March 17, 2005

Protecting Teens Online

Part 1. The legal battle over protecting youth online

A court challenge to the Child Online Protection Act (COPA) contends that efforts to protect children from potentially harmful online content must also respect adults’ rights to privacy and free speech.

Parents, educators, technologists, and policymakers have wrestled with the challenge of keeping children safe from objectionable online content since the internet became both a graphic and commercial entity in the early 1990s. The issue is being thrust again into the policy debate in the wake of the Supreme Court’s ruling last June that a suit challenging the constitutionality of the Child Online Protection Act (COPA) be assessed in a trial in the District Court for the Eastern District of Pennsylvania in Philadelphia. The Supreme Court ruling barred enforcement of COPA pending the results of that trial, which is expected to begin later this year, although no date has been set.

COPA is the Child Online Protection Act. It tries to protect children from objectionable material online.

COPA, first signed into law in 1998, seeks to protect youth from objectionable material online by criminalizing internet transmission of material that is “harmful to minors.” Web sites that display such material can defend themselves from criminal charges by the use of a system to verify that site visitors are 18 years of age or older, such as a valid credit card number or adult access code.1

The current court case, John Ashcroft v. American Civil Liberties Union et al., stems from a suit brought against the U.S. Government by the American Civil Liberties Union (ACLU) and other internet and civil liberties groups. The suit contends that the COPA is an unconstitutional infringement on the free speech and privacy rights of adults.

The suit does not challenge the idea that the government has a “compelling interest” in protecting minors from objectionable content. Instead, it challenges the way COPA is written. The suit contends that the law is overbroad, using terms such as “harmful to minors,” that are difficult to define and tests, such as “community standards,” that are impossible to apply to a non-geographic entity like the internet. It argues that the law, as written, would have the effect of blocking large amounts of online speech that is protected by the First Amendment, because Web site owners would be forced to self-censor in the face of unclear rules — in effect, abiding by the most restrictive community’s standards.

While the act of blocking protected speech is legally permissible when there is a compelling state interest, the law requires the use of the “least restrictive means” of execution. In their suit, the ACLU and other plaintiffs argue that COPA’s credit card age-verification test is not the least restrictive means to protect children from objectionable content. Specifically, they say that the law compromises free speech by denying access to Web content by adults who lack a credit card, placing verification screens in front of content that may not be harmful to minors, and imposing financial burdens on Web site owners who will have to implement age-verification technologies. They argue that other technological means, such as filters, are less restrictive than the remedy the government imposed through COPA.

The ACLU also argues that the law causes undue breaches of the rights of citizens to privacy by forcing them to reveal information about themselves to access certain kinds of content.

In short, the plaintiffs’ argument is that COPA does not use the least restrictive means possible to achieve its legitimate goals, and that the courts have, in other cases,2 identified other, less restrictive means.

The government maintains that the law as written reflects previously tested constitutional standards. It contends that age verification does not prevent an adult from accessing protected speech.

After bouncing through the court system for years, the COPA case was heard by the U.S. Supreme Court, which returned the case to the lower courts in June 2004. The Supreme Court ruled that the law did potentially infringe on the free speech and privacy rights of adults who engage in legal behavior, and that it placed enormous requirements on Web site owners in the absence of language specific enough to make it enforceable. The Court then held that a preliminary injunction should stand, continuing to block enforcement of the law until its constitutionality can be weighed in a full trial in federal court.

As a part of its decision, the Supreme Court suggested that COPA be reconsidered in light of the current availability and use of technologies for filtering and blocking online content. The decision seems to suggest that if effective technological methods for protecting minors from objectionable content exist, then there may not be a compelling need for a law requiring Web sites owners to adjust their practices.

This report updates a previous survey by the Pew Internet & American Life Project of teenagers and parents on the topic of filters and at-home online child safety. The survey reported here addresses one of the fundamental questions raised by the Supreme Court decision, namely, what technological and other means are available to and in use by Americans who seek to protect their children from harmful online content in the home. This report analyzes data gathered in October-November 2004 from 1,100 American families about the steps they take to protect their children online and highlights some of the differences in filter use and monitoring behaviors within and among various demographic groups.

  1. For more information, please visit www.epic.org/free_speech/copa.
  2. One example is the Children’s Internet Protection Act (CIPA), which requires libraries and schools to filter internet access as a condition of receiving certain federal funds. CIPA recently survived its first court challenge.