Long-time readers of this blog will remember that I did a series of three posts back on January 20-22, 2006, titled "Alberto, Google and the Right to Privacy." In those posts, I described the history of the Child Online Protection Act (COPA).
COPA was back in the news this week. I'm going to borrow from my old posts to explain the decision made by a federal judge on Thursday.
This all began, as so many messes do, with Congress, good intentions and a bad law.
Once upon a time . . . Congress was trying to protect children from the harmful effects of exposure to inappropriate material. It passed the Communications Decency Act (CDA) in 1996. The law was challenged by the ACLU, and Attorney General Janet Reno found herself squaring off in court. In 1997, the CDA was found unconstitutional by the Supreme Court in a 9-0 decision which held that the law was far too broad (And doesn't that unanimous vote tell you just what a fine piece of legislation the CDA must have been?)
Congress gamely regrouped and came back with the Child Online Protection Act (COPA) in October, 1998 to replace the first law. Unlike the CDA, the new law limited itself to the Internet and also to commercial enterprises. "COPA prohibits the transmission of any material over the Internet deemed 'harmful to minors,' if the communication was made for a commercial purpose." The law sought to impose a $50,000 fine and six months in prison for deliberately posting such material on the Internet. It was scheduled to go into effect April 21, 2000.
It probably comes as no surprise that the ACLU challenged both Attorney General John Ashcroft and COPA and sought injunctive relief. A trial court found the law unconstitutional on First Amendment grounds. The fight was taken to an appeals court that agreed COPA was unconstitutional, but not on the First Amendment grounds.
The case then went all the way to the Supreme Court. In 2002, the Supreme Court, limiting its decision to a very narrow scope, sent the case back to the appeals court. The Supreme Court did not address the constitutionality of COPA. Instead the Court left the injunction against FTC enforcement of COPA in place and suggested [hint, hint] that the appeals court take a look at the First Amendment issue. (data courtesy of the American Library Association)
The second time around on COPA, the appeals court (obviously composed of faster learners than Congress) listened to what the Supreme Court had said and struck the law down for First Amendment reasons.
Once more, COPA made its way back up to the Supreme Court and, this time in 2004, the Supreme Court agreed with the appeals court saying (according to the 1/19/06 San Jose Mercury News) the law "was too broad and could prevent adults from accessing legal porn sites . . . However, the Supreme Court invited the government to either come up with a less drastic version of the law [hint, hint] or go to trial to prove that the statute does not violate the First Amendment and is the only viable way to combat child porn." Once again, the injunction against enforcing the law was left in place.
Okay, so now we come to the summer of 2005, and it’s Attorney General Alberto Gonzales’ turn at bat. Ignoring the Supreme Court’s invitation to develop a less draconian version of the law, the Bush administration decided that COPA was “more effective than filtering software in protecting from harmful exposure to harmful material on the Internet.” (Search Engine Watch quoting the court documents)
In August, 2005, AG Gonzales’ crew delivered subpoenas to Google, MSN, AOL and Yahoo demanding that the search engine companies “produce an electronic file contain(ing), ‘[a]ll URL’s that are available to be located on your companys’ search engine as of July 31, 2005.’"
In addition, the search engine companies were “asked to ‘produce an electronic file containing [a]ll queries entered into the . . . engine between July 1 and July 31 inclusive.’” (data and quotes provided by Search Engine Watch)
Okay, let’s stop here for a moment and look at what the government was asking for in these subpoenas. First, they wanted all websites available on the search engines, presumably so they could identify the pornographic or inappropriate ones.
Doesn’t that strike you as being a wee bit large a request? Reminds me of my grandmother saying that my eyes were bigger than my stomach when I asked for a second dessert at Thanksgiving. Sort of makes me wonder if the government had a clue as to what they were asking for.
The government also wanted all queries into the search engines for a month’s period of time. Not satisfied with EVERY website on the Internet, the Department of Justice wanted to be able to identify the users who were looking at those websites. The government's request went way beyond simply locating objectionable websites to identifying the users of those sites.
And I'm wondering who was going to be responsible for deciding which sites contained porn? Laura Bush sitting up late at night with her laptop?
The Supreme Court had already struck down the law on First Amendment grounds (you can't limit adults to speech considered suitable for children). Remember what the Court said to the Bush administration when it did so: either come up with a less drastic version of the law or prove that the statute does not violate the First Amendment and is the best way to combat Internet websites with material that could be harmful to children.
Rather than amend COPA, the Department of Justice focused on proving that the statute is the only viable way to combat this material. AND, at the same time, with their request for data that would identify USERS, the DOJ set out to breach even more First Amendment rights.
Danny Sullivan of Search Engine Watch (SEW) postulates "[t]o prove a need for the law, the US government wants to show how much porn children might encounter through searches." And, instead of taking the direct route of doing searches similar to those a child might do on the Internet, the government tried to obtain the data from the four largest search engines.
Sullivan called HTM (harmful to minors) the new WMD (weapons of mass destruction). Remember how THAT government initiative turned out?
So now we come to this week. Even though COPA was passed way back in October, 1998, it has never been enforced. On Thursday, in response to a lawsuit, U.S. District Judge Lowell Reed (Philadelphia) issued an order permanently striking down COPA. Judge Reed said the law was too broad and would "chill a substantial amount of constitutionally protected speech for adults." Sound familiar?
If Gonzales' DOJ had paid attention to the Supreme Court's very broad hints, they would have changed tactics. But, no, the Bush administration insisted their approach was the only right one and tried to bull their way through. And I'm willing to bet the DOJ will push this new decision up the hill toward the Supreme Court again, hoping a more conservative court will support them this time around.
Which is why the plaintiff list, in addition to the ACLU, included such an odd group of bedfellows. According to CNET News:
If the courts eventually uphold COPA as constitutional, a wide variety of Web publishers--from news to sex education to adult pornography--would have to revamp their sites or face criminal prosecution . . . That's why plaintiffs in the COPA case include the American Booksellers Foundation for Free Expression, Salon.com, ObGyn.net, Philadelphia Gay News and the Internet Content Coalition.
The ACLU brought a Carnegie Mellon University professor as a witness. He testified that filters can block 95% of the sexually explicit material on the Internet. He also quoted two studies mandated by Congress that found content filters are more effective than criminal penalties in keeping kids away from harmful materials.
MESSAGE TO THE DEPARTMENT OF JUSTICE: Quit trying to kill an ant with a machine gun. Just sit down at your computers and try doing a search the way a kid might. You'll find what you need to know. I promise.