COPA Unsurprisingly Unconstitutional

The Children’s Online Protection Act, or COPA, requires website operators who provide commercial material that could be “harmful to minors” to verify their users’ age, for example, with a credit card. The statute was immediately challenged as unconstitutional under the First Amendment. A preliminary injunction against enforcement of the law was upheld by the Supreme Court, which remanded the matter for factual development as to whether filters could accomplish the same purpose while interfering less with free speech. (Ironically, the ACLU found itself in the unusual position of arguing for Internet filters in this case.)

It was just about one year ago that the Government sought to enforce a subpoena against Google for records of user queries and URLs stored in Google’s database. The court granted the motion with respect to stored URLs but not queries in Gonzales v. Google. It was never quite clear what the Government would really do with the data or why they pushed so hard to get it after receiving what they needed from other search providers. (The U.S. apparently argued Google’s search results would “add luster” to its analysis).

In any case, the statute has now finally been held unconstitutional. As Ed Felten insightfully points out, unlike in previous instances where courts have struck down Internet speech regulation, in his opinion, Judge Reed did not provide a roadmap for Congress to try yet again to enact a law that would pass First Amendmend muster. Maybe Congress will leave the issue alone for a while:

Two things make the judge’s ruling relatively roadmap-free. First, it is based heavily on factual findings that Congress cannot change — things like the relative effectiveness of filtering and the amount of HTM material that originates overseas beyond the effective reach of U.S. law. (Filtering operates on all material, while COPA’s requirements could have been ignored by many overseas sites.) Second, the alternative it offers requires only voluntary private action, not legislation.

Congress has already passed laws requiring schools and libraries to use content filters, as a condition of getting Federal funding and with certain safeguards that are supposed to protect adult access. The courts have upheld such laws. It’s not clear what more Congress can do. Judge Reed’s filtering alternative is less restrictive because it is voluntary, so that computers that aren’t used by kids, or on which parents have other ways of protecting kids against HTM material, can get unfiltered access. An adult who wants to get HTM material will be able to get it.

Doubtless Congress will make noise about this issue in the upcoming election year. Protecting kids from the nasty Internet is too attractive politically to pass up. Expect hearings to be held and bills to be introduced; but the odds that we’ll get a new law that makes much difference seem pretty low.