September 19, 2017

Judge Strikes Down COPA

Last week a Federal judge struck down COPA, a law requiring adult websites to use age verification technology. The ruling by Senior Judge Lowell A. Reed Jr. held COPA unconstitutional because it is more restrictive of speech (but no more effective) than the alternative of allowing private parties to use filtering software.

This is the end of a long legal process that started with the passage of COPA in 1999. The ACLU, along with various authors and publishers, immediately filed suit challenging COPA, and Judge Reed struck down the law. The case was appealed up to the Supreme Court, which generally supported Judge Reed’s ruling but remanded the case back to him for further proceedings because enough time had passed that the technological facts might have changed. Judge Reed held another trial last fall, at which I testified. Now he has ruled, again, that COPA is unconstitutional.

The policy issue behind COPA is how to keep kids from seeing harmful-to-minors (HTM) material. Some speech is legally obscene, which means it is so icky that it does not qualify for First Amendment free speech protection. HTM material is not obscene – adults have a legally protected right to read it – but is icky enough that kids don’t have a right to see it. In other words, there is a First Amendment right to transmit HTM material to adults but not to kids.

Congress has tried more than once to pass laws keeping kids away from HTM material online. The first attempt, the Communications Decency Act (CDA), was struck down by the Supreme Court in 1997. When Congress responded by passing COPA in 1999, it used the Court’s CDA ruling as a roadmap in writing the new law, in the hope that doing so would make COPA consistent with free speech.

Unlike the previous CDA ruling, Judge Reed’s new COPA ruling doesn’t seem to give Congress a roadmap for creating a new statute that would pass constitutional muster. COPA required sites publishing HTM material to use age screening technology to try to keep kids out. The judge compared COPA’s approach to an alternative in which individual computer owners had the option of using content filtering software. He found that COPA’s approach was more restrictive of protected speech and less effective in keeping kids away from HTM material. That was enough to make COPA, as a content-based restriction on speech, unconstitutional.

Two things make the judge’s ruling relatively roadmap-free. First, it is based heavily on factual findings that Congress cannot change – things like the relative effectiveness of filtering and the amount of HTM material that originates overseas beyond the effective reach of U.S. law. (Filtering operates on all material, while COPA’s requirements could have been ignored by many overseas sites.) Second, the alternative it offers requires only voluntary private action, not legislation.

Congress has already passed laws requiring schools and libraries to use content filters, as a condition of getting Federal funding and with certain safeguards that are supposed to protect adult access. The courts have upheld such laws. It’s not clear what more Congress can do. Judge Reed’s filtering alternative is less restrictive because it is voluntary, so that computers that aren’t used by kids, or on which parents have other ways of protecting kids against HTM material, can get unfiltered access. An adult who wants to get HTM material will be able to get it.

Doubtless Congress will make noise about this issue in the upcoming election year. Protecting kids from the nasty Internet is too attractive politically to pass up. Expect hearings to be held and bills to be introduced; but the odds that we’ll get a new law that makes much difference seem pretty low.

Comments

  1. I wonder if this will mean that parents who choose not to install filtering software will become liable for something or other. Guilty of child neglect. Child endangerment. Something for which they could be locked up or have their kids taken away.

    Sort of like how in some places parents are held responsible for kids caught using alcohol or drugs.

  2. Perhaps Congress will mandate some sort of watermarking, such as tagging all HTM material with a file or URL extension indicating such. Then children (or software designed for use by children) could simply be told not to open anything ending in .htm.

  3. Unfortunately (your tongue-in-cheek suggestion aside), tagging would have the same limitations as the current system, but it would at least not break first amendment rights. Requesting that sites apply a tag to their HTML code that all filtering software can recognize would be a good thing, though. It would be a request, it wouldn’t infringe on first amendment rights, and it would ensure that as soon as a new site (adhering to this request) shows up, the filtering software blocks it.

    I like your evaluation of Congress though, other-Brian.

  4. One problem that dogs the heels of any so-called filtering software (commercially) produced is that they like to keep their filter lists private. Obviously this has a good aspect, otherwise little Timmy just opens banned_list.txt and has a nice list of websites to check out (after he disables the filter, of course).
    The problem is that several filtering suites take out more than just HTM material, including in their black-lists sites which criticise their software and sites which disagree with their own political views, for example.
    Typically such Politically aligned blacklists are hidden and/or not able to be disabled.

