Justices Reject COPA Case

Wed, 21 Jan 2009 22:38:33 GMT

The New York Times reports, Justices Reject Pornography Law: "Without comment, the court handed down an order declining to take the case of Mukasey v. A.C.L.U., No. 08-565. The administration of former President George W. Bush, through Attorney General Michael Mukasey, had asked the justices to review the law. The American Civil Liberties Union has been a leading foe of the statute."

In ACLU v. Mukasey (2008) the Third Circuit Court of Appeals affirmed the District Court opinion that the Child Online Protection Act (COPA) violates the First and Fifth Amendments because it is not narrowly tailored to advance the Government's compelling interest in protecting children from harmful material on the internet, there are less restrictive and equally effective alternatives (filtering technology) and the statute is impermissibly overbroad and vague.

Previously: Won't Somebody Please Think of the Children (June 2008)
Pennsylvania Porn Prohibition Pronounced Unconstituional (2004)
Ashcroft v. ACLU (2004)
Ashcroft v. ACLU link roundup (2004)

Justices Reject COPA Case

Wed, 21 Jan 2009 22:38:33 GMT

Previously: Won't Somebody Please Think of the Children (June 2008)
Pennsylvania Porn Prohibition Pronounced Unconstituional (2004)
Ashcroft v. ACLU (2004)
Ashcroft v. ACLU link roundup (2004)

Government Refuses to Accept COPA As Unconstitutional

Mon, 15 Sep 2008 14:23:11 GMT

Back in July, a federal appellate court ruled against the government once again in the long-standing case against the Child Online Protection Act. The 3rd Circuit held that the law – which would censor a significant amount of valuable online content – violates the First Amendment. Unhappy with the three-judge panel’s decision, the government has [...]

While Congress had a good goal in mind when it passed COPA – to shield minors from unsavory websites – the legislation that passed was grossly over broad and imprecise, folding in online content, such as health information and Web art, that is legal under the First Amendment and recognized as valuable by most citizens.

Moreover, the courts in this case have consistently held that voluntary technological tools – such as filtering software – that enable parents to control what their children can access on the Internet are more effective than COPA at protecting minors, provide parents with more flexibility consistent with their own family values, and most importantly don’t violate the First Amendment.

The government is once again denying the obvious – that COPA is unconstitutional – and is wasting valuable taxpayers dollars on a case that has gone on for a decade. CDT hopes that the full Third Circuit Court of Appeals wisely denies the government’s rehearing motion.

Understanding COPA’s journey

scrawford@scrawford.net (Susan Crawford) — Wed, 23 Jul 2008 15:00:59 GMT

Like a performance of John Cage’s ORGAN2/ASLSP (”As Slow As Possible”), in which the notes played change every year or so, the COPA statute has just fallen yet again. The statute, first enacted in 1998, has been strongly challenged on First Amendment and other grounds, and yesterday’s Third Circuit opinion announced a dozen reasons [...]

If you are asked at a cocktail party what the statute is about and why it keeps traveling from Philadelphia to Washington DC and back again, here’s what you could say.

The bottom line is that the government failed to meet its burden of showing that COPA is the least restrictive means of advancing an interest in protecting children from being exposed to harmful material on the web. The 3d Circuit and the district court (as well as the SCT the last time around) have found that filters are more effective and less restrictive than COPA’s implementation. COPA would require all Web publishers that are arguably within the statute’s coverage (a big group whose outlines are blurry) to install protective covers of one sort or another, but filters (by contrast) are readily available to parents, inexpensive, easily modified, and getting better all the time. Given the current composition of the Supreme Court, it’s not clear that the Third Circuit approach will be greated sympathetically this time around.

COPA is known as the “son of the CDA,” which was pronounced unconstitutional in one of U.S. internet law’s keystone opinions, Reno v. ACLU. The Child Online Protection Act (pronounced COPE-ah), put in place after CDA was struck down, is wildly different from COPPA, KOPP-ah, which has to do with the privacy of personally identifiable information about less-than-13-year-olds.

