ACLU: DOJ's defense of COPA inconsistent

The ACLU claims the US government's defense of COPA is too inconsistent to uphold the law.

A lawyer for the American Civil Liberties Union (ACLU) argued Monday that the government's defense of the controversial Child Online Protection Act (COPA) was inconsistent in defining what kind of online content is harmful to minors, and so the law should continue to remain unenforceable because it violates free speech.

Chris Hansen, a staff attorney for the ACLU, said that witnesses in the government's case in support of COPA could not seem to agree on what kind of sexually explicit material or content that shows human nudity is offensive and what has artistic, scientific or political value.

Because of this, COPA can be interpreted broadly and can be imposed upon legitimate Web sites such as Nerve.com, Salon.com and the Sexual Health Network, which all were named as co-plaintiffs in the case, the ACLU argued.

Hansen made his arguments supporting why COPA is unconstitutional in a Philadelphia courtroom as part of closing arguments in ACLU v. Gonzalez, a four-week trial that wrapped up Monday.

Hansen said that alternatives to a federal law -- such as content filters, parental supervision and education -- are effective in preventing children from being exposed to indecent and pornographic material online.

He also argued that because COPA only protects content that is sent to the Web via HTTP (Hypertext Transfer Protocol) and not Web-based content in instant messages, VOIP (voice over Internet Protocol) or content sent via FTP (File Transfer Protocol), it is too narrow to truly protect children from pornographic content online.

In the law's defense, attorneys from the U.S. Department of Justice tried to poke holes in the ACLU's arguments, rejecting its claims that there are effective alternatives to COPA, such as parental monitoring and content filters, to protect children from harmful material online.

"Single-parent households are common, as are places where two parents work full-time," said Joel McElvain, a Justice Department attorney. "It's nice to imagine every family can constantly keep in contact with their children's [Internet usage] but they need further help. COPA offers that help."

McElvain also listed examples of sites that did not violate COPA that were blocked by well-known content filters. In this way, filters sometimes serve to block children from accessing helpful Web sites, thus "hindering children form learning about the world around them," he said.

Justice Department lawyers also requested that Judge Lowell A. Reed Jr., who is hearing the case, rule that the ACLU and several of its co-plaintiffs in the case -- Free Speech Media, Philadelphia Gay News, Powell's Bookstores, Electronic Frontier Foundation and American Booksellers Foundation for Free Expression -- have no legal standing in the case because their members were not called to testify about how COPA affected them. If Reed makes that decision, the ACLU's entire case would be irrelevant.

The trial in Philadelphia was the culmination of eight years of litigation by the ACLU against COPA, which was signed into law in 1998. The law can impose severe criminal and civil penalties -- including stiff fines -- on individuals that put up content on the Web that the government considers harmful to minors.

Previously, a federal district court in Philadelphia and a federal appeals court found COPA unconstitutional, and in 2004, the U.S. Supreme Court upheld this ban on enforcing COPA. However, the Supreme Court also returned the ACLU's case against it to a Pennsylvania district court for a trial to see whether there are effective ways to keep children safe online that infringe upon speech less than COPA's criminal penalties.

The deadline for the parties in ACLU v. Gonzalez to submit any more materials for the discovery phase is Dec. 7. The judge is expected to rule by early next year.

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