Lott names COPA commission members despite legal challenges to law

Monday, February 8, 1999

WASHINGTON — Although the constitutionality of a key part of the Child Online Protection Act is in question, Congress appears ready to move ahead on appointing a commission that was mandated in another part of the law to study ways of controlling online pornography.

However, a move by Senate Majority Leader Trent Lott to name five members to the commission including a leading anti-pornography spokeswoman, Donna Rice Hughes, has stirred the ire of one organization that deals with the First Amendment and privacy in new media. And the staff counsel for another group that is challenging COPA in the courts is wondering why Congress included a study commission at all since the law was supposedly going to correct the problem.

Lott announced his five commission appointments in the Congressional Record at the end of January, just a few days before U.S. District Judge Lowell A. Reed issued an injunction in Philadelphia against the portion of the COPA law that affects commercial web sites. But since the study commission was called for in a separate section of the law that was not challenged, it presumably can go forward with its task.

The commission was assigned to study ways of reducing minors’ access to pornography or other questionable material on Internet sites through filters, age verification and other forms of technology. The law specified that it have 19 members including two Internet service providers, two individuals involved in Internet filtering or blocking, two rating service providers, two domain name registrars, two Internet portal or search service representatives, two academic experts, and four Internet content providers. The commission also will have three government members from the Justice Department, the Commerce Department and the Federal Trade Commission.

Lott was given the ability to appoint eight of the members. The new House Speaker Dennis Hastert, R-Ill., also has eight appointments. Traditionally, the majority leaders give three of those slots to the minority party, which in this case would mean House Minority Leader Richard Gephardt, D-Mo., and Senate Minority Leader Tom Daschle, D-S.D. So far, only Lott has made any appointments.

Donna Rice Hughes, who has been an active campaigner and lobbyist against Internet pornography in her representation of the group “Enough is Enough,” was nominated by Lott as a content provider. Deirdre Mulligan, staff counsel of the Center for Democracy and Technology, did not challenge that identification, but she did question the appointment on the grounds that Hughes has been such an outspoken advocate of Internet controls.

“Donna is clearly very passionate about protecting children. She is an advocate, and our take on this commission is that this was supposed to be a fact-finding, technical examination of what technology can do,” Mulligan said. “I don’t think she was what most people had thought of (as a commission member) because she has been intimately involved (in the issue).”

Mulligan said since it appears that the COPA law will be struck down on constitutional grounds just as an earlier law, the Communications Decency Act, was, it is important that any study commission be “balanced and credible” and engage in a thorough study of “what technology can do” to protect children from pornography without violating the First Amendment.

She said her group will be watching for the other appointments to make sure the commission is balanced. Once the group is appointed and starts operating, “I’m going to be making sure that I and others are up there (on Capitol Hill) providing information and expertise and making sure all the facts are before them,” she said.

Mulligan said her group is a First Amendment and privacy organization that deals with the Internet and the new media. “We want to protect children in a way that is consistent with the First Amendment,” she said. “We believe that the First Amendment needs to be fully in force in this new medium.”

David Sobel, general counsel for the Electronic Privacy Information Center and a co-counsel in the pending court challenge to COPA, said he is less concerned about the quality of appointments on the commission than “what the point of this whole undertaking really is.”

“Given that Congress already passed a law and presumed to solve the perceived problem, you have to ask what the purpose of the commission is in making recommendations,” Sobel said. “This entire process has been backwards. If Congress felt that they required guidance in this area, they should have appointed a commission and held off before enacting new laws. I think it’s odd that Congress simultaneously passed a law and also appointed a commission to advise it on the appropriate solution to the problem.”

He said the situation is “indicative of the confusion that has characterized the congressional response to the Internet” and demonstrates “the lack of deliberation that has gone into this process.”

Asked whether Congress might have called for the commission to develop alternative approaches should the thrust of the law be thrown out by the courts, Sobel replied, “If that was the assumption, they did a poor job of accomplishing that.”

“If you look at the composition of the commission, where is the constitutional expert? That is where Congress keeps getting it wrong: on the constitutional front. They apparently concluded that they didn’t need any guidance on the constitutional issues, contrary to all of the evidence,” he said.

Sobel conceded that a study commission might be valuable if it were “properly constituted both in terms of designated areas of expertise and a well-rounded group of individuals … but unfortunately, that is not this commission.”

In addition to lack of constitutional expertise, Sobel said the group also lacks representation from the library community, from the educational community particularly in the elementary education area and from the user community.

If the commission does go forward, Sobel said his organization will seek to educate the group about the constitutional issues involved in blocking or filtering the Internet and also make sure they are aware of the problems with the underlying COPA law as it moves through the courts.

“I think it potentially provides an educational opportunity assuming that the commission members are open-minded and more interested in looking at the constitutional issues than people in Congress were,” he said.