Child Online Protection Act of 1998
 

• Made it a federal crime for commercial Web sites to communicate material considered "harmful to minors."
   
  
• Require commercial sites to collect an adult ID or credit card number before allowing users to view any "harmful to minors" material on the site.
   
  

Ashcroft v. ACLU
6/29/04

• 5-4 vote, upheld Third Circuit decision blocking COPA's enforcement
• Remanded case to federal district court for a trial to determine if COPA is the least restrictive means available.
  • Evaluate whether technological changes in the past five years provide less restrictive means.
  
   
  
• Majority decision written by Justice Kennedy
  
   
  
  • "Content-based prohibitions, enforced by severe criminal penalties, have the constant potential to be a repressive force in the lives and thoughts of a free people."
     
    
  • Government must prove it is using the least restrictive method to achieve its end.
     
    
  • ACLU argued that content-filtering technology was a better method for attempting to protect children from inappropriate content while still allowing mature, consenting adults to access that material.
     
    
    • Kennedy: "Filters impose selective restrictions on speech at the receiving end, not universal restrictions at the source.
      • Childless adults may gain access to speech they have a right to see.
         
        
      • Adults with children may obtain access to the same speech by turning off the filter on their home computers.
      
       
      
    • Filters, moreover, may well be more effective than COPA.
      • Prevent minors from seeing pornography posted anywhere in the world.
         
        
      • COPA does not prevent minors from accessing foreign harmful materials.
         
        
      • COPA's effectiveness likely to further diminish if it is upheld because providers simply can move their operations overseas.
         
        
      • Filters can be applied to all forms of Internet communication, including e-mail, not just the World Wide Web.
         
        
      • "The Government has not satisfied its burden to introduce specific evidence proving that filters are less effective."
         
        
      
       
      
  • "There is a potential for extraordinary harm and a serious chill upon protected speech" if the law took effect.
     
    
  • "It is reasonable to assume that technological developments important to the First Amendment analysis have occurred in the five years since the District Court made its fact findings."
     
    
  • Noted two subsequent federal statutes "that might qualify as less restrictive alternatives to COPA."
    • Prohibition on misleading domain names, and
    • Creation of a minors-safe "Dot Kids" domain.
    
     
    
• For a history of cases involving COPA, see EPIC's list.

 

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