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Child Online Protection Act

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Citation Edit

Child Online Protection Act (COPA) (Title XIV of Division C of the FY1999 Omnibus Appropriations Act, Pub. L. No. 105-277), codified at 47 U.S.C. §231.

Background Edit

In 1998, Congress enacted COPA[1] to replace the Communications Decency Act CDA. COPA differs from the CDA in two main respects: (1) it prohibits communication to minors only of “material that is harmful to minors,”[2] rather than material that is indecent, and (2) it applies only to communications for "commercial purposes"[3] on publicly accessible websites. Website operators were required to ask for a means of age verification such as a credit card number before displaying such material.

Despite the fact that only the first prong of this test refers to “community standards,” community standards are also to be used in applying the second prong.[4]

Requiring a viewer to use a credit card, or to verify his age, to gain access to material on the Internet would constitute a defense to prosecution.

COPA also established a Commission on Online Child Protection to study technologies and methods to help reduce access by children to material on the Web that is harmful to minors.

Constitutional Challenge Edit

COPA did not take effect as planned, because a constitutional challenge was brought and the district court, finding a likelihood that the plaintiffs would prevail, issued a preliminary injunction against enforcement of the statute, pending a trial on the merits. The Third Circuit affirmed, but, in 2002, in Ashcroft v. American Civil Liberties Union,[5] the U.S. Supreme Court held that COPA’s use of community standards to define “material that is harmful to minors” did not by itself render the statute unconstitutional. The Supreme Court, however, did not remove the preliminary injunction against enforcement of the statute, and remanded the case to the Third Circuit to consider whether it is unconstitutional nonetheless.

In 2003, the Third Circuit again found the plaintiffs likely to prevail and affirmed the preliminary injunction. In 2004, the Supreme Court affirmed the preliminary injunction because it found that the government had failed to show that filtering prohibited material would not be as effective in accomplishing Congress’s goals. It remanded the case for trial, however, and did not foreclose the district court from concluding otherwise.[6]

On March 22, 2007, the district court found COPA unconstitutional and issued a permanent injunction against its enforcement. The grounds for its decision were that “COPA is not narrowly tailored to Congress’ compelling interest,” the Attorney General “failed to meet his burden of showing that COPA is the least restrictive, most effective alternative in achieving the compelling interest,” and “COPA is impermissibly vague and overbroad.”[7]

In 2008, the U.S. Court of Appeals for the Third Circuit affirmed, and, in 2009, the U.S. Supreme Court declined to review the case.[8]

References Edit

  1. Not to be confused with the Children's Online Privacy Protection Act (COPPA), which relates to privacy protection.
  2. The Act defined material that is harmful to minors as pictures or words that —
    (A) the average person, applying contemporary community standards, would find, taking the material as a whole and with respect to minors, is designed to appeal to, or is designed to pander to, the prurient interest;
    (B) depicts, describes, or represents, in a manner patently offensive with respect to minors, an actual or simulated sexual act or sexual contact, an actual or simulated normal or perverted sexual act, or a lewd exhibition of the genitals or post-pubescent female breast; and
    (C) taken as a whole, lacks serious literary, artistic, political, or scientific value for minors.
  3. A communication is deemed to be for commercial purposes if it is made in the regular course of a trade or business with the objective of earning a profit; a communication need not propose a commercial transaction to be deemed to be for "commercial purposes.”
  4. See the Supreme Court’s first decision in Ashcroft v. American Civil Liberties Union, 535 U.S. 564, 576 n.7 (2002)(full-text).
  5. Id.
  6. American Civil Liberties Union v. Reno, 31 F. Supp.2d 473 (E.D. Pa. 1999)(full-text), aff’d, 217 F.3d 162 (3d Cir. 2000)(full-text), vacated and remanded sub nom. Ashcroft v. American Civil Liberties Union, 535 U.S. 564 (2002), aff’d on remand, 322 F.3d 240 (3d Cir. 2003)(full-text), aff’d and remanded, 542 U.S. 656 (2004)(full-text).
  7. American Civil Liberties Union v. Gonzales, 478 F.Supp.2d 775 (E.D. Pa. 2007)(full-text).
  8. American Civil Liberties Union v. Mukasey, 534 F.3d 181 (3d Cir. 2008)(full-text), cert. denied, __ U.S. __, 129 S. Ct. 1032 (2009).

See also Edit

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