Friday's appeal by the U.S. Department of Justice against that ruling puts COPA in the hands of three judges at the Third Circuit Court of Appeals. Government lawyers filed the appeal with just hours to spare; if they had not appealed by the April 2 deadline, COPA would have gone on to a trial on its merits.
While the law is controversial -- it would make it a crime for profit-oriented Web sites to post material deemed "harmful to minors" without first ensuring that readers are at least 18 -- the appeal is controversial as well, observers said. "The government has not yet managed to convince even one federal judge that the First Amendment permits any form of Internet censorship," said David Sobel, general counsel at the Electronic Privacy Information Centre.
The appeal, which urges the court to force commercial sites to collect credit card numbers or other access codes as proof of age, will be "an uphill battle for the Justice Department," said Sobel, who served as co-counsel with the American Civil Liberties Union on the case against COPA.
The COPA challenge, filed right after the bill was signed into law by President Clinton last year, was often referred to as "CDA II" by online free-speech advocates. Many felt COPA was simply a rehash of the earlier court battle over the 1996 Communications Decency Act, a measure to limit online pornography that was ultimately thrown out by the Supreme Court.
Ann Beeson, the ACLU attorney who helped argue the CDA case and the COPA case, said the similarities between the two laws are so striking that the appeal will be tough to pull off. "It's very hard to predict what Congress will come up with, but this is hardly different from the last go around," Beeson said.
The Supreme Court ruled decisively that attempts to limit online speech to topics acceptable for young children violates the First Amendment, Beeson said. And while COPA differs from the CDA in that its scope is limited to profit-making sites instead of all sites, and that those putting up "age-verification" barriers would be exempt, "We showed clearly (during the January hearings) what the problems are with age-verification systems," Beeson said.
Officials from companies selling online age-verification tools testifying in the January hearing acknowledged that it is impossible to verify that the bearer of an adult ID code purchased from those companies has not simply borrowed an adult's credit card in order to obtain it.
One thing Congress could do is shift its focus to consumer education, Beeson said, mandating that Internet service providers inform users about their options for using content-blocking software programs. "There are all kinds of educational initiatives" that could potentially address the problem of keeping children away from online pornography, she said. "There are many ways the government could attack this problem, aside from those that violate the First Amendment."
But a measure that outlaws certain types of Web content is unlikely to pass First Amendment muster, said Bob O'Neil, a law professor at the University of Virginia and an expert in First Amendment law. O'Neil said he believes that if COPA ends up in the Supreme Court, it too will be overturned on First Amendment grounds. Asked what will happen next, he said, "My inclincation would be to expect nothing until after 2000, and maybe not much even then, depending on how much attention Internet content gets in the (presidential) election."
Other issues are likely to take precedence over online content controls, since the fight has proved so hard to win, O'Neil said. "My sense is that Congress will be much more concerned with Y2K issues in the near-term to be drawn into what would be CDA III," he said.
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