PHILADELPHIA, PA – Attorneys for the American Civil Liberties Union presented their closing arguments Monday in the case ACLU v. Gonzales, the ACLU’s legal challenge of the Child Online Protection Act (COPA), legislation signed into law by then-President Bill Clinton in 1998.The DOJ and ACLU relative positions in the case are both clear and diametrically opposed.

The DOJ, for example, argues that internet “filters” are insufficient to achieve the stated goal of “protecting” children online and COPA is needed in order to mitigate the damage that “material harmful to minors” does to children surfing the internet.

The ACLU, on the other hand, observes that as COPA cannot be applied to pornography and other “harmful” materials hosted on foreign servers and/or that are posted on sites that are non-commercial, COPA would substantially fail to provide any meaningful protection to children.

Also at issue is the ACLU’s contention that COPA is worded in a fashion so vague and with standards so expansive that a wide variety of non-pornographic, non-obscene speech could be subject to the terms of the Act and potential criminal liability for failing to comply with a law ostensibly designed to keep children from accessing online pornography.

The end result of such overreaching on the part of COPA’s verbiage, the ACLU argues, is the chilling of a substantial amount of speech that is presumed to enjoy the protection of the First Amendment.

“Since Congress passed this law, the Internet has changed and it is now clear that this harsh, criminal law won’t come close to achieving its goals,” said Chris Hansen, a senior staff attorney with the ACLU. “It is also clear that other alternatives, including education and filtering, are far more effective for those parents who want to limit access by their children to certain websites using their own values.”

Over the past four weeks of hearings, government attorneys and their expert witnesses have been attempting to make the case that filters are incapable of blocking enough content that is “harmful to minors” to be a sufficient protection tool on their own, while simultaneously arguing that filters detract from the educational process by blocking material that is not harmful to minors.

According to the research and testimony of University of California, Berkeley statistics professor Philip B. Stark, one of the expert witnesses testifying for the DOJ, the strictest Web filter tested in Stark’s research, AOL’s “Mature Teen” filter, blocked 91-percent of the sexually explicit websites indexed by Google Inc. and Microsoft’s MSN. Less restrictive filters blocked a little over 40-percent of such sites, according to Stark’s study,

Stark’s research also indicated (by extrapolating from a random sample) that 1.7-percent of search results supplied by AOL and Yahoo are “sexually explicit,” as are at least 1.1-percent of sites indexed by Google and MSN.

Around six-percent of all searches return at least one sexually explicit website, according to Stark, and the most popular search terms yield such a site close to 40-percent of the time.

Hansen counters that however “ineffective” the government may deem software filters to be, the nature of COPA renders the law far less effective.

“Filters are more than 90-percent effective, according to Stark,” Hansen said recently, during a break in the trial. “COPA – right out of the bat – doesn’t block the 50-percent
(hosted) overseas. So, COPA is substantially less than 50-percent effective.”

“Also, with filters, it’s up to the parents how to use it,” added Hansen, “whereas COPA requires a one-solution-fits-all (approach).”

The evidence submitted during the hearings, in particular some of the evidence rejected by Judge Lowell A. Reed, appears to support some of the ACLU’s claims concerning COPA’s weaknesses.

At the close of the November 15th hearings, attorneys for the DOJ attempted to enter into evidence “an overseas prosecution of events which occurred outside of the United States concerning internet websites where the wagerers gambled almost exclusively from the United States,” as described by DOJ attorney Kenneth E. Sealls.

The case in question that the DOJ wanted to enter into evidence is US v. BetOn Sports, which is, as of this moment, simply an indictment.

Hansen objected to the inclusion of the BetOn Sports indictment, on the grounds that the case is not relevant to COPA and, as the case has not been adjudicated, the indictment lacks any probative value.

Sealls countered that the indictment contains “language which is a situation which we present as almost analogous to the type of law that COPA is insofar that COPA’s overseas reach, we submit, would govern out-of-the-country internet websites where the activity is conducted from persons in the United States.”

“This is, your honor, something that shows that the Department could extend overseas the application of COPA,” Sealls added at a hearing last Wednesday.

When Judge Reed noted that the exhibit was “merely an indictment, not an adjudication and the statute language is not identical,” and pressed Sealls for reasons why it should be included, Reed conceded that was an accurate assessment, but argued that fact “really goes to the weight, not the admissibility (of the evidence) insofar that the indictment means that there was a prosecution brought.”

Sealls argued that while the statute in question is not COPA, and there has been no conviction or ruling of any kind by the court in the case, the case nonetheless serves as an example of the “overseas reach of a criminal statute concerning the use of the internet by persons in the United States when the transmission is coming from overseas.”

Judge Reed wasn’t persuaded by Sealls’ assertion that the BetOn Sports indictment was relevant or probative, and characterized Sealls’ argument as “the most bizarre way to prove a legal argument.”

“All it proves is that the Department of Justice – the United States of America, rather – has brought such a claim in its prosecutorial role in the United States,” Judge Reed observed. “That is all that it has proved. There is no binding effect. It has no legal – you could not rely on it in an argument before the court of appeals. It’s not binding on anybody. It’s not a published opinion. I fail to figure out the relevance.”

Sealls reiterated the DOJ’s position that the indictment was relevant, insofar as it demonstrated the DOJ’s “course of conduct” with respect to another internet-regulatory statute.

Judge Reed said that while he was “reluctant to turn down any evidence that may be helpful… I can’t figure what in the world I would do with it, quite frankly.”

Adding that he was “not annoyed in any way,” Judge Reed nonetheless noted that the he wasn’t sure that “the course of conduct of the Department of Justice is an issue in this case,” and declined the exhibit on the basis of relevance, sustaining the ACLU’s objection.

In a press release issued by the ACLU yesterday, the ACLU stated that Judge Reed’s ruling in the case is expected “in the next few months.”

More information on the case is available at the URLs below:

Trial transcripts are available at: http://www.aclu.org/freespeech/internet/27171res20061023.html

The ACLU’s central information page for the COPA hearings is located here:
http://www.aclu.org/freespeech/internet/onlinefreespeech.html

Live blogging from the trial by Rufus Griscom and Moe Tkacik of Nerve.com is available here: http://www.nerve.com/nerveblog/nervecopa.aspx?blogid=121