If life were a movie, the credits would have rolled after 1997's happy ending when the Supreme Court unanimously struck down key provisions of the Communications Decency Act, the first federal law designed to regulate Internet speech. But life is more like a commercial featuring the Energizer Bunny - it keeps going, and going, and going - and this is particularly true in the case of legislators interested in regulating a new medium of communication. As a result, 1998 saw action in all three branches of government reprising the debate over the Communications Decency Act.

Legislative Actions

   Passage of COPA. Late in the 105th Congress, legislators adopted the Child Online Protection Act (COPA), which prohibits commercial "harmful to minors" material on the World Wide Web unless the Web site includes certain measures to restrict access. The law was adopted as part of the Omnibus Appropriations Act. Ironically, the House Commerce Committee's Subcommittee on Telecommunications conducted hearings on COPA on Sept. 11, 1998, the same day that Special Prosecutor Kenneth Starr's sexually descriptive Referral to the House of Representatives on Impeachment was posted on the Internet. Rep. Bobby Rush (D-Ill.), a COPA supporter, subsequently announced: "Let us send a clear message to America's children that pornography, from whatever source, be it from Congress, or be it from those who propagate, and those who profit from this filth, is wrong and should not be on the Internet." Rep. Rush Supports CDA II and Condemns Release of Starr Report, Tech Law Journal (http://www.techlawjournal.com/censor/80925rush.htm).

   Political hyperbole aside, the new law does not apply to all sexually oriented information on the Internet. COPA prohibits making "any communication for commercial purposes" over the World Wide Web that "is available to any minor and that includes any material that is harmful to minors." The law generally uses the three-part test for obscenity set out in Miller v. California as applied to minors, and thus covers material that "depicts, describes, or represents, in a manner patently offensive with respect to minors, an actual or simulated sexual act or sexual contact, an actual or simulated normal or perverted sexual act, or a lewd exhibition of the genitals or post-pubescent female breast." COPA defines a "minor" as "any person under 17 years of age."

   The material covered by COPA is unlikely to be limited just to "pornography." In striking down the New York "harm to minors" law for on-line communications (on Commerce Clause grounds), the U.S. District Court for the Southern District of New York wrote that "art on the Internet that some might conclude was Oharmful to minors'" includes "[f]amous nude works by Botticelli, Manet, Matisse, Cezanne, and others." American Library Association v. Pataki, 969 F. Supp. 160 (S.D.N.Y. 1997). Similarly, when Ohio considered adopting a similar law in 1998, the legislative history stated that the legislation was to be interpreted according to the decision in Grosser v. Woolett, 341 N.E.2d 356 (Ohio 1974) (holding that "One Flew Over the Cuckoo's Nest" and "Manchild in the Promised Land" lack literary merit and are harmful to minors).

   The law applies to entities "engaged in the business" of making communications over the World Wide Web. This means that the entity "devotes time, attention, or labor to such activities, as a regular course of such person's trade or business, with the objective of earning a profit." This restriction applies to entities that "knowingly" post harmful-to-minors material on the Web, or knowingly "solicit" such materials to be posted on the Web. However, it is not required that such postings be "the person's sole or principal source of income" or that the person actually make a profit. Thus, COPA may apply to an on-line business even where a very small part of its trade involves "harmful" materials.

   The law establishes criminal sanctions of a $50,000 fine and six months imprisonment for "knowing" violations. It imposes an additional fine of $50,000 for "intentional" violations of the law, and each day of noncompliance is considered a separate violation. The law also establishes an additional civil fine of $50,000 for each "knowing" violation, and each day of noncompliance is considered a separate violation.

   Like the CDA, COPA establishes various affirmative defenses in the event of a prosecution. If charged with a violation, a defendant may demonstrate that it restricted minors' access by use of a credit card, debit account, adult access code, adult personal identification number, digital certification of age, or other "reasonable" measure that is feasible under available technology.

