Legal wrangling holds up CDA II suit--again

The American Civil Liberties Union sued the government to overturn the Child Online Protection Act (COPA) on behalf of 17 Web site operators who fear it will land them in prison for up to six months or slap them with up to a $50,000 fine if minors get access to "harmful material" via their sites.

Some of the companies testifying against COPA have submitted financial statements and other potential trade secrets during depositions in which they discuss the law's effect on their businesses. Opponents argue that there only are two alternatives to prosecution under COPA--self-censorship or registering site visitors to verify their the age, a step plaintiffs contend will stifle traffic and advertising dollars.

The Justice Department (DOJ) would like to challenge some of the assertions in open court as it gets ready to kick off its defense of COPA today. But the free speech groups representing the plaintiffs want companies' sensitive financial data kept under lock and key.

This dilemma has delayed the hearing and promises to usher more lawyers into the courtroom who are concerned about the openness of the trial. A DOJ witness also has confidentiality concerns, and some of the news agencies covering the trial have retained an attorney who filed a motion to intervene on their behalf.

The primary concern surrounds testimony by Justice witness Brian Blonder, a partner at PricewaterhouseCoopers, who will testify about a claim by the plaintiffs--particularly Salon Magazine and Art.net--that COPA will harm them financially.

U.S. District Judge Lowell Reed suggested that the ACLU could ask Salon and Art.net to essentially drop out of the mix during this preliminary injunction hearing--meaning the online magazine and art gallery would not present facts about how the law could specifically hinder their First Amendment rights.

"He has made a perfectly reasonable suggestion, but it is just a suggestion," said Stefan Presser, director of the ACLU of Pennsylvania. "[A factual challenge] is an assertion that these clients are entitled to void this law because it hurts them in particular."

Salon editor David Talbot testified against COPA during a hearing in November when Reed temporarily halted the law. Talbot gave detailed testimony about how Salon had tried registration on part of the site. When it removed the barrier, traffic boomed.

Those facts may or may not remain in the record if Salon is yanked from the case, but the magazine's experience with user registration strikes an important ACLU argument against the law--that COPA could cause an undo burden because it could put sites out of business if visitors refuse to register, driving traffic down and costing the sites precious advertising dollars.

The plaintiff attorneys have to decide if they are willing to pull Salon and Art.net facts this round. It's a gamble, but the case could still go on to a permanent injunction trial or be appealed. Still, if the ACLU loses, the law is set to go into effect February 1.

The openness of the trial has been a point of contention since this issue arose on Wednesday.

But the plaintiffs aren't the only ones who are leery of company secrets being aired in public.

Justice witness Laith Alsarraf has concerns about the confidentiality of his financial records and has brought along his attorney today. Alsarraf, who is president of Cybernet Ventures, which runs the online age-verification system AdultCheck, will advocate the use of such systems to comply with COPA.

Still, in a court brief objecting to the plaintiffs' request for a closed courtroom, the DOJ stated that, "Closure of a courtroom is contrary to Department of Justice policy.

"The mere risk that sensitive information may be disclosed to the public does not per se justify the closing of the courtroom for a preliminary injunction hearing, " the DOJ added.

News agencies also are armed with counsel. USA Today, the Associated Press, MSNBC Interactive, the New York Times, and Wired News have filed a court brief stating 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."

Reed gave attorneys until 2 p.m. ET to settle to issue; otherwise, he plans to move forward with a Justice witness who will not talk about the Net companies' financial data.

"I'm urging counsel to continue to work toward making a presentation that may not have to include documents marked 'confidential,'" Reed said.

Other DOJ witnesses include:

• 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.

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