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DOJ goes on offensive in COPA trial

A witness for the government testifies that, just like liquor stores, Web sites can ask for valid ID to keep minors from getting a hold of "harmful material."

PHILADELPHIA--Just like liquor stores, Web sites can ask for valid identification to keep minors from getting a hold of "harmful material," Laith Alsarraf testified today during a federal court hearing here over the fate of the Child Online Protection Act.

Alsarraf, CEO of Cybernet Ventures, was the Justice Department's first witness in its defense of the Act (COPA), which prohibits commercial Web site operators from giving minors access to "harmful" content. Those who flout the law could face up to six months in prison or $50,000 in fines.

The American Civil Liberties Union sued the government on behalf of 17 Web site operators who claim that the law would force them to self-censor, thus violating their First Amendment rights. The ACLU is asking U.S. District judge Lowell Reed to grant a preliminary injunction to block enforcement of the Act during this four-day hearing. The law could take effect as soon as February 1, when a temporary hold on it runs out.

It's no wonder Alsarraf is an advocate for age verification systems on the Net--he runs AdultCheck, a popular subscription-based service that has doled out passwords to 3 million customers who use them primarily to access online pornography and other mature content via 46,000 Web sites in categories like "fetish" and "amateur whores." Alsarraf's business connection with adult entertainment sites makes him an odd ally for the DOJ, which is aiming to justify government action aimed at cracking down on the ease with which children can access questionable Internet sites. Prior to COPA, the government had attempted to do so through a now-defunct portion of the Communications Decency Act.

But checking identification through credit cards, digital signatures, and adult PINs is exactly the type of vetting proposed by the COPA, and Alsarraf testified today that his system allows Web sites to screen minors if they offer any sexual content that lacks "serious literary, artistic, political, or scientific value," the standard laid out in COPA.

Alsaraff also was on the stand to rebut the ACLU's argument that there are less restrictive means, such as the use of filtering software, by which children's access to certain online material can be barred.

"Filtering software is specific to the computer that the filtering software is placed on," Alsarraf testified. "Adult verification systems, like AdultCheck, are placed at the Web site and block material at the Web site so anybody accessing it is blocked from going any further. Filtering software doesn't give that type of latitude."

Before getting an AdultCheck ID, consumers have to supply their name, address, email, and a valid credit card, in addition to paying a $16.95 annual subscription fee. The service only requires a copy of a photo ID when customers pay by check via regular mail.

"You promote the AdultCheck as an age-verification system?[yet] the only age verification process AdultCheck uses is to verify that the subscriber possesses a valid credit card number, is that correct?" ACLU staff attorney Ann Beeson asked Alsarraf.

"That is correct," he answered.

"You stand to make a large amount of money if this law goes into effect?" Beeson asked.

"I don't know if that's true?we'll be able to keep a lot more kids out," he replied.

But in an interview following direct testimony by the government, Alsarraf's tone differed. "I believe it will be good for business," he told CNET

That is what a majority of the testimony in this hearing is coming down to--how sites will or will not make money if COPA goes into effect. Although Web publishers testified yesterday that they will have to self-censor if the Act is found to be constitutional, they said also that age verification systems are barriers average Net users don't want, meaning that they ultimately will stifle traffic and the flow of advertising dollars.

But Alsarraf and his attorney argued that credit cards are a valid and effective way to confirm age on the Net.

"The issue here is that Congress has found that the use of a valid credit card is a form of age verification, in this law and the dial-a-porn laws," said Timothy Umbreit, general counsel to Cybernet Ventures. "A minor has no right to contract with a credit card company anymore than they can swear they are an adult in a contract with AdultCheck. A parent has to be on a credit card account obtained by a minor."

Even so, a network security expert, Dan Farmer, testified yesterday that credit cards weren't created to verify age and that if companies collect scores of these numbers to establish age, it could put sensitive data at risk.

Trial continues Monday
In the third day of the trial, Justice will present its remaining witnesses:

• Dan Olsen, a professor of computer science at Brigham Young University, who will testify that the defenses laid out in COPA are technically and economically feasible. Olsen testified on behalf of the government in its defense of the Communications Decency Act, which was struck down by the Supreme Court in June 1997

• Air Force Special Agent Damon Hecker, who will convey the breadth of sexually explicit content available via commercial Web sites

• Brian Blonder, a partner at PricewaterhouseCoopers, who will testify about the plaintiffs' claim that COPA will harm them financially

The government has presented only one witness due to delays resulting from legal wrangling over whether to lock the public out of parts of the hearing.

The plaintiffs in the case have said that they would like to keep some financial information out of the public eye. Alsarraf of Cybernet Ventures also expressed confidentiality concerns, but the attorneys smoothed those over before he testified today.

Both sides have said they are willing to work through the issue of an open courtroom to resolve the remaining conflicts, but if they don't by 9 a.m. ET Monday, Judge Reed likely will intervene. He could choose to look at the documents in question and decide for himself if they are sensitive. Either way, closing arguments in the case now won't take place any earlier than Tuesday.

The media, naturally, wants any proceedings to be open to both the press and the public. USA Today, the Associated Press, MSNBC Interactive, the New York Times, and Wired News have retained an attorney and assert that the public has a "presumptive First Amendment right to access to these proceedings [that] is not outweighed by the plaintiffs' blanket allegations of concerns about purportedly confidential information."

Judge Reed practically pleaded with the legal teams to settle the issue on their own, and made clear where he was coming from in doing so: "My experience has been that I have never closed a courtroom--and I haven't closed this one yet, either."