   Child Pornography Notification Requirements. On Oct. 30, 1998, President Clinton signed into law the Protection of Children From Sexual Predators Act of 1998. Pub. L. No. 105-314. Section 227 of the new law establishes reporting requirements by electronic communication service providers when they discover child pornography on their systems. The law establishes a duty to report such examples when the service provider "obtains knowledge of facts or circumstances from which a violation of [federal child pornography laws] is apparent." It establishes fines for failure to report such instances. However, the provision does not require a service provider "to engage in the monitoring of any user, subscriber, or customer of that provider, or the content of any communication of any such person."

   Many on-line service providers, such as America Online, have established corporate policies of cooperating with law enforcement authorities when probable violations of law are brought to their attention. It is not yet certain what changes in such policies - if any - will result from the adoption of Section 227, since the law does not define what "facts or circumstances" should alert an Internet service provider that a violation of child pornography laws "is apparent." Recent actions by the New York attorney general's office against two New York service providers and subsequent litigation (described below), although not a result of Section 227, may shed some light on this question. Additionally, U.S. Attorney General Janet Reno has not yet designated which federal agencies should receive the reports.

Executive Branch Actions

   COPA.President Clinton signed the Omnibus Appropriations Act on Oct. 22, 1998, which included COPA. Before the law was adopted, however, the Department of Justice sent a lengthy letter to the chairman of the House Commerce Committee to express "serious concerns" about the legislation. Letter from L. Anthony Sutin, acting assistant attorney general, to Rep. Thomas Bliley (Oct. 5, 1998).

   The letter noted that COPA would impose a content-based restriction on "the vast democratic fora of the Internet" and expressed uncertainty about how constitutional analysis of the law "might be affected by adaptation of such a scheme from the bookstore context to the unique medium of the Internet." DOJ pointed out that it may be more difficult for Internet content providers to segregate minors from adults than it is for bookstore operators because the Internet is a "dynamic multifaceted category of communications." It also suggested that COPA contains numerous ambiguities concerning the scope of its coverage. Noting that the law's definition of what may be harmful to minors "differs from those used in the states," DOJ stated that "[p]articular ambiguity infects the first of the three criteria for material that is Oharmful to minors,'" and that it is uncertain which community standards apply or how the issue of serious merit applies to "average" or "reasonable" older adolescents. While noting that the legislation established a commission to investigate methods of dealing with on-line pornography, the DOJ letter suggested that it would have been better to conduct a study before, and not after, enactment of a law.

   Finally, DOJ noted that enforcement of COPA "could require an undesirable diversion of critical investigative and prosecutorial resources that the Department currently invests in combating traffickers in hard-core child pornography, in thwarting child predators, and in prosecuting large-scale and multidistrict commercial distributors of obscene materials." According to the DOJ letter, such a diversion "would be particularly ill-advised in light of the uncertainty concerning whether the COPA would have a material effect in limiting minors' access to harmful materials."

   Notification Requirements. Although there have been no federal decisions yet pursuant to Section 227 of the Protection of Children From Sexual Predators Act of 1998, actions by the New York attorney general in 1998 provided a possible preview of things to come. In October 1998, as part of a wider crackdown on individuals involved in the transmission of child pornography, the attorney general seized computer equipment at two upstate New York Internet service providers (ISPs). The attorney general's office, in a press release, said that the seized equipment included "newsgroup servers that were used to facilitate the child porn transmissions." See Vacco Zaps Worldwide Child Pornography E-Network, Oct. 28, 1998 (www.oag.state.ny.us/press/oct98/oct28_98.html). Although neither ISP was charged with a crime, they were described by authorities as being under investigation for "the knowing possession of criminal images." Paul Festa, ISPs May Face Charges Over Child Porn, C/Net News.com, Oct. 30, 1998 (www.news.com/ News/Item/0,4,281169,00.html?st.ne.fd. gif.e). As explained in a subsequent Internet posting by Michael McCartney, an investigator in the attorney general's office, where "the name alone [of a newsgroup] is a very good indicator of the content and the ISP chooses to do nothing about it, additional action may be taken under the possession theory."

