But in an ironic twist, another First Amendment concern arose due to legal wrangling that could lock the public out of parts of the hearing.
Donna Hoffman, an associate professor at Vanderbilt University's Owen Graduate School of Management and codirector of Project 2000, a study of Net business models, was the first witness in the three-day hearing under way in U.S. District Court here, which culminates an ongoing battle between those trying to shield children from "harmful material" on the Net and advocates of free speech protections in cyberspace.
Hoffman testified that requiring registration could have a negative effect on the potential profits of commercial sites, or compel them to censor content they fear could fall under the law.
"The most critical factor for the success of a Web site is that you have visitors," she said. If sites have to verify age, "the traffic would fall dramatically. They would have [fewer] people visiting and generate less advertising revenue. It's not inconceivable that some would go out of business."
The Child Online Protection Act (COPA) was passed in October, making it a crime for commercial sites to give minors access to "harmful material," defined as any communication 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 law has been called the CDA II after the Communications Decency Act, which was mostly struck down by the Supreme Court in June 1997, and made it felony to give minors access to indecent online material. With much more fanfare, the CDA also was initially challenged in this court.
The American Civil Liberties Union and other groups sued the government to overturn the law and now are asking 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 win, the case could still go on to a permanent injunction hearing. If they lose, the law goes into effect February 1.
Like the CDA, its successor attempts to bar children's access to the Net's red-light districts, but at the same time could hinder the free speech rights of Web site operators such as the 17 plaintiffs in the case, including Salon Magazine, A Different Light bookstore, and members of the Internet Content Coalition (ICC). (CNET: The Computer Network, publisher of News.com, is a member of the ICC.)
Online news publishers, merchants, and other sites filed the lawsuit based on fears that the law will put them in danger of prosecution for what amounts to constitutionally protected content, such as information about safe sex, gay and lesbian issues, medical conditions--or even poetry.
Closed court at free speech case?
Free speech has been one of the most contentious issues on the Internet--however, today's hearing was less a passionate First Amendment battle and more an exercise in legal minutiae.
Media companies testifying against COPA have submitted financial statements and other trade secrets to back up claims that age-verification systems can be pricey and to show that registration systems could stifle future business models, among other assertions.
The DOJ would like to challenge those arguments in open court, but those plaintiff companies want that sensitive data under lock and key, and the ACLU is fighting to protect their interests. The outcome could lead to a closed courtroom during some testimony and is expected to delay the hearing until Monday.
Already, testimony by two witnesses has been pushed forward despite earlier confidentiality concerns. Chris Barr, cochairman of the ICC and a vice president at CNET, and Mitchell Tepper, operator of Sexualhealth.com, are scheduled to discuss tomorrow how their sites could be affected by COPA. To avoid revealing company secrets, Barr, for one, had to stipulate that CNET could afford the "out of pocket" costs to set up an age-verification system.
Lawyers will work tonight to settle disputes over other witnesses and confidentiality issues.
Building on today's testimony by Hoffman and parental controls technology expert Lawrence Magid, tomorrow, Dan Farmer, head of computer security at ISP EarthLink Networks, will testify about the technological burdens of mandatory age verification on Internet content providers and Thomas Reilly, founder of PlanetOut, will discuss the law's impact on his site. On Friday, the government will open its case.
Fighting for the right to make money
Despite the privacy dispute over Net companies' records, ACLU staff attorney Ann Beeson spent the morning trying to establish that the law would require a wide range of advertising-based Web sites--from news publishers to health information sites--to set up age-verification systems or face prosecution in the event that a minor got access to adult-oriented content deemed "harmful" by law enforcement authorities anywhere in the country.
The systems could offer sites an alternative to prosecution.
But Vanderbilt's Hoffman testified today that Net surfers generally don't like giving up their name, address, credit card number, or other personal information to browse an online catalog or get access to content such as that offered by the plaintiffs in the case. She said these surfers would likely turn away from such a site if it asked for ID.
"Ninety four percent of Web site visitors have declined to provide personal information to Web sites...and 40 percent have lied [when providing it]," she said.
Hoffman said that, based on studies by Project 2000 and Nielsen Media Research, the experience commercial sites have had with registration efforts so far has been "dismal."
"What would be the impact on the businesses if they removed the [questionable] content?" asked Beeson. Or of they "chose to comply with COPA by homogenizing content?" Hoffman answered that to avoid setting up registration systems for all visitors, some sites might edit out some of their existing content. "Some sites would choose to self-censor," she said.
Although she is a known expert in her field, under cross-examination by government attorney Jonathan Foot, Hoffman said it was hard to make predictions about an the Net industry.
"You in fact don't know what percent of Web sites would be affected because you don't know what material is out there," Foot asserted.
But when Foot asked, "Is it your belief that the COPA regulation will stifle innovation?" Hoffman answered with a resounding, "yes."
Still, supporters of the law argue that the COPA only applies to pornography, and that brick-and-mortar adult bookstores, for example, have to check ID when selling pornographic material.
"If one of these plaintiffs wants to sell centerfolds like Hustler, they should get a credit card number like Larry Flynt does. If they don't, then they shouldn't have to worry," Bruce Taylor, president of the National Law Center, which helped draft the law, noted after the hearing.