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Current as of June, 2002

What is the Child Online Protection Act?

(hereinafter, "COPA")

by,  Maria Cohen, Editor-in-Chief

After the U.S. Supreme Court overturned the 1996 Communications Decency Act 1 ("CDA"), on the basis that it violated the First Amendment of the U.S. Constitution, in part due to the broadness of the it material covered, Congress passed the Child Online Protection Act 2 (hereafter referred to as "COPA") in 1998. 

In an attempt to correct some of the faults the U.S. Supreme Court found with CDA, COPA is directed at online "commercial" communication, that is also deemed "material harmful to minors."

As with its predecessor COPA was again challenged, this time by the American Civil Liberties Union ("ACLU") resulting in Ashcroft v. ACLU (you will need Adobe Acrobat Reader to view the Slip decision) and an injunction barring the enforcement of the law was instituted, until a decision was reached. 

On May 13, 2002 the U.S. Supreme Court remanded the case to the Third Circuit, to decide other issues regarding the "unconstitutionally vague, or whether the statute survives strict scrutiny."

The injunction barring the enforcement of COPA is still in place.

Pros:

	COPA establishes a foundation for protecting minors from sexual predators, adult content/material, pornographic advertisers, etc.
	A fine of up to $50,000.00 for each day (or act) of violation and/or up to 6 months imprisonment for knowingly communicating any commercial material that is "harmful to minors."
	In addition, it allows for civil penalties of not more than $50,000.00 for each day (or act) of violation.
	Allows for affirmative defenses (the individual, company or other, admits to breaking the law, but the law provides a waiver of the penalties if you fit the criteria specified), such as trying to prevent minors from accessing the site by the use of of credit cards, or some other method to verify the age of person(s) visiting site as being over 18 years of old.

Cons:

	Not everyone over 18 years old uses a credit card.
	The use of a credit card, even if not charged, could be used as a means of tracking individuals, or information about sites visited, which could in turn be sold by the site, or by the credit card company.
	A resourceful and/or curious minor (a person under the age of 18) could get a hold of a credit card and use it to gain access to a site containing "adult material" (especially when the credit card is not charged, but merely used to "verify" that the person on the other end of the Internet connection is over the age of 18).
	"Commercial material" could be interpreted to include books, art and other material found on practically all business, fan run, or other websites.  E.g.  Books such as Tropical Storm® by Melissa Good (title of book used with author's permission) which contains a same-sexed relationship is seen as "adult material" in some communities and the selling of the book qualifies it as commercial.  Regardless of the fact that in the "real world" the selling of the book is perfectly legal, online it may fall under the definition of COPA.
	Adult's may 'self-censor,' or simply avoid otherwise legitimate means of self-expression in an effort to avoid prosecution, thus affecting the needs/wants of adults to relate and express themselves as adults, in adult situations.
	Criminalizes access to material online which is not criminal to access, 'in real life.'
	Deters the creation, or the communication of material for adult audiences for fear of criminal, financial and/or civil penalties.
	"Community standards" is used as a measure of what is acceptable.  This would limit adult communication to the level of discourse that would take place in the most conservative community, thus giving a few, control over many.  E.g. In some communities "The Wizard of Oz" is banned from the library because it contains a witch, in other communities anything containing homosexuality (including health material) is considered "adult material," the same applies to
	The penalties are so restrictive that if an "average" person is not aware they are in violation of the law, they could incur insurmountable fees within a matter of days.

Notes:

1. The CDA, prohibited any individual from "knowingly" transmitting  "any comment, request, suggestion, proposal, image, or other communication that, in context, depict[ed] or describ[ed], in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs.." §223(d)(1) online in a manner accessible to persons under the age of 18.

2. 47 U.S.C. §231 (1998) (can be found here: CDA on Findlaw)

Restriction of access by minors to materials commercially distributed by means of World Wide Web that are harmful to minors.

(a) Requirement to restrict access
(1) Prohibited conduct
Whoever knowingly and with knowledge of the character of the material, in interstate or foreign commerce by means of the World Wide Web, makes any communication for commercial purposes that is available to any minor and that includes any material that is harmful to minors shall be fined not more than $50,000, imprisoned not more than 6 months, or both.

(2) Intentional violations

In addition to the penalties under paragraph (1), whoever intentionally violates such paragraph shall be subject to a fine of not more than $50,000 for each violation. For purposes of this paragraph, each day of violation shall constitute a separate violation.

 

(3) Civil penalty

In addition to the penalties under paragraphs (1) and (2), whoever violates paragraph (1) shall be subject to a civil penalty of not more than $50,000 for each violation. For purposes of this paragraph, each day of violation shall constitute a separate violation.