   The two ISPs affected by the seizures, BuffNET and Dreamscape, protested that they were not responsible for materials on the Internet created and transmitted by unknown parties. They compared the attorney general's actions to "seizing envelopes to combat mail fraud" or "taking the cable for what's on TV." Both indicated that they had long cooperated with law enforcement authorities and rejected any suggestion that they had actual notice of the existence of child pornography on their systems. In November 1998, one of the ISPs filed a lawsuit seeking injunctive and declaratory relief with respect to the attorney general's seizure action. Dreamscape Online, LLC v. Vacco, (N.D.N.Y. filed Nov. 24, 1998).

Actions in the Courts

   Final Actions on CDA. In a final remaining challenge to two of the surviving provisions of the Communications Decency Act, the U.S. District Court for the Northern District of California denied the plaintiff's motion for injunctive relief and dismissed the complaint. However, the court significantly narrowed the scope of the statute.

   In ApolloMedia Corp. v. Reno, 19 F. Supp.2d 1081 (N.D. Cal. 1998), the publisher of a purposefully offensive Web site (www.annoy.com) challenged the constitutionality of Sections 223(a)(1)(A) and 223(a)(2) of the Communications Decency Act, which prohibit on-line communications that are "obscene, lewd, lascivious, filthy, or indecent, with intent to annoy, abuse, threaten, or harass another person." The specific sections at issue were not challenged in Reno v. ACLU, 521 U.S. 844 (1997), in which the Supreme Court invalidated CDA provisions restricting the transmission or display of "indecent" communications. The plaintiff in ApolloMedia Corp. argued that the surviving sections of the CDA unconstitutionally restricted its Web site, through which it and visitors to the site communicated "strong views" to public officials and others using expression that "may be considered indecent in some communities."

   In response to the plaintiff's argument that the prohibition on "indecent" communications was overly broad, the government argued that the CDA provisions should be interpreted to apply only to "obscene" communications made with the "intent to annoy." The court agreed, noting that the statute should be interpreted narrowly to avoid constitutional problems. Distinguishing the history of broadcast regulation, the court noted that "in the context of print media and film, the Supreme Court has read statutory Ostrings of words' [that include prohibitions on filthy or indecent speech] to proscribe only material constituting obscenity within the meaning of Miller." ApolloMedia Corp., 19 F. Supp.2d at 1090. See Hamling v. United States, 418 U.S. 87 (1974).

   COPA. Predictably, CDA II spawned ACLU v. Reno II. On Oct. 22, 1998, the day President Clinton signed COPA into law, the ACLU filed suit in the U.S. District Court for the Eastern District of Pennsylvania challenging the law's constitutionality. Representing various content providers on the World Wide Web, the ACLU argued that COPA infringes upon constitutionally protected speech of both minors and adults, and that the law is unconstitutionally vague.

   In November 1998, Judge Lowell A. Reed issued a temporary restraining order blocking enforcement of COPA. ACLU v. Reno II, ___ F. Supp.2d ___, 1998 WL 813423 (E.D. Pa. 1998). Although Judge Reed acknowledged that Congress has a compelling interest in shielding children from materials that are not obscene by adult standards, he found that plaintiffs such as A Different Light Bookstore and Salon magazine would suffer "serious and debilitating effects" if they attempted to rely on COPA's affirmative defenses. Without the ability to effectively use the affirmative defenses, according to the court, "COPA on its face would prohibit speech which is protected as to adults."

   In addition, Judge Reed found that "fears of prosecution under COPA will result in the self-censorship of [some plaintiffs'] online materials in an effort to avoid prosecution. This chilling effect will result in the censoring of constitutionally protected speech, which constitutes an irreparable harm to the plaintiffs." Ultimately, while the court agreed that the "public certainly has an interest in protecting its minors," it concluded that "the public interest is not served by the enforcement of an unconstitutional law."

   The court will consider the plaintiffs' motion for a preliminary injunction in early 1999.