Appeals Court Strikes Down COPA

BOSTON (06/23/2000) - A U.S. federal appeals court on Thursday ruled that Congress' second try at protecting minors from "harmful" material on the Internet is unconstitutional.

Though plaintiffs, including the American Civil Liberties Union (ACLU), lauded the unanimous ruling by the three-judge panel of the Third Circuit Court of Appeals in Philadelphia, the ruling was not an indictment of attempts by Congress to control access to pornographic and other possibly offensive Internet sites.

"Due to current technological limitations, COPA -- Congress' laudatory attempt to achieve its compelling objective of protecting minors from harmful material on the World Wide Web -- is more likely than not to be found unconstitutional as overbroad on the merits," District Judge Leonard I. Garth wrote in the opinion upholding a lower court's preliminary injunction halting enactment of the act.

The ACLU has fought the enactment of the Child Online Protection Act (COPA) on behalf of itself and 16 other plaintiffs, including bookstores, other advocacy groups focused on technology and the Internet, various publishers, and assorted Web sites. The ACLU argued that COPA was unenforceable because a "community standard" for what is objectionable speech cannot be applied to something as universal and broad as the Internet. Attempts to determine the age of Internet users also would be flawed, the group argued.

COPA would make it a federal crime to provide to minors "for commercial purposes" material that could be deemed harmful to children under age 18. It would impose penalties of up to US$150,000 for every day of violations of the act and up to six months in prison. COPA was signed into law by President Bill Clinton on Oct. 21, 1998.

The ACLU immediately filed a legal challenge and won an injunction against enactment of COPA. Because the U.S. Department of Justice (DOJ) is responsible for enforcing federal laws, that government agency is the defendant in the case and appealed the lower court ruling on the injunction.

The first attempt by Congress to regulate Internet material was mostly struck down by the U.S. Supreme Court in 1997. The court ruled unconstitutional aspects of the Communications Decency Act (CDA) that sought to regulate access by minors to Internet content that could be found "indecent" or "patently offensive." Portions of the act were struck down as violating First Amendment freedom of speech protections.

COPA was aimed at overcoming the constitutional problems in the CDA. Based on Thursday's ruling, the attempt failed. Current technology does not provide the ability of Web publishers to restrict access to sites based on geographic locations of each Internet user, the federal appeals court ruled ruled. The act further "essentially requires that every Web publisher subject to the statute abide by the most restrictive and conservative state's community standards in order to avoid criminal liability," the ruling said.

What offends one community might not offend another, the ACLU has argued, contending that the act would have the effect of restricting access to educational sites, sexual discussion boards, gynecological information and art sites.

The appeals court found that the "contemporary community standards" requirement cannot be applied to the Internet because it is geographically dispersed. The court further found problems with age verification methods which would require sharing personal information, including credit card numbers and other private data.

However, the court noted that it soon may be possible for Congress to come up with a law that protects minors from objectionable Internet material.

"In affirming the District Court, we are forced to recognize that, at present, due to technological limitations, there may be no other means by which harmful material on the Web may be constitutionally restricted, although, in light of rapidly developing technological advances, what may now be impossible to regulate constitutionally may, in the not-too-distant future, become feasible," the ruling said.

A spokesman for the DOJ could not be reached Friday to comment about whether the agency will appeal the most recent ruling.

A text of the appeals court ruling can be found at http://pacer.ca3.uscourts.gov:8080/C:/InetPub/ftproot/Opinions/991324.TXT/.

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