Wednesday, January 28, 2009

The Death of the Child Online Protection Act...

Since the very inception of the web browser in 1994, the United States Congress has taken a decidedly proactive stance on the issue of protecting minors from indecent and sexually explicit material available online. Now, once again, the Supreme Court has stepped in to act as a check on Congress' proactive behavior. As the New York Times reports, the Court has just refused to step in and save the Child Online Protection Act (COPA), turning down an appeal of the federal appellate court's decision without comment.

The Times agrees with the Court's ruling, summing up the terms of the debate as follows...

Everyone can agree on the need to protect children from sexually explicit online material, but this misguided law tried to do it in ways that infringed on too much constitutionally protected free speech.

Congress' first attempt at regulating indecent material online came in the form of the Communications Decency Act (CDA) of 1996, which sought to regulate content published on websites that allowed unfettered access. The two provisions that were most contentious included one that would prohibit the "knowing transmission" of indecent material to any recipient under the age of eighteen and the other would prohibit the use of any "interactive computer service" to send or display offensive material in a manner available to a minor – effectively imposing limits to what material could be published on unrestricted websites.

The CDA, however, was struck down by the Supreme Court in Reno v. ACLU (1997) on First Amendment grounds, ruling that the statute "unduly restricted a large amount of speech that adults have a constitutional right to receive and to address to one another".

Congress, still seeking to pass some type of protective regulatory legislation, soon drafted a second effort at regulating indecent material. The Child Online Protection Act (COPA) was an attempt to respond directly to the Court's decision in Reno, making only minor modifications to the CDA which would sufficiently address its concerns. COPA provided for criminal and civil penalties for anyone who "in interstate or foreign commerce by means of the World Wide Web makes any communication for commercial purposes that is available to any minor and that includes any material that is harmful to minors".

However, COPA has also faced legal hurdles over the past decade based on First Amendment grounds. The District Court, and later affirmed by the Appellate Court, concluded that COPA was a content-based regulation of speech, and therefore subject to strict scrutiny. It now appears that COPA shares a similar fate with the CDA... which is that they're both dead.

Both of these pieces of legislation, the CDA and COPA, were overly broad attempts to prohibit certain forms of content to be published on websites. Moving forward, there are two major problems with regulating online material in this manner...

First, defining what is "harmful to minors" is far too open to interpretation. For example, many people believe that informative websites on abortion or contraceptives are inappropriate for children. But Congress' view that all such sites should be completely banned from the internet, even to adults, punishable by up to six months in prison, is absurd in a democratic society that values free speech.

The second major problem with such regulatory policy is that, even if people were willing to accept some sacrifice of their free speech liberties, the policies' effects would be inconsequential. Neither COPA nor the CDA made even the slightest attempt to address the internet's global dimension. The A.C.L.U. is correct in asserting that COPA would have been ineffective since it fails to regulate foreign websites, "which are the source of much of the indecent material available to American Internet users."

If the government wants to get serious about protecting children from indecent material online, in a way that will be acceptable to the Court, it ought to look at other policies, which have had great success, that have been enacted at both the federal and local levels. For instance, the Children’s Internet Protection Act (CIPA) was passed in 2003 requiring public institutions which received federal funding to install internet filters that would disallow access to websites that contained indecent material. In other words, CIPA focused on the demand-side (the access of the end-user) as opposed to attempting to regulate once again the supply-side (what websites could and could not publish). Designed to utilize Congress’ constitutional "spending power", CIPA required the installment of internet filters for public institutions which wanted to continue receiving federal funds. The Supreme Court has since upheld CIPA against a constitutional challenge in United States v. American Library Association (2003).

Such intelligent, narrowly targeted, and practical measures may not prove completely effective in protecting children online, but the truth is that they're the best options we've got. For the time being, since the Court seems totally unwilling to allow broad swaths of censorship to occur in the name of protecting children, less ambitious remedies will have to do. Ultimately, if you want your kids to be kept safe from viewing certain content you need to install a software filter and, even more importantly, actually have conversations with them.


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