Strike Two: An Analysis of the Child Online Protection Act’s Constitutional Failures

I. INTRODUCTION In 1995, Time magazine ran a cover story about the proliferation of pornography on the Internet.(1) The story was based on a study conducted by Marty Rimm, which was later discredited, but the Time article was indicative of the nation's concern about the accessibility of such material to children. This concern prompted Congress to pass the Communications Decency Act of 1996 (CDA).(2) However, the U.S. Supreme Court struck the Act down as unconstitutional in 1997.(3) Congress responded by drafting new legislation aimed at protecting children from online pornography and passed the Child Online Protection Act (COPA) in October 1998.(4) Congress stated in its report accompanying the COPA that the Act "has been carefully drafted to respond to the Supreme Court's decision in Reno v. ACLU."(5) The American Civil Liberties Union (ACLU) disagreed and filed suit, along with sixteen other plaintiffs, alleging that the COPA is unconstitutional under the First and Fifth Amendments.(6) The U.S. District Court for the Eastern District of Pennsylvania responded to the lawsuit by issuing a preliminary injunction against the COPA's enforcement in February 1999.(7) This Note demonstrates that although narrower in scope than the CDA, the COPA cannot withstand constitutional scrutiny. Part II provides general background information about the World Wide Web (Web). Part III discusses the availability of sexually explicit material on the Web. Part IV reviews the CDA, which was Congress's first attempt at regulating minors' access to sexually explicit material via the Internet. Part V begins the analysis of the COPA's constitutionality. Specifically, Part V first addresses the COPA's "harmful to minors" definition, reviewing the difficulty of applying this definition to the Internet medium. In addition, this Note explains why the "harmful to minors" definition is vague. Second, the analysis reviews the economic and technological unavailability of the COPA's affirmative defenses. Finally, the COPA analysis addresses the privacy and security concerns connected with the use of age verification procedures. Part VI concludes the Note with an explanation as to why legislation is an ineffective mechanism to address the problem of minors' access to online pornography. II. THE WORLD WIDE WEB GENERALLY The Internet is not a physical entity, but rather "an international network of interconnected computers."(8) Many networks are connected in a way that allows the computers in one network to communicate with computers in any other network, thus forming the Internet.(9) The Internet is not controlled or administered by any single entity. Rather, the Internet is the result of independent computer operators and networks communicating with each other through common data transfer protocols.(10) Approximately fifty-four to sixty-five million computers worldwide are connected to the Internet.(11) The most common way computer users access information on the Internet is through the Web.(12) The Web is a type of "publishing forum,"(13) consisting of documents stored on different computers in any one of 150 different nations.(14) Web documents can consist of text, still images, sounds, and video.(15) Web documents use a common formatting language called hypertext markup language (html), which allows the documents to be displayed through browser programs, such as Netscape Navigator, Mosaic, or Internet Explorer. Computer users access Web content through the use of these browsers.(16) Computer users on the Web "must actively seek out with specificity the information they wish to