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Judge upholds COPA injunction

A federal judge ruled late Monday in favour of continuing a ban on enforcing an online content censorship law derided by critics as the "Communications Decency Act II."
Written by Maria Seminerio, Contributor

The ruling grants a bid by plaintiffs -- including the American Civil Liberties Union, the Electronic Frontier Foundation, the Electronic Privacy Information Centre, ZDNet and a host of online publishers -- to extend a three-month-old temporary injunction against the Child Online Protection Act (COPA).

U.S. District Court Judge Lowell Reed Jr. ruled the law would block online speech by adults that is protected under the First Amendment. He concluded that content filtering software can achieve the same goal as COPA -- keeping youngsters away from sexually graphic Web sites -- without hindering adults from viewing the same material.

Although a trial on whether to permanently extend the ban is now certain -- Monday's ruling extends it "until a final adjudication of the merits of plaintiffs' claims has been made" -- an attorney for one plaintiff praised the decision, saying it will surely hinder future government attempts to censor online speech.

"To have the judge make this ruling, saying we are likely to prevail in future hearings, will make it much harder for the government to prove its case" that the injunction should be reversed, said David Sobel, general counsel at EPIC.

Reed expressed his personal struggle with the question of how to shield children from sexual material on the Internet, saying that in the end he was forced to side with the Constitution in spite of lingering regrets about the thorny issues raised in the case. "The hard fact is that sometimes we must make decisions that we do not like. We make them because they are right, right in the sense that the law and the Constitution, as we see them, compel the result," Reed wrote.

"And so great is our commitment to the process that, except in the rare case, we do not pause to express distaste for the result, perhaps for fear of undermining a valued principle that dictates the decision. This is one of those rare cases."

While saying Congress should try again to somehow curb children's access to pornographic Web sites, Reed wrote that: "Perhaps we do the minors of this country harm if First Amendment protections, which they will with age inherit fully, are chipped away in the name of their protection."

Asserting that "non-obscene sexual content is protected under the First Amendment," Reed's ruling says such protected speech, if deemed by the government to be "harmful to minors," can only be limited in the least restrictive possible way, and concludes that COPA is overly restrictive of adult speech. "Attempts of Congress to serve compelling interests must be narrowly tailored to serve those interests without unnecessarily interfering with First Amendment freedoms," Reed wrote. "The Supreme Court has repeatedly stated that the free-speech rights of adults may not be reduced to allow them to read only what is acceptable for children."

Reed's ruling repeatedly refers to the Supreme Court's 1997 ruling striking down the Communications Decency Act on First Amendment grounds.

It states that while it was clear that lawmakers looked to that ruling in crafting COPA, they still fell short of their goal of creating legislation that would curb children's access to online pornography while protecting adults' rights.

The law, signed by President Clinton in October, would make it illegal for profit-oriented Web sites to display graphic sexual content that lacks "serious literary, artistic, political or scientific value" without first verifying that viewers are at least 18 years old. Violators would face up to six months in jail and up to $50,000 (£30,000) in fines. But the law has never been enforced because the ACLU-led coalition filed a legal challenge to it in November. The temporary injunction against it signed by Reed that month was to expire at midnight Monday.

Addressing the government defendant's claim that most commercial Web sites could afford to implement age-verification technology in order to comply with the law, Reed's ruling states that that argument had little to do with the facts of the case. "The protection provided by the First Amendment in this context is not diminished because the speakers affected by COPA may be commercial entities who speak for a profit," Reed wrote. "Strict scrutiny is required, not because of the risk of driving certain commercial Web sites out of business, but the risk of driving this particular type of protected speech from the marketplace of ideas."

The judge also addressed the issue of credit-card age-verification schemes, concluding that since minors can in many cases obtain their own credit cards, such schemes would not work. "The government failed to adduce any evidence that these verification techniques actually preclude minors from posing as adults," he wrote.

Reed presided over a five-day hearing late last month on extending the temporary injunction. He asked witnesses a series of questions about the technological feasibility of the various age-verification schemes proposed by Congress, including credit card systems, during that hearing.

COPA, introduced by U.S. Rep. Mike Oxley, R-Ohio, has been informally known as "CDA II," after the Communications Decency Act.

The plaintiffs argue that even though COPA is more narrowly tailored than the CDA -- which would have restricted sexual content on online bulletin boards and even in e-mail accessible to minors -- it still could force site operators to be overly cautious. Plaintiffs' witness Mitch Tepper, operator of the SexualHealth.com site, which offers sexual advice to the disabled, said he feared his business would sink because of the law.

But the government contends the law will shield youngsters from objectionable online content while providing exceptions for non-profit sites and sites judged to have "literary, artistic, political or scientific value."

Government witness Damon Hecker, a "cyber crimes" investigator for the U.S. Air Force, testified last month that he was able to access a slew of pornographic images online without entering a single credit card number or other proof of his age.

But the value of online age-verification schemes came under close scrutiny during the hearing, with ACLU lawyers taking sharp aim at government witness Laith Alsarraf, operator of a credit-card age-verification clearinghouse called Adult Check.

Alsarraf admitted under questioning from ACLU lawyers that the system only verifies whether users have valid credit card numbers, not whether they are over age 18.

He claimed that more than 3 million customers are now paying his company a $16.95 yearly fee for an adult ID code giving them access to some 46,000 adult-content Web sites.

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