============================================================== @@@@ @@@@ @@@ @@@@ @ @ @@@@ @@@@ @@@@@ @ @ @ @ @ @ @ @ @ @ @ @ @@@@ @@@ @ @ @@@@@ @ @@@ @@@ @ @ @ @ @ @ @ @ @ @ @ @ @@@@ @ @@@ @@@@ @ @ @@@@ @@@@ @ @ @ ============================================================== Volume 5.17 November 19, 1998 -------------------------------------------------------------- Published by the Electronic Privacy Information Center (EPIC) Washington, D.C. http://www.epic.org SPECIAL ISSUE: The Challenge to Internet Censorship (Round 2) ======================================================================= Table of Contents =======================================================================  Federal Court Blocks Enforcement of Net Censorship Law  Plaintiffs' Preliminary Statement  Inability of Speakers to Prevent Speech from Reaching Minors  The Impact of COPA on Internet Users  COPA's Defects Are Identical to those of the CDA  COPA Won't Advance the Government's Stated Interest  Plaintiffs in ACLU v. Reno II  Upcoming Conferences and Events =======================================================================  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: http://www.epic.org/free_speech/copa/tro_brief.html =======================================================================  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. =======================================================================  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. =======================================================================  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. =======================================================================  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." =======================================================================  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." =======================================================================  Plaintiffs in ACLU v. Reno II ======================================================================= American Civil Liberties Union http://www.aclu.org A Different Light Bookstore http://www.adlbooks.com/ American Booksellers Foundation for Free Expression http://www.bookweb.org ArtNet http://www.artnet.com The BlackStripe http://www.blackstripe.com Addazi, Inc. d/b/a Condomania http://www.condomania.com Electronic Frontier Foundation http://www.eff.org Electronic Privacy Information Center http://www.epic.org Free Speech Media, LLC http://www.freespeech.org Internet Content Coalition http://www.netcontent.org OBGYN.NET http://www.obgyn.net Philadelphia Gay News http://epgn.com/ PlanetOut Corporation http://www.planetout.com Powell's Bookstore http://www.powells.com RIOTGRRL http://www.riotgrrl.com Salon Magazine http://www.salonmagazine.com Weststock.com http://www.weststock.com =======================================================================  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: http://www.iatp.org/iatphr50/ 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. http://is.lse.ac.uk/lucas/cepe98.htm 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: email@example.com. 1999 EPIC Cryptography and Privacy Conference. June 7, 1999. Washington, DC. Sponsored by EPIC. Contact: firstname.lastname@example.org. Cryptography & International Protection of Human Rights (CIPHR'99). 9-13 August 1999. Lake Balaton, Hungary. Contact: http://www.cryptorights.org/ ======================================================================= Subscription Information ======================================================================= The EPIC Alert is a free biweekly publication of the Electronic Privacy Information Center. To subscribe or unsubscribe, send email to email@example.com with the subject: "subscribe" (no quotes) or "unsubscribe". A Web-based form is available at: http://www.epic.org/alert/subscribe.html Back issues are available at: http://www.epic.org/alert/ ======================================================================= About EPIC ======================================================================= The Electronic Privacy Information Center is a public interest research center in Washington, DC. It was established in 1994 to focus public attention on emerging privacy issues such as the Clipper Chip, the Digital Telephony proposal, national ID cards, medical record privacy, and the collection and sale of personal information. EPIC is sponsored by the Fund for Constitutional Government, a non-profit organization established in 1974 to protect civil liberties and constitutional rights. EPIC publishes the EPIC Alert, pursues Freedom of Information Act litigation, and conducts policy research. For more information, e-mail firstname.lastname@example.org, http://www.epic.org or write EPIC, 666 Pennsylvania Ave., SE, Suite 301, Washington, DC 20003. +1 202 544 9240 (tel), +1 202 547 5482 (fax). If you'd like to support the work of the Electronic Privacy Information Center, contributions are welcome and fully tax-deductible. Checks should be made out to "The Fund for Constitutional Government" and sent to EPIC, 666 Pennsylvania Ave., SE, Suite 301, Washington DC 20003. Your contributions will help support Freedom of Information Act and First Amendment litigation, strong and effective advocacy for the right of privacy and efforts to oppose government regulation of encryption and funding of the digital wiretap law. Thank you for your support. ---------------------- END EPIC Alert 5.17 ----------------------- .
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