Tuesday, July 22, 2008

COPA: Third Circuit again rules it unconstitutional, upholding Judge Reed's 2007 ruling

The ACLU (in an email from Chris Hansen) has advised plaintiffs that the ACLU has won again this morning. The Third Circuit Court of Appeals in Philadelphia has upheld Judge Lowell Reed’s ruling that COPA, the Child Online Protection Act of 1998, is unconstitutional. I discussed Reed's ruling on this blog March 22, 2007

I do not have any legal analysis yet. The Third Circuit’s website for civil case opinions is this and I expect the PDF document for the opinin ACLU v Gonzales (originally ACLU v. Reno) will appear shortly. There is another page for recent opinions, here.

One plaintiff said he would light a candle at Independence Hall tonight.

I’ll provide more analysis when it appears. Watch the major news sites for the story today.

I have a copy of the original Third Circuit Opinion from 2000 here, but the Supreme Court in 2002 overruled its reasoning on the analysis of community standards. There was a second 3rd Circuit Opinion in March 2003, here.

Update (later Tuesday)

The ACLU Press Release is here. The arguments are very much the same as Reed's: it is overbroad, would chill constitutionally protected speech among adults, and is not narrowly tailored, and actually does not close major loopholes in protecting children.

Third Circuit Opinion text (PDF) is here.

ACLU blogger post is here.

The case was originally called ACLU v. Reno, then ACLU v. Gonzales, and finally (now) ACLU v. Mukasey.

Monday, July 21, 2008

Third Circuit strikes down FCC fine against CBS for Super Bowl "wardrobe malfunction"

The Third Circuit Court of Appeals in Philadelphia has tossed out the Federal Communications Commission’s $550,000 fine against CBS for “indecency” during the 2004 Super Bowl. During the half time show, Justin Timberlake accidentally invoked a “wardrobe malfunction” in Janet Jackson while “dancing” much as in a disco.

The three judge panel ruled that the FCC had acted “arbitrarily and capriciously” during the incident. The AP story is by Joann Loviglio and appears here.

Other stories indicate that the Court ruled that Timberlake and Jackson were "independent contractors" and that the network was not responsible for what they said or did, leaving opening the possibility that they could be so individually. Elizabeth Jensen covers this in her New York Times Business Day story July 22, here. That comment reverses a trend in recent concerns about downstream liabilities of communications facilitators.

Although not directly related to COPA, the ruling would tend to suggest that the Circuit is likely sympathetic to the current ruling striking down COPA, although different judges within the panel may hear it.

The words in the song that Justin was singing make contradict the idea that it was innocuous. The incident created a sensation, being reported on AOL before the Super Bowl was over.

Timberlake at one time had a clean-cut “All American” image in the early days of his ‘Nsync career, despite the hilarity of some of the numbers (one video takes place in a toy store and it appears that the band is making fun of “don’t ask don’t tell” by pretending to be the toy soldiers). I attended an ‘Nsync concert in Minneapolis at the Metrodome in June 2001.

Since then, Timberlake’s “image” has changed somewhat, shall we say. See how he looks in “Alpha Dog” and “Southland Tales.”

Wednesday, July 09, 2008

COPA: how filters work

Visitors following the COPA appeal might want to read the “How Stuff Works” discussion of Internet filters here, especially Internet Censorship at Home. The two main techniques employed are blacklists (or URL’s) and keyword blocking. The weakness of these approaches, particularly with keywords, is that filters cannot discern context or intent the way human readers can. Sometimes, as with automated screening for advertisers, there is an attempt at context detection that is misplaced. For example, a discussion of how the Second Amendment should be taught in high school government might be blocked because the connection of particular subjects could be viewed as enticing – until a human being (like a teacher) can read the posting and understand the real point.

There is also some controversy of the practice by many web filtering programs of encrypting their blacklists. A sidebar in this link gives other examples of false context blocks.