March 22, 2007
COPA Enjoined Permanently on Remand
Judge Lowell A. Reed, Jr. has issued a permanent injunction on Wednesday against the enforcement of the Child Online Protection Act (COPA), 47 U.S.C. §231. This was Congress' second attempt to ban the distribution of sexually explicit material to children under the age of 17. The Supreme Court upheld the preliminary injunction in 2004 (Ashcroft v. ACLU, 535 U.S. 564) and remanded the case to the District Court to update the factual record and to account for new technology in the area that would affect the legal issues. That trial took place between October 23, 2006 and November 20, 2006.
This is the case where Google fought a Justice Department subpoena for raw search data from its archives. The other major search engines rolled over with bellies exposed. Google was finally ordered to turn over data, but the amount was limited and the data scrubbed to some extent. The aggregate search information was used in a study conducted by one of the experts hired by the Justice Department to examine how much sexually explicit material was available through search engines. This study was one element of the evidence that the Judge considered.
The opinion is long, 84 pages in slip opinion form. There are 186 findings of fact and 52 conclusions of law, although the Court recognized that some of the conclusions combine elements of law and fact. Judge Reed was fairly methodical in organizing the opinion. He described the parties; their experts; the types of web sites the plaintiffs represented and their issues relating to potential prosecution; A description of how sexually explicit materials that are organized and available on the web including how much comes from overseas; Internet filtering software; the legislative history of COPA; statistics on obscenity prosecution; the affirmative defenses available via COPA; and the conclusions of law. These all lead to an analysis that justifies the permanent injunction.
Based on some of the studies presented to the Court, it found between 275 million to 700 million pages are sexually explicit (about 1%). This is out of a total of an estimated 25 to 64 billion pages available per the expert testimony.
One of the Court's findings is that filters work. They are cost effective, flexible, and easy to use. Filters are also updatable and suppliers can strengthen them against hacking by children by monitoring developments. They can also restrict content that comes from foreign sources, which is more than half of the free sexually explicit material available. Many filtering options provided by ISPs are either free or part of the subscription while others are inexpensive. Filters blocked between 87 and 99% of sexually explicit web pages depending on the filter provider. The Court even noted filtering software built into Microsoft Vista, even though the software has been available to consumers for about two months.
The Court turned to other arguments, such as the requirement that there be some type of adult verification system such as credit or debit cards. Children actually have access to credit cards in one form or another which defeats this aspect of the law. Sites that don't sell access to pornographic materials but do include reference to sexual materials may be burdened by having to implement such a system.
Essentially, Judge Reed found that the the U.S. government failed to carry its burden that COPA was the least restrictive option in keeping sexually explicit material from children compared to the First Amendment rights of adults.
The slip opinion is here. Expect an appeal at any moment.
March 22, 2007 | Permalink
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