COPA, which has never been enforced, created civil and criminal penalties (including six months in jail) for anyone who knowingly posts “material that is harmful to minors” on the web “for commercial purposes.” Web publishers that are prosecuted can claim affirmative defenses under COPA if the publisher

has restricted access by minors to material that is harmful to minors — (A) by requiring use of a credit card, debit account, adult access codt, or adult personal identification number; (B) by accepting a digital certificate that verifies age; or (C) by any other reasonable measures that are feasible under available technology.

COPA was immediately challenged when it was adopted because indecent speech that may be “harmful to minors” is legal for adults. Setting up criminal penalties for this legal-for-adults speech online puts the government in the role of censor - limiting access to speech on the basis of its content. Our law takes that kind of activity very seriously, and content-based restrictions of this kind are presumptively invalid.

Now, the government can rescue a statute like this, even if it’s content-based, by showing that it is “narrowly tailored to futher a compelling government interest.” (This is “strict scrutiny”.) Here, the government interest is protecting kids, and everyone seems to agree that that test is met.

The hard questions come with “narrowly tailored.” That test is a vessel for (or an alternative to) another test: whether the restriction is the “least restrictive alternative” for advancing the government interest.

The Third Circuit yesterday announced a host of reasons why COPA is insufficiently narrowly tailored, many based on the terms of the statute. The coverage of the HTM definition is vague, the court felt, and so publishers won’t be able to tell in advance whether their operations are all subject to the COPA constraint (what if only a tiny portion of a web site has arguably HTM material on it?) or what fits within the HTM definition (are you supposed to be protecting 3 year-olds as well as 16 year-olds?).

The court also found that having to implement credit card, debit account etc. shields would burden the providers of free web sites whose operations are nonetheless “commercial” and so covered by COPA. This was another instance of insufficient tailoring.

But the key element here is that the Third Circuit held that the government had to carry the burden of showing that filters were less effective than COPA, and it failed to do that. In fact, it appears that filters are both less restrictive and more effective than the operation of the statute, based on extensive findings of fact by the district court below.

This approach may be difficult for the current Supreme Court to agree with. It was difficult enough the last time. The analytical frameworkadopted by the Third Circuit follows what Justice Kennedy said then - that it is the Court’s job to consider what alternatives are out there in the world to help parents, and to decide whether they’re more effective/less restrictive than COPA.

The point, Justice Kennedy said, is to is ‘‘to ensure that speech is restricted no further than necessary,’’ not to consider ‘‘whether the challenged restriction has some effect in achieving Congress’ goal, regardless of the restriction it imposes.’’ So the court’s job is not to ask whether COPA would provide government with another tool to address harmful speech in the name of protecting kids. That standard would justify any restriction on speech. Instead, the inquiry should be ‘‘whether the challenged regulation is the least restrictive means among available, effective alternatives.’’ Right now, filters are more effective and less restrictive than COPA (or, at least, the government didn’t prove that they weren’t), and so the government loses. Never mind that filters are voluntary and that a lot of parents choose not to use them - that’s the parents’ choice. Filters are available.

The government’s argument to the Third Circuit, and probably to the Supreme Court, will be that this is a maddeningly flawed analytical approach. The government would like to see a more protective, quasi-parental approach (on the assumption that parents are busy shoring up the failing economy and can’t be counted on to be watching their kids or caring what they see).

Justice Breyer was very sympathetic to that view the last time around. His point is that filtering doesn’t count as an alternative to COPA. (‘‘The presence of filtering software is not an alternative legislative approach to the problem of protecting children.”) Doing nothing, legislatively, will always be less restrictive than doing something. He also thinks COPA isn’t much stronger than the Miller obscenity test and would only modestly burden adult access to legal adult speech.

Veteran SCT-watchers will count noses, in this case as in Fox v. FCC, and try to figure out what will happen next. Last time around, Justice Kennedy’s majority opinion was joined by Stevens, Souter, Thomas, and Ginsburg, all of whom are still there. Justice Stevens wrote a concurring opinion, which was joined by Justice Ginsburg. Justice Scalia filed a dissent, as did Justice Breyer, who was joined by Chief Justice Rehnquist (now Roberts) and Justice O’Connor (now Alito). So maybe the 5-4 will stay in place. But if Thomas goes over to the dissenting side, and Justice Breyer’s analytic approach (”what do you mean, filtering is an alternative?”) gathers steam, COPA could survive its third trip to the SCT and be upheld.

