Air Force special agent Damon Hecker, who was recruited by the Justice Department to study sexually explicit content on the Net for the purposes of the hearing under way here, was the DOJ's third witness in its defense of the law, which is designed to crack 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.
Hecker said that he got a hold of Lee's video and numerous other examples of free, X-rated teasers after conducting simple online searches.
That he found what he was looking for may not be news to veteran Web surfers, but Hecker's intention was to drive home the fact that he accessed the adult material without having to show proof of age. His experience strikes at the heart of why Congress passed COPA last October. The law is being challenged by the American Civil Liberties Union (ACLU).
The ACLU 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 the five-day hearing here. COPA could take effect as soon as February 1, when a temporary hold on it runs out.
Hecker's easy access to the Pamela Anderson Lee video caught Reed's attention.
"You didn't have to register at all?" Reed asked.
"No, I did not," answered Hecker, who was put on the stand to prove the DOJ's case that sexually explicit material that is "harmful to minors" is readily available on the Net with few or no barriers to access.
Hecker then submitted into evidence a CD-ROM with images and screen shots of Web sites he compiled during his investigation.
"Everything you see on the CD-ROM I obtained for free," he said.
During cross-examination, ACLU attorney Chris Hansen asked Hecker to read from a fact statement submitted to court and that both sides in the case agreed was accurate. The statement outlined the availability of the same sites archived on the CD-ROM when they were searched for on a computer with blocking software installed.
"All of the URLs identified by Agent Hecker, [with one exception], are currently blocked by SurfWatch" and CyberPatrol, Hecker said.
The ACLU has argued in court briefs that filtering mechanisms curb childrens' access to adult material better than legislation such as COPA.
Earlier in today's proceedings, Dan Olsen, a professor of computer science at Brigham Young University, testified on behalf of the government that blocking and filtering technologies are inefficient and imprecise.
ACLU attorney Chris Hansen questioned Olsen's basis for that conclusion.
"Have you ever used one of those products?" he asked.
"No I have not," Olsen replied.
Hansen then tried to establish that the sexually explicit material targeted by COPA is widely available elsewhere on the Internet, in an attempt to make the point that filtering applications actually would do a better job of protecting children from harmful content than the protections mandated by COPA.
"You can get sexually explicit material through non Web-based email...Internet relay chat...using FTP, is that correct?" Hansen asked.
"Yes, that is correct," Olsen said.
Olsen then said that one way sites could comply with COPA would be to section off content so that harmful material is in a separate area than other material. Such a division would allow a site's operator to construct an age verification system that applied only to the questionable content, he argued.
Hansen countered the feasibility of such a strategy.
"If Art.net [a plaintiff in the case] had to look at its 1.7 million images in order to decide which were harmful to minors [is that plausible]?" he asked.
"It depends [on how well they know their site]," Olsen answered.
"What if they organized them by artist name [rather than by adult-oriented vs. non adult-oriented]?" Hansen asked.
"They could just ask the artist," Olsen replied.
"A lot of the artists are dead," Hansen said.
Previously, Olsen had testified that Net publishers would have no problem complying with a government order to curb minors' access to "harmful" online content. He argued that it is both technically and economically feasible for commercial Web sites to check the identification of visitors. Credit cards are the most widely used age verifier suggested under COPA; other methods include digital signatures and adult personal ID numbers.
Checking ID through credit card numbers or adult PINs is an affirmative defense to prosecution under COPA. The plaintiffs in the case argue that even though they are not pornographers, they still would be required to register users, which could harm their traffic and hinder advertising revenues.
ACLU witnesses have argued that credit cards aren't adequate age-verifiers, and that Net users would not want to give up personal information in exchange for content they can access anonymously in the offline world.
The Justice Department will seek to rebut the ACLU's argument that it is too costly to comply with COPA. The next DOJ witness, PricewaterhouseCoopers partner Brian Blonder, will testify about the plaintiffs' claim that COPA will harm them financially.
Olsen today said that no complicated databases or other programming expertise is necessary in order to verify age on the Net.
"The technology required [to protect from sites with adult content prosecution] with regard to credit cards is acceptable," said Olsen, who testified on behalf of the government in its defense of the CDA, most of which was struck down by the Supreme Court in June 1997. "The technology is generally available from a variety of vendors."
He added that there were no real security risks involved in taking credit card numbers to validate that a surfer is an adult.
"It's obvious on the World Wide Web that people are taking credit cards and people are giving credit cards [numbers]," Olsen testified. "If I wanted to steal a credit card number, I'd become a waiter in a restaurant--it's cheaper and it's easier."
The ACLU, which argues that the government violated the First Amendment when President Clinton signed COPA in October 1998, has been trying to bar the public's access to certain information that might have been disclosed in the trial, primarily the financial records of the plaintiffs in the case.
The closed court issue was solved today, when Judge Reed ruled that the hearing would be open after helping the two sides arrive at a compromise.
The government is expected to wrap up its case today, and closing arguments are scheduled for tomorrow.
(The Internet Content Coalition, of which CNET: The Computer Network, publisher of News.com, is a member, is a plaintiff in the COPA case.)