US anti-smut bill may go too far

Save the children... again

A group of American lawyers representing several major Internet and e-commerce players has filed a brief of amici curiae with the Third Circuit (appellate) Court recommending rejection of the DoJ's appeal to reinstate a congressional act restricting online smut. The bill, called the Child Online Protection Act, was found unconstitutional by US District Judge Lowell Reed for the District of Philadelphia back in January. Reed passed an injunction on the act, and the Clinton administration and Reno DoJ promptly appealed his ruling. The COPA provides for six-month jail terms and fines of up to US $50,000 for publishers of "any communication for commercial purposes that includes any material that is harmful to minors, without restricting access to such material by minors." Thus the COPA would require some form of age verification, such as the use of a credit card, to access Web sites containing lawful material deemed "harmful to minors". While this might seem reasonable for online smut, it would be a cumbersome mechanism for preventing children from accessing other online content which the Feds might construe as "harmful" to them, and so encumber adults who whish to view it. The phrase "commercial purposes" is supposed to reassure us that only porno profiteers will be affected, but almost all Internet publishing is undertaken for "commercial purposes", even when users aren't charged for access. The amici maintain that "there is no practicable means by which the vast majority of those who provide content over the Internet -- whether profit-motivated or otherwise -- can screen out minors from accessing that content, [without] unduly burdening adults' access to their speech". The Clinton administration and Janet Reno's DoJ counter that the only real target of the COPA will be pornographers who make samples of their product freely available: these would be compelled to gather all the tasty bits behind some sort of barrier, most likely by verifying, though not charging, a user's credit card prior to taking the "free tour". But the COPA could potentially restrict adults' access to many other things deemed "harmful to minors": frank discussions of sex and grown-up affection; health information related to sexually-transmitted diseases; even such monumental works of human intellect as Plato's Symposium, with its profound observations of the nature of love, and its cheerful endorsement of pederasty. Affairs of state might also be involved. Whenever the governmental and the pornographic merge, as they did during President Clinton's impeachment hearings, the political interests of adult citizens could be held hostage to restrictions meant to keep curious sprouts from, say, coaching in advanced techniques of fellatio and the novel curing of cigars. Certainly the Christian right-wing in Congress were eager enough to post the lurid details of the President's Oval Office exploits online. It would be most ironic if, through Congress' own efforts, the Government Printing Office were required to sign up with Ibill or Adult Check. One issue the amici omitted is that of Web security: restricting adult speech to access by a credit card confines its availability to those adults who possess and are willing to use a card online. Even if the cardholder is not charged for access, the exponential growth of account information held by Webmasters required under this bill will lead to exponential growth in credit fraud, the current state of Web security being what it is. This is a point which the amici, many of whom hail from e-commercial quarters, would rather not emphasize, though it is a prudent objection to the COPA scheme. The Philadelphia appellate court is likely to rule against the DoJ in favour of its native son, Judge Reed, who found in his original decision that, "consumers on the Web do not like the invasion of privacy from entering personal information," and further that, "COPA would have a negative effect... because it will reduce anonymity to obtain speech... resulting in a loss of traffic to Web sites." If the appeal goes as expected, the DoJ's only recourse would be the US Supreme Court, which is very unlikely to hear the case. The Court made it quite clear, and in rather sarcastic language, where it stands on Internet speech when it struck down COPA's predecessor, the Communications Decency Act, in 1997. There the issue was reducing adult online discourse and dialogue to a level which would be appropriate for children, though the Court also noted that the proffering of a credit card hardly guarantees that a user is over the age of eighteen. It was a rudely rational decision on a bill saturated with cheap emotionalism regarding children, and a Puritanical compulsion to regulate the pleasure of others. But then, the Supreme Court has a tradition of rude rationalism, much to the chagrin of an often hysterical White House and Congress. ®