COPA commission expresses concern with Net filtering systems

Monday, October 23, 2000

In its recently released
report, the Commission on
Online Child Protection identified “First Amendment concerns” with several
technologies that aim to protect children from harmful material on the

The panel’s report examined the First Amendment impact of filtering
software, labeling and rating systems, top-level domain name zoning schemes,
age-verification systems and other technologies. The panel also rated each
technology with respect to privacy, law enforcement, effectiveness,
accessibility, user costs and costs imposed on sources of material that is both
lawful and harmful to minors.

The commission was established under the Child Online Protection Act
to study “methods to help reduce access by minors to material that is harmful
to minors on the Internet.” Passed by Congress in October 1998, COPA
criminalized the online transmission for commercial purposes of material
considered harmful to minors.

The law has been challenged in the courts, with a federal appeals
court upholding a lower court
injunction against its enforcement last June.

The commission’s report, submitted to Congress on Oct. 20, noted that
concern about minors accessing harmful material on the Internet has “led to a
cycle of legislation, litigation, and court action that has provided little in
the way of solutions for families seeking to deal with inappropriate content on
the Internet.”

With respect to filtering, the report said that such software, whether
server-side or client-based, raises “First Amendment concerns” when used in
public schools and libraries and has the “potential to be over-inclusive in
blocking content.”

Congress is nearing a
vote on a measure that would require public schools and libraries to
install filtering software in order to receive federal funds for Internet
hook-ups. But the White House is pressing Congress to soften the proposal,
which is an amendment attached to a large spending bill.

According to the Associated Press, the White House favors a measure
that would leave the filtering decision up to local officials. But, the
Associated Press reports, White House officials say President Clinton would
still sign the spending bill even if the filtering language were not changed
because it includes money for other educational priorities.

Similar to its findings on filtering, the COPA commission identified
First Amendment concerns with labeling/rating systems whether done voluntarily
by content sources or by third parties.

With respect to Web sites labeling or rating their material, the panel
wrote: “This method raises First Amendment concerns due to the financial cost
to constitutionally protected sites, blocking of unlabelled sites, and the
threat that voluntary labeling regimes might be made mandatory.”

Third-party labeling also raises concerns because it could “reflect
cultural or social standards that may not be shared by others,” the 18-member
panel noted.

But, third-party labeling could be effective, the commission said, if
advocacy groups and the “adult-content industry” cooperated in setting up the

The panel also found that age-verification would have “adverse impacts
on First Amendment values” because of the cost to Web publishers and the
“chilling effect of identifying users before providing access.” COPA provides a
defense to those Web site operators who display online material harmful to
minors if they restrict minors’ access by “requiring use of a credit card,
debit account, adult access code, or adult personal identification number” to
verify a user’s age.

The report also examined the impact of the creation of new generic
top-level domain names, such as .xxx or .adult, to identify material harmful to
minors. (There are currently seven different domain names — .com, .net,
.org, .edu, .gov, .int and .mil — which appear as the last part of
Internet addresses.)

Noting that this method would require the Internet Cooperation for
Assigned Names and Numbers to establish a new top-level domain, the panel
expressed concern over the potential creation of a “red light district.”

“Privacy and First Amendment concerns may be raised by the clear
identification of a ‘red light district’ and the stigma involved in being found
there, and the concern about a ‘slippery slope’ toward mandatory location in
the new top-level domain,” the report found.

Similarly, the report examined the creation of another top-level
domain name — such as “.kids” — that would signify material
suitable for children. “First Amendment concerns arise from fears that
children, particularly older teens who are restricted to this zone, may be
unable to access potentially informative and appropriate material,” the report

The panel also examined the effects of “greenspaces” — areas of
Internet content determined to be appropriate for children. Browsers and online
service providers can limit children’s access only to these areas. “While
greenspaces impose little adverse impact on privacy and on lawful adult speech,
concerns about First Amendment values relate to children’s inability to access
appropriate materials not incorporated into a greenspace,” the report said.

The panel also examined the efficacy of “monitoring and time-limiting
technologies” which create logs showing the details of children’s online access
and limit that access. The commission said such technologies adversely impact
First Amendment values by preventing teens from accessing “appropriate
informative materials without parental supervision and oversight.”

The panel also examined the impact of acceptable-use policies and
increased prosecution of obscenity laws. While the commission recommended
increased enforcement of obscenity laws, the panel recognized potential
negative ramifications for free speech: “First Amendment concerns about
increased prosecution relate to the chilling effect of investigation and
decisions by lawful speakers to curtail speech to avoid risk of

The commission had 12 recommendations, including:

Promoting greater educational awareness of existing
private-sector technologies for parents.

Allocating more resources for the independent evaluation of
child-protection technologies.

Discouraging deceptive or unfair practices that entice
children to view obscene materials.

Increasing funding to address international aspects of
Internet crime, including obscenity and child pornography.

Encouraging adult-industry self-regulation to restrict minors’
access to adult content.

The report included individual statements by all of the commission
members, a few of whom emphasized the importance of protecting First Amendment

Jerry Berman, executive director of the Center for Democracy and
Technology, wrote: “The Commission concludes that new laws would not only be
constitutionally dubious, they would not effectively limit children’s access to
inappropriate materials. The Commission instead finds that empowering families
to guide their children’s Internet use is the only feasible way to protect
children online while preserving First Amendment values.”

Al Ganier, CEO of Education Networks of America, wrote that “the
safety of our children does not come at the expense of the First

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