Now that the Child Online Protection Act (“COPA”) has been declared unconstitutional again by the Third Circuit Court of Appeals, it is time to revisit the issue of age verification, children,1 and adult materials.Now that the Child Online Protection Act (“COPA”) has been declared unconstitutional again by the Third Circuit Court of Appeals, it is time to revisit the issue of age verification, children,1 and adult materials. While no self-respecting adult Webmaster would argue that children should have a right to view erotica, opinions are mixed regarding the actions Webmasters should take to accomplish this laudable goal.

Plenty of free explicit material exists on the Web, even today, with the purveyors justifying such content under the theory that it is the parents’ primary obligation to monitor their children’s Internet usage. Other Webmasters utilize a variety of age verification systems, such as credit card-based membership subscriptions, AVS firewalls or the now infamous and roundly discredited: “I’m over 18, let me in” button. Although the COPA law creates a “safe harbor” under which Webmasters can rely upon the AVS or credit card solution as a defense to any claim that they are providing harmful materials to minors, no court has recognized the legal validity of a simple click-through screen where the user asserts that he or she is an adult. This author has personally experienced the jeers from prosecutors and dismissive grins from presiding judges in response to arguments in support of the validity of an “I’m over 18” click through button.

The Third Circuit Court of Appeals, in rendering its decision once again striking the COPA law on First Amendment grounds, noted that requiring Website users to provide a credit card to confirm their age is not an acceptable solution, from a constitutional standpoint.2 While implementation of credit card or AVS screens to block material that is harmful to minors may be somewhat effective, its consequential effects do not pass constitutional muster. Initially, users may be less likely to access protected speech if they are required to provide personal information, including names, addresses and credit card numbers.3 The Third Circuit specifically found that Web users are simply unwilling to provide personal information in order to gain access to sensitive or controversial content.4

Secondly, a distinct set of constitutional concerns are presented where individuals are required to pay even small amounts of money for access to protected communications.5 In light of the constitutional concerns identified with the COPA law, it was again enjoined by the Circuit Court, and a second appeal to the United States Supreme Court is likely.

Aside from the constitutional concerns, this author has also obtained information that indicates that VISA specifically objects to the use if its credit cards for age verification purposes. Therefore, given the substantial lobbying power of the merchant banks, any new legislation proposed by Congress will likely not include the credit card option as an acceptable method of age verification.

Despite the fact that COPA has been enjoined on multiple occasions, it is still advisable for adult Webmasters to comply with the dictates of this law. First, the government has never promised that it will not attempt to retroactively prosecute those who are not in compliance, if the law is ultimately upheld by the United States Supreme Court. Secondly, it is simply the right thing to do to keep minors from accessing adult materials from a legal and moral standpoint. Importantly, a number of states have passed laws prohibiting businesses from providing adult materials to minors, and many of these laws appear to apply to online communications.

Although some such laws have been declared unconstitutional,6 there is no guarantee that a prosecutor in some state will not try to grab some headlines by mounting a criminal case against an adult Webmaster who is providing adult materials to minors without any form of age verification. Furthermore, although the issue of harmful materials is completely distinct from that of obscenity, obscenity cases become much harder to defend if the government can show that the allegedly obscene materials were also available to minors. That changes the focus of the case from restricting what adults can view and watch from the privacy of their own homes, to protecting children. Which case would you rather defend?

So what is a Webmaster to do, you say? This author has put a great deal of thought into this matter given the significant ramifications for our firm’s clients, as well as the industry in general. Initially, it should be noted that the COPA law recognizes several “affirmative defenses” to prosecution for providing harmful materials to minors. COPA’s affirmative defense provision reads as follows:

(1) Defense

(C) by any other reasonable measures that are feasible under available technology. [Emphasis added.]

It is the third affirmative defense that should spark the interest of the adult Webmaster community. Similarly, may states’ laws provide a defense to this type of charge if the business uses “good faith efforts” to keep adult materials away from minors, such as placing adult magazines behind a store clerk’s counter, out of reach of children, and blocking the front covers.

