law’s constitutionality.
The 2007 ruling struck down COPA again, and Tuesday’s ruling upheld the ban yet another time.
“COPA represents another attempt to protect children from the predators and inappropriate subject matter found in abundance on the wild World Wide Web,” technology attorney Raymond Van Dyke told the E-Commerce Times. “The Third Circuit, however, felt that the language of the Act was too broad and further work was needed to avoid constitutional issues.”
While the desire of parents and the government to protect minors from harmful materials on the Internet is “compelling,” Van Dyke added, so too are “the freedoms of the Constitution and the need for precision in crafting laws that do not impinge the rights of all citizens, particularly freedom of speech.”
Threat to Free Speech
Among many groups that have challenged the law over the years is the American Civil Liberties Union (ACLU), which has worked on behalf of “a broad coalition of writers, artists and health educators who use the Internet to communicate constitutionally protected speech,” it says.
Needless to say, such groups applauded the decision.
“For years, the government has been trying to thwart freedom of speech on the Internet, and for years the courts have been finding the attempts unconstitutional,” said Chris Hansen, senior staff attorney with the ACLU First Amendment Working Group. “The government has no more right to censor the Internet than it does books and magazines.”
The ACLU’s clients in the case include Salon Media Group, which runs the online magazine Salon.com; the Sexual Health Network, which operates SexualHealth.com; and Aaron Peckham, who owns UrbanDictionary.com.
“Our clients provide valuable and necessary health and news information,” said Aden Fine, senior staff attorney with the ACLU First Amendment Working group. “Preventing adults from accessing this information under the guise of protecting children is not permissible. There are more effective, less intrusive tools available to limit what minors can access on the Internet.”
The Electronic Privacy Information Center (EPIC) has also worked to fight COPA, and was equally happy with Tuesday’s decision.
“We were particularly interested in some of the privacy dimensions of COPA,” Marc Rotenberg, EPIC’s executive director, told the E-Commerce Times. “We believed the law would not only limit speech that should be protected, but would also mean sacrifices in privacy” through age verification and other systems that would have been involved.
“We’re glad the court acknowledged both the First Amendment concerns and the privacy concerns that arise when government tries to limit access to information on the Internet,” Rotenberg added.
‘Doomed From the Start’
“COPA was doomed from the start,” Parry Aftab, cyber-crime lawyer and executive director of WiredSafety.org, told the E-Commerce Times. “It was a second-generation attempt to legislate the same issues that came up in the Communications Decency Act, which was shot down years before.”
A commonly confused law, the Children’s Online Privacy Protection Act (COPPA), on the other hand, is “alive and well,” Aftab pointed out.
One of the biggest problems with COPA was that “anyone could walk into a local store and buy a copy of Playboy without having to give their name, address and phone number,” Aftab explained. With COPA’s requirements in the online realm, however, “that information could have come back to haunt you.”
The U.S. Supreme Court has extended “the greatest degree of free speech protection to online speech as possible,” she said. “It looks at the risk involved, and weighs that against other ways of handling it.”
There are indeed other ways, Aftab noted, and they are better.
To wit: In tests run at WiredSafety.org, “98 percent of pornography is blocked by McAfee filtering software that’s used properly,” she added.
‘Jockeying for Position’
“I do feel COPA is a good law — anything to protect children is good,” Teri Schroeder, CEO of i-SAFE, told the E-Commerce Times.
On the other hand, “being an education foundation on the other side, it seems like everything moves along and then someone cries ‘foul’ based on freedom of speech,” Schroeder explained.
Constitutional rights are “extremely valuable, but we’re kind of jockeying for position right now to determine what situations do and don’t fall within the purview of freedom of speech, and usually that comes down to action,” she added.
Cyber-stalking and cyber-bullying are two situations on which “the jury is still out,” Schroeder noted.
In the meantime, “we are heavily involved in teaching students what the lay of the land is, what the pros and cons are, and letting them know all of it,” she concluded. “That way, they can be properly informed and make good decisions.”