Court Strikes Down COPA, Finds Internet Filtering a Less Drastic Alternative
May 15, 2007
Paul F. Kilmer- Washington
After more than eight years of litigation and two trips to the U.S. Supreme Court, a federal district judge in the Eastern District of Pennsylvania has ruled that the Child Online Privacy Act (COPA) is facially invalid under the First and Fifth Amendments to the Constitution. The district court in ACLU v. Gonzales found that Congress neither narrowly tailored COPA to achieve a compelling state interest, nor did they write the law in the precise and clear manner required to withstand constitutional scrutiny.
Congress originally enacted COPA in response to a 1997 U.S. Supreme Court decision that struck down its predecessor, the Communications Decency Act, on the grounds that it was not narrowly tailored to serve a compelling government interest and because less restrictive alternatives were available.
In striking down COPA, the district court was heavily influenced by the universal availability of highly effective and relatively cheap (if not free) “filtering” software that allows Internet users to screen out pornographic Web sites to prevent children from viewing them. The district court reasoned that – instead of COPA’s speech-chilling criminal and civil penalties – Congress could have provided additional incentives for the development and distribution of this less drastic alternative. In fact, the paucity of obscenity prosecutions under COPA was noted as evidence that the law was far from a panacea for protecting children from pornography.
The district court also found that several terms used in the statute were impermissibly vague and overbroad, including the requirements that a Web site be offered for “commercial purposes” before it falls within the ambit of COPA, that the Web sites be “harmful to minors” and that the material at issue be viewed “as a whole,” reasoning that:
• It could not determine whether “commercial purposes” included both sites that charge a fee to view their contents and sites that derive income only from advertising and other sources.
• Lumping all minors into a single definition of what might be “harmful” was unlawfully vague and overbroad since what may be injurious to an 8-year-old may be appropriate for a 16-year-old.
• It could not readily discern whether Congress’ instruction to assess the content as a whole meant the entire Web site or simply that portion displaying the obscene material.
Because the meaning of these terms could not be precisely determined, and since a reasonable reading of the terms would provide an overly broad proscription of speech, the district court concluded that Web site owners would be similarly handicapped in their ability to apply the statute.
In addition, since enforcement of COPA would require users of Web sites to provide certain personal identifying information – such as age verification and/or credit card information – and would likely impose a financial burden on the exercise of free speech, the district court found that the law would chill and erode access by adult members of the public to information and material they were lawfully allowed to view and posed an impermissible cost on a basic Constitutional right. The district court also noted that age verification is largely ineffective over the Internet because minors often have access to credit cards, debit cards or prepaid cards.
Finally, the district court further found that COPA discriminates against U.S. Web site owners by being “underinclusive.” This finding was based upon both the conclusion that COPA does not appear to address the many foreign Web sites that contain pornography and that it may be impossible for U.S. courts to police such sites even if they fall within the reach of the law’s provisions. COPA therefore would be significantly ineffective in remedying the conduct it seeks to regulate.
For more information, e-mail Paul Kilmer at paul.kilmer@hklaw.com or call toll free, 1-888-688-8500.