COPA panel sees battle over Net regulation just beginning

Thursday, February 4, 1999

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NEW YORK — Although the latest effort to regulate the Internet has been staved off for now, two high-tech watchers disagree on whether the measure, the Child Online Protection Act, will eventually survive.

COPA, a measure protecting minors from Internet porn, was slated to take effect Feb. 1. A mere six hours before
the law's enactment, a federal judge issued a preliminary injunction, blocking the law
for now and protecting Web site operators from prosecution until a full
trial has been conducted.

“There's been a growing social panic about the Internet in policymaking
dating back to about 1994,” Mike Godwin, an attorney involved in the
upcoming trial, Reno v. ACLU II, said at the Media Studies Center
today. “There's a lot of media hysteria which I think [has] fed public
policy hysteria. [It's been] hard to [have] rational discussions of the
legal issues.”

Godwin, counsel for the Electronic Frontier Foundation, joined Carl Kaplan,
cyberlaw columnist for The New York Times, and Omar Wasow, technology
correspondent for MSNBC, to talk about the Internet and the First Amendment
after the COPA ruling. The program was the second in a series of forums
sponsored by The Freedom Forum on the Internet and the First Amendment. The first was held Jan.
11 at The Freedom Forum World Center in Arlington, Va.

Reno v. ACLU II is the second case the American Civil Liberties Union
has filed against Attorney General Janet Reno in the battle for the future
of the Internet. The ACLU won a 9-0 ruling in the first case, which
invalidated parts of the Communications Decency Act. The ACLU maintains in
both cases that these government regulations violate freedom of speech.

Under the First Amendment, speech is generally protected from government
regulation, except for broadcasting, which is regulated by the Federal
Communications Commission. “It's a matter of constitutional law and
tradition in the United States that the government has a lot more discretion
to regulate content, even First Amendment-protected content, in
broadcasting,” Godwin said.

There is “an effort to take that broadcasting regulation concept … and
apply it to a medium that's not broadcasting,” Godwin said. Godwin said he
feared that if government is allowed to regulate the Internet like
television or radio, then government control will become the standard for
any new media in the future. “[It has] serious potential consequences for
freedom of expression in the United States.”

But Godwin is confident the ACLU will prevail again. “I don't pretend these
issues are easy,” he said, but added he believed the Constitution would win

Kaplan, however, was not so sure the ACLU would win this time. He said the
government had a stronger argument in COPA than it did in the Communications
Decency Act, in that COPA narrows the regulatory focus specifically to
protecting minors.

When he read the judge's decision to issue the COPA injunction, Kaplan
said, he thought he detected “some seeds of doubt that [an] unregulated
Internet [is] the best of all possible worlds.” And Kaplan noted other
potential targets of governmental regulations beyond pornography.

“Gambling will be the next pornography,” Kaplan predicts. He said some
people were becoming alarmed by minors' use and potential use of the 280
gambling sites on the Internet. Eventually, he suggested, it will become a
crime to place bets on the Internet — ushering in “a new era of

Too much regulation squashes small media and allows for the rampant growth
of media conglomerates and consolidation of voices, Wasow said. “It creates
a scarcity that limits the voices that get heard. To the extent that we
create legal hurdles that [make it difficult for people to get online], we
substantially reduce the amount of speech that's out there.”

Instead of letting government regulate the Net, Wasow suggested allowing
Internet service providers to filter objectionable material. That way people
could choose the ISP offering the least filtering — or the most.
“Congress shall make no law, that's where you begin and that's where you
end,” Wasow said. “Let a thousand flowers bloom.”

The battle for the future of the Internet is not over, Godwin said. “As
those of us who work in the First Amendment (and) civil liberties arena
know, it's never over. There's always the impulse to censor. COPA could
survive.” Godwin said he was simply looking for a holding action until the
panic subsides and the next generation of policymakers arrives — people
who will have grown up with the Internet and can make rational decisions
about it.

John Carey, a former Media Studies Center fellow currently with Greystone
Communications, asked the panelists how they could make their “purely
principled argument” against all government regulation work in the real
world, where parents worry about what their children might find on the

Godwin noted that, as a parent himself, he must protect both his child and
the kind of society she grows up in. Censorship, he said, would always be
worse than the consequences of his daughter's seeing something inappropriate

“I think ultimately a free society makes children stronger, not weaker,”
Godwin said.

Next in the series of conferences is “The Internet and the First Amendment:
Global Perspectives,” March 1 at the Pacific
Coast Center in San Francisco.