This case is a big deal because it turns on the question whether private, edge-based solutions to speech issues should be taken seriously. I think they can, and I don’t want to see a lot of government tinkering with the sources of speech. (I don’t think highspeed access providers are speakers - they’re conduit.) Let’s hope the government drops the COPA effort, which has now stretched on for almost ten years.

10 years later, Court still telling US govt that filters better than bad law

Wed, 23 Jul 2008 13:33:06 GMT

The Third Circuit Court of Appeals has upheld a District Court ruling (remanded from the Supreme Court) that, the 1998 Child Online Protection Act (COPA) is unconstitutional, was not the least restrictive means of accomplishing the government’s objectives, and violated the First Amendment rights of US website operators. In particular, the court found that COPA [...]

COPA was the US Government’s second attempt at protecting children online. Its first attempt, the 1996 Communications Decency Act (the CDA), was struck down by the Supreme Court’s finding in Reno v American Civil Liberties Union (521 US 844 (1997)) that the Act’s ‘indecent’ and ‘patently offensive’ provision abridged freedom of speech as protected by the First Amendment. COPA has not faired much better, with the courts blocking Congress from enforcing it.

COPA set out to restrict access by those under 18 to harmful material contained on ‘commercial websites’. As was the case with the CDA, ‘community standards’ would be one of the tests by which ‘harmful material’ was measured. COPA makes it a crime for those ‘commercial websites’ to make material that is ‘harmful to minors’ publicly available. Those found guilty of breaking the law faced up to six months imprisonment, and up to $50,000 in fines.

In February 1999, District Court Judge Lowell Reed Jnr barred the enforcement of COPA, stating that the new law was so unconstitutionally broad that it would invariably also affect non-pornographic websites. In June 2000, the 3rd US Circuit Court of Appeals upheld this position in no uncertain terms, stating:

‘To avoid liability under COPA, affected web publishers would either need to severely censor their publications or implement an age or credit card verification system, whereby any material that might be deemed harmful by the most puritan of communities in any state is shielded behind such a verification system … COPA essentially requires that every web publisher, subject to the statute, abide by the most restrictive and conservative state’s “community standards” in order to avoid criminal liability.’

The Supreme Court (in a five-to-four ruling) eventually affirmed the District Court’s original views on the unconstitutionality of the Act. However, it found that it interfered with the First Amendment free speech rights of adults, rather than upholding the Appeal Court’s additional arguments that a number of terms - such as ‘material that is harmful to minors’ and ‘commercial purposes’ - were too broad. The court held that COPA was not ‘narrowly tailored to proscribe commercial pornographers and their ilk, as the Government contends, but instead prohibits a wide range of protected expression’.

The case was then remanded back to the District Court for trial on the merits, where the District Court once again found:

“COPA facially violates the First and Fifth Amendment rights of the plaintiffs because: (1) COPA is not narrowly tailored to the compelling interest of Congress; (2) defendant has failed to meet his burden of showing that COPA is the least restrictive and most effective alternative in achieving the compelling interest; and (3) COPA is impermissibly vague and overbroad.”

Not one to ignore the fact they don’t have a case, the Government, once more appealed the District Court decision to the Third Circuit.

All along, the government have argued that COPA only applies to commercial pornographers and to older minors. However, as the District, Third Circuit, and Supreme Court all pointed out, the text of the statue does not actually say that. They also pointed to the fact that, if enacted, and if it functioned as the Government said it would, all COPA would do was place restrictions on access to content from US providers and material posted on the web in the US. Users would still be able to see ‘harmful material’ posted in any other country.

The US government has persisted with arguing that filters, which could block access to content wherever in the world it was hosted not just the estimated 50% hosted in the US that would be covered by COPA, are just not as effective as COPA would be. This is despite arguing in the case of the Children’s Internet Protection Act (CIPA), which makes federal funding of libraries conditional upon their use of filters, that filters were a good thing for protecting children from accessing the very same content.

