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Coping with grandstanding politicians

By Scott Bradner

From time to time politicians from both parties claim they want to protect children from the wilds of the Internet. Most often this happens in an election year and most often what the politicians decide to do will not actually help achieve this aim in any significant way. So far the net has been protected from the effects of this type of electioneering by wiser minds than the average politician (the existence of which is not all that hard to imagine).

The first such major attempt in the US was the 1996 Communications Decency Act (CDA). Most of this Act was declared unconstitutional by a US Federal Court in Pittsburg and that opinion (see The importance of occasional chaos http://www.sobco.com/nww/1996/15-cda.testimony.html) was upheld by the US Supreme Court in 1997. Congress then passed The Child Online Protection Act (COPA) in 1998 (http://www.epic.org/free_speech/censorship/copa.html) with the claim that they had fixed the problems that caused the CDA to be overturned. Again they claimed their objective was to protect children and again what they did would not remotely achieve that goal.

COPA tried to criminalize knowingly making material “harmful to minors” commercially available over the World Wide Web. The penalty for violating COPA was to be a fine of up to $100,000 per day that the violation continued and or up to 6 months in prison. ISPs and telephone companies were excepted from the provisions of COPA as long as they were only transporting the material or hosting it as long as they played no role in the “selection or alteration of the content of the communication.” A site could escape prosecution under COPA by requiring their users to identify themselves using a credit card or some other accepted identification that verifies age.

As you might expect, the idea that anyone wanting to access material that someone somewhere might consider harmful to minors has to have the means to identify themselves and actually do so before then could access the material was seen by a lot of people as a significant violation of the privacy of Internet users. Some of these people might have supported the law if there was any chance that it would make any significant difference to the amount of “bad” material that a child could find wandering around the Internet. There is a vast amount of material that many people would consider to be harmful to minors that are on sites that would be considered non-commercial by COPA or on sites that are outside of US jurisdiction and any successful US based site could easily relocate outside the US.

A wiser mind has now ruled on COPA. A US Federal judge in Pennsylvania ruled that COPA was unconstitutional on March 22. (http://www.paed.uscourts.gov/documents/opinions/07D0346P.pdf) The judge ruled that COPA was not a constitutional way to reach the "compelling interest" of protecting children since Congress had not shown that it was the least restrictive, most effective alternative in achieving the goal. For example, host or ISP-based filters can be as much as 95% effective. This is much better than the half or less of current adult content that is hosted in the US, which is all that COPA could possibly limit.

The decision will be appealed but I hope that the courts will continue to recognize it for the political theater that it is. But, in any case, I fully expect to see more such ineffective theater as politicians jockey for publicity rather than trying to actually fix problems.

disclaimer: Part of Harvard trains students in politics but hopefully they are taught to recognize political theater for what it is but I did not ask them for their opinion on this case so the above is mine.