The Child Online Protection Act (COPA) has never come
into force despite having been passed in 1998 because its
constitutionality was challenged on the day it was signed into
law.
The American Civil Liberties Union (ACLU) filed that objection
in 1998, and the case reached the Supreme Court in 2002, when part
of it was upheld and the rest sent to a lower court for
reconsideration.
A Pennsylvania court found that the law was unconstitutional
earlier this year, and the Attorney General has appealed that
ruling to the Court of Appeal.
The Center for Democracy and Technology (CDT) has gathered a
collection of industry lobby groups in the journalism, publishing
and ISP industry to support the striking down of the law in the
appeal.
“None of the amici [bodies supporting the action] are engaged in
the business of “commercial pornography,” yet content-providing
amici nevertheless are concerned that the speech with sexual
content that they produce, distribute, use as teaching aids, and
otherwise provide access to via the World Wide Web stands at risk
of challenge under the Child Online Protection Act,” said the
objection filed by the CDT.
“Service-providing amici fear that their ability to provide
online forums for and access services to lawful speech will be
restricted by COPA. This fear is hardly unfounded, as COPA applies
on its face to any Web site that, in the regular course of
business, communicates any material that is harmful to minors –
whether or not it constitutes commercial pornography.”
“Thus, the government’s contention that COPA is limited to
“commercial pornographers finds no support in the statute and
affords no protection to amici’s constituents,” it said.
The groups represented by the objection include: the Newspaper
Association of America; the Online Publishers Association; the
Society of Professional Journalists; and the United States Internet
Service Provider Association.
COPA creates an offence of allowing indecent material to be
viewable by children without protection, such as the need for a
credit card which would prove a use to be over 18 years' old. It
makes website operators liable for fines of $50,000 per day that
material is accessible and up to six months in jail.
The objection claims that the law could be used to punish the
operators of library websites containing books on sexuality; web
retailers selling songs or videos containing sexual content;
operators of chat rooms where swearing takes place, or newspaper
sites which provide links to websites containing sexual health
advice.
The objection argues that there are other methods for protection
children from viewing certain material which do not pose a risk to
the free speech of publishers.
“There are less restrictive alternatives that are more effective
than COPA at protecting minors from inappropriate content,” it
said. “COPA is ineffective as it does not, and probably could not
effectively, apply to overseas content, and COPA is overbroad in
that it applies to Web sites that include any commercial activity,
such as advertising, which sites of many not-for-profit entities
do.”
The objection said that control technology such as internet
filtering as well as non-technological measures such as education
programmes could protect children just as well without the same
problems.
