Through the Looking Glass: Coping with COPA
Last week, a federal court in Philadelphia began hearing arguments on the legislation known as COPA. No, I’m not talking about DOPA, the Deleting Online Predators Act, or COPPA, the Children’s Online Privacy Protection Act. I’m talking about yet another legislative acronym: COPA, the Child Online Protection Act. Like so many legislative acronyms involving education, this one has found itself back in front of a judge. It’s the classic debate over government regulation versus technology-centered solutions to keep students safe - though as you’ll see, the positions of the government and free-speech advocates might not be what you’d expect. And where does media literacy education fit into the equation?
The case, ACLU v. Gonzales, is the latest round in a battle that goes back eight years, when Congress first passed the Child Online Protection Act. The idea behind the act was to force commercial website operators to restrict access by minors to avoid exposing them to material that might be deemed harmful to them. The law was drafted in the wake of another piece of legislation, the Communications Decency Act, which was trashed unanimously as unconstitutional by the US Supreme Court. Lawmakers hoped the COPA legislation would be more focused, and thus survive judicial scrutiny, but so far they haven’t had much luck. Appeals courts, arguing the law was too broad, have kept an injunction in place since the law was passed, preventing the government from going after website operators. The US Supreme Court has ruled on the legislation twice already, each time sending it back to lower courts for further review.
Shannon Duffy, in a summary of the case on Law.com, notes the uphill battle faced by the government:
It’s not all that often that a month-long trial begins in federal court where everyone knows from the start which side is likely to win.
But that was the situation Monday in ACLU v. Gonzales as the final round of litigation got underway in a challenge to the Child Online Protection Act (COPA), a law which threatens criminal penalties for commercial Web site operators that allow children to access material that is “harmful to minors.”Eight years after it was passed, COPA has never gone into effect because Senior U.S. District Judge Lowell A. Reed Jr. granted a preliminary injunction that, after two trips to the U.S. Supreme Court, won the approval of a 5-4 court. Although the majority was a slim one, the high court’s holding was that the ACLU and its co-plaintiffs are “likely to succeed” in proving that COPA is unconstitutional. But “likely” doesn’t mean certainly, and the Justice Department isn’t giving up the fight.
It comes as no surprise that the American Civil Liberties Union is taking a leading role in arguing against COPA. What may be surprising to many, though, is how they’re going about doing it. They take the position that COPA is unnecessary because filtering technology is effective enough to combat most instances of young people being exposed to inappropriate material. Even though they’ve been critical of filtering in the past, they’re embracing it for this case.
Chris Hansen, lead attorney for the ACLU, offered the following remarks during the trial’s opening statements.
This, your honor, is about free speech. It is about the First Amendment, and the First Amendment has always been controversial throughout the nation’s history. More particularly, every time a new technology comes into existence, people become concerned that the speech that will take place over that new technology will somehow be abusive or frightening or scary. As a result, every time there is a new technology there is a move to censor that new technology. We are talking here about moves to censor speech on the Internet….
… Filtering solves the underinclusiveness problem. It reaches overseas sites. It reaches noncommercial sites. It can be used to block access to e-mail and [instant messaging] and peer-to-peer and other forms of Internet communications. In other words, most of the underinclusiveness as represented by COPA is solved through filters. It solves the overinclusiveness problem. Adults don’t have to use filters. They can set up their computer; that only their children are covered by filters and they are not. It also adds additional levels of protection for children, including monitoring the sites that the children go to and tailoring the degree of filtering to the age and maturity of the child and to the values of the family….
… The evidence will show that filters are largely successful. The Department of Justice has stipulated that it uses Internet content filters on the Department of Justice’s websites, on the FBI’s websites, on the Bureau of Prisons websites and so on. They have stipulated those filters are effective in blocking access to sexually explicit material for the employees of the Department of Justice….… Although they won’t quite put it this crudely, the defendants argue that parents are too stupid to be able to use filters. Insulting argument. And it is wrong. Use of filters is quite simple. It is just as simple as most other computing programs. It is probably more simple than [Microsoft] Word, for example….
In essence, the ACLU is taking the position that the government has taken when it comes to the federal E-Rate program, which subsidizes school and library Internet access. In order to receive E-Rate funds, schools and libraries must institute filtering as a way of protecting students. And if the DOPA legislation passes, that rule would be increased to filtering a wide range of commercial interactive sites, including blogging tools, wikis and online social networks, whether they contain material harmful to minors or not.
Given this long-standing push by the federal government to increase filtering policies in schools, the Justice Department’s argument in the COPA case is, shall we say, ironic. Eric Beane, presenting for the Justice Department, noted in his opening statement:
Although there is a certain appeal to deferring to families and testing whether private solutions work better than government action might work, this experiment has been attempted and this experiment has failed. The evidence will show that a shocking amount of pornography slips through these filters and into the hands of children. The evidence will show that the patchwork of status quo solutions is not working well enough…. That the only way to adequately protect children is to regulate the problem at the source, the commercial pornography industry.
So it seems we’re through the looking glass. The government’s position can be summarized as filters=bad, while the ACLU insists, filters=good; not exactly the positions you expect to hear from each side. Of course, it’s understandable in the context of a court case that both sides would present an argument that is either black or white, but not gray. I wonder, though, how all of this will affect the DOPA legislation, which is still lingering in Congress. If the Justice Department were to win the day by arguing that filters are ineffective, would that poke holes in DOPA, making it more likely to fail on appeal? And if the ACLU wins, as conventional wisdom suggests, will Congress begin to call the ACLU their best friends in the fight for making DOPA a reality. Either way, I feel myself getting dizzy from the possibilities.
The ACLU’s Chris Hansen, however, did go on to hint at how there may be alternative to filtering:
… Filters, however, are not the only alternative that parents can use if they are concerned about protecting their children. One very important alternative is educating your child as to the nature of the Internet, how to engage in searches, what is inappropriate for them and what is appropriate for them…. … Schools don’t rely solely on filters. In fact, they spend considerable time educating the students about the nature of the Internet, about how to conduct searches and about how to find what it is that they want to find without finding things they don’t want to find. Parental education, school education, librarian education all play a very significant role in protecting children.
Yet in these back-and-forth decency wars that have waged for almost a decade now, we never seem to find the supporters of better media literacy opportunities winning the day. It’s always government regulation versus technological solutions, while people-centric solutions get lost in the fog of war. What will it take for us to create a stronger national dialog about the need for improving student media literacy as part of the debate over how to keep them safe in the 21st century? -andy