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EPIC Alert 5.17 [1998] EPICAlert 17





EPIC ALERT



Volume 5.17 November 19, 1998

Published by the Electronic Privacy Information Center (EPIC)
Washington, D.C.

http://www.epic.org

SPECIAL ISSUE:
The Challenge to Internet Censorship (Round 2)

Table of Contents


[1] Federal Court Blocks Enforcement of Net Censorship Law
[2] Plaintiffs' Preliminary Statement
[3] Inability of Speakers to Prevent Speech from Reaching Minors
[4] The Impact of COPA on Internet Users
[5] COPA's Defects Are Identical to those of the CDA
[6] COPA Won't Advance the Government's Stated Interest
[7] Plaintiffs in ACLU v. Reno II
[8] Upcoming Conferences and Events

[1] Federal Court Blocks Enforcement of Net Censorship Law

PHILADELPHIA - In the first constitutional test of a new Internetcensorship law, a federal judge today issued a temporary restrainingorder (TRO) against enforcement of the Child Online Protection Act(COPA). The ruling came in a legal challenge to the statute filed byEPIC, the American Civil Liberties Union and the Electronic FrontierFoundation on behalf of a broad coalition of Web publishers and users.
COPA, enacted in the final days of the 105th Congress as part of theOmnibus Appropriations Act, imposes criminal penalties against any"commercial" website that makes material that is "harmful to minors"
available to anyone under 17 years of age. Unless enjoined, thestatute would have gone into effect at 12:01 a.m. on November 20.

At the end of an all-day court hearing, U.S. District Judge Lowell A.
Reed, Jr. enjoined Attorney General Janet Reno and the JusticeDepartment from "enforcing or prosecuting" any conduct under COPA forat least ten days, until the issues in the lawsuit can be furtherlitigated. Over the objections of the government, Judge Reed extendedthe coverage of the TRO to anyone posting material on the World WideWeb, not just the named plaintiffs. The TRO also precludes retroactiveenforcement of COPA, should the law eventually be upheld, for materialposted while the restraining order is in effect.

In support of its case, the coalition presented the testimony of twoplaintiffs -- Norman Laurila, founder of A Different Light Bookstores,
and David Talbot, CEO of Salon Magazine. Both described the negativeimpact COPA would have on their ability to make controversial materialavailable at their websites. They stressed the importance of anonymityon the Internet and told the court that age verification requirements(which would protect sites from prosecution under the law) would --
even if practical -- substantially diminish the number of visitors totheir sites.

Before announcing his decision, Judge Reed noted that the caseinvolves a "clash" between First Amendment rights and the nation'sresponsibility to protect children. Although he stressed that today'sruling was not a "final order on the merits," the judge expressly foundthat the plaintiffs appear likely to prevail in their constitutionalchallenge. He also noted that the TRO does not prevent enforcement ofexisting laws dealing with obscenity or child pornography.

The court ruling is the latest setback for Internet censorshipproponents. In June 1996, the same federal court in Philadelphiastruck down the Communications Decency Act (CDA), a decisionunanimously upheld last year by the U.S. Supreme Court. In enactingCOPA, Congressional supporters claimed that the new law corrected theconstitutional defects of the CDA. Several federal courts have alsofound state laws seeking to regulate online content unconstitutional.

Excerpts from the plaintiffs' brief in support of a TRO are set forthbelow. The full text of the brief is available at:

http://www.epic.org/free_speech/copa/tro_brief.html


[2] Plaintiffs' Preliminary Statement

This case challenges provisions of the Child Online Protection Act("COPA"), which is Congress' second attempt to impose severe criminalsanctions on the display of constitutionally protected, non-obscenematerials on the Internet. The first attempt, the CommunicationsDecency Act ("CDA"), was soundly rejected by all nine justices of theSupreme Court in Reno v. American Civil Liberties Union ("ACLU I").
Recognizing that the Internet had become a powerful "new marketplace ofideas" and "vast democratic fora" that was "dramatically expanding" inthe absence of government regulation, the Court imposed the highestlevel of constitutional scrutiny on content-based infringements ofInternet speech. . . .

[P]laintiffs seek to have the COPA declared unconstitutional both onits face and as applied to them, and to enjoin defendant from enforcingit. . . . [T]he COPA's constitutional flaws are ultimately identicalto the flaws that led the Supreme Court to strike down the CDA. Thoughthe COPA, like the CDA, purports to restrict the availability ofmaterials to minors, the effect of the law is to restrict adults fromcommunicating and receiving expression that is clearly protected by theFirst Amendment.

Plaintiffs represent a broad range of individuals and entities who usethe World Wide Web (the "Web") to provide free information on a varietyof subjects, including sexually oriented issues that they fear could beconstrued as "harmful to minors." They range from long-establishedbooksellers and large media companies to newer online magazines, andthey provide general interest news as well as special interest contentsuch as fine art, safer sex materials, and gay and lesbian resources.
Because the COPA provides no way for speakers to prevent theircommunications from reaching minors without also denying adults accessto them, the COPA directly threatens plaintiffs, their members, andmillions of other speakers with severe criminal and civil sanctions forcommunicating protected expression on the Web. The COPA also violatesthe rights of millions of Web users to access and read constitutionallyprotected speech.


