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Take Three: Appellate Court Hears Challenge to Internet Censorship . . . Again

Catherine Crump,
Staff Attorney,
ACLU Speech, Privacy and Technology Project
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June 11, 2008

A sense of déjà vu pervaded the courtroom in Philadelphia yesterday as the ACLU presented its challenge to the Child Online Protection Act . . . again. This is not the first or the second, but the third time the ACLU has been before the Third Circuit Court of Appeals, arguing that COPA, a federal Internet censorship law, suppresses vast quantities of constitutionally protected speech without doing much of anything to keep kids safe from inappropriate materials.

COPA requires websites to place “harmful to minors” material out of the view of children. This well-intentioned law suffers from many flaws, not the least of which is that there is no currently available technology that enables websites to distinguish adults from children. It is unclear what it means for something to be “harmful to minors.” One person’s valuable artistic expression is another’s worthless pornographic image. Worst of all, COPA fails to protect children, because the law places no restrictions on overseas websites. The best way to think of COPA is as an in-kind donation to foreign Web sites that provide “harmful to minors” content.

A few years ago, the Supreme Court indicated that it would strike down COPA if Internet filtering software is an effective way to keep kids from seeing material harmful to them. Last year, the trial court held that filtering software blocks 95% of inappropriate materials. The appeals court can only overturn that conclusion if it was clearly erroneous – an argument the government did not raise.

Instead, the government’s primary contention that COPA is necessary is that about half of parents use Internet filtering software on their kids’ computers. The government’s implicit assumption seems to be that parents who choose not to filter their childrens’ Internet use are so irresponsible that the federal government needs to step in. The ACLU countered that some parents’ decision not to use Internet filters is a valid exercise of parental judgment, not evidence of reckless parenting.

The government also attempted to frame the case as about protecting kids from the evils of pornography. It submitted to the court a sizeable collection of images it determined were “harmful to minors”, leading the government’s attorney to quip that reviewing the case file was “a plum job for a clerk.” The court pointed to the trial court’s finding that websites addressing current events and sexual health information reasonably feared prosecution under the law.

The court also asked the government whether COPA’s failure to address overseas sites wasn’t a serious flaw. The government stated that Congress could take a “belt and suspenders” approach to protecting kids, first tackling domestic websites and perhaps later addressing foreign Websites. Playing off of this phrase, the ACLU made the point that if filters work well, COPA is unnecessary – as ACLU Senior Staff Attorney Chris Hansen put it, “If the belt works at least as well as the suspenders, then you can’t send people to jail for not wearing the suspenders.”

Now all there is to do is wait for the court to rule yet again.

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