Monthly Archives: March 2007

Judge Reed has made the temporary injunction permanent, blocking enforcement of the Child Online Protection Act (COPA) on First and Fifth Amendment grounds. Full text of ACLU v. Gonzales here. An appeal is certain. (The case has already been to the Supreme Court once.)

It has always seemed to me that the critical part of this case was going to be the factual findings about filtering, and Judge Reed appears, on a quick read, to have crafted these very carefully, in a way that will make the government's case on appeal difficult. Interestingly, he bases much of the facts on testimony by Ed Felton and Lorrie Cranor, who certainly would be anyone's top choices for reliable experts in this area. It was also fascinating to see Ronald Mann's testimony on payment cards — the court really had access to excellent experts here. (Smart lawyering by the ACLU!)

On the critical issue of whether filtering is a less restrictive means of achieving the statute's objectives, the opinion puts the burden of proof on the government, and says it failed to meet it in light of the expert testimony about the improved effectiveness of filtering technology. There is of course no debate that filters are less restrictive than the blunderbuss liability approach in COPA; the tough issue is whether despite being less restrictive filters are also as effective. My gut tends to say “no”. It was interesting to read testimony tending to say “yes”, testimony which allowed the court to reach these conclusions of law:

32. Although filters are not perfect and are prone to some over and under blocking, the evidence shows that they are at least as effective, and in fact, are more effective than COPA in furthering Congress’ stated goal for a variety of reasons. For example, as shown by Findings of Fact 68, 78 through 80, 87 through 91, and 92 through 99, filters block sexually explicit foreign material on the Web, parents can customize filter settings depending on the ages of their children and what type of content they find objectionable, and filters are fairly easy to install and use. See also Findings of Fact 102-109.

33. Reliable studies also show that filters are very effective at blocking potentially harmful sexually explicit materials. Findings of Fact 110-116.

34. Even defendant’s own study shows that all but the worst performing filters are far more effective than COPA would be at protecting children from sexually explicit material on the Web, garnering percentages as high as nearly 99 percent in successfully blocking such material. Findings of Fact 117-121. As a result of Conclusions of law 28 through 34, it is clear that defendant has failed to establish that COPA is the least restrictive means of protecting children from harmful sexually explicit materials on the Web.

This is not the only grounds on which the court invalidates COPA — there is discussion of vagueness and overbreadth for example — but I think it's the key, and because it is so fact-based will be much tougher to overturn than the purely legal conclusions. So I predict this outcome survives.

If I'm right about that, then Congress's next move is to mandate or subsidize filtering. Oh joy.