Judge Blocks Child Online Protection Act

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A federal district court judge in Philadelphia this week ruled that a preliminary injunction be placed against the government's enforcement of the Child Online Protection Act pending a full trial on the constitutionality of the legislation.


Meanwhile, the Online Privacy Alliance said a new sweep of Web sites will be conducted next month to check the state of privacy policies posted by companies. Results of the study will be given to the Federal Trade Commission, which will present the findings to Congress this spring. Last year's sweep found only 14 percent of 1,400 sites made "even a passable attempt" at publishing their information collection and use practices online.


The decision on the Child Online Protection Act marks the second time Judge Lowell A. Reed has decided against allowing the law to take effect. Sources familiar with the legal ramifications of the case indicate his ruling will bar the government from putting the act into effect until a decision has been handed down by the U.S. Court of Appeals for the Third Circuit, followed by a probable hearing before the Supreme Court.


The essence of Reed's perspective on the act was perhaps most apparent in the court's declaration that "While the public certainly has an interest in protecting its minors, the public interest is not served by the enforcement of an unconstitutional law."


An amicus brief filed last month by a broad coalition of civil liberties groups in favor of protecting children online through industry self-regulation rather than legislative oversight appears to have buttressed the plaintiff's case against the government. Indeed, another excerpt from the court's decision reveals how well the plaintiff's arguments were apparently received: "The record before the court reveals that blocking or filtering technology may be at least as successful as COPA would be in restricting minors' access to harmful material online without imposing the burden on constitutionally protected speech that COPA imposes on adult users or Web-site operators."


Critics characterize the act as a massive and unnecessary legal nuisance that not only fails to protect children's interests in the cyber community but erodes Americans' right to free speech as well. They also argue it could be used to access fines against businesses in the amount of $50,000 a day if they provide access to material online deemed "harmful to minors."


In published reports, Jerry Berman, executive director of the Center for Democracy and Technology, proclaimed the decision to block enforcement of the act as a "major victory for free speech online." And Judith Krug, executive director of the Freedom to Read Foundation, said her organization would "continue to use every opportunity to lay out our complete line of reasoning that shows how detrimental this law is to free speech on the Internet."


The ruling, known as ACLU vs. Reno, also was applauded by the Internet Content Coalition, a business interest group founded in 1997, which also supported the Supreme Court's decision to overturn the Communication Decency Act.


"The ICC believes there are a number of voluntary, less restrictive and more effective solutions parents and educators can employ to protect children from inappropriate materials on the Internet," said Christopher Barr, co-chairman of the ICC.


Although industry and privacy groups may be encouraged by this most recent judicial decision affecting the future of Internet commerce and regulation, it's clear more battles are on the horizon. By Feb. 1, five House bills were introduced that cover a range of regulatory proposals likely to raise eyebrows in the online business world as well as rustle the immediate attention of direct marketers:


* Use of consumer mailing lists compiled by third parties.


* New restrictions on the commercial use of Social Security numbers.


* Increased protection over personal financial data.


* New regulations and penalties relating to business disclosure of consumer information without consent.


* Individual use or recording of personal information obtained on private property.


Next month's sweep to check Web sites will be quite different from last year's, said Johanna Ramos-Boyer, a spokeswoman for Ignition Strategic Communications, which is handling public relations for the Online Privacy Alliance.


"This time, the study is only going to look at actual businesses. They are not going to include government or institutional Web sites," Ramos-Boyer said.


Mary J. Culnan, associate professor at Georgetown University's McDonough School of Business, will lead the study. She said 150 sites will be checked in each of two categories: an overall random sample of Web sites captured for analysis using the Dun & Bradstreet database and a direct study of the most frequently visited Web sites.


"We're looking for two kinds of things: a privacy policy, meaning a comprehensive description in one place of the site's policy. We will also be looking for information practice statements," she said.


Legislators are expected to review the report along with information about online privacy seal programs, the Commerce Department's ongoing negotiations regarding the European Privacy Directive and matters that fall under the guidance of the Federal Communications Commission.


Since last year, the Online Privacy Alliance has reached out to thousands of executives at hundreds of companies encouraging them to ensure that meaningful privacy policies are posted on their Web sites and that their businesses subscribe to and support online seal programs such as BBBOnline or TRUSTe.


Members of the Internet Content Coalition: Adobe, BPI, CBS Online, CNET, CollierNewfield, ConEX, Digimarc, Infonautics, MSNBC, Marvel Online, The New York Times, Playboy Enterprises, Reuters New Media, Sony Online, Time Inc., Warner Brothers Online, Warner Music Group, The Weather Channel, ZDNet.


Amicus Brief Signatories Supporting ACLU's Case Against Child Online Protection Act: Association of American Publishers, American Society of Newspaper Editors, BiblioBytes, Center for Democracy and Technology, Comicbooks Legal Defense Fund, Commercial Internet eXchange Association, Computer and Communications Industry Association, Freedom to Read Foundation, Interactive Digital Software Association, Internet Alliance, Magazine Publishers of America, National Association of College Stores, National Association of Recording Merchandisers, Newspaper Association of America, People for the American Way Foundation, Periodical and Book Association of America, PSINet, Publishers Marketing Association, Recording Industry Association of America, Society of Professional Journalists.
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