[3] Inability of Speakers to Prevent Speech from Reaching Minors

The COPA applies to all communications on the Web that are "availableto any minor." Because all content on the Web is "available to" bothadults and minors, the COPA on its face applies to communicationsbetween adults. Given the technology of the Web, there are noreasonable means for speakers to make their speech "available" only toadults. From the perspective of speakers, the information that theymake available on the public spaces of the Web must be made availableeither to all users of the Web, including users who may be minors, ornot at all.

The COPA attempts to provide affirmative defenses to criminalliability, none of which are available to plaintiffs and otherproviders of free content on the Web. [COPA] provides an affirmativedefense if the defendant restricts access by "requiring use of a creditcard, debit account, adult access code, or adult personalidentification number." This defense is effectively unavailable toproviders of free content because financial institutions charge toverify a credit card. The cost of credit card verification imposesinsurmountable economic burdens on speakers and other content providerswho want to provide their speech for free. . . .

Because none of the defenses are available, plaintiffs and otherspeakers have no way to comply with the COPA and are left with twoequally untenable alternatives: (i) risk prosecution and civilpenalties under the COPA, or (ii) attempt to engage in self-censorshipand thereby deny adults and older minors access to constitutionallyprotected material.


[4] The Impact of COPA on Internet Users

Even if age or credit card verification were feasible, such arequirement would fundamentally alter the nature and values of the newcomputer communication medium, which is characterized by spontaneous,
instantaneous, albeit often unpredictable, communication by hundreds ofthousands of individual speakers around the globe, and which providesan affordable and often seamless means of accessing an enormous anddiverse body of information, ideas and viewpoints.

The COPA would thus prevent or deter hundreds of thousands of readersfrom accessing protected speech even if it were feasible for speakersto set up a system to verify age. Any age verification requirementwould inevitably prevent readers who lack the necessary identificationfrom accessing speech that would otherwise be available to them. Manyadults do not have a credit card. Age verification would have anespecially detrimental effect on foreign users, who are less likelythan U.S.-based adults to have a credit card or other identification.

In addition, many users will not want to provide personal informationto obtain speech for free. Users may not want to disclose informationas valuable as a credit card number unless they are actually making apurchase. In addition, the COPA's registration requirements wouldprevent users from accessing information anonymously, and would thusdeter many users from accessing sensitive or controversial speechcovered by the COPA. Requiring adults to identify themselves beforethey can access speech defined as "harmful to minors" will alsostigmatize that speech and thus deter access to protected speech.
Finally, when faced with the choice between reading material that doesnot require any identification and providing a credit card oridentification to access speech covered the COPA, many users willsimply not bother to obtain or provide the necessary identification,
and will instead decline to access the covered speech at all.


[5] COPA's Defects Are Identical to Those of the CDA

The COPA's ultimate constitutional flaws are identical to the flawsthat led a three-judge court in this district to strike down theCommunications Decency Act (the "CDA"), and the Supreme Court to affirmthe district court's decision, in ACLU I. . . . While there are slightdifferences between the two laws, these differences are insignificantwhen compared to the fundamental and fatal constitutional defect ofboth laws: "In order to deny minors access to potentially harmfulspeech" -- the COPA, like the CDA -- "effectively suppresses a largeamount of speech that adults have a constitutional right to receive andto address to one another." In passing both the CDA and the COPA,
Congress made it a crime for adults to communicate and receiveexpression that is clearly protected by the Constitution.

Both acts are criminal statutes, which pose a very strong risk thatthey "may well cause speakers to remain silent rather than communicateeven arguably unlawful words, ideas, and images." Both apply tomaterial that is clearly constitutionally protected for adults. Botheffectively ban protected speech to adults because the defenses in bothlaws "d[o] not include any effective method for a sender to preventminors from obtaining access to its communications on the Internetwithout also denying access to adults." In addition, because both lawsrely on "community standards," both allow "any communication availableto a nation-wide audience [to] be judged by the standards of thecommunity most likely to be offended by the message."


[6] COPA Won't Advance the Government's Stated Interest

If the government's interest is in preventing minors from accessing"pornographic" images (which, although difficult to define, is far fromcoextensive with the much broader category of material explicitlycovered by the COPA), such speech is already illegal under existing lawif it is either obscene or child pornographic. The vast majority ofthe remaining category of "pornography" is not provided for free, butrather is only provided after a fee is paid; thus, its purveyors areprotected under the COPA because they already require a credit card.
The COPA also excludes from coverage any "pornography" that iscommunicated by noncommercial entities. Finally, many minors havecredit cards, and so the COPA will not prevent them "from posing asadults" to gain access to "harmful" material.

In addition, because of the nature of the online medium, the COPA willbe ineffective at ridding online networks of "harmful" material. TheInternet is a global medium, and material posted on a computer overseasis just as available as information posted next door. Thus, the COPAwill not prevent minors from gaining access to the large percentage ofmaterial that originates abroad.

