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   Volume 5.17	                                November 19, 1998
                            Published by the
              Electronic Privacy Information Center (EPIC)
                            Washington, D.C.
                             SPECIAL ISSUE:
             The Challenge to Internet Censorship (Round 2)
Table of Contents
[1] Federal Court Blocks Enforcement of Net Censorship Law
[2] Plaintiffs' Preliminary Statement
[3] Inability of Speakers to Prevent Speech from Reaching Minors
[4] The Impact of COPA on Internet Users
[5] COPA's Defects Are Identical to those of the CDA
[6] COPA Won't Advance the Government's Stated Interest
[7] Plaintiffs in ACLU v. Reno II
[8] Upcoming Conferences and Events
[1] Federal Court Blocks Enforcement of Net Censorship Law
PHILADELPHIA - In the first constitutional test of a new Internet
censorship law, a federal judge today issued a temporary restraining
order (TRO) against enforcement of the Child Online Protection Act
(COPA).  The ruling came in a legal challenge to the statute filed by
EPIC, the American Civil Liberties Union and the Electronic Frontier
Foundation on behalf of a broad coalition of Web publishers and users.
COPA, enacted in the final days of the 105th Congress as part of the
Omnibus Appropriations Act, imposes criminal penalties against any
"commercial" website that makes material that is "harmful to minors"
available to anyone under 17 years of age.  Unless enjoined, the
statute would have gone into effect at 12:01 a.m. on November 20.
At the end of an all-day court hearing, U.S. District Judge Lowell A.
Reed, Jr. enjoined Attorney General Janet Reno and the Justice
Department from "enforcing or prosecuting" any conduct under COPA for
at least ten days, until the issues in the lawsuit can be further
litigated.  Over the objections of the government, Judge Reed extended
the coverage of the TRO to anyone posting material on the World Wide
Web, not just the named plaintiffs.  The TRO also precludes retroactive
enforcement of COPA, should the law eventually be upheld, for material
posted while the restraining order is in effect.
In support of its case, the coalition presented the testimony of two
plaintiffs -- Norman Laurila, founder of A Different Light Bookstores,
and David Talbot, CEO of Salon Magazine.  Both described the negative
impact COPA would have on their ability to make controversial material
available at their websites.  They stressed the importance of anonymity
on the Internet and told the court that age verification requirements
(which would protect sites from prosecution under the law) would --
even if practical -- substantially diminish the number of visitors to
their sites.
Before announcing his decision, Judge Reed noted that the case
involves a "clash" between First Amendment rights and the nation's
responsibility to protect children.  Although he stressed that today's
ruling was not a "final order on the merits," the judge expressly found
that the plaintiffs appear likely to prevail in their constitutional
challenge.  He also noted that the TRO does not prevent enforcement of
existing laws dealing with obscenity or child pornography.
The court ruling is the latest setback for Internet censorship
proponents.  In June 1996, the same federal court in Philadelphia
struck down the Communications Decency Act (CDA), a decision
unanimously upheld last year by the U.S. Supreme Court.  In enacting
COPA, Congressional supporters claimed that the new law corrected the
constitutional defects of the CDA.  Several federal courts have also
found state laws seeking to regulate online content unconstitutional.
Excerpts from the plaintiffs' brief in support of a TRO are set forth
below.  The full text of the brief is available at:
[2] Plaintiffs' Preliminary Statement
This case challenges provisions of the Child Online Protection Act
("COPA"), which is Congress' second attempt to impose severe criminal
sanctions on the display of constitutionally protected, non-obscene
materials on the Internet.  The first attempt, the Communications
Decency Act ("CDA"), was soundly rejected by all nine justices of the
Supreme Court in Reno v. American Civil Liberties Union ("ACLU I").
Recognizing that the Internet had become a powerful "new marketplace of
ideas" and "vast democratic fora" that was "dramatically expanding" in
the absence of government regulation, the Court imposed the highest
level of constitutional scrutiny on content-based infringements of
Internet speech. . . .
[P]laintiffs seek to have the COPA declared unconstitutional both on
its face and as applied to them, and to enjoin defendant from enforcing
it.  . . . [T]he COPA's constitutional flaws are ultimately identical
to the flaws that led the Supreme Court to strike down the CDA. Though
the COPA, like the CDA, purports to restrict the availability of
materials to minors, the effect of the law is to restrict adults from
communicating and receiving expression that is clearly protected by the
First Amendment.
