Good news: The federal court of appeals for the 3rd Circuit here in Philadelphia has struck down the "Child Online Protection Act" as unconstitutional:
The law would have criminalized Web sites that allow children to access material deemed "harmful to minors" by "contemporary community standards." The sites would have been expected to require a credit card number or other proof of age. Penalties included a $50,000 fine and up to six months in prison.
Sexual health sites, the online magazine Salon.com and other Web sites backed by the American Civil Liberties Union challenged the law.
I haven't read the opinion, but I think the two most objectionable things about COPA are its vagueness in defining objectionable material and in the bluntness of the tool it uses to identify people as adults. Several witnesses at trial testified that they could not be sure whether a zealous United States Attorney (!) would bring them up on charges for for material related to, say, contraception, or sexual health issues. This vagueness would have a chilling effect as web providers would have to always err on the side of not publishing anything that is even remotely possible to be called pornographic. On the other hand, using credit cards to verify that people are adults is both under- and overinclusive. Many adults don't have credit cards, and some minors do (or at least, have access to one, which is the same thing). In an ordinary legislative area, this might still be okay, but when you're curtailing speech you have a much greater burden to carry. The government didn't.
Good result.
The records-keeping requirements were written so as to be retrospective, and were thus, in effect, an "ex post facto" law making activities that were legal or undefined in the past illegal if not brought up to current standards.
Also, does "unreasonable search and seizure" mean anything anymore? The records keeping is essentially part of a search process, after all. And a very active producer of adult content who has produced hundreds of thousands or even perhaps millions of images would have had to provide very detailed information not collected at the time of production (and perhaps no longer retrievable at all).
Not only would detailed information need to be available, it would be a serious violation of law not to have it in the exact FORMAT the government specified, which included being electronically searchable. So anyone with 10 file cabinets full of PAPER records would need to find a way to get this information searchable and cross referenceable using technology that exists today but wasn't available (or if it was, wasn't required) in prior years.
Worse for someone who was very productive is that even if the date were open ended, he/she might not even live long enough to update the records acceptably. People need to be able to close down a business and go into retirement without finding themselves at 85 or 90 years old still trying to update their files. And let's face it, with that amount of content and with models being a very transient group, and with people dying and so on. There is really no hope that records even COULD be updated to the satisfaction of the law. With penalties extremely high for every infraction, a person making just 5 or 10 mistakes out of 100 thousand (which would be an excellent failure rate) might expect to be imprisoned for the rest of his life.
I would hope that a court would recognize that COPA was actually just an attempt to make 99% of producers illegal right off the bat by forcing on them standards that couldn't really be met in any practical way or within a reasonable period of time for a human being.
Posted by: Jill Hill | March 27, 2007 at 04:49 PM