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Court challenge of 'CDA II' continues

December 16, 1998
Web posted at: 3:00 PM EST

by Nancy Weil

(IDG) -- The still-pending U.S. Child Online Protection Act would probably prohibit commercial Internet sites from reporting details of the sexual relationship between the President and the intern.

Under COPA's strict rules, media outlets couldn't publish some information about President Bill Clinton and former White House intern Monica Lewinsky. But noncommercial sites such as that of the American Civil Liberties Union, or the government, could publish the Starr Report, which spells out details of the relationship that has prompted an impeachment inquiry.

The irony isn't lost on the ACLU, one of 17 plaintiffs seeking to stop COPA's enforcement. A district court judge in Pennsylvania issued a temporary restraining order and set a hearing for January 20 and 21. COPA would make it illegal for commercial Web sites to knowingly post material deemed "harmful to minors."

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As an added irony, the U.S. Department of Justice, charged with enforcing laws passed by Congress, sent a detailed letter to the chair of the U.S. House commerce committee in October objecting to various aspects of COPA, specifically its vague wording, criminal penalties, and potential constitutional issues. But now that Congress has passed the law and Clinton has signed it, the Justice Department must vigorously defend COPA in court.

Shirtail legislation

COPA didn't make it through Congress on its own merits: It was tacked onto federal budget legislation approved in the waning hours of October's legislative session. The ACLU and other plaintiffs--including bookstores that operate Internet sites, online magazines, the Electronic Privacy Information Center, and the Electronic Frontier Foundation--filed the court challenge the day after Clinton signed the budget bill into law.

The challenge is focused on free-speech issues and enforcement. The plaintiffs contend it is impossible to ensure that only adults access Internet sites. Even if U.S. Web sites were somehow restricted, minors could still access overseas sites.

"We're talking about [restricting access to] speech that is constitutionally protected for adults," said Chris Harden, ACLU senior staff counsel, adding that case law forbids prohibiting protected speech "in the guise of protecting minors."

If the arguments sound familiar, that's because such issues were at the heart of a successful challenge to major portions of the Communications Decency Act passed by Congress two years ago. The U.S. Supreme Court struck down portions of that Act as unconstitutional. COPA has been dubbed "CDA II" for its similarities to the earlier law.

Global community

COPA relies on "community standards" as a measure of what is harmful to minors. U.S. courts have used that standard through the years in determining what constitutes obscenity. Community standards vary wildly from place to place, the plaintiffs contend. What is acceptable in Manhattan might not pass muster in the Midwest.

The plaintiffs say the only way a Webmaster could police access would be through an elaborate, expensive system that would probably rely on entering credit card numbers. That type of system may be the only way to separate adults from minors.

But sites such as online magazine Salon, a plaintiff in the case, does not sell merchandise and relies instead on advertisers.

"If you attempt to impose ... a credit card and registration model ... there will be a substantial loss of readership," said David Sobel, general counsel for the Electronic Privacy Information Center, describing part of the plaintiffs' strategy.

District Court Judge Lowell Reed Jr. granted a temporary restraining order and extended it at the request of both sides. The plaintiffs were heartened by the judge's ruling, which is published on the ACLU Web site.

"The plaintiffs have persuaded me that at least with respect to some plaintiffs, their fears of prosecution under COPA will result in the self-censorship of their online materials in an effort to avoid prosecution," Reed wrote. "This chilling effect will result in the censoring of constitutionally protected speech, which constitutes an irreparable harm to the plaintiffs."

Either side could appeal Reed's eventual decision.

Some of the plaintiffs' concerns were cited in the Justice Department's original letter opposing the legislation. The letter, also available on the ACLU Web site, argues that enforcing the Act might require the department to divert "critical investigative and prosecutorial resources" now used to find and prosecute child pornographers and predators.

Sponsor defends COPA

A spokesperson for U.S. Senator Dan Coats (R-Indiana), who sponsored COPA, defended the Act.

"Senator Coats and Congress were very careful to craft a law that was constitutionally sound while at the same time effectively addressed American family concerns about the distribution of commercial pornography on the Internet," said Matt Smith.

Congress took its definition of material harmful to minors from Supreme Court decisions and case law regarding pornography, he said.

But casting COPA as an antipornography measure is wrong, said the ACLU's Hansen.

Sites that publish content that is "utterly harmless" could face legal action under COPA, which Hansen said could be interpreted as prohibiting descriptive medical information about sex, genitalia, or breasts. Plus, COPA specifically targets sites that make money from advertising rather than from sales.

"If you're selling dirty pictures you are not doing anything wrong under this law," he said.

The "classic example" he mentioned and one likely to become part of the case is the Starr Report, which was published on Internet sites operated by the government, nonprofit organizations, and commercial venues.

"The Starr Report contains passages that are almost certainly in violation of this law, but you could put the report up on a government or other site if there's no advertising there," Hansen said. "Tell me how children are protected from reading the Starr Report under this system."

Presumably, the Justice Department will try to do just that at the January hearing.

Margret Johnston of IDG affiliate Federal Computer Week contributed to this report.

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