Tuesday, August 05, 2008

COPA: Third Circuit made some specific, interesting points in Opinion

The Third Circuit’s opinion is relatively brief but bears a reading. The PDF file (link in the last post) runs 57 pages. There was a three-judge panel comprising Justices Ambro, Chagares, and Greenberg.

The Opinion starts out with a discussion of the “law-of-the-case” doctrine and then reviews the long history of litigation and its two previous opinions. “The Supreme Court’s decision left untouched our conclusion in ACLU II other than our decision that filters are a less restrictive alternative than COPA for advancing the government’s compelling interest at stake in this litigation” (pp 17-18).

The Appeals Court agrees with previous comments that “taken as a whole” can, in a practical world, be reasonably interpreted only in relation to a specific web page that a visitor may encounter randomly, as from a search engine. A minor may not reasonably know the context intended by the author of a particular page; she may not bother to find out, or may not have the cognitive maturity to grasp the intentions of the expression on an isolated page relative to other materials. But the Third Circuit goes on to use this interpretation to build a case for a finding of overbreadth (pp 20-21). The Court also agreed that the language of the statute could allow the concept of “commercial” use to be interpreted broadly by prosecutors, to include selling of ad space to automated algorithms, or to the use of apparently free content to obtain a purchaser later, or even the earnings of small income to defray costs of maintaining the site (p 23). The Court dismisses the government’s claim that the statute applies only to “commercial pornographers” as the concept is usually understood by the public.

The Appeals Court also made important observations regarding the compromise of anonymity (and possible exposure to identity compromise) in using credit cards or adult-id schemes, and suggested that the requirement could end the practice of providing much free content on the web (which is, as we have noted in other blogs, largely possible because of advertising, or sometimes possible because publishers have stable other income) (p 31). The Court wrote an interesting comparison to id schemes in the digital world with “binder racks” in physical stores.

The Appeals Court also agrees with the District Court that the voluntary use of filters available now is more effective in protecting minors than would COPA be.

On p 57, the Appeals Court concludes “In sum, COPA cannot withstand a strict scrutiny, vagueness, or overbreadth analysis and thus is unconstitutional.”

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