Plaintiffs represent a broad range of individuals and entities who use
the World Wide Web (the "Web") to provide free information on a variety
of subjects, including sexually oriented issues that they fear could be
construed as "harmful to minors."  They range from long-established
booksellers and large media companies to newer online magazines, and
they provide general interest news as well as special interest content
such as fine art, safer sex materials, and gay and lesbian resources.
Because the COPA provides no way for speakers to prevent their
communications from reaching minors without also denying adults access
to them, the COPA directly threatens plaintiffs, their members, and
millions of other speakers with severe criminal and civil sanctions for
communicating protected expression on the Web.  The COPA also violates
the rights of millions of Web users to access and read constitutionally
protected speech.
[3] Inability of Speakers to Prevent Speech from Reaching Minors
The COPA applies to all communications on the Web that are "available
to any minor."  Because all content on the Web is "available to" both
adults and minors, the COPA on its face applies to communications
between adults.  Given the technology of the Web, there are no
reasonable means for speakers to make their speech "available" only to
adults.  From the perspective of speakers, the information that they
make available on the public spaces of the Web must be made available
either to all users of the Web, including users who may be minors, or
not at all.
The COPA attempts to provide affirmative defenses to criminal
liability, none of which are available to plaintiffs and other
providers of free content on the Web.  [COPA] provides an affirmative
defense if the defendant restricts access by "requiring use of a credit
card, debit account, adult access code, or adult personal
identification number."  This defense is effectively unavailable to
providers of free content because financial institutions charge to
verify a credit card.  The cost of credit card verification imposes
insurmountable economic burdens on speakers and other content providers
who want to provide their speech for free.  . . .
Because none of the defenses are available, plaintiffs and other
speakers have no way to comply with the COPA and are left with two
equally untenable alternatives: (i) risk prosecution and civil
penalties under the COPA, or (ii) attempt to engage in self-censorship
and thereby deny adults and older minors access to constitutionally
protected material.
[4] The Impact of COPA on Internet Users
Even if age or credit card verification were feasible, such a
requirement would fundamentally alter the nature and values of the new
computer communication medium, which is characterized by spontaneous,
instantaneous, albeit often unpredictable, communication by hundreds of
thousands of individual speakers around the globe, and which provides
an affordable and often seamless means of accessing an enormous and
diverse body of information, ideas and viewpoints.
The COPA would thus prevent or deter hundreds of thousands of readers
from accessing protected speech even if it were feasible for speakers
to set up a system to verify age.  Any age verification requirement
would inevitably prevent readers who lack the necessary identification
from accessing speech that would otherwise be available to them.  Many
adults do not have a credit card.  Age verification would have an
especially detrimental effect on foreign users, who are less likely
than U.S.-based adults to have a credit card or other identification.
In addition, many users will not want to provide personal information
to obtain speech for free.  Users may not want to disclose information
as valuable as a credit card number unless they are actually making a
purchase.  In addition, the COPA's registration requirements would
prevent users from accessing information anonymously, and would thus
deter many users from accessing sensitive or controversial speech
covered by the COPA.  Requiring adults to identify themselves before
they can access speech defined as "harmful to minors" will also
stigmatize that speech and thus deter access to protected speech.
Finally, when faced with the choice between reading material that does
not require any identification and providing a credit card or
identification to access speech covered the COPA, many users will
simply not bother to obtain or provide the necessary identification,
and will instead decline to access the covered speech at all.
[5] COPA's Defects Are Identical to Those of the CDA
The COPA's ultimate constitutional flaws are identical to the flaws
that led a three-judge court in this district to strike down the
Communications Decency Act (the "CDA"), and the Supreme Court to affirm
the district court's decision, in ACLU I. . . .  While there are slight
differences between the two laws, these differences are insignificant
when compared to the fundamental and fatal constitutional defect of
both laws: "In order to deny minors access to potentially harmful
speech" -- the COPA, like the CDA -- "effectively suppresses a large
amount of speech that adults have a constitutional right to receive and
to address to one another."  In passing both the CDA and the COPA,
Congress made it a crime for adults to communicate and receive
expression that is clearly protected by the Constitution.
