A federal judge on March 22 dealt another blow to government efforts to control internet pornography, striking down a 1998 U.S. law that makes it a crime for commercial web site operators to let children access “harmful” material online.
In his ruling, the judge said parents and teachers can protect their children through software filters and other less restrictive means that do not limit the rights of others to free speech.
“Perhaps we do the minors of this country harm if First Amendment protections, which they will with age inherit fully, are chipped away in the name of their protection,” wrote Senior U.S. District Judge Lowell Reed Jr., who presided over a four-week trial last fall.
The law would have criminalized web sites that allow children to access material deemed “harmful to minors” by “contemporary community standards.” The sites would have been expected to require a credit card number or other proof of age. Penalties included a $50,000 fine and up to six months in prison.
Sexual health sites, the online magazine Salon.com, and other web sites backed by the American Civil Liberties Union challenged the law. They argued that the Child Online Protection Act (COPA) was unconstitutionally vague and would have had a chilling effect on speech.
The U.S. Supreme Court upheld a temporary injunction in 2004 on grounds that the law was likely to be struck down and was perhaps outdated (see “High Court strikes down web porn law”: http://www.eschoolnews.com/news/showstory.cfm?ArticleID=5135).
Technology experts say parents and educators now have more serious concerns than web sites with pornography. For instance, the threat of online predators has caused worries among parents whose children use social-networking sites such as News Corp.’s MySpace.
The case sparked a legal firestorm last year when internet search giant Google Inc. challenged a Justice Department subpoena seeking information on what people search for online. Government lawyers had asked Google to turn over 1 million random web addresses and a week’s worth of Google search queries (see “Google search probe pits online privacy vs. web safety”: http://www.eschoolnews.com/news/showstory.cfm?ArticleID=6150).
A judge sharply limited the scope of the subpoena, which Google had fought on trade secret, not privacy, grounds. Aiming to ease privacy concerns, however, Google—which keeps logs of all searches, along with digital identifiers linking them to specific computers and internet browsers—recently said it would start to make those logs anonymous after 18 to 24 months, making it much harder to connect search records to a specific person.
To defend the nine-year-old COPA, government lawyers attacked software filters as burdensome and less effective, even though they have previously defended their use in public schools and libraries.
“It is not reasonable for the government to expect all parents to shoulder the burden to cut off every possible source of adult content for their children, rather than the government’s addressing the problem at its source,” a government attorney, Peter D. Keisler, argued in a post-trial brief.
Critics of the law argued that filters work best because they let parents set limits based on their own values and their child’s age.
The law addressed material accessed by children under 17, but applied only to content hosted in the United States.
The web sites that challenged the law said fear of prosecution might lead them to shut down or move their operations offshore, beyond the reach of the U.S. law. They also said the Justice Department could do more to enforce obscenity laws already on the books.
The 1998 law followed Congress’s unsuccessful 1996 effort to ban online pornography. The Supreme Court in 1997 deemed key portions of that law unconstitutional because it was too vague and trampled on adults’ rights.
The newer law narrowed the restrictions to commercial web sites and defined indecency more specifically.
In 2000, Congress passed a law requiring schools and libraries to use software filters if they receive federal eRate funds. The high court upheld that law, called the Children’s Internet Protection Act (CIPA), in 2003.
U.S. District Court for the Eastern District of Pennsylvania