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Wednesday, June 30, 2004

COPA - what does the decision mean

COPA was signed into law in Fall 1998. It's application was enjoined right away and it never became effective. The June 29, 2004 Supreme Court decision maintained the injunction and sent it back to the trial court to decide certain issues. The Supreme Court also questioned whether the law was constitutional, largely based on two major concerns, free speech and privacy.

Note that before we go further, I have received many media inquiries asking is COPPA (The Children's Online Privacy Protection Act) was still in effect. It is. This decision only deals with COPA, not the similarly sounding law, COPPA. COPA (unlike COPPA that deals with privacy and children under the age of thirteen) was designed to protect children from seeing images that were inappropriate for minors online.

Similar laws exist in real life, and most of us have encountered them if we have seen adult magazines covered in brown paper, or have to show IDs to prove that we are old enough to buy Playboy or other similar magazines. In a video store the adult videos may not be rented to someone under a certain age. These are typically because of the "harmful to minors" laws adopted in some major cities, and some states.

In the United States the First Amendment applies to speech. It prohibits governmental action based on content (other than a few exceptions, called "unprotected speech").

It limits what can be done in outlawing pornography, among other high profile topics, such as hate. But we can still easily regulate the manner of speaking. For example, we can regulate whether someone holds a protest a 3am, and uses loudspeakers in a residential neighborhood.

While we can regulate when and how, we cannot regulate these things based on the kinds of content or speech encountered unless it falls in a special category of "Unprotected Speech." Many legal cases are brought on this fine point, especially when staged protests or gatherings are prohibited and the protesters believe it because of what they are saying, not just where and how they are saying it.

obscenity is unprotected speech. It involves several tests, one of which requires that the speech be measured based on local community values. Essentially if the speech has no socially, scientific or artistic redeeming value and offends the community standards of a certain locale, the content can be regulated and outlawed.

So, which community do we use online? The readers'? The posters? The server hosting the content? The Internet as a whole? The US as a whole? This is a serious issue and part of the problem identified in the decision. Without the community test, our obscenity laws don't work. If we will want to make them apply online, we will have to either find a new test, or rework this one.

The second problem with COPA relates to the mechanisms for proving that you are an adult online. If the websites are required to only permit those who can prove that they are adults and can legally view the pornography, how can we prove who they are online? Typically a creditcard is used. The adult sites themselves have designed adult verification systems which are a subscription service, and a large source of revenue for the pornographers themselves. And every method in use ties back to who you really are. That's the only way they can currently prove adulthood.

But in the same situation offline, if you walk into a newsstand and buy a Playboy you don't usually leave proof of ID behind. You can show your age verification to the cashier to prove that you are over 18 or 21, but you don't sign a form and no records are kept (other than you creditcard receipt and purchase information itself which may or may not identify the magazine you are buying or the video you are renting).

Unless technology improves so that adults can buy legal adult content online without having to give away their identities, this raises serious privacy concerns. And since there are more than 1 million porn sites online, 40% of which are hosted outside of the United States, enforcement would be almost impossible.

Does this leave children and parents unprotected? No, of course not. The best way to protect children from porn and unscrupulous marketing practices of pornographers online is by technology. Filtering, parental controls, white lists and other closed environments are designed to screen out pornography and actually work pretty well. Filtered and child-size search engines, such as Yahooligans! and ask jeeves for kids and google's filtered search, help screen out porn results to innocent searches. The new typosqatting laws that outlaw attempts to defraud children into believing that a porn site is a children's site help as well.

Existing consumer fraud laws can address fraudulent marketing schemes and privacy violations.

We are not yet at the point where we have to infringe on the contitutional rights of adults to protect children.

You can learn more about children's online safety issues at and

and in the meantime, don't worry. For six years this law has laid dormant. It can lay dormant a bit longer. But let's work on the problem while we wait.

You can read the COPA information page at


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