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The Center for Democracy and Technology /____/ Volume 5, Number 6
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A briefing on public policy issues affecting civil liberties online
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CDT POLICY POST Volume 5, Number 6 April 5, 1999
CONTENTS:
(1) Justice Department Appeals Anti-Censorship Ruling
(2) Implications of the Government's Decision to Appeal
(3) Background on COPA Lawsuit
(4) Subscription Information
(5) About the Center for Democracy and Technology
** This document may be redistributed freely with this banner intact **
Excerpts may be re-posted with permission of
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(1) JUSTICE DEPARTMENT APPEALS ANTI-CENSORSHIP RULING
The U.S. Department of Justice has asked a federal appeals court to set aside
a lower court injunction blocking enforcement of the 1998 Children's Online
Protection Act (COPA).
COPA was Congress' second attempt to regulate content on the Internet,
criminalizing web sites that allow young people to have access to
material that is "harmful to minors." In February, Federal Judge Lowell
Reed of Philadelphia issued a preliminary injunction order preventing
enforcement of COPA pending a final decision on the law's merits.
Judge Reed concluded that the law was likely unconstitutional and that its
enforcement, unless blocked, would cause irreparable harm to websites and
users. Judge Reed found that the law's provision requiring websites with
material that could be harmful to minors to place "adult verification screens"
in front of that material was an undue burden on speech.
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(2) IMPLICATIONS OF THE GOVERNMENT'S DECISION TO APPEAL
This case has been followed closely by computer users and Internet publishers
because of the tremendous impact enforcement of the COPA statute would have
on the Internet community. Anyone who published material that was "harmful to
minors" and sexually explicit could be subject to criminal and civil penalties
including jail. <http://www.cdt.org/legislation/105th/speech/copa.html> Fortunately,
the preliminary injunction remains in place during the government's appeal, so
the law cannot be enforced at this time.
Following Judge Reed's injunction, the Justice Department had the choice of
proceeding to a full trial on the merits of the case, or appealing the
preliminary order. Last Friday, April 2, the Justice Department choose the
latter path.
This means that a three judge panel from the U.S. Court of Appeals for the
Third Circuit will hear the appeal later this year. In this respect, COPA is
unlike Congress' first attempt to regulate content on the Internet, the
Communications Decency Act, which included a provision that gave it a "fast
track" to the Supreme Court. Instead, COPA will follow the ordinary rules of
procedure, which means that the case may spend several years in the trial and
appellate process before the courts make a final ruling on its
constitutionality. The record on appeal will consist of material from the
6-day hearing in Philadelphia during January 1999.
In order to succeed with this appeal, the Deparment of Justice will have to
prove that Judge Reed "abused his discretion" in issuing a preliminary
injunction against enforcement of COPA. This is a difficult standard of
review for the government, particularly as Judge Reed's decision included
detailed findings of fact that he used to support and explain his ruling.
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(3) BACKGROUND ON COPA LITIGATION
The Philadeplphia challenge to COPA's constitutionality was filed by the ACLU
on behalf of itself and 16 other plaintiffs.
CDT, in cooperation with a diverse group of organizations representing
mainstream publishers, filed an amicus brief, arguing that user-controlled
filtering and blocking software and other user-controlled technologies were
more effective and less restrictive means of protecting children than
government mandates.
* Text of COPA:
http://www.cdt.org/legislation/105th/speech/copa.html
* The amicus brief filed by CDT and others in this case:
http://www.cdt.org/speech/copa/990111amicus.html
* Full text of Judge Reed's decision:
http://www.cdt.org/speech/copa/990201ACLUvsRENOdecision.shtml
* Policy Post 5.3 - Philadelphia Court Blocks Enforcement of the Child
Online Protection Act: http://www.cdt.org/publications/pp_5.3.html
* Policy Post 5.2 - Coalition of Industry and Civil Liberties Groups
Challenge Internet Censorship Legislation:
http://www.cdt.org/publications/pp_5.2.html
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(4) SUBSCRIPTION INFORMATION
Be sure you are up to date on the latest public policy issues affecting civil
liberties online and how they will affect you! Subscribe to the CDT Policy
Post news distribution list. CDT Policy Posts, the regular news publication
of the Center for Democracy and Technology, are received by Internet users,
industry leaders, policymakers and activists, and have become the leading
source for information about critical free speech and privacy issues
affecting the Internet and other interactive communications media.
To subscribe to CDT's Policy Post list, send mail to
majordomo@cdt.org
In the BODY of the message (leave the SUBJECT LINE BLANK), type
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_____________________________________________________________________________
(5) ABOUT THE CENTER FOR DEMOCRACY AND TECHNOLOGY/CONTACTING US
The Center for Democracy and Technology is a non-profit public interest
organization based in Washington, DC. The Center's mission is to develop
and advocate public policies that advance democratic values and
constitutional civil liberties in new computer and communications
technologies.
Contacting us:
General information: info@cdt.org
World Wide Web: http://www.cdt.org/
Snail Mail: The Center for Democracy and Technology
1634 Eye Street NW * Suite 1100 * Washington, DC 20006
(v) +1.202.637.9800 * (f) +1.202.637.0968
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End Policy Post 5.6 4/5/99
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