The court was in no doubt which was more effective. “Given the vast quantity of speech that COPA does not cover but that filters do cover, it is apparent that filters are more effective in advancing Congress’s interest, as it made plain it is in COPA. Moreover, filters are more flexible than COPA because parents can tailor them to their own values and needs and to the age and maturity of their children and thus use an appropriate flexible approach differing from COPA’s “one size fits all” approach. Finally, the evidence makes clear that, although not flawless, with proper use filters are highly effective in preventing minors from accessing sexually explicit material on the Web.”

This decision is interesting because at pretty much every stage the Court’s have been in agreement that the statute is badly worded, and good intentions aside would not achieve what the government’s aims. Indeed many, myself included, would argue that the case should never have been remanded back to the District Court, and the Supreme Court bottled out on making a ruling that would have put an end to this case sooner. As Justice Breyer wrote in his dissenting opinion, when the Supreme Court heard the case ‘If this statute does not pass the Court’s “less restrictive alternative” test, what does? If nothing does, then the Court should say so clearly.’ This seemed a valid point then, and remains a valid point now: if the Supreme Court felt filters were less restrictive than COPA - which the majority clearly did - why send the case back to the District Court?

Won't somebody please think of the children?

Wed, 11 Jun 2008 21:45:56 GMT

Yesterday, New York Attorney General Andrew Cuomo announced an agreement with 3 national ISPs-- Verizon, Time Warner Cable and Sprint-- to block access to newsgroups and web sites distributing child pornography. Press Release: Attorney General Cuomo Announces Unprecedented Deal With...

Press Release: Attorney General Cuomo Announces Unprecedented Deal With Nation’s Largest Internet Service Providers To Block Major Sources Of Child Pornography  

An undercover investigation by the Attorney General’s office uncovered a major source of online child pornography known as “Newsgroups,” an online service not associated with websites. The Newsgroups act as online public bulletin boards where users can upload and download files. Users access Newsgroups through their Internet Service Providers. As part of the agreements, Verizon, Time Warner Cable, and Sprint will for the first time completely block access to all child porn Newsgroups.…

In addition to eliminating the Newsgroups, the ISPs have also agreed to purge their servers of all child pornography websites identified by the National Center for Missing & Exploited Children (“NCMEC”). NCMEC regularly reviews and updates its registry of these illegal sites to ensure the list reflects the current presence of such websites on the Internet.

Also yesterday, down at the other end of the New Jersey Turnpike in Philadelphia, the Third Circuit Court of Appeals once again heard oral arguments appealing the constitutionality of COPA, the Children Online Protection Act, which has been under review from federal courts since the Clinton Administration.

This argument was appealing last year's district court decision ACLU v. Gonzalez, No. 98-5591 (EDPA 2007). The most recent Supreme Court ruling was Ashcroft v. ACLU, 542 U.S. 656 (2004)

ACLU press release: ACLU Urges Court To Uphold Ban On Unconstitutional Censorship Law, "The American Civil Liberties Union is in court today, once again urging the courts to uphold a ban on a law that criminalizes constitutionally protected speech on the Internet. The Child Online Protection Act (COPA) would impose draconian criminal sanctions, with penalties of up to $50,000 per day and up to six months imprisonment, for online material acknowledged as protected for adults but deemed 'harmful to minors.'"

Here is various reporting and reactions on the NYAG agreement with ISPs:
New York Times, 3 Internet Providers Agree to Block Access to Child Pornography: "The move is part of a groundbreaking agreement with the New York attorney general, Andrew M. Cuomo, that will be formally announced on Tuesday as a significant step by leading companies to curtail access to child pornography. Many in the industry have previously resisted similar efforts, saying they could not be responsible for content online, given the decentralized and largely unmonitored nature of the Internet."

Declan McCullagh, News.com, N.Y. attorney general forces ISPs to curb Usenet access: "Time Warner Cable said it will cease to offer customers access to any Usenet newsgroups, a decision that will affect customers nationwide. Sprint said it would no longer offer any of the tens of thousands of alt.* Usenet newsgroups. Verizon's plan is to eliminate some 'fairly broad newsgroup areas.'"

Susan Crawford, Knowing less: "The announcement this morning in the Times that New York State AG Andrew Cuomo had reached an agreement with three US network operators (Verizon, Sprint, and Time Warner) about blocking child pornography was both less and more important than it appeared."