    (Could only find a wikipedia entry; no idea how much fact review they’ve done. http://en.wikipedia.org/wiki/Content-control_software)

    I accept that we need a middle-ground; a lot of information on the internet is not suitable for children to be viewing; but we must keep an awareness that (so-called) Content-Control Software is not blameless and carries risks of it’s own. Maybe the best approach is to actually watch little Timmy at the computer and see what he’s looking up?

    As an aside, I feel HTM filtering isn’t really sufficient to solve the problem; so I propse an extension – Harmful To Minors and Lawyers. Just tag all such files “.html” and blocking software becomes easier and even more political.
    😉

  5. I’ll miss this law, just a little bit. It was beautiful in a way:

    “Why shouldn’t kids be exposed to images of nudity?”
    “Because they’ll be harmed by it.”
    “How do we know they’ll be harmed?”
    “Because it says so right there in the law. See? Harmful to minors.”

    Isn’t that perfect? It’s just like the laws defining pi to be exactly 3, or Pluto to be a planet. Skip right past all that research, reasoning, and justification and simply *define* your chosen set of facts to be true.

  6. Onlooker says:

    Jesse, you’d have to overlook a lot of facts about the negative impact of pornography–on adults, even–to come to that conclusion. Hefner and Flynt are First Amendment leaches, not champions, and they’re doing no one’s children any good.

  7. Onlooker, if you have factual evidence that minors are harmed merely by voluntarily viewing the type of material that COPA defined as “harmful to minors”, a lot of people would like to see it, because it would contradict the cases of literally millions of people who viewed such content before turning 18 and are still healthy. It’s easy to wave your hands about facts supposedly existing out there in the ether; not so easy to actually track them down.

  8. anonymous says:

    Jesse,

    Setting aside considerations of established religion, the state’s proper interest in criminal obscenity parallels its proper interest in criminal libel: Both naturally extend from the legitimate exercise of police power against tumultous riot and breach of the peace.

    In these more enlightened days, no one seriously questions the anti-duelling statutes. Why then question laws combatting the plain cause of these bloody and frightful affairs and affrays? It is no less certain than the common truth that each day will come: that one year follows its predecessor in turn: that one century adjoins another: that certain outrageous insults do cause such hurt within the ordinary man’s breast that he must defend himself. Yes, indeed, it is a great credit to more refined gentlemen that they do affect an outward calmness as they formally arrange battle upon the field. Yes, indeed, it is to their credit that they take care to sequester themselves away from infants and innocents. Yet still, the sovereign outlaws their conduct. The sovereign declares it a breach against the peace—just the same as if they had broken the furniture and advanced upon each other like workingmen with jagged table-legs. The sovereign prohibits all this conduct: not just the natural effect, but the proximate cause. The sovereign condemns it all. And, I submit, rightly so.

    Unlawful obscenity insults more than just one. Obscenity mortally insults the many at large. It is but a commonplace and trifle of observation that lewd, vile, and lascivious displays do naturally gather and excite a crowd to a kind of dangerous, unruly beast: namely a vicious, wicked mob.

    That a riot must follow, compelling the force of police to suppress it, should be little surprise to anyone.

    In quite recent times, Janet Jackson inflamed a crowd’s sensibilites into such a stormy state of passion that the broadcaster and federal officials were beseiged in their offices.

    The sovereign must control and efficiently suppress riot and disorder or risk the dissolution of the state. This is the obvious harm which flows from an obscene insult and injury to society at large. No one but a dunder-head would contend that there exists no hurt in the terror and tyranny of a mob revolt.

  9. anonymous, that was brilliant, but as the OP stated, the material which COPA defined as “harmful to minors” was *not* obscene. I certainly remember the hundreds of deaths and tens of thousands of injuries which followed in the wake of Janet Jackson’s lascivious exposure, but I am unaware of such a riot occurring only among minors when exposed to this watered-down “obscenity lite” material.

  10. Another point to add to the discussion. There are regestries of “adult” site that you cna regester your site at that help the filtering software block your site. Among othing uses, dating sites that do not want kids find it helpful to be listed.

    Onlooker, I would love to know where you got your “facts”. All the studies I have run across show just the opisite. Add to that things like the stistice that show countries with relaxed nudity rules have a much lower number of rapes and other sex crimes, and you have to wonder about the way the US deals with it.

  11. You might enjoy my _Guardian_ column on the implications of the censorware argument. Your testimony gets quoted too 🙂

    http://technology.guardian.co.uk/weekly/story/0,,2044595,00.html

    “If a control system works for parents using it for what teenagers can see, it will work for governments using it for what citizens can see. Likewise, if citizens can escape government control of what they can read, teenagers will be able to escape parental control of what they can read. Now, pick one.”

