Excerpts of a DOJ Letter to Congress Expressing Concerns with COPA

Justice Department Letter Detailing Concerns With COPA Legislation

In 1998, Congress asked the Justice Department for an opinion of the advisability of passing the COPA legislation now at issue in Ashcroft v. ACLU.  The Justice Department responded with a letter outlining the serious problems they saw with the legislation. Congress later approved the legislation anyway.   Despite the Justice Department's early acknowledgement that COPA had constitutional flaws, the Department is now vigorously defending COPA against the ACLU's First Amendment challenge.  The heart of the Justice Department's concerns are expressed in the excerpts below.  The full letter can be found here.

U.S. Department of Justice
Office of Legislative Affairs
Office of the Assistant Attorney General
October 5, 1998

The Honorable Thomas Bliley
Chairman
Committee on Commerce
U.S. House of Representatives
Washington, DC 20515

This letter sets forth the views of the Department of Justice on H.R. 3783, the "Child On line Protection Act" ("the COPA"), as ordered reported. . . . We would like to bring to your attention certain serious concerns we have about the bill. . . .

The Department's enforcement of a new criminal prohibition such as that proposed in the COPA could require an undesirable diversion of critical investigative and prosecutorial resources that the Department currently invests in combating traffickers in hard-core child pornography, in thwarting child predators, and in prosecuting large-scale and multi district commercial distributors of obscene materials. For example, presently the Department devotes a significant percentage of our resources in this area to the highly successful Innocent Images online undercover operation, begun in 1995 by the FBI. Through this initiative, FBI agents and task force officers go on-line, in an undercover capacity, to identify and investigate those individuals who are victimizing children through the Internet and on-line service providers. . . .

We do not believe that it would be wise to divert the resources that are used for important initiatives such as Innocent Images to prosecutions of the kind contemplated under the COPA. Such a diversion would be particularly ill-advised in light of the uncertainty concerning whether the COPA would have a material effect in limiting minors access to harmful materials. There are thousands of news group and Internet relay chat channels on which anyone can access pornography, and children would still be able to obtain ready access to pornography from a myriad of overseas web sites. The COPA apparently would not attempt to address those sources of Internet pornography, and admittedly it would be difficult to do so because restrictions on news groups and chat channels could pose constitutional questions, and because any attempt to regulate overseas web sites would raise difficult questions regarding extraterritorial enforcement. The practical or legal difficulty in addressing these considerable alternative sources from which children can obtain pornography raises questions about the efficacy of the COPA and the advisability of expending scarce resources on its enforcement.

Second, such a provision would likely be challenged on constitutional grounds, since it would be a content-based restriction applicable to "the vast democratic form of the Internet," a "new market place of ideas" that has enjoyed a "dramatic expansion" in the absence of significant content-based regulation. Reno v. ACLU , 117 S. Ct. 2329, 2343, 2351 (1997). . . .

Finally, the COPA as drafted contains numerous ambiguities concerning the scope of its coverage. Such ambiguities not only might complicate and hinder effective prosecution; they also might "render [the legislation] problematic for purposes of the First Amendment" by "undermin[ing] the likelihood that the [bill] has been carefully tailored to the congressional goal of protecting minors from potentially harmful materials." ACLU, 117 S. Ct. at 2344. . . . 

Sincerely,

L. Anthony Sutin
Acting Assistant Attoney General 

cc: The Honorable John Dingell
Ranking Minority Member

Read full letter here