Meddling With The Internet: The New "Cda2" Censorship Act

Online Newsletter, Nov 1, 1998

The issue of Internet censorship has once again reared its ugly head, thanks to the outgoing 105th Congress, which passed the "Child Online Protection Act" ["CDA2" or "CDA II" as it is being called] as part of the "The Internet Tax Freedom Act", [now included in that act as Title IV -- "Children's Online Privacy Protection Act of 1998"] -- and further hidden in the $500 billion Omnibus Appropriations bill sent to the President, who has signed it into law. The act becomes effective in 30 days.

The act is essentially the same as H.R. 3783 (Oxley), much a duplicate of Senate bills S. 1482 (Coats) and S. 1619 (McCain) [see 'Online Newsletter' March 1998 p.1].

The House was "tricky" - using the term "carefully drafted", in reviewing the constitutionality of the proposed law by ruling that the bill "is narrowly tailored" and "applies only to material posted on the World Wide Web." [That -is- the Internet!] It further reviews the bill as being "consistent with Reno vs. ACLU", under which the original CDA (Communications Decency Act) was ruled as being unconstitutional under First Amendment rights. -- Also troubling under the bill's definitions is that "Congress may regulate services offered over the Internet".

As of October 15, the American Civil Liberties Union (ACLU), the Electronic Privacy Information Center (EPIC), and the Electronic Frontier Foundation (EFF) had posted their intention to sue. The ACLU, and EPIC and EFF acting as co-plaintiffs and co-counsel, led the successful challenge to the CDA (Communications Decency Act) which was struck down last year by the Supreme Court. (see 'Online Newsletter' September 1997 p.1). - The groups said that they anticipate filing a legal challenge quickly on behalf of a diverse range of online speakers representing news organizations, gay and lesbian groups, artists, booksellers, and any websites that distributed the Starr report.

"It's deja vu all over again," said Ann Beeson, staff attorney for the ACLU and a member of the legal team that led the fight against the 1996 federal Internet law. "Just like the CDA, this bill will once again criminalize socially valuable adult speech and reduce the Internet to what is considered suitable for a six-year-old." -- "Following a landmark Supreme Court ruling and constitutional objections from the Justice Department," Beeson added, "Congress can plead politics, but it can't plead ignorance."

Barry Steinhardt, president of the EFF, agreed. "It is the height of irony that the same Congress that plastered the salacious Starr Report all over the Internet now passes a plainly unconstitutional law to suppress a vaguely defined category of 'harmful' material," he said. "You would think Congress would have learned that 'harmfulness' is in the eye of the beholder."

David Sobel, EPIC's general counsel, said, "This law violates both the free speech rights and the privacy of Internet users. It requires, in effect, that any adult wishing to receive constitutionally protected material must register with a website before receiving information." Sobel added, "We are confident that the courts will continue to protect the right of all Americans to receive information without sacrificing their privacy."

On September 11, 1998, the Internet Free Expression Alliance (IFEA), representing 24 organizations that included the ACLU, EFF, EPIC, and American Library Association (ALA), presented their opposition to the Child Online Protection Act (H.R. 3783) in a joint statement to the House Committee on Commerce's Subcommittee on Telecommunications, Trade and Consumer Protection. [http://www.ifea.net/joint_statement_9_98.htm] -- It was plainly ignored.

Just when and where the "Children's Online Privacy Protection Act of 1998" will be challenged and its progress through the courts will likely be announced first on the following Web sites:

ACLU (http://www.aclu.org)

EFF (http://www.eff.org)

EPIC (http://epic.org)

ALA (http://www.ala.org)

Stay tuned.

[Editor's Note: Please refer to our editorial in this issue on Internet censorship, and the underlying issues that are involved.]

[Editor's Update: As we went to press, President Clinton signed the Act into law. On October 22, 1998, the ACLU, EFF, EPIC, and others filed their lawsuit in the federal District Court in Philadelphia. The full text of the complaint filed is available at: http://www.epic.org/free_speech/copa/complaint.html]