Derek Bambauer, Info/Law, Time Warner Gets It Wrong, and the French Follow the Model: "As more details emerge, though, I’m more skeptical about the plan. First, I held off assessing how narrow this filtering system would be (does it successfully block child porn, and only child porn?), since technical details are sketchy. But if the latest reports are to be believed, I’m ready to make a call: completely overbroad."

David Kravets, Threat Level from Wired.com, Communications Decency Act Tipping Under Cuomo Kid-Porn Accord: "It's commendable that New York Attorney General Andrew Cuomo wants to curb online child porn. But his accord with Verizon, Time Warner Cable and Sprint -- which more ISPs are likely to join -- opens up a Pandora's box of chilling side effects."

Nancy Prager, Reasonable Balance, Copyright is important, but other things much more so…: "While some might argue that the system that the Attorney General’s office has developed to identify content might catch content that is not in fact child pornography, New York’s action is a giant step in the right direction to protect children and to make the Internet a safe place for all."

David Isenberg, isen.blog: Meet the newest Internet Governance Body: "This is, in my humble opinion, a populist wedge issue to undermine the Internet's neutrality. I wish the carriers would stay the &^%$ out of content."

Won't somebody please think of the children?

Wed, 11 Jun 2008 21:45:56 GMT

Press Release: Attorney General Cuomo Announces Unprecedented Deal With Nation’s Largest Internet Service Providers To Block Major Sources Of Child Pornography  

An undercover investigation by the Attorney General’s office uncovered a major source of online child pornography known as “Newsgroups,” an online service not associated with websites. The Newsgroups act as online public bulletin boards where users can upload and download files. Users access Newsgroups through their Internet Service Providers. As part of the agreements, Verizon, Time Warner Cable, and Sprint will for the first time completely block access to all child porn Newsgroups.…

This argument was appealing last year's district court decision ACLU v. Gonzalez, No. 98-5591 (EDPA 2007). The most recent Supreme Court ruling was Ashcroft v. ACLU, 542 U.S. 656 (2004)

Dan Radosh, Blogging about child pornography is a $20 billion industry: "You will be shocked to hear that I have some questions and comments about today's front page New York Times story on an agreement by Internet providers to block sites that disseminate kiddie porn. This isn't necessarily an indictment of the agreement or the article, just a reminder that these things have a way of not being discussed as thoroughly as they should be."

Reporting from the front lines: the COPA oral argument

Tue, 10 Jun 2008 23:15:41 GMT

This afternoon, I attended in Philadelphia the oral argument in the seemingly-never-ending case in which the “Child Online Protection Act” (COPA) has repeatedly been found to be unconstitutional. Chris Hansen, lead counsel in the case for the ACLU, presented an superb argument to the U.S. Court of Appeals for the Third Circuit (as detailed more fully below). Although one can never predict the outcome of any court case, the questions posed by the three judges make clear that they have serious doubts about the validity of the law.

The background on this case goes back ten or even twelve years. In 1996, both CDT and the ACLU led legal challenges to the “Communications Decency Act” (CDA) (I was privileged to be one of the lead counsel in the CDT-led half of the case). We were successful, and in 1997 the U.S. Supreme Court unanimously decided that the CDA was unconstitutional, in the landmark Reno v. ACLU decision. A year later – in 1998 – Congress made minor changes to the overturned CDA statute, and passed COPA. Chris Hansen and the ACLU returned to court, and immediately got a preliminary injunction blocking COPA. Over the past ten years, the case has twice been up to the Supreme Court, which upheld the preliminary injunction and sent the case back the district court for a full trial. Judge Lowell Reed of the Eastern District of Pennsylvania conducted that trial in 2006, and issued in March 2007 a very thorough, careful opinion finding that COPA is unconstitutional. The Department of Justice (DOJ) appealed the case, and the appeals court heard argument in the appeal today.

The DOJ attorney, Charles Scarborough, argued first, and faced a very skeptical court. The biggest hurdle for DOJ is Judge Reed’s excellent trial court decision. Court of Appeals Judge Thomas Ambro today said that he “cannot conceive of any judge being more comprehensive” than Judge Reed had been. Judge Ambro made clear that the prior Supreme Court rulings in the case, when combined with the careful trial court decision, made DOJ’s appeal a very hard one to carry – the judge observed to Scarborough: “you are marching up San Juan Hill.” The other two judges were harder to read, but none of the three hinted that they were leaning in favor of the government.

