Cybersmut Goes to Trial

by Liz Highleyman

This article appeared in the 28 January 1999 issue of the Bay Area Reporter.

On January 20, U.S. District Judge Lowell Reed began hearings in Philadelphia on the Child Online Protection Act (COPA). The law -- informally known as CDA II after the original Communications Decency Act, which was ruled unconstitutional by the Supreme Court in June 1997 -- is intended to restrict minors' access to sexually explicit material on the Internet.

The Supreme Court ruled that the orginal CDA was overly broad. The new law imposes a narrower standard of "harmful to minors," and applies only to commercial websites (not, for example, chat rooms and e-mail). Operators of websites that offer sexually explicit material would be required to verify that those accessing their sites are at least 17 years old, for example by means of a credit card or "adult ID" verification system. Violators would be subject to a $50,000 fine and six months in prison.

A coalition of plaintiffs filed a suit challenging the law on October 22. The plaintiffs include the American Civil Liberties Union, the Electronic Frontier Foundation, A Different Light gay bookstores, the condom retailer Condomania, the *Philadelphia Gay News*, *Salon* online magazine, and the Internet Content Coalition, a group of 23 online publishers including the *New York Times,* Playboy Enterprises, and MSNBC. In November, Reed issued a temporary restraining order blocking enforcement of the act while the trial is underway.

The plaintiffs assert that the "harmful to minors" wording is too vague and has no accepted definition. They also argue that credit card verification system are unwieldy, expensive, annoying to consumers, and rife with security concerns. Tom Reilly, founder of the gay interest website PlanetOut, testified that mandatory credit card verification would "cause a drastic fallout in our traffic." Author Lawrence Madig testified that existing filtering software already allows parents to regulate what their children can access online.

The lawsuit hit a snag last week when some of the plaintiffs asked that the hearings be closed to the public because some of the testimony regarding the cost of verification systems might reveal confidential corporate financial information.

The Justice Department contends that the law will only limit minors' access to explicit material, and will not present an undue burden to adult consumers or to website providers. Proponents of the law point out that restrictions to protect minors are already imposed on other media (for example, an after 10 pm rule for explicit radio and television broadcasts, and opaque paper wrappers for explicit magazines displayed on newsstands). COPA supporters are particularly concerned about websites that offer free "teaser" material before customers are required to enter a credit card number.

The trial is continuing this week.

© 1999, Liz Highleyman

Liz Highleyman --