Thursday, March 22, 2007

COPA: Judge Reed strikes it down, keeps injunction in force


Judge Lowell Reed, a federal district court judge of the Eastern District of Pennsylvania, ruled today in ACLU v. Gonzales, in the challenge to the Child Online Protection Act of 1998 (COPA), Civil Action 98-5591. Judge Reed has extended a permanent injunction against the enforcement of COPA. He has found that (1) at least some plaintiffs have standing (2) COPA is not narrowly enough tailored to meet strict scrutiny (3) the government (the defendant) did not show that COPA was the least restrictive means of achieving a legitimate state interest (4) COPA is impermissibly overbroad and vague.

CNN has a story “Court strikes down Internet porn law,” a characterization that is misleading, as understood by anyone who reads the Opinion.

There is a link now to the 84-page Opinion in PDF format at the ACLU site. Here is an alternate location for the document, at the US Courts site.

The Opinion discusses me on p. 12. “Plaintiff Electronic Frontier Foundation EFF sues in part on behalf of John W. “Bill” Boushka who has work on the Web site www.doaskdotell.com. In the Amended Complaint, Mr. Boushka fears prosecution for his book “Do Ask Do Tell: A Gay Conservative Lashes Back,” which he describes as an “expose about gays in the military” that is a “politically-charged text” containing “subject matter and language that might be deemed harmful to minors.”

My book and website covers a lot more that that, but the military ban is really at the center of all that is argued. Ironically, I have found that I have had to go into very sensitive matters, with extreme candor, to show how many people reared and socialized in lineage-family-centered culture think and feel.

The judge, in conclusion, concurred with Congress that protecting children from some sexually explicit materials on the Web was an important aim, but it could not be constitutionally achieved with such a vague and overbroad statute. His conclusion mentions Justice Kennedy’s opinion in striking down a flag-burning statute.

The Judge seemed to concur that presently available filters were reasonably effective if used properly, and that existing adult-verification technologies, including credit cards and even Digital Verification Services currently would cause considerable costs to publishers who offer borderline (in terms of COPA) material for free, especially for political purposes. He concurred that many visitors would be driven away by security concerns over identity or age verification. He also concurred that the definition of “commercial” could ensnare plaintiffs with few practical financial resources compared to large corporate publishers or media companies. He concurred that, at face value, the definition of “minors” (with respect to older or immature minors – the “Smallville Problem” – was impermissibly vague, although in the physical world merchants usually can judge the likely maturity of individual minors at sight). He was unwilling to reach a conclusion as to what the “whole” of a web visit would be for a minor.

As to the question of explictness, his ruling named Corinna, Salon and Nerve as plaintiffs whose material was likely to fall within the prongs of COPA by most conceptual interpretations by a “reasonable person.” He did not say that about my work or about Patricia Nell Warren, and it is likely that he believes that prosecution of some of the rest of us would have been extremely unlikely (at least under COPA) had it been upheld.

There will be more details and refinements on this case as time goes by, and I am sure that there will be calls for other legislation (Visit this file now for a rundown..) I have not yet decided if this opinion will affect my display of book text on my site, if I will remove all of the self-censoring or not, as there are other business considerations now.

My chronology and link reference list for COPA is here.

Update: Dec. 27, 2007

A couple of other references:

(1) The Ruling on the Google subpoena. Link. This will download as a pdf file and ask the user if he/she wants so save on disk.

(2) Google's own blog and it's side of the search engine results subpoena controversy, link.

(3) Wikipedia entry. This topic certainly would meet Wikipedia's current "notability" standards!

Update: Jan 25, 2008

This bill, as passed and signed by the president, was Title XIV of H.R. 4328 (105th Congress), "Omnibus Consolidated and Emergency Supplemental Appropriations Act, 1999" (even though passed in 1998). The Govtrack reference is this. The related HR 3783 never actually became law (Govtrack).

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