harbor if they imposed technical barriers to
minors’ access.
Even before it took effect, the CDA was challenged in federal court by a group of civil liberties
and public interest organizations and publishers
who argued their speech would be chilled by fear
of the CDA’s enforcement. The three-judge district court panel concluded that the terms “indecent” and “patently offensive” were so vague that
enforcement of either prohibition would violate
the First Amendment. 21 “As the most participatory form of mass speech yet developed,” Judge
Dalzell wrote in a concurring opinion, “the
Internet deserves the highest protection from
governmental intrusion.” 22 The U.S. Supreme
Court affirmed this holding in 1997, invalidating
the CDA’s “indecency” and “patently offensive”
content prohibitions. 23 In the landmark case
Reno v. ACLU, the Court held that CDA was not
the “least restrictive alternative” by which to protect children from harm. Rather, parent-imposed
filtering could effectively block children’s access
to indecent material without preventing adults
from speaking and receiving this lawful speech. 24
U.S. lawmakers responded to the Supreme
Court’s decision in Reno v. ACLU by enacting the
Child Online Protection Act (COPA)—a second
attempt at speaker-based content regulation. In
COPA, the Congress directed its regulation at
commercial distributors of materials “harmful to
minors.” 25 The slightly narrower focus of COPA,
nicknamed “son of CDA,” did not solve the
Constitutional problems that doomed the CDA.
The district court enjoined COPA on First
Amendment grounds. 26 As this volume went to
press, the district court had just struck down
COPA, finding it void for vagueness and not narrowly tailored to the government’s interest in protecting minors. Once again, the court held that
criminal liability for speakers and service
providers was not the “least restrictive means” to
accomplish the government’s purpose because
the private use of filtering technologies could
more effectively keep harmful materials from children.
Plaintiffs successfully argued that CDA and
COPA would chill the provision and transmission
of lawful Internet content in the United States.
Faced with the impossible task of accurately
identifying “indecent” material and preemptively
blocking its diffusion, ISPs would have been
prompted to filter arbitrarily and extensively in
order to avoid threatened criminal liability, while
writers and publishers felt compelled to self-censor.
Stymied at restricting the publication of
explicit material, Congressional leaders changed
their focus to the recipient end of the equation.
The Children’s Internet Protection Act (CIPA) of
2000 forced public schools and libraries to use
Internet filtering technology as a condition of
receiving federal E-Rate funding. A school or
library seeking to receive or retain federal funds
for Internet access must certify to the FCC that it
has installed or will install technology that filters
or blocks material deemed to be obscene, child
pornography, or material “harmful to minors.” 27
The Supreme Court rejected First Amendment
challenges to CIPA, holding that speakers had no
right of access to libraries and that patrons could
request unblocking. 28 In response, some libraries
and schools have rejected E-Rate funding, but
most have felt financially compelled to install the
filters.
The aftermath of CDA, COPA, and CIPA has
left the business of Internet filtering largely to private manufacturers competing for market share.
Schools, businesses, parents, and other parties
wishing to (or compelled to) block access to certain content have a broad range of competing
software packages available to them. Some programs permit access only to whitelists of preapproved sites, but most services generate
blacklists of blocked sites through automated
screenings of the Web and, in some cases, realtime monitoring. Whatever their configuration,
these products and the content they permit and
Regional Overviews
229
minors’ access.
Even before it took effect, the CDA was challenged in federal court by a group of civil liberties
and public interest organizations and publishers
who argued their speech would be chilled by fear
of the CDA’s enforcement. The three-judge district court panel concluded that the terms “indecent” and “patently offensive” were so vague that
enforcement of either prohibition would violate
the First Amendment. 21 “As the most participatory form of mass speech yet developed,” Judge
Dalzell wrote in a concurring opinion, “the
Internet deserves the highest protection from
governmental intrusion.” 22 The U.S. Supreme
Court affirmed this holding in 1997, invalidating
the CDA’s “indecency” and “patently offensive”
content prohibitions. 23 In the landmark case
Reno v. ACLU, the Court held that CDA was not
the “least restrictive alternative” by which to protect children from harm. Rather, parent-imposed
filtering could effectively block children’s access
to indecent material without preventing adults
from speaking and receiving this lawful speech. 24
U.S. lawmakers responded to the Supreme
Court’s decision in Reno v. ACLU by enacting the
Child Online Protection Act (COPA)—a second
attempt at speaker-based content regulation. In
COPA, the Congress directed its regulation at
commercial distributors of materials “harmful to
minors.” 25 The slightly narrower focus of COPA,
nicknamed “son of CDA,” did not solve the
Constitutional problems that doomed the CDA.
The district court enjoined COPA on First
Amendment grounds. 26 As this volume went to
press, the district court had just struck down
COPA, finding it void for vagueness and not narrowly tailored to the government’s interest in protecting minors. Once again, the court held that
criminal liability for speakers and service
providers was not the “least restrictive means” to
accomplish the government’s purpose because
the private use of filtering technologies could
more effectively keep harmful materials from children.
Plaintiffs successfully argued that CDA and
COPA would chill the provision and transmission
of lawful Internet content in the United States.
Faced with the impossible task of accurately
identifying “indecent” material and preemptively
blocking its diffusion, ISPs would have been
prompted to filter arbitrarily and extensively in
order to avoid threatened criminal liability, while
writers and publishers felt compelled to self-censor.
Stymied at restricting the publication of
explicit material, Congressional leaders changed
their focus to the recipient end of the equation.
The Children’s Internet Protection Act (CIPA) of
2000 forced public schools and libraries to use
Internet filtering technology as a condition of
receiving federal E-Rate funding. A school or
library seeking to receive or retain federal funds
for Internet access must certify to the FCC that it
has installed or will install technology that filters
or blocks material deemed to be obscene, child
pornography, or material “harmful to minors.” 27
The Supreme Court rejected First Amendment
challenges to CIPA, holding that speakers had no
right of access to libraries and that patrons could
request unblocking. 28 In response, some libraries
and schools have rejected E-Rate funding, but
most have felt financially compelled to install the
filters.
The aftermath of CDA, COPA, and CIPA has
left the business of Internet filtering largely to private manufacturers competing for market share.
Schools, businesses, parents, and other parties
wishing to (or compelled to) block access to certain content have a broad range of competing
software packages available to them. Some programs permit access only to whitelists of preapproved sites, but most services generate
blacklists of blocked sites through automated
screenings of the Web and, in some cases, realtime monitoring. Whatever their configuration,
these products and the content they permit and
Regional Overviews
229