Both acts are criminal statutes, which pose a very strong risk that
they "may well cause speakers to remain silent rather than communicate
even arguably unlawful words, ideas, and images."  Both apply to
material that is clearly constitutionally protected for adults.  Both
effectively ban protected speech to adults because the defenses in both
laws "d[o] not include any effective method for a sender to prevent
minors from obtaining access to its communications on the Internet
without also denying access to adults."  In addition, because both laws
rely on "community standards," both allow "any communication available
to a nation-wide audience [to] be judged by the standards of the
community most likely to be offended by the message."
[6] COPA Won't Advance the Government's Stated Interest
If the government's interest is in preventing minors from accessing
"pornographic" images (which, although difficult to define, is far from
coextensive with the much broader category of material explicitly
covered by the COPA), such speech is already illegal under existing law
if it is either obscene or child pornographic.  The vast majority of
the remaining category of "pornography" is not provided for free, but
rather is only provided after a fee is paid; thus, its purveyors are
protected under the COPA because they already require a credit card.
The COPA also excludes from coverage any "pornography" that is
communicated by noncommercial entities.  Finally, many minors have
credit cards, and so the COPA will not prevent them "from posing as
adults" to gain access to "harmful" material.
In addition, because of the nature of the online medium, the COPA will
be ineffective at ridding online networks of "harmful" material.  The
Internet is a global medium, and material posted on a computer overseas
is just as available as information posted next door.  Thus, the COPA
will not prevent minors from gaining access to the large percentage of
material that originates abroad.
In sum, the only "pornography" that the COPA could possibly prevent
minors from accessing is material that: 1) is not already illegal under
obscenity and child pornography laws; 2) does not require payment; 3)
is not communicated by amateurs with no profit motive; and 4) is not
provided by content providers overseas.  Thus, the government cannot
meet its burden of establishing a "compelling interest" because the
COPA clearly fails to alleviate the alleged "harms in a direct and
material way," and leaves "appreciable damage to [the] supposedly vital
interest unprohibited."
[7] Plaintiffs in ACLU v. Reno II
American Civil Liberties Union
A Different Light Bookstore
American Booksellers Foundation for Free Expression
The BlackStripe
Addazi, Inc. d/b/a Condomania
Electronic Frontier Foundation
Electronic Privacy Information Center
Free Speech Media, LLC
Internet Content Coalition
Philadelphia Gay News
PlanetOut Corporation
Powell's Bookstore
Salon Magazine
[8] Upcoming Conferences and Events
"From Aspiration to Activist Agenda: Achieving Economic, Social and
Cultural Rights in the U.S.". December 4-6. New York, NY. Sponsored by
the Institute for Agriculture and Trade Policy. Contact:
Defending the National Critical Infrastructure. December 7-8.
Sponsored by Defense Week. Contact: http://www.kingpublishing.com/
Computer Ethics. Philosophical Enquiry 98 (CEPE'98). December 14-15.
London, UK. Sponsored by ACMSIGCAS and London School of Economics.
1999 RSA Data Security Conference. January 18-21, 1999. San Jose, CA.
Sponsored by RSA. Contact: http://www.rsa.com/conf99/
FC '99  Third Annual Conference on Financial Cryptography. February
22-25, 1999. Anguilla, B.W.I. Contact: http://fc99.ai/
Electronic Commerce and Privacy Legislation -- Building Trust and
Confidence. February 23, 1999.  Ottawa, Canada. Sponsored by Riley
Information Services. http://www.rileyis.com/seminars/Feb99/
"CYBERSPACE 1999: Crime, Criminal Justice and the Internet". 29 & 30
March 1999. York, UK. Sponsored by the British and Irish Legal
Education Technology Association (BILETA). http://www.bileta.ac.uk/
Computers, Freedom and Privacy (CFP) '99. April 6-8, 1999. Washington,
DC. Sponsored by ACM. Contact: info@cfp99.org.
1999 EPIC Cryptography and Privacy Conference. June 7, 1999.
Washington, DC. Sponsored by EPIC. Contact: info@epic.org.
Cryptography & International Protection of Human Rights  (CIPHR'99).
9-13 August 1999. Lake Balaton, Hungary. Contact:
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  ---------------------- END EPIC Alert 5.17 -----------------------

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