DOJ appeals child protection ruling

Introduced by Rep. Mike Oxley (R-Ohio), the Child Online Protection Act (COPA) makes it a crime for commercial Web sites to give minors access to "harmful material," defined as any sexually explicit communication that lacks "serious literary, artistic, political, or scientific value." Violators would face up to $50,000 in fines and six months in prison.

U.S. District Judge Lowell Reed granted the American Civil Liberties Union and 17 online publishers and merchants a preliminary injunction to halt enforcement of the law on the day it would have gone into effect.

"I conclude that, based on the evidence presented to date, the plaintiffs have established a substantial likelihood that they will be able to show that COPA imposes a burden on speech that is protected for adults," Reed wrote in his decision.

A Justice Department (DOJ) spokesman confirmed today that the appeal was filed but declined further comment.

ACLU attorney Chris Hansen said the Third Circuit Court of Appeals, the federal court that will hear the case, will set up a schedule for the arguments and briefs over the next 30 to 60 days; arguments are likely to begin in about six months. Until a decision is reached, the law will remain unenforceable, Hansen said.

Against the DOJ's advice, COPA was signed into law as part of a more than $500 billion federal budget bill for fiscal 1999.

One of the sticking points of the law involves enforcement; witnesses including representatives from online magazine Salon and the Sexual Health Network testified that if they used methods such as credit card checks to verify the age of readers--a protection against prosecution under the law--their traffic would suffer.

If the law is reinstated, a wealth of online content "could be considered harmful to minors, though it is very valuable to adults," Hansen said. "Putting it behind a credit card screen could do tremendous damage to [the sites'] viewership, and could, in fact, drive them out of business."

Hansen pointed to the Starr Report as an example of material that could be harmful to minors but is of value to adults. He noted that online news sites would have to put stories about the report that contained excerpts, or the report itself, behind a credit card screen.

"The result could be that adults are deprived of viewing material online that is constitutionally protected," he added.

Moreover, ACLU witness Dan Farmer, head of computer security for ISP EarthLink, testified earlier that "there is no method right now that proves the age of anyone on the Net."

Another issue with the law is the definition of "harmful to minors," Hansen said, adding that such a term is usually defined by community standards, and the Web's global nature makes it difficult to determine those standards.

If the appeals court makes a definitive ruling either upholding the injunction or removing it, the party that loses could appeal to the U.S. Supreme Court, but the case may not be heard. The case also could be sent back to the U.S. District Court, Hansen said.

News.com's Courtney Macavinta contributed to this report.