Vice Squad
Saturday, March 24, 2007
COPA Redux

When the Child Online Protection Act last went before the Supreme Court, the preliminary injunction preventing its enforcement was kept in place. Nevertheless, a full hearing at the district court level still had to take place, and the Supremes expressly noted (in keeping with their decision on internet filters in libraries) that a look at advances in filtering technology would be in order. The district court opinion (84-page pdf) was handed down earlier this week, and Judge Lowell Reed struck down COPA as inconsistent with the First and Fifth amendments to the Constitution.

One important element in Judge Reed's reasoning was the notion that filters installed on individual computers (or through portals such as AOL) are quite effective at screening kids from adult content. Indeed, it seems as if filtering technology has made vast strides in the last five years or so. Another element is that age verification (via credit cards or otherwise), which would have been required of commercial adult-oriented websites under the terms of COPA, is not yet at the same level of reliability, and such barriers are costly for websites (or web surfers) to implement and maintain.

COPA is a content-based restriction on speech -- speech that is legal for adults -- and as such is subject to 'strict scrutiny' by the courts. This means that COPA can only be upheld if it is narrowly tailored to achieve the compelling government interest of keeping kids away from internet smut, and if there do not exist alternatives, less restrictive upon speech, that similarly serve the government interest. Judge Reed ruled that the US had not shown that other alternatives are less effective than COPA -- because COPA would not apply to foreign-based websites, there is a strong case to be made that filters are more effective than COPA at shielding kids from internet pornography. And COPA's under and over-inclusiveness indicates that it is not narrowly tailored, either. Oh yeah, COPA was ruled to be vague and overbroad, too.

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