Subscribe with Bloglines The Privacy Lawyer: COPA...not dead yet

Thursday, July 01, 2004

COPA...not dead yet

COPA was enacted in October 1998 together with a large number of online child protection legislation. While it made sense to enact a law requiring commercial porn sites to require verification that a viewer is an adult before allowing them access to graphic sexual images, the law had problems from the start.

COPA was drafted to track the language used in the Supreme Court's CDA (Communications Decency Act) decision in June 1997, hoping that by doing so this law could withstand constitutional scrutiny.

But before it even came into force, the law was enjoined and had bounced twice to the Supreme Court and back again. The June 29, 2004 decision was the most recent ounce, bringing it back to the lower trial court for a full trial.

Many people, not understanding the full issues here are confused about why the Supreme Court would have problems with COPA. The problems, though, are two-fold. One problem is applying the "obscenity" test online. The second problem involves the privacy of adult content consumers.

While I will be writing more about this and have more about the content laws in the United States at, sexual content is entitled to protection as "speech" under the First Amendment of the US Constitution as long as it is not "obscene." For something to be "obscene" simply is must have no redeeming value (artistic, scientific, etc.) when taken as a whole and violate the community standards test of the local community where it is being tested. The problem when dealing with content online is knowing which community standard to apply. This was a concern of the Supreme Court.

The privacy issue is more complicated. If you drop by your local news stand and buy a Playboy magazine, which as an adult you are legally entitled to do in the United States, you don't have to fill out a form, or provide a record of who you are. But by using an adult verification system online, all purchases and access to porn sites would be tracked using these systems to an individual. You would not be able to read in private. Someone will know who you are, how long you were at the site and what other sites you accessed. In order to protect children from being exposed to graphic sexual images that are inappropriate for children (or under the law "harmful to minors"), all adults would have their privacy violated. The Supreme Court was very concerned about this.

The court sent the case back for a full trial to explore the truth of their assumptions about privacy protections and adult verification systems that could be used, among other things.

But since we have lived for 6 years without the law and have learned to rely on other laws, such as the Misleading Domain Name laws and consumer protection laws, this isn't the disaster it is being portrayed as being.

It comes down to having to protect our children the old fashioned way, using parental controls, filtered search engines, white lists of approved sites for kids and parental supervision. It has always been the responsibility of parents to protect our kids, this is no different. And if parents need help, they can visit or

we'll help.


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