  12. Anonymous says:

    Where does the phrase “Harmful To Minors” appear in the text of the Constitution? Oh that’s right it doesn’t. But putting on a powered wig and medieval priest dress makes you able to tell everyone that “SHALL NOT BE INFRINGED” really means “shall mostly not.”

    Put the swine to the rope before it’s too late.

  13. Oh boy. So much to address here and so little time.

    Firstly, the courts are correct in that the proper response to this issue is for parents to manage their children’s media exposure. This also increases the freedom of different parents to have different policies, and to relax those policies as the children grow up (not that they ever would mind you).

    Second, this has however locked the barn door after the horse has already escaped. COPA lasted long enough to provide justification enough for a lot of sites to put up “age verification” systems that just happen to ask for credit card numbers or other financial bona fides that just happen to enable the site to access your money. Of course the sites usually claim to be “free” and that your card won’t actually be charged, and of course there’s no way little Timmy ever gets hold of Daddy’s credit card, and of course there’s no other way to prove to someone that you are an adult than to show them your money … right. No doubt the card numbers are indeed not charged by the site; they’d get oodles of chargebacks and quickly be denied vendor licenses by all the major card companies if they did after claiming to not charge them. The card numbers will be charged by random third parties the card owner can’t recall ever doing business with, and who disappear into the night untraceably, and who can’t be provably connected with any particular web site. The site owners obviously must *sell* the numbers rather than use them themselves to make use of them while shielding themselves from liability! Of course, they can’t be caught doing it, so the numbers must be laundered somehow. And COPA has gotten this whole mess to be generally accepted by the porn-surfing public at large. Its repealment won’t make a whit of difference to this scam now that it has as much inertia as it does.

    Of course, filtering software has its own issues. The solution to the secrecy/tamper resistance dilemma is pretty obvious, though no large operating system and office software monopoly would ever dare to suggest it: open source filtering software whose block list is internal to the source code. Little Timmy has to find and learn to use a C compiler if little Timmy wants to modify the block list, and understand C code to figure out how to mess with or disable it in other ways. Or the list can be password protected or similarly. What about (open source of course) filtering software designed for home network use, which runs on one computer running connection sharing and firewalls access to its blocklist (transparent) by other hosts on the local network that access the inet through it? Now little Timmy can’t do anything to get around the blocking password from his own computer at all — he has to actually figure out how to connect it independently to the internet, and probably pay for the connection, or discover Daddy’s computer’s administrator password. And pulling the plug on Daddy’s computer or otherwise sabotaging it just pulls his own computer’s network connection’s plug. Oops. Nor does anything but Daddy’s password get him access to view the list to try at the school computers (oops, same filtering system there) or public library (nice try) or his teenage friend’s computer at his place (might have better luck, but little Timmy better know some big words and how to use Google).

    All of which is ignoring the question of just what “harm” porn actually does? Where are the empirical studies? The only experiments I know of in this area are natural rather than controlled, which limits their usefulness to draw conclusions, but there seems to be a correlation between … making love and not making war. Societies with stringent control of who can see who doing what to whom without what clothes on seem to be violent, totalitarian, and repressive (think Afghanistan) and societies with little or no such restrictions seem to be very nice, quiet, calm, peaceful, and full of well-adjusted people of all ages (think Sweden). Some of these don’t outlaw child pornography with postpubescent “lolitas” and don’t seem to be bad off, and there’s no indication of high rates of rape, molestation, or similar there. Maybe they have found some way to grow much more mature children that are more adult at 14 than some Americans are at 24. Or maybe America lost it — most societies around the world treated 14-year-olds as adult or nearly adult throughout most of history, as a matter of fact. Needless to say, the prospect of one’s 14-year-old having the right to drink, vote, and get married might lead to grooming them to be more mature and self-reliant faster. Actually, the lengthening period of “infantilization” in many Western nations may be a side effect of the lengthening period of schooling for typical future wage laborers; the adding of “high school” about a century ago changes age 14 into age 18, as it just so happens. In fact, most of this schooling is unnecessary — what I observed was that K-12 was one part academics of use in the future, one part academics of no practical use in the future, three parts redundant extra copies of academics I’d done already and could pass in my sleep while high on something, and about seventeen parts obedience training. High school was one part useful academics, one part useless academics, and eight parts “Introduction to Jungle Rule and Corrupt Power Politics with No Due Process, Good Governance, or Other Checks or Balances 101”, the latter being, like the French, taught according to the “immersion” teaching-methodological theory.

