Representatives from CNET: The Computer Network (publisher of News.com), Sexualhealth.com, and Planet Out, a gay and lesbian online community, were called to testify today in the American Civil Liberties Union's lawsuit to overturn the Child Online Protection Act (COPA).
The law was passed in October as part of a spending bill and makes it a crime for commercial Web sites to give minors access to "harmful material," which is defined as any communication or image that depicts simulated sexual act or sexual contact and lacks "serious literary, artistic, political, or scientific value." Violators could face up to $50,000 in fines and six months in prison.
The JenniCam, Playboy's online nude pictorials, and the Starr Report are sexual in nature and have been written about by major commercial news sources on the Net. But CNET vice president Chris Barr, who also is cochairman of the Internet Content Coalition, said he fears publishing articles about those sites or linking to them, as his staff has done in the past, could get his company into legal trouble and even land him in prison.
CNET's online network has published stories about emerging Net trends such as the booming adult entertainment industry, however, the company does not verify the age of readers who access that content--which is a defense to prosecution under COPA. Barr testified that at least one user had complained to him about the company linking to Playboy and for publishing a wire story about the magazine, for example. Based on COPA, Barr said he worries that the visitor could file a criminal complaint against the company.
"We're afraid people, like this fellow who wrote this letter, would find the material 'harmful to minors' and subject us to the COPA legislation," Barr testified.
The plaintiff's lawsuit picked up today with continuous testimony. Yesterday almost half of the day was taken up with attorney meetings over whether to lock the public out of parts of the hearing due to trade secrets potentially being revealed from testimony given during depositions.
The second witness today was Mitchell Tepper, an ACLU member and operator of Sexualhealth.com, which he runs out of his house. The site discusses techniques to improve one's sex life, such as penis enlargement, oral copulation, or using surrogate sex partners. Registering visitors would violate their medical privacy, Tepper testified.
"I believe it would be a barrier to access for people coming to my site, who have already been embarrassed or ashamed about asking their doctor," he said. "My traffic will stop."
Thomas Reilly, founder of PlanetOut, testified to the fact that despite the global nature of the Net, "harmful to minors" is defined by individual communities.
"We operate a community of interest, rather than a community of geography, but based on our community standards no information on our site is offensive in any way," he said. "Throughout history, particularly in the last 50 years, many people believe that 'gay' equals 'sex'?'gay' equals 'pedophile.' To many, just being gay is 'harmful to minors.'"
COPA is the second law passed by Congress that attempts to bar children's access to the Net's red-light districts--the first being a portion of the Communications Decency Act, which was struck down by the Supreme Court in June 1997. Supporters of COPA argue that it only applies to pornography, and that brick-and-mortar adult bookstores, for example, have to check ID when selling pornographic material.
But 17 online content providers, merchants, and other sites sued the government, fearing that the law will put them in danger of prosecution for publishing online and allowing open access to what amounts to constitutionally protected content, such as information about safe sex, gay and lesbian issues, or medical conditions.
The ACLU, the Electronic Privacy Information Center, the Electronic Frontier Foundation, and others are asking U.S District Judge Lowell Reed, who temporarily halted the law in November, to grant a preliminary injunction against it on grounds that it violates online content providers' right to free speech under the First Amendment. Even if free speech groups prevail in this hearing, the case could still go on to a permanent injunction trial or be appealed. If they lose, the law is set to go into effect February 1.
Witnesses: Law forces censorship, will choke business
In the second day of the hearing, which is set to last until Monday, the ACLU continued to build a case against COPA by trying to establish that if Web sites featuring any adult-oriented content check visitors' ID, that could drive traffic away, taking with it advertising dollars.
Instead of setting up registration systems, the ACLU asserts in court briefs, the sites would likely choose to remove some content, such as CNET's editorial links to a Kama Sutra screen saver via its Download.com site.
"If COPA were to take effect, would you change [CNET's] policy with respect to links?" ACLU staff attorney Ann Beeson asked Barr.
"We would have to reevaluate our linking policy and probably choose not to link," he answered. "We would choose not to put in any type of device that would slow down users' access to content and we would chose instead to self-censor."
During cross-examination by Justice Department attorney Ted Hirt, Barr conceded that he had never heard of a news publisher being prosecuted for discussing the size of a man's genitals, virtual sex, or bisexuality--all topics mentioned in CNET articles and admitted as exhibits by the plaintiffs as examples of material Barr feels could be subject to prosecution under COPA.
Barr also said CNET could afford, and is technically capable of, installing an age verification system. But like an expert witness testified yesterday, he added that such a barrier would deter people from accessing CNET.
"Would there be significant damage to CNET's business even if one single page on CNET's site had to have [an age] verification screen on it?" Hirt asked.
"Yes. We turn 7.3 million pages a day--if that was on the most popular page that day, yes, it would have significant harm on our business," Barr replied.
Tepper plans to sell videos via his site; he already links to book titles on Amazon.com. He said the fine by COPA could make him not only lose his business, but the roof over his head.
"I'm a shoestring operation operating out of my house," he testified.
DOJ rebuts: Risk to sites vs. value to minors
Justice attorney Benjamin Lawsky cross-examined Tepper and wanted an explanation for Tepper's fear of COPA when 48 states already have "harmful to minors" statutes on the books.
"All the material on your site has value to?teenagers?" Lawsky asked.
"Yes," Tepper said. But when asked by the ACLU attorney if the site had value to all minors, he said "no."
"No prosecutor has contacted you about content on your site? No one has complained to you that your site has content that is harmful to minors?" Lawsky asked.
"No," Tepper said.
The other First Amendment issue
Tomorrow the issue of whether parts of the hearing will be closed to the public will be addresses.
Under protective order, the companies testifying against COPA have submitted financial statements and other trade secrets. The DOJ would like to challenge some the assertions in open court, but the plaintiffs want that sensitive data under lock and key and the ACLU is fighting to protect their interests.
Some of the news agencies covering the trial, including USA Today, the Associated Press, MSNBC Interactive, the New York Times, and Wired News have retained an attorney who filed a motion to intervene on their behalf. The members of the media assert that the public has a "presumptive First Amendment right to access to these proceedings which is not outweighed by the plaintiffs' blanket allegations of concerns about purportedly confidential information."
Companies, such as MSNBC and the Times, also are members of the Internet Content Coalition, which CNET's Barr represented on the stand today.