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COPA commission expresses concern with Net filtering systems

By David Hudson
The Freedom Forum Online

10.23.00

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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 Internet.

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 system.

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 said.

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 prosecution."

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 interests.

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 Amendment."

Previous

COPA Commission: Educate police, public on online dangers to kids
Local, federal governments should spend more money training police to hunt down Net predators, panel suggests in report due to Congress next week.  10.13.00

COPA commission readies report for Congress
Chairman says panel will recommend that an independent research bureau be created to review filtering software.  09.20.00

Related

House panel OKs kids' Web domain
Legislation would create online area free of material deemed inappropriate for children under 13.  03.11.02

Internet filtering plan misses mark, critics say
High rate of erroneously blocked sites highlights serious free-speech issues with software pushed by Congress, says head of anti-filtering group.  10.24.00

Congress passes Net filtering initiative
Clinton expected to sign measure requiring filters in schools, libraries; ACLU vows to challenge law.  12.20.00

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