Judge overturns Internet child protection law

U.S. Government steps out of the business of censoring the Internet

The American Civil Liberties Union (ACLU) Thursday welcomed a decision by a federal judge to overturn a 1998 law that made it a crime for Web sites to offer sexually explicit material that could be accessed by minors.

"We think the court's decision reiterates that the government should not be in the business of censoring the Internet," said Aden Fine, senior staff attorney at the ACLU. "In the name of protecting children from harmful material, [the law] would have stopped adults from receiving a great deal of speech that is constitutionally protected. The court once again made it clear that Congress cannot do that."

U.S. District Judge Lowell Reed Jr. of the Eastern District of Pennsylvania yesterday threw out the Child Online Protection Act, (COPA) on the grounds that it was "impermissibly vague and overbroad." In issuing a permanent injunction against the law's enforcement, Reed said that -- despite the compelling interest by Congress in protecting children from sexually explicit material on the Web -- COPA violates an person's First and Fifth Amendment rights.

Enacted on Oct. 21, 1998, COPA provided for criminal and civil penalties against Web sites that failed to take adequate measures to prevent minors from accessing sexually explicit material. Under the law, sites with such content were required to verify the age of those accessing the material, via credit cards for instance, or some other proof of age. Site operators that failed to take such precautions were subject to fines of up to $50,000 and jail terms of up to six months.

The day after the law went into effect, several individuals and organizations, including the ACLU and online publications such as Sexual Health Network, Salon Media Group, and Free Speech Media, sought an injunction against enforcement of the law. A preliminary injunction was granted in February 1999 and upheld by the Supreme Court in February 2004.

Following the Supreme Court's decision, the case was sent back to Reed for fact finding to determine, among other things, whether Internet filtering technologies and other measures were more effective and less restrictive than COPA.

In his ruling yesterday, Reed said that the wording of the law was too ambiguous to be effective. He argued that it could be applied too broadly and would have allowed prosecutors to use COPA not only against pornographers but also against a wide variety of Web publishers.

"Such a widespread application of COPA would prohibit and undoubtedly chill a substantial amount of constitutionally protected speech for adults," he said.

Enforcing the law was also difficult because of the nature of the Internet, Reed said in his decision. "On the Internet, everyone is faceless and fairly anonymous. [Thus, the] Internet merchant has no viable method of determining whether an individual is 6, 12, 17 or 51 years old."

Instead, there are several affordable Internet filtering technologies that are easily available to parents, educators and others who can use them to restrict minors under the age of 17 from viewing objectionable material online, he ruled.

"This decision confirms that what was true nine years ago is even more true today," Fine said. "COPA is not the least restrictive way to protect children on the Internet and clearly not the most effective way."

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Jaikumar Vijayan

Computerworld
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