Throughout the argument, DOJ returned to two key phrases: first, although they admitted that filtering software is far more effective than COPA would be, they repeatedly asserted that 50% of parents do not use filters. The district court had held that filtering would be 95% effective, while because more than 50% of “adult” content is overseas (and thus outside of the reach of COPA), COPA would be far, far less effective. DOJ repeatedly complained, however, that 50% of families do not use filters. When both the court and the ACLU pushed back to say that some families choose to not use filtering, DOJ had to deny that the government was trying to substitute itself for parental decision making. But that frankly is exactly what it sounded like during the argument – DOJ was essentially arguing that the government knows better than parents, and so it – rather than parents – should decide what kids can see online.

The second theme repeated during DOJ’s arguments was the idea that Congress could use a “belt and suspenders” approach to simultaneously enforce COPA and encourage filtering. DOJ was arguing that while filtering might be a very effective way to protect kids, Congress could still pile COPA on top of filtering. As Judge Ambro noted, however, the Constitution requires that Congress adopt the “least restrictive” means to address a governmental interest in the area of content censorship, and COPA is clearly far more restrictive, and far less effective, than filtering.

The ACLU was second up to argue, and Chris Hansen did an excellent job. Chris had been the ACLU’s lead counsel in the CDA case back in 1996, and has led the COPA challenge since it was brought in 1998 – so he is very familiar with the issues at hand. He started his argument by taking the judges back to the core legal principles: that when Congress tries to use a criminal law to censor speech based on its content, the law is presumed to be unconstitutional unless and until the government can prove that it is the “least restrictive” and most effective way to achieve a governmental objective. And as Chris made clear, the careful findings of Judge Reed in the lower court demonstrate that the government has not carried its burden. Chris also hammered home the fact that, contrary to DOJ’s assertion, the COPA law is not at all restricted to just apply to “commercial pornographers” (whatever that term means) – the law clearly would criminalize a broad range of completely legal and valuable online content, including safe sex information.

In addition, Chris had the best humorous lines of the afternoon – playing off of DOJ’s repeated assertions that Congress could use a “belt and suspenders” approach. He argued to the court that “if the belt works at least as well as the suspenders, then the First Amendment prohibits the government from sending you to jail for not wearing suspenders.” He later noted that with filtering being at least 95% effective (compared to COPA at less than 50% effectiveness), then filtering was probably the “best belt ever built.” The overall argument went so well – and Chris had sufficiently addressed the judges’ questions – that he was able to end his argument early, and sit down with more than ten minutes of time remaining.

One final intriguing note is an argument that was not made by the government in its oral presentation. Back in September 2007, DOJ had startled many advocates and experts in this area by arguing for the first time that the U.S. COPA law would in fact apply to websites located overseas. DOJ was trying to rebut the lower court finding that COPA would not be effective against overseas content. In its initial brief to the court of appeals, DOJ deviated from its prior positions and began to assert that U.S. law could be used to censor content published in other countries. This assertion raised great concern among free speech and human rights advocates, who have spent years resisting the efforts of governments like China to censor content that is located in the U.S. CDT organized a “friend of the court” brief for about 20 public interest and industry groups, arguing among other points that COPA could not be applied outside of the U.S. and to do so would harm free speech globally. Noted First Amendment attorney Bob Corn-Revere made similar arguments in a strong brief filed on behalf of human rights groups. Both briefs are available here. DOJ in its argument today appeared to back away from its assertion that COPA can reach overseas.

All in all, it was a good day for free speech on the Internet. I am optimistic that the appeals court will affirm the injunction against COPA. But, no matter what happens, this case is almost certainly headed back to the Supreme Court for a final round of argument, probably sometime in 2009 or 2010. Once the dust settles, maybe, just maybe, Congress will figure out that trying to censor lawful content on the Internet is a wasteful and ineffective enterprise (but I am not holding my breath that folks on Capitol Hill will learn that lesson).

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Reporting from the front lines: the COPA oral argument