(b) Inapplicability of carriers and other service providers

For purposes of subsection (a) of this section, a person shall not be considered to make any communication for commercial purposes to the extent that such person is –

(1) a telecommunications carrier engaged in the provision of a telecommunications service;

(2) a person engaged in the business of providing an Internet access service;

(3) a person engaged in the business of providing an Internet information location tool; or

(4) similarly engaged in the transmission, storage, retrieval, hosting, formatting, or translation (or any combination thereof) of a communication made by another person, without selection or alteration of the content of the communication, except that such person's deletion of a particular communication or material made by another person in a manner consistent with subsection (c) of this section or section 230 of this title shall not constitute such selection or alteration of the content of the communication.

(c) Affirmative defense

(1) Defense

It is an affirmative defense to prosecution under this section that the defendant, in good faith, has restricted access by minors to material that is harmful to minors –

(A) by requiring use of a credit card, debit account, adult access code, or adult personal identification number;

(B) by accepting a digital certificate that verifies age; or

(C) by any other reasonable measures that are feasible under available technology.

(2) Protection for use of defenses

No cause of action may be brought in any court or administrative agency against any person on account of any activity that is not in violation of any law punishable by criminal or civil penalty, and that the person has taken in good faith to implement a defense authorized under this subsection or otherwise to restrict or prevent the transmission of, or access to, a communication specified in this section.

(d) Privacy protection requirements

(1) Disclosure of information limited

A person making a communication described in subsection (a) of this section –

(A) shall not disclose any information collected for the purposes of restricting access to such communications to individuals 17 years of age or older without the prior written or electronic consent of –

(i) the individual concerned, if the individual is an adult; or

(ii) the individual's parent or guardian, if the individual is under 17 years of age; and

(B) shall take such actions as are necessary to prevent unauthorized access to such information by a person other than the person making such communication and the recipient of such communication.

(2) Exceptions

A person making a communication described in subsection (a) of this section may disclose such information if the disclosure is –

(A) necessary to make the communication or conduct a legitimate business activity related to making the communication; or

(B) made pursuant to a court order authorizing such disclosure.

(e) Definitions
For purposes of this subsection, (FOOTNOTE 1) the following definitions shall apply: (FOOTNOTE 1) So in original. Probably should be ''section,''.

(1) By means of the World Wide Web. The term ''by means of the World Wide Web'' means by placement of material in a computer server-based file archive so that it is publicly accessible, over the Internet, using hypertext transfer protocol or any successor protocol.

(2) Commercial purposes; engaged in the business

(A) Commercial purposes

A person shall be considered to make a communication for commercial purposes only if such person is engaged in the business of making such communications.

(B) Engaged in the business

The term ''engaged in the business'' means that the person who makes a communication, or offers to make a communication, by means of the World Wide Web, that includes any material that is harmful to minors, devotes time, attention, or labor to such activities, as a regular course of such person's trade or business, with the objective of earning a profit as a result of such activities (although it is not necessary that the person make a profit or that the making or offering to make such communications be the person's sole or principal business or source of income).  A person may be considered to be engaged in the business of making, by means of the World Wide Web, communications for commercial purposes that include material that is harmful to minors, only if the person knowingly causes the material that is harmful to minors to be posted on the World Wide Web or knowingly solicits such material to be posted on the World Wide Web.

(3) Internet

The term ''Internet'' means the combination of computer facilities and electromagnetic transmission media, and related equipment and software, comprising the interconnected worldwide network of computer networks that employ the Transmission Control Protocol/Internet Protocol or any successor protocol to transmit information.

(4) Internet access service

The term ''Internet access service'' means a service that enables users to access content, information, electronic mail, or other services offered over the Internet, and may also include access to proprietary content, information, and other services as part of a package of services offered to consumers. Such term does not include telecommunications services.

(5) Internet information location tool

The term ''Internet information location tool'' means a service that refers or links users to an online location on the World Wide Web. Such term includes directories, indices, references, pointers, and hypertext links.

(6) Material that is harmful to minors

The term ''material that is harmful to minors'' means any communication, picture, image, graphic image file, article, recording, writing, or other matter of any kind that is obscene
or that –

(A) the average person, applying contemporary community standards, would find, taking the material as a whole and with respect to minors, is designed to appeal to, or is designed to pander to, the prurient interest;

(B) depicts, describes, or represents, in a manner patently offensive with respect to minors, an actual or simulated sexual act or sexual contact, an actual or simulated normal or perverted sexual act, or a lewd exhibition of the genitals or post-pubescent female breast; and

(C) taken as a whole, lacks serious literary, artistic, political, or scientific value for minors.

(7) Minor

The term ''minor'' means any person under 17 years of age.