A large coalition of industry and civil rights groups signed an amicus brief this week supporting the American Civil Liberties Union's legal case against the Child Online Protection Act, citing opportunities to broaden the argument that it violates the constitutional right of Americans to free speech.
The coalition includes publishing and technology industry representatives, Internet service providers, online marketers and journalists from more than 20 organizations. Many who signed the brief were plaintiffs in a previous case against the government over the Communications Decency Act, which was ruled unconstitutional by the U.S. Supreme Court in June 1997.
Filing an amicus brief, according to Jim Dempsey, senior staff counsel at the Center for Democracy and Technology, Washington, “provides an opportunity to broaden the court's perspective on the case in two respects. First, it shows the court that there is a much broader range of people in the mainstream, in civil rights groups and in corporate America that are opposed to this censorship law than simply those who filed the original lawsuit. Second, the brief presents to the court additional legal reasons for striking down the law — reasons that are somewhat different from those presented by the plaintiffs, but which we believe there are room for making.”
Dempsey said one of those points includes the argument that industry already provides enough innovative Internet content filtering and blocking tools — that consumers are better off relying on technology available through the marketplace rather than any government oversight.
“Private user-controlled, nongovernmental filtering tools are more effective than government regulations” he said. “And under the law, if there is a more or equally effective remedy available, then the First Amendment says the government has no business regulating what individuals can control themselves.”
Jerry Berman, executive director of the CDT concurred, commenting in a public statement, “These technologies are effective and improving every day. They are easily available, simple to use and inexpensive or free. Those signing this brief represent a very broad group with diverse interests who agree on at least one thing — this new law is just as unconstitutional as the government's last attempt at Internet censorship.”
How the case eventually will affect Internet privacy is unclear, but Anne Jennings, manager of marketing communications at TRUSTe, Palo Alto, CA, a nonprofit Internet privacy-seal program, said, “Either way, if COPA is struck down or not struck down, it will impact the program even though we don't really get involved with content. We do, however, advocate self-regulation. And if one of our licensee sites is targeting children, they must abide by our privacy protection program.”
Privacy expert Robert Gellman wasn't sure what effect the filing would have.
“Many things go into determining a group's strategies,” he said, “and they usually involve all sorts of complex legal decisions, including politics, opinions and lots of other things. In this case, I think it's relatively unusual to see an amicus brief filed at this level, but it looks like everyone thinks it's important enough to do or they wouldn't do it.”
COPA was temporarily blocked from enforcement by prosecutors after Federal District Court Judge Lowell A. Reed Jr. ruled in November that the law may violate the First Amendment. A preliminary injunction hearing is scheduled for Jan. 20. Reed is expected to issue a ruling by Feb. 1.
Information on the Child Online Protection Act and the Supreme Court challenge to the Communications Decency can be found online at www.cdt.org/speech.