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Coping with grandstanding politicians
By Scott Bradner, Network World, 03/28/07
From time to time, politicians from both parties claim they want to protect children from the wilds of the Internet. Most often this happens in an election year, and most often what the politicians decide to do will not actually help achieve this aim in any significant way.
So far the 'Net has been protected from the effects of this type of electioneering by minds wiser than the average politician (the existence of which is not all that hard to imagine).
The first major child-protection attempt in the United States was the 1996 Communications Decency Act (CDA). Most of this law was declared unconstitutional by a U.S. federal court in Pittsburgh, and that opinion (see "The importance of occasional chaos") was upheld by the Supreme Court in 1997. Congress then passed the Child Online Protection Act (COPA) in 1998, claiming that it had fixed the problems that had caused the CDA to be overturned. Again, Congress claimed its objective was to protect children and again, what it did would not remotely achieve that goal.
COPA tried to make it a crime to knowingly make material harmful to minors commercially available over the Web. The penalty for violating COPA was a fine of up to $100,000 per day that the violation continued, and/or up to six months in prison. ISPs and telephone companies were exempted from these penalties as long as they were only transporting or hosting the material, and as long as they played no role in the content's "selection or alteration." A Web site could escape prosecution under COPA by requiring its users to identify themselves using a credit card or some other accepted identification that would verify their age.
As you might expect, the idea that anyone wanting to access material that someone somewhere might consider "harmful to minors" has to have the means to identify themselves -- and has to do so before they can access the material -- was seen by a lot of people as a significant violation of Internet users' privacy. Some of these people might have supported the law if there was any chance that it would make any significant difference to the amount of material that a child wandering around the Internet could find. There is a vast amount of material that many people would consider harmful to minors on sites that COPA would consider noncommercial or on sites outside U.S. jurisdiction -- and any successful U.S.-based site easily could relocate outside the United States.
A wiser mind has now ruled on COPA. On March 22, a U.S. federal judge in Pennsylvania ruled that COPA was not a constitutional way to reach the "compelling interest" of protecting children, because Congress had not shown that it was the least restrictive, most effective alternative to achieve the goal. For example, host or ISP-based filters can be as much as 95% effective. That's much more effective than any United States-only law could ever be, given that one-half or less of adult content is hosted in the United States.
That decision will be appealed, but I hope the courts will continue to recognize support for COPA for the political theater that it is. In any case, I fully expect to see more such ineffective theater as politicians jockey for publicity rather than try to actually fix problems.
Disclaimer: Part of Harvard trains students in politics, but hopefully they are taught to recognize political theater for what it is. I did not ask them for their opinion on this case, however, so the above is mine.
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