By MARYCLAIRE DALE, Associated Press Writer
It seemed like a good idea: enact a federal law to protect children
from sexually explicit material on the Internet. But eight years after
Congress passed the Child Online Protection Act, legal challenges from
sexual health sites, the online magazine Salon.com and other Web
publishers have kept it from being enforced.
The 1998 law would impose a $50,000 fine and six-month prison term on
commercial Web site operators who publish content "harmful to
children," as defined by "contemporary community standards." Opponents
say that definition is so broad it would stifle free speech.
Now, technology experts and others oppose the law on more practical
grounds -- they say it's obsolete.
Parents today are more concerned about online predators than racy
pictures, said University of Pennsylvania law professor Polk Wagner,
who teaches intellectual property.
"This was a hot issue in the late '90s," Wagner said. "There are much
more serious concerns (now): the instant messaging, the videoconferencing."
The Justice Department is nonetheless gearing up to defend the law at
a trial set for October in U.S. District Court in Philadelphia.
The case spawned a high-profile debate last month when Google, Inc.
refused a government subpoena for documents the government sought as
it develops its strategy.
Justice lawyers subpoenaed several leading search engines for
information, apparently to study what information people seek -- and
find -- online. They asked Google for 1 million sample queries and 1
million Web addresses in Google's database, according to court
documents.
Google is fighting the subpoena, although primarily citing trade
secrets, not privacy issues. Yahoo! and others are cooperating, saying
the information they provided does not identify individual users.
"I think it's natural for people to think this is creepy, even though
it's unlikely ... the Department of Justice would ever link that up
with who I am," said John G. Palfrey Jr., executive director of the
Berkman Center for Internet & Society at Harvard Law School.
The U.S. Supreme Court has twice granted preliminary injunctions that
prevent the government from enforcing the Child Online Protection Act,
known as COPA, until the case is tried.
Supreme Court Justice Anthony M. Kennedy wrote the 5-4 decision that
upheld the latest injunction in June 2004 on grounds the plaintiffs
were likely to prevail. He, too, questioned whether evolving
technology had not substantially changed the issue since 1998.
"The current case does not reflect current technological reality -- a
serious threat in any case involving the Internet," Kennedy wrote.
He also noted that filters can block dubious Web material posted
offshore, which the U.S. law could not target.
"Promoting the use of filters does not condemn as criminal any
category of speech, and so the potential chilling effect is
eliminated, or at least much diminished," Kennedy wrote.
The law, signed by then-President Clinton, requires adults to use some
sort of access code, or perhaps a credit-card number, to view
questionable material.
At least one earlier attempt by Congress to fashion a blanket online
child-protection law, and about a dozen state laws, have previously
been thrown out on First Amendment grounds, according to attorney
Chris Hansen of the American Civil Liberties Union, which represents
the plaintiffs. The Supreme Court has approved more limited measures,
such as the use of filters on computers at federally funded public
libraries.
"Congress has repeatedly attempted to address this serious need and
the court yet again opposed these common-sense measures to protect
America's children," Justice Department spokesman Mark Corallo said
after Kennedy's decision.
Michael J. Miller, the longtime PC Magazine executive editor who is
now an executive with parent Ziff Davis Publishing, said the
government is fighting the good fight, but with the wrong tool.
"The problem is, you're never going to be able to completely
criminalize it at the source because the problems here are
international problems," Miller said.
Parental filters have gotten more sophisticated since 1998, and now
often come with spyware and firewall packages that consumers purchase,
he said.
And Wagner, at Penn, noted that parents have come up with their own
solutions -- including putting the computer in a common area of the
house.
Hansen said his clients are not defending child pornography or
obscenity, which are both covered under other laws.
"The language of the law would make you fearful, I think," he
said. "And the penalty for guessing wrong is, you go to jail."
Copyright 2006 The Associated Press.
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