March 24, 2018

Supreme Court Upholds Injunction on COPA, Cites Filtering Software

By LJ Staff

The U.S. Supreme Court on June 29 upheld a lower court’s injunction blocking the Child Online Protection Act (COPA), which would fine commercial web site operators if they did not require an age verification (such as a credit card) to look at sites deemed “harmful to minors.” The law was passed in 1998, after the Court had rejected the Communications Decency Act (CDA), but was never enforced. In constrast to the Children’s Internet Protection Act (CIPA), which was upheld last year, COPA puts the burden on web site operators rather than those receiving speech. The court’s 5-4 decision does not invalidate COPA but sends it back to a lower court for a trial. The Freedom to Read Foundation, the American Library Association’s sibling organization, had filed a friend-of-the-court brief in support of the plaintiffs.

Justice Anthony Kennedy’s opinion noted that speech must be “restricted no further than is necessary to accomplish Congress’s goal,” and he cited software filters as a less restrictive alternative that might be more effective than COPA. He noted that a filter “can prevent minors from seeing all pornography, not just pornography posted to the web from America,” and that a witness estimated that 40% of harmful-to-minors content comes from overseas. Also, he noted, “filters also may be more effective because they can be applied to all forms of Internet communication, including e-mail, not just communications available via the World Wide Web.” He cited the Commission on Child Online Protection, created by Congress as part of COPA, which “unambiguously found that filters are more effective than age-verification requirements.” (His opinion, however, did not acknowledge that the commission’s report concluded that no single tactic was a solution.) He acknowledged that filtering software is flawed, but said that new evidence should be heard at trial to evaluate current technological reality, as opposed to the findings in this case, which date from 1999.