The judge felt that parents should rely on restriction software to protect their children from explicit images. rather than government mandated censorship of the Internet
The American Civil Liberties Union (ACLU) on 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."
US District Judge Lowell Reed Jr. 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 a person's First and Fifth Amendment rights.
Enacted on 21 October, 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 £25,000 and a jail sentence of up to six months.
The day after the law went into effect, several individuals and organisations, 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."
The ruling is "not surprising," said Paul Myer, president and CEO of 8e6 Technologies, an Orange vendor of internet filtering technologies to schools, libraries and companies. "I think the duty the law placed on individual content providers and [internet service providers] to verify that minors are not accessing their data was one hurdle because it was unenforceable," he said.
The other issue, Myer said, is that COPA "unfairly restricts fair speech when there are other ways to do this."
The issue of minors having easy access to sexually explicit materials on the internet is red hot, he said. "Legislators want to be on record as supporting measures that make sure children are protected online," he said. "The question is how you regulate and enforce. The challenge they had with COPA was that it overreached."
An earlier attempt to protect minors via a measure called the Communications Decency Act of 1996 met a similar fate when it was ruled unconstitutional by the Supreme Court because it was not narrow enough and because less restrictive alternatives were available.
In a statement on its web site, the Centre for Democracy and Technology (CDT), a Washington-based think tank, hailed the "landmark" ruling. "Ostensibly aimed at protecting kids from 'harmful' material, the law would have led to severe restrictions on a wide range of legal, socially valuable speech, including content relating to sexual identity, health and art," the statement said. "CDT, which has filed friend-of-the-court briefs opposing COPA and supporting parental empowerment technology, applauds the ruling."
Jim Culbert, information security analyst at Duval County Public Schools in Florida, called the decision "disappointing" because it leaves parents entirely reliant on filtering technologies to control access to inappropriate sites.
As the person in charge of securing about 42,000 laptops and desktops in the 16th largest school district in the US, Culbert is using filtering technology from 8e6 Technologies to control student access to sites deemed inappropriate by a committee that includes parents and school staffers. The school district is required to perform such filtering under a law known as the Children's internet Protection Act of 2000.
"There's a lot of stuff that works well and is available to large enterprises and school districts" for filtering, he said. But the same is not true for home users -- where parents are largely forced to rely on technology that does not work as well and can be readily circumvented by children.
The ruling also overlooks the issue where minors might stumble upon inappropriate content -- when using a search engine, for instance. "What worries me the most is the little 8-year-old who goes on the internet and searches for 'doggie,'" and the results contain inappropriate material, he said. "That's the stuff that really gets to me."
Having a way to clearly separate mature content via an .xxx domain, for example, is one way of better controlling access to such sites, he said. "I was just disappointed that the judge did not come out with some sort of support for an .xxx domain [in his ruling]. I don't think it is unreasonable to separate the inappropriate and obvious pornography from the internet."