Friday, November 02, 2007

ACLU files reply to government's appeal of March 2007 COPA ruling

The ACLU recently filed its brief in reply to the government’s appeal to the Third Circuit in Philadelphia on Judge Reed’s March 22, 2007 ruling striking down the Child Online Protection Act of 1998. The government will file a replay to the ACLU’s reply by the end of this month. Oral arguments could occur sometime in late winter or early spring of 2008. However, the Third Circuit has twice struck down COPA, once on a community standards argument that the Supreme Court nixed, and then on a topological argument.

The ACLU document was rather short and limited in pages (the length is 62 pages). It is signed by Aden Fine, dated Oct. 22, 2007. The ACLU has asked plaintiffs not to place this brief on the Internet yet, but says it will have a slightly revised version that can be uploaded soon. I would expect to see this happen within about a week.

The arguments are the same as we have already seen. Oddly, it argues that in some ways COPA is underinclusive (it picks on HTML, it doesn’t work overseas). It suggests several ways that other legislation could have been crafted that would make such a law less overbroad, such as restricting it to images, or restricting it to civil penalties, or by having a blacklist. But all of these proposals would generate their own objections. Individual rights activists and libertarians always say it is dangerous to give “the enemy” “ideas”, but one must sometimes do that in the interests of individual honesty.

Much of the document deals with the deficiencies of the proposed affirmative defenses (credit cards and adult-ids) which are becoming well known. One wonders what would happen if PC’s have the ability to accept biometric ID’s some day (like retinal scans).

The brief also acknowledges that Reed’s opinion did cite that at least three of the plaintiffs had material that might well have fit the definition of “harmful to minors” under the statute. The implication may be that (in the Judge’s beliefs) the material on many other sites (including mine) would not have been treated by the Department of Justice as harmful to minors. However, during the trial, when I was there (Oct 30), the judge acknowledged that the notion of implicit content could make future cases on the web difficult to resolve.

An appeal does not involve hearing more testimony. However, it might be possible for me to travel to Philadelphia to hear the oral arguments.

Update: Nov. 8, 2007

There is an image copy in PDF format of the ACLU brief here.

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