Trial Challenging Child Online Protection Act Starts

A federal trial that began Monday in Philadelphia will decide whether operators of websites can be jailed and fined for not blocking children’s access to materials deemed “harmful” to them.

The U.S. Congress passed the Child Online Protection Act (COPA) in 1998, and the law has never been enforced because of court challenges against it. A federal district court in Philadelphia and a federal appeals court have found the law unconstitutional on freedom of speech grounds, and the U.S. Supreme Court upheld the ban on enforcement of the law in June 2004.

The Supreme Court, however, asked the U.S. District Court for the Eastern District of Pennsylvania to decide whether any changes in technology would affect the constitutionality of the law. The high court wanted the district court to look into issues such as whether commercially available blocking software was as effective as the banned law in blocking “harmful” material.

COPA would require websites publishing adult material to restrict access to minors by taking steps such as requiring credit-card information for access to that material. Penalties for not restricting access include fines of up to US$50,000 per day and up to six months in prison.

The trial, expected to last four to six weeks, pits the American Civil Liberties Union (ACLU) against the U.S. Department of Justice (DoJ).

The DoJ has argued that the law is constitutional and that commercial filters alone aren’t effective. “COPA fills the gap that other measures cannot; it targets those entities engaged in the business of disseminating material that is harmful to minors and prevents them from doing so,” DoJ lawyers wrote in a brief filed Oct. 17. “COPA’s affirmative defenses ensure that adults can continue to have access to this material, while furthering the government’s compelling interest in keeping this material away from minors.”

Commercial speech doesn’t enjoy the same constitutional protections as political speech, the DoJ also argued.

But the ACLU argues the law would be ineffective. It would not protect children from websites based outside the United States, and it would not apply to noncommercial sites or to instant messaging, peer-to-peer file sharing, chat rooms or e-mail, the group said in a statement Monday.

The ACLU will argue the law violates the free-speech rights of millions of Internet users, the group said. “The right to free speech is one of the core values of this country,” ACLU senior staff attorney Chris Hansen said in a statement. “Congress does not have the right to censor information on the Internet. Americans have the right to participate in the global conversation that happens online every moment of every day.”

The ACLU plans to call several witnesses including employees of online magazines and an online dictionary, rap artists, painters and video artists, and providers of safer-sex information, the group said. On Monday, witnesses from online magazine Salon.com and adult site Nerve.com were scheduled to testify, said ACLU spokeswoman Erica Pelletreau.

-Grant Gross, IDG News Service (Washington Bureau)

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