Blog of Rights

Payment Cards vs. Filtering Software

By Catherine Crump, Staff Attorney, ACLU Speech, Privacy and Technology Project at 10:57am
Here is a look at what is coming up this week in the COPA trial. We're nearing the end of our case-in-chief. Our only witness left to testify is Professor Ronald Mann.

Remember this? COPA provides an affirmative defense from prosecution for anyone who, in good faith, restricts minors' access by, among other things, requiring use of a payment card.

Professor Mann will demonstrate that COPA's credit/debit card affirmative defense does not effectively prevent minors from accessing prohibited material, because many minors have payment cards. In fact, payment card companies increasingly target minors as potential customers. At the same time, many adults do not have payment cards, with the consequence that use of COPA's affirmative defense would cut them off from much constitutionally protected speech.

Cross examinations start tomorrow. For those who have followed COPA closely, this will probably be the more interesting part of the case. Using the data it subpoenaed from Google and obtained voluntarily from other search engines, the government compiled a massive collection of urls, or web pages, on which to do a study of the effectiveness of filters. The government took these thousands of web pages and classified them according to whether they contained sexually explicit material that was clearly designed for adult entertainment purposes. The government then configured a variety of Internet filters and recorded whether they successfully blocked the sexually explicit material while allowing the other, non-explicit material to pass through.

After that, the government is presenting a couple of arguments that filters will never work. A linguist will testify that due to the inherent imprecision of language, filters cannot be perfect. An economist will testify that due to something he calls the "lemons theory," the market for filters is fatally flawed and will not yield good products. That should take us through the end of this week. After that, the government will probably present its witnesses who will argue that COPA's affirmative defenses are available and effective.

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