In sum, the only "pornography" that the COPA could possibly preventminors from accessing is material that: 1) is not already illegal underobscenity and child pornography laws; 2) does not require payment; 3)
is not communicated by amateurs with no profit motive; and 4) is notprovided by content providers overseas. Thus, the government cannotmeet its burden of establishing a "compelling interest" because theCOPA clearly fails to alleviate the alleged "harms in a direct andmaterial way," and leaves "appreciable damage to [the] supposedly vitalinterest unprohibited."


[7] Plaintiffs in ACLU v. Reno II

American Civil Liberties Union
http://www.aclu.org

A Different Light Bookstore
http://www.adlbooks.com/

American Booksellers Foundation for Free Expression
http://www.bookweb.org

ArtNet
http://www.artnet.com

The BlackStripe
http://www.blackstripe.com

Addazi, Inc. d/b/a Condomania
http://www.condomania.com

Electronic Frontier Foundation
http://www.eff.org

Electronic Privacy Information Center
http://www.epic.org

Free Speech Media, LLC
http://www.freespeech.org

Internet Content Coalition
http://www.netcontent.org

OBGYN.NET
http://www.obgyn.net

Philadelphia Gay News
http://epgn.com/

PlanetOut Corporation
http://www.planetout.com

Powell's Bookstore
http://www.powells.com

RIOTGRRL
http://www.riotgrrl.com

Salon Magazine
http://www.salonmagazine.com

Weststock.com
http://www.weststock.com


[8] Upcoming Conferences and Events

"From Aspiration to Activist Agenda: Achieving Economic, Social andCultural Rights in the U.S.". December 4-6. New York, NY. Sponsored bythe Institute for Agriculture and Trade Policy. Contact:
http://www.iatp.org/iatphr50/

Defending the National Critical Infrastructure. December 7-8.
Sponsored by Defense Week. Contact: http://www.kingpublishing.com/

Computer Ethics. Philosophical Enquiry 98 (CEPE'98). December 14-15.
London, UK. Sponsored by ACMSIGCAS and London School of Economics.
http://is.lse.ac.uk/lucas/cepe98.htm
1999 RSA Data Security Conference. January 18-21, 1999. San Jose, CA.
Sponsored by RSA. Contact: http://www.rsa.com/conf99/

FC '99 Third Annual Conference on Financial Cryptography. February22-25, 1999. Anguilla, B.W.I. Contact: http://fc99.ai/

Electronic Commerce and Privacy Legislation -- Building Trust andConfidence. February 23, 1999. Ottawa, Canada. Sponsored by RileyInformation Services. http://www.rileyis.com/seminars/Feb99/

"CYBERSPACE 1999: Crime, Criminal Justice and the Internet". 29 & 30March 1999. York, UK. Sponsored by the British and Irish LegalEducation Technology Association (BILETA). http://www.bileta.ac.uk/

Computers, Freedom and Privacy (CFP) '99. April 6-8, 1999. Washington,
DC. Sponsored by ACM. Contact: infocfp99.org.

1999 EPIC Cryptography and Privacy Conference. June 7, 1999.
Washington, DC. Sponsored by EPIC. Contact: infoepic.org.

Cryptography & International Protection of Human Rights (CIPHR'99).
9-13 August 1999. Lake Balaton, Hungary. Contact:
http://www.cryptorights.org/

Subscription Information

The EPIC Alert is a free biweekly publication of the ElectronicPrivacy Information Center. To subscribe or unsubscribe, send emailto epic-newsepic.org with the subject: "subscribe" (no quotes) or"unsubscribe". A Web-based form is available at:

http://www.epic.org/alert/subscribe.html

Back issues are available at:

http://www.epic.org/alert/

About EPIC

The Electronic Privacy Information Center is a public interest researchcenter in Washington, DC. It was established in 1994 to focus publicattention on emerging privacy issues such as the Clipper Chip, theDigital Telephony proposal, national ID cards, medical record privacy,
and the collection and sale of personal information. EPIC is sponsoredby the Fund for Constitutional Government, a non-profit organizationestablished in 1974 to protect civil liberties and constitutionalrights. EPIC publishes the EPIC Alert, pursues Freedom of InformationAct litigation, and conducts policy research. For more information,
e-mail infoepic.org, http://www.epic.org or write EPIC, 666Pennsylvania Ave., SE, Suite 301, Washington, DC 20003. +1 202 544 9240(tel), +1 202 547 5482 (fax).

If you'd like to support the work of the Electronic Privacy InformationCenter, contributions are welcome and fully tax-deductible. Checksshould be made out to "The Fund for Constitutional Government" and sentto EPIC, 666 Pennsylvania Ave., SE, Suite 301, Washington DC 20003.

Your contributions will help support Freedom of Information Act andFirst Amendment litigation, strong and effective advocacy for the rightof privacy and efforts to oppose government regulation of encryptionand funding of the digital wiretap law.
Thank you for your support.

END EPIC Alert 5.17
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