ACLU vs. Gonzalez: COPA Update

To Filter, or Not to Filter...is THAT the Question?

The Child Online Protection Act, or COPA, is back in the news. I caught up with this story through an E-Commerce Times article entitled "ACLU Battles Child Online Protection Act in Federal Court", by Jennifer LeClaire, dated 10/24/2006, and at Law.Com, through Shannon P. Duffy's 10/25/2006 article, "Latest Round in Web Porn Law Fight Begins".

Written in 1998, and passed in 1999, COPA has never been put into effect due to constitutionality issues. (See my earlier post relating to legislative efforts in this area here). COPA has been up in front of the federal bench twice already.

The court is asking whether technology has changed. Has filtering gotten better? Worse? Is that even the right question?

The ACLU argued:

"Technology is forever evolving, as are the tools people use to communicate. Internet content filtering has evolved since 1999...Unlike COPA, it can be used by parents who are concerned to block overseas sites, peer-to-peer speech, instant messages and other forms of speech. While not perfect, it protects children more effectively than COPA would. It can also be tailored to the age of the child and the values of the parent."

But the same argument goes for the technology of the CONTENT of the Internet. Content has become significantly more multimedia. It's increasingly difficult for filtering technology to figure out just what is in that content -- because it might be a video stream, a podcast, or other mixed-media. The advent of ever-more sophisticated "browser experience" technology (from Flash to AJAX) makes computer-identification of content very challenging indeed. The web-browsing experience has changed, making content much less static -- less like a magazine page, and more like a video game or amusement-park ride.

These facts have real impact.

One thing is clear: Since COPA was written eight years ago, the technology and content on the Internet have changed -- dramatically.

In its brief, the ACLU argued that

"Congress could enact a statute that permits the distribution of such material [that is harmful to minors], but instead requires Web site operators to include a rating, label, or code on the Web site that makes clear that harmful to minors material is available on the Web site. Such a rating, label or code could be placed on the initial home page of the site," the ACLU argues in its brief."

As a filtering vendor, we're all for that. It would make our job much easier. The question, of course, is, HOW DO YOU ENFORCE the rating? Who makes the call on what the site's rating should be? And how do you punish the offender? The Internet is a slippery place, with websites appearing and disappearing overnight. Unless there's some serious, sharp teeth in such a proposal, we're not going to make a dent in addressing this problem.

Rick Louis, spokesperson for the Association of Sites Advocating Child Protection, said:

"There are many points at which parents can activate filtering technology...The basic computer operating system offers parental controls. The browsers offer parental controls. ISPs offer parental controls. You can get commercial filtering software like Net Nanny and Cybersitting. You can download toolbars from the Internet. It just doesn't stop. There's so many ways for parents to set up filtering in their homes. They just need to do it."

But without rock-solid rating of content, most of these tools just get in the way, and then uninstalled. Even K9 Web Protection, the product my company makes available for free to parents, has its limitations. So, we're back to the fundamental question: To filter, or not to filter? Who should do it? Who should be accountable if it's not done "right"?

There is a proposal out there - CP80.org is the website -- that takes the ACLU argument of self-rating, and the governments argument about enforceability, and puts them together. It's a proposal that is technologically feasible. The proposal isn't perfect -- privacy, control, and a variety of social and cultural subtleties have to be addressed. But it's a way to take the dialog in the right direction. (And personally, I think the ACLU would be a great asset in the debate.) Let's get our best minds working on the best approaches, and stop fighting over obsolete laws that weren't even right when they were written. It might be good for somebody's ego, and it might make for a press story, but our kids really don’t benefit from it.

What do you think about COPA? About CP80? About whether the government should help you keep unwanted content out of your home? I look forward to your comments.