Suit filed against CDA II

Civil liberties groups, news publishers, and online merchants sue the government to overturn the Child Online Protection Act.

5 min read
Free speech advocates are challenging a law just signed by President Clinton that is intended to steer children away from Net porn but that opponents say will also hinder adult access to a wide range of online content.

As expected, civil liberties groups, news publishers, and online merchants today sued the government in the U.S. District Court in Philadelphia to overturn the Child Online Protection Act, which Clinton signed into law yesterday as part of a $500 billion budget bill for fiscal 1999.

The provision was introduced by Rep. Mike Oxley (R-Ohio) and requires commercial site operators who offer "harmful" material to either check visitors' identifications or face up to $50,000 in fines and six months in prison each time a minor gets access to the content.

The lawsuit could block the law, which is set to take effect in 30 days. The complaint was filed today by the same groups who fought an infamous provision of the Communications Decency Act, which made it a felony to transmit or display any "indecent" material on the Net that could be obtained by minors. In a landmark ruling, the Supreme Court struck down that provision last June.

The American Civil Liberties Union, with the Electronic Privacy Information Center (EPIC) and the Electronic Frontier Foundation (EFF), are spearheading the fight against the new law, which they call the CDA II.

"Congress has once again passed a law, which in the guise of protecting minors, will prohibit adults from getting access to a wide variety of constitutionally-protected material," said Barry Steinhardt, president of the EFF.

"Ironically it won't protect minors for two reasons: The Net is a global medium and this won't reach sites outside the United States, and this applies to the Web only," he added. "Many noncommercial news groups have sexually explicit material, and any enterprising teenage who wants access to that material will not be affected by this law."

The 17 plaintiffs include online booksellers, such as the chain of Different Light Bookstores and Powell's Bookstore of Portland, Oregon. Also named in the lawsuit are, Condomania, a leading online seller of condoms and safe-sex related materials; OBGYN.net, a site about women's reproductive health; RiotGrrl, a feminist e-zine; and Salon Magazine of San Francisco.

As they argued against the CDA, civil liberties advocates say the new law applies to more than the Net's red-light districts. One example cited in the lawsuit is the report on the White House sex scandal by independent counsel Kenneth Starr. A slew of for-profit Web sites published the document, which includes former White House intern Monica Lewinsky's graphic descriptions of her sexual encounters with President Clinton.

"The impact of the this law will be the same as the CDA," said Chris Hansen, senior staff counsel to the ACLU. "It's not about the sale of material that is harmful to minors--this is about the display of that material."

The Supreme Court found the "display" provision of the CDA unconstitutional in part because Net publishers couldn't adequately establish who was accessing their sites.

In fact, the Justice Department, which now has to defend the law, agrees with civil liberties groups. Earlier this month, the agency warned Congress that the bill would be challenged on First Amendment grounds and argued that law enforcement officials would be hard-pressed to enforce such a "vague" statue.

But mirroring what occurred with the CDA, Clinton approved the Oxley proposal because it was attached to the critical spending legislation. The CDA was linked to the massive Telecommunications Act of 1996.

Still, supporters of the Online Protection Act, argue that it is narrowly tailored and will apply only to commercial sites that offer any communication, image, or writing that contains nudity or actual or simulated sex, and that "lacks serious literary, artistic, political, or scientific" value.

"The law simply extends into cyberspace laws that protect children from pornography off the Net," Shyla Welch, director of communication for Enough is Enough, which lobbied for the legislation, said today.

"I don't think it will impede adults anymore than going into a bar and showing an ID [to buy alcohol]," she said. "This is what we can do to protect children--it's a minor thing to have to do."

But the ACLU and other plaintiffs argue that checking ID on the Net places undue burden on constitutionally protected Web sites and would stifle adults and older minors from surfing the Net anonymously. Moreover, they say that parents are better off using blocking technology to curb their children's access to adult-oriented online content.

"The act will reduce the adult population in cyberspace to reading and communicating only material that is suitable for young children," the lawsuit states. "The act purports to restrict only content provided on the Web 'for commercial purposes,' but in fact it explicitly bans a wide range of protected expression that is provided for free on the Internet by individuals and organizations."

Many of the media companies that published the Starr Report are on board too, such as the Internet Content Coalition whose member include the New York Times, Sony Online, CBS New Media, Time, ZDNet, and CNET: The Computer Network, publisher of News.Com.

The "harmful to minors" standard usually is applied locally, but this law essentially creates a national standard, the plaintiffs argue. That means a Web site based anywhere in the country could be charged in any jurisdiction for posting material an individual prosecutor claimed was "harmful," they added.

"The act isn't clear about who has jurisdiction over what is 'harmful' to minors," said Chris Barr, a spokesman for the ICC, who also is the editor in chief of CNET. "It's a lot more targeted than the original CDA, but it would problematic for companies like ours to find out the age of users before giving access to things like the Starr report--it would negatively impact our business."

Proponents of the Online Child Protection Act say the Starr Report and news would be exempt under the law, and that the "harmful to minors" standard has been held up by courts in many states and by the Supreme Court.

"The Starr report has redeeming political value," Welch said.