So what are acceptable “good faith” efforts to verify age without requiring personal identification and/or credit card payments? More and more these days, adult Webmasters are starting to see their colleagues implementing our firm’s verified birth date check warning page, which this author developed along with the assistance of some brilliant programmers. The idea here was to develop a method of age verification that utilized both the Unsworn Declarations Act, 28 U.S.C. §1746, along with the Electronic Signatures Act to allow the user to certify his or her date of birth and to provide that information under oath, before gaining access to adult materials. Several examples of this script and warning page language can be found on the following sites:

www.xxxgoldcontent.com

www.amplandmovies.com

www.bisexualbritni.com

The program will automatically check the current date on the server, to determine if the individual user is over the age of 18 on that date, based on the birth date provided under penalties of perjury. If so, the user can gain access to the free areas of the site without becoming a member, paying any money, or providing credit card information. The effectiveness of this procedure depends on the use of the specific verified declaration language under federal law, and reference to the Electronic Signatures Act, allowing the user to provide what amounts to an affidavit before gaining access to the site.

From a legal standpoint, this procedure is superior compared to simply clicking “I’m over 18” which has become something of a national joke in the courts, and will likely not provide an effective argument that the site has made a good faith effort to exclude minors from the free areas. Requiring the user to verify his or her birth date does a couple of things: Initially, in the event a minor submits a false birth date to gain access to the site, that will constitute an act of perjury, under federal law. The courts are less sympathetic to the claims of minors who commit felonies to obtain access to adult materials. When weighing the relative equities between a Webmaster attempting to exclude minors, and a minor committing perjury, it is hoped that the courts would be more sympathetic to the former. This situation is akin to the store clerk who is provided a fake driver’s license by a minor in the attempt to purchase tobacco products. However, in this case, the information is being provided under oath.

The other advantage of this system is the fact that, other than the birth date, no identifying information is being sought from the user. It is assumed that users who wish to remain anonymous given the sensitive nature of adult materials, will not be significantly deterred by providing a birth date, especially when the user’s corresponding name or address is not also required. This solution may address the constitutional concerns noted by the Third Circuit where users are required to pay or provide personal identifying information before gaining access to adult materials.

It should be noted that this is an innovative solution, which has not been tested in the courts. Therefore, it is uncertain how any particular court will react to this age check system. However, any Webmaster who decides to implement this script will be taking steps that are far beyond those taken by 99% of other Webmasters who provide free adult materials online. One caveat: Before you start copying and pasting the birth check language or computer script for your site, it is important to note that both are subject to copyright protection and have been registered with the United States Copyright Office. This method of age verification is only available to the author’s clients, who have agreed to a specific copyright license. However, this method is presented for purposes of academic debate, to illustrate that innovative solutions to this very difficult problem are possible.

Other attorneys or Webmasters in the industry may have already generated alternative solutions or methods, and still others may be in the works for future release. The point is: Adult Webmasters need to do something to keep adult materials away from children. Thus far, the industry has done a poor job of accomplishing this goal, as a whole. The government simply will not tolerate unfettered access by children to sexually explicit material, and will keep passing laws regulating the display of this content until one sticks.

From a business perspective, children are not a good source of traffic or conversions, and therefore there is no incentive to allow minors continued access to free adult materials. The same industry that helped push through most of the technological developments associated with mainstream online communications can find a way to keep children from viewing sexually explicit material. At the risk of infringing on a trademarked slogan: Just Do It!

1 ACLU v. Ashcroft, 322 F.3d. 240 (3rd Cir. 2003).

2 Id. at 258-260.

3 Id. at 258.

4 Id. at 259.

5 Id.

6 Reno v. ACLU, 521 U.S. 844, 863, 112 S.Ct. 2329, 2340, 138 L.Ed.2d 874 (1997); American Book Sellers Foundation for Free Expression v. Dean, 202 F.Supp.2d 300 (D. Vt. 2002); PSI Net, Inc. v. Chapman, 167 F.Supp. 878 (W.D. Pa. 2001), question certified, 317 F.3d 413 (4th Cir. 2003); Cyberspace Communications, Inc. v. Engler, 142 F.Supp.2d 827 (E.D. Mich. 2001); ACLU v. Johnson, 194 F.3d 1149 (10th Cir. 1999); American Libraries Association v. Pataki, 969 F.Supp. 160 (S.D.N.Y. 1997).

Lawrence G. Walters, Esquire is a partner with the law firm of Weston, Garrou & DeWitt, with offices in Orlando, Los Angeles and San Diego. Mr. Walters represents clients involved in all aspects of adult media. The firm handles First Amendment cases nationwide, and has been involved in much of the significant Free Speech litigation before the United States Supreme Court over the last 40 years. All statements made in the above article are matters of opinion only, and should not be considered legal advice. Please consult your own attorney on specific legal matters. You can reach Lawrence Walters at Larry@LawrenceWalters.com, FirstAmendment.com or AOL Screen Name: “Webattorney”.