COPA is the Child Online Protection Act, enacted in 1998 (not to be confused with COPPA, which we posted about before). According to the COPA Commission, which was the Congressional panel formed along with the law, “The purpose of the Act is to prohibit online sites from knowingly making available to minors material that is ‘harmful to minors’ (sexually explicit material meeting definitions set forth in the Act).” In essence, COPA would punish U.S. providers who post material that is “harmful to minors” online for commercial purposes without providing some sort of age verification system, such as requiring a credit card number, in order to keep children from viewing it. COPA was designed to be a narrower law than it’s predecessor, the much-derided Communications Decency Act (CDA) of 1996, which was struck down on constitutional grounds in 1997 by the U.S. Supreme Court.

If COPA were enforced, those who did not take adequate measures to keep children from viewing sexually explicit material on their websites would be subject to fines of up to $50,000 per offense, prison terms of six months, or both. But COPA is not enforced; it has been inactive almost since its inception because of challenges to its constitutionality by the ACLU and other plaintiffs. In the past, appeals courts have struck down the law for being in violation of the First and Fifth Amendments to the Constitution, and the Supreme Court has upheld the injunction on enforcement because of the likelihood that the law is unconstitutional. The case was referred back to the district court in 2006, and a ruling in 2007 once again saw the law struck down.

Now for the latest news: Despite defenses of the law from the Justice Department, the 3rd U.S. Circuit Court of Appeals on Tuesday upheld the lower court’s decision to strike down COPA as unconstitutional. It’s another blow for the government in this drawn-out battle over how to legislate online protection for minors. As the Center for Democracy and Technology put it, “Congress has spent twelve years attempting to use criminal laws to censor protected online speech on the Internet that is lawful for adults to access. That approach to protect children online has been an utter failure.” 

So just what is the problem with COPA? Protecting kids from harmful material is a great idea, right? The intent may be good, but the law itself is flawed. For one thing, the standards for defining “harmful material” are far too loose and open to interpretation as COPA is written. Even mainstream movies, TV shows, artwork and other socially-valuable speech viewed via the internet could fall under the definition of “harmful materials.” The law’s critics point out that COPA infantilizes the internet and places the burden of responsibility on websites for preventing minors from seeing material directed at adults; even a news site that contains a very small amount of adult material would fall under the umbrella of COPA. The law, as the judges wrote in this latest opinion, “effectively suppresses a large amount of speech that adults have a constitutional right to receive and address to one another…and thus is overbroad. These burdens would chill protected speech.”

In addition, when dealing with free speech rights, the best legal course of action is always to take the least-restrictive means, which COPA does not (filters that parents could install at home would be more effective and less restrictive than COPA). And in the end, COPA can’t stop kids from seeing harmful material that originates on websites outside of the U.S., or on non-commercial sites.

So how can we protect kids from seeing harmful content online? The responsibility lies with the parents, not with the websites. Sites like this one offer tips for parents to maintain control over their children’s internet surfing habits and offer ways to tell if your child might be viewing something they shouldn’t be. Tips include monitoring kids’ internet access, educating them on the dangers of giving out personal information, restricting the use of online chat forums, and using filtering software in order to control the flow of information that the children receive. All of this is far more reasonable and effective than a broad-spectrum, speech-limiting law like COPA. 

Just like in other forms of media, parents are required to be the ultimate gatekeepers to what the children can access. The government cannot force websites to be parents to the detriment of society’s free speech. A free exchange of information and ideas, even at the adult level, is the very definition of the freedom of speech described in the First Amendment. The 3rd U.S. Circuit Court of Appeals did the correct thing in coming down on the side of rights, not restrictions.

Sources for this article: ABC News, The COPA Commission, Child Online Protection Act, Online Child Privacy Tips for Parents, the Center for Democracy and Technology

What you should know about COPPA:

1. You must comply with COPPA, if you operate a commercial website or an online service directed to children under 13 that collects personal information from children, or if you operate a general audience website and have actual knowledge that you are collecting personal information from children.

2. COPPA is self regulated. The Federal Trade Commission (FTC) has the authority to issue regulations but they choose to designate safe harbor provision and encourage industry self-regulation.  Currently the FTC has granted safe harbor to four companies; TRUSTe, ESRB, CARU and Privo.

3. Data collection of any of the following apply to COPPA: Full name, Home address, email address, telephone number or any other information that would allow someone to identify or contact the child.
Also included are other types of information such as hobbies, interest and information collected through cookies or other tracking mechanisms (when they are tied to individually identifiable information).

4.  The website operator must post a link to a notice of its information practices on the home page of its website and at each area where it collects perusal information.

5. Direct notice to parents must be given and needs to contain the same information included on the notice on the website. In addition, the parent or guardian must give consent to collect, use and disclose the information.

6. Exceptions to obtaining parental consent cover popular online activities for kids including contests, online newsletters, homework help and electronic postcards.

7. With the exception for popular online activities, it is a violation to require more information then needed to participate in the activity.

8. Most recognized non-profit organizations are exempt from most of the requirements of COPPA.

9. In the event the site changes how the information is collected, used or disclosed, a new, verifiable parental consent must be obtained and, of course, the written policy must be changed on the site.

10.  At anytime a parent may revoke their consent, refuse to allow an operator to further use or collect their child’s personal information, and direct the operator to delete the information.  In turn, the operator may terminate any service being provided to the child.

*COPPA is sometimes confused with COPA, the Child Online Protection Act, which concerns the exposure of children to online pornography and sexually explicit materials.   COPA is not currently active, and remains under injunction, being it has been declared as unconstitutional, violating the First and Fifth Amendment of the United States Constitution.