    So I vote we dump the existing school systems in North America and put in this short and sweet curriculum: K-10 useful basic reading, ‘riting, ‘rithmetic and things like use of phones, cell phones, directories, the Internet and google, libraries, and other means of researching things, and learning to get along and to explore and discover things in a relatively protected environment. High school (11-14) the core subjects are mainly forms of civics — with exercises: the school is run as a democracy-in-a-bottle with parental and teacher oversight, with some real binding decision-making done by the kids in little legislatures and taking votes, enforced (within reason) by teachers acting as “police”, and the academic assignments (scientific methods, history with an emphasis on democracy, some pre-vocational stuff, sports and shop) preparing the young adults for real work and getting on in a real environment with laws, government, justice, and all those mechanisms. No arbitrary and unappealable detentions; detention is meted out by a jury of your classmates. Bullying was outlawed by the 101st Congress of Jerkwad Junior High in 2017 — pick on someone enough and you get to be the defendant in a low-stakes trial! You might get detention, or your pay docked! Oh, did I mention, academic performance would be rewarded with (small amounts of) real money? OK, school taxes go up, but the parents are just giving their kids their allowances by a more circuitous route, and the gap between rich and poor kids is even leveled a bit. Helping prepare the way for adult life in a modern country with at least a bit of a safety net, while also helping the poorer parents a bit, strengthening the same safety net. Of course, the academics “employers” setting the curriculum are still teachers, but seniors (13 and 14) would be recruited as teaching assistants, for a bit more money, both lowering the burden on the teachers themselves and giving the seniors more authority and helping them learn more — for actually helping to teach something once you know it somewhat well is a proven way to learn it much better and improve long term retention of what you learn, besides.

    Of course, these reforms to the school system won’t actually happen by 2017, or probably ever; maybe in a future civilization after the fall of the American Empire is a dusty page in the history books…

    And lastly we address this, whose author was apparently using “obscenity” to refer to any kind of nudity, sex, whistling in the shower, dancing, or not wearing your government-mandated burqa or whatever: “Unlawful obscenity insults more than just one. Obscenity mortally insults the many at large…”

    Well, women everywhere cover up in shame — evidently, the body you were born with naturally is mortally offensive and really should never be seen in public, or at all by anyone for that matter. Shame on you for being born human! Lizards are so much less offensive to the eye and chimpanzees, well at least chimpanzees have a covering of hair to conceal the horrible shameful things that are their bodies. Of course, also, the natural means by which the human species reproduces itself is too horrible to bear witness to, revolting and degrading and inherently evil, even though without it our civilization is gone in a generation and the species is extinct another 100 years after. Humans — so revolting and awful; how dare they even exist! The whole planet should be scorched clean of life; we don’t want any of that messy “biology” stuff in our nice clean sterile cosmos, do we? Well, actually, we do. Most people (especially men) find the unclothed female form (some of them, anyway) to be delightful rather than offensive to the eye, and anyone with a shred of maturity can have both a sense of wonder and a sense of humor about the sometimes messy methods of human reproduction, and its various side benefits besides preserving the species. For instance we are one of the few species that has additional uses for it, in bonding and cementing social order, for instance, and as a recreation, and stress-reliever — a good wholesome healthy drug that is self-limiting by satiation and unaddictive, unlike for example its poor substitutes alcohol, tobacco, cocaine, and the like, which impair, promote binge consumption and dependency formation, and eventually kill by toxic side effects. There’s a reason for the term “love making”, and it really does help cement social order; societies that shame or shun this wonderful aspect of human nature become twisted and violence-ridden, without a single known exception, and full of resentments and other social dysfunction.

    Two final notes:
    1. I don’t actually propose going so far as to becoming tolerant of child pornography or exploitation. I just note that some societies have been tolerant of the former (but not the latter, and only postpubescent people reared to be mature and self-reliant at an earlier age) without proven harmful consequences.
    2. Has anyone ever seen a healthy prepubescent encounter porn and react in any way other than “Ick,” or “That’s weird!” and move on, not especially bothered by it? (Or even accidentally walk in on Mommy and Daddy making little baby brother-to-be?)

  14. Nathanael Nerode says:

    When are they going to figure out that there is no such thing as data, images, or any sort of information which is inherently “harmful to minors”?

    If a kid finds something accidentally or deliberately, the worst that can happen is a few weeks of nightmares (and that’s most likely to happen with news photos like those of Abu Ghraib).

    Forcing unwanted material on a child, particularly if it’s being pushed by a trusted authority figure, is another matter entirely. But the Internet doesn’t force stuff on people (except with pernicious popups), and if “the Internet” is a trusted authority figure for anyone, then something is *really seriously* wrong.