The Child Online Protection Act (COPA) was an American statute, passed in 1998, with the declared purpose of restricting access to any material defined as harmful to minors on the Internet. The statute never took effect as three separate rounds of litigation led to a permanent injunction against it in 2009.
The statute was part of a series of efforts by American lawmakers to regulate and restrict Internet pornography and other types of indecent or obscene material. The earlier Communications Decency Act had been struck down as unconstitutional by the Supreme Court in Reno v. ACLU in 1997.[1] COPA was a direct response to that decision, narrowing the range of material covered. COPA only limited commercial speech and only affected content creators based in the United States. COPA also attempted to replace the previous statute's restrictions on "obscenity" and "indecency" with a rhetorical focus on protecting children from harm.
COPA required all commercial distributors of "material harmful to minors" to restrict their sites from access by under-age children. That content was defined as material that by "contemporary community standards" was judged to appeal to the "prurient interest" and that showed sexual acts or nudity (including female breasts). This is a much broader standard than obscenity.[2]
In May 2002, the U.S. Supreme Court reviewed this ruling in Ashcroft v. American Civil Liberties Union (2002), and found the Circuit Court's reasoning insufficient and remanded the case back to that court,[5][6] where the injunction remained in effect as the legal proceedings continued. In March 2003, the Third Circuit again struck down the statute as unconstitutional, this time finding that it would hinder protected speech among adults.[7] The government again appealed to the Supreme Court.[8]
In June 2004, in the second iteration of Ashcroft v. American Civil Liberties Union, the Supreme Court upheld the injunction against enfocrcing the statute on First Amedment grounds. Notably, the court recommended software filters rather than government sanctions against content creators, per the findings of the Commission on Child Online Protection, which Congress created to evaluate the different techniques for restricting minors' ability to gain access to harmful material on the internet. The court also wrote that it had been five years since the district court had first considered the effectiveness of filtering software and that new and evolving software technologies would be less restrcitive ways to shield children from certain types of content.[9]
Further proceedings
Given the possible compelling government interest in protecting children from harmful Internet content, the Supreme Court remanded the case back to the Eastern Pennsylvania District Court for a trial in which the government would be required to argue that its techniques were the least restrictive means to achieve that goal. That trial begain in October 2006. The Department of Justice issued subpoenas to various search engines to obtain Web addresses and records of searches as part of a study undertaken by a witness in support of the statute. The search engines turned over the requested information, except for Google who challenged the subpoenas. The court limited the subpoena to a sample of URLs in Google's database, but declined to enforce the request for searches conducted by users; Google then complied.[10]
In March 2007, the district court once again struck down COPA, finding the statute facially in violation of the First and Fifth Amendments to the U.S Constitution.[11] In addition to the ACLU, several witnesses testified in defense of First Amendment rights on the Internet, including Marilyn Jaye Lewis, director of the Erotic Authors Association.[12] Judge Reed of the district court issued a permanent injunction against government enforcement of COPA, commenting that "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."[13] The government again appealed, and the case was heard again before the Third Circuit.[2] That court upheld the lower court's injunction in July 2008.[14][15] The government attempted one more appeal to the Supreme Court, but that court turned down the request in January 2009,[16] effectively shutting down the statute.[17][18]
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