By Ellen Nakashima and Sam Diaz
Washington Post Staff Writers
Friday, March 23, 2007
A federal judge in Philadelphia yesterday ruled against a 1998 U.S. law that makes it a crime for operators of Internet sites to let anyone under 17 have access to sexual material, rebuffing the government's argument that software filters are ineffective and upholding earlier rulings that the law infringed on free-speech rights.
In a detailed decision, Senior U.S. District Judge Lowell Reed Jr. found that the Child Online Protection Act would not be effective in protecting children from online pornography, and that parents could shield their children by using software filters and other, less restrictive means that do not curtail adults' rights to free speech.
The case has touched off battles over several major issues, including the government's role in keeping minors safe online and the limits of free speech for commercial Web sites. Last year, the case sparked another debate after the government tried to subpoena the records of the major Internet search engines so it could perform a test in support of its argument about filters, raising concerns about individuals' privacy on the Internet.
Government attorneys are reviewing the decision and have not decided whether to appeal, Justice Department spokesman Charles Miller said.
The law was blocked from taking effect in 1998, and a number of courts since then, including the Supreme Court, have upheld the injunction. Reed's ruling comes after a four-week trial last October.
"Perhaps we do the minors of this country harm if First Amendment protections, which they will with age inherit fully, are chipped away in the name of their protection," Reed said in issuing the permanent injunction, noting his "personal regret" at having to reject an attempt to protect children from harmful material.
The American Civil Liberties Union, which sued on behalf of a diverse group of Web site operators, claimed another victory. "The courts have ruled, once again, that speech on the Internet is protected," ACLU Executive Director Anthony D. Romero said. In 1997, the Supreme Court ruled in the ACLU's favor in a landmark case protecting speech on the Internet.
The Child Online Protection Act set fines of up to $50,000 a day and up to six months in prison for anyone who posts sexual material for commercial purposes "that is harmful to minors." It would have required age verification through a credit card number or other proof of age.
The crux of Reed's argument is that there is no effective way for a Web site owner to screen out minors, and to avoid risk of criminal penalties, the sites would self-censor. Free speech advocates say that could result in a loss of appropriate and valuable content for adults, including information about safe sex or art galleries with modern photography.
"Had the decision gone the other way," ACLU staff attorney Chris Hansen said, "the Web would have had to dumb down. It would have made the entire Web homogeneous and bland so that a 6-year-old could read everything on the Web without anyone objecting."
Supporters of the law called the decision "a tragedy." Marsali Hancock, president of the Internet Keep Safe Coalition, a national group made up of governors, attorneys general and child advocates, said: "Every family has a challenge to help their children get the best from technology. Today's decision makes that harder. It's a very sad day as far as children and the Internet."
Reed's ruling reflects dramatic changes in the Internet and technology since the law was passed. He found that, today, a little more than 1 percent of all Web pages are sexually explicit. Of those pages, he said, a "substantial number," about 50 percent, originate overseas. The law would not cover those.
The judge examined in detail the effectiveness of filtering technology, noting that a variety of products exist that allow parents to customize blocking patterns to ensure that each child sees only the content the parent wants that child to see. Reed said that filters were widely available and often offered free by service providers. He noted that even the government's own expert witness concluded that software filters are effective, the vast majority blocking at least 95 percent of sexually explicit Web pages.
Reed criticized the law as overly broad and vague. He found that setting up credit card or payment systems as a way to keep minors out would impose a financial burden on site owners, and that requiring users to go through an age verification process would lead to a "distinct loss of personal privacy."
While agreeing with Reed that filtering software is effective in blocking access to questionable Web sites, Aaron Kenny, co-founder and chief technology officer of SafeBrowse, which makes a filter called Safe Eyes, said it is difficult for the government to keep up with technology. "It's not in the cutting edge of where the Internet is," he said.
He noted that Instant Messaging services, for instance, now include voice communications, webcam video conferencing and IM file sharing. "The capabilities to intercept video and those sort of things is a technology that really hasn't come around yet," Kenny said. "In the end, it always comes down to the parent to protect their children."
Reed's ruling, said John Morris, staff counsel with the Center for Democracy & Technology, endorses the idea that the best safeguard is "a combination of educating kids, parental supervision and the use of filtering technology."
"I'm stoked," said plaintiff Aaron Peckham, 26, a Silicon Valley software engineer who founded the Web site UrbanDictionary.com. "I would have been scared if a law like that had been in place."
Staff researcher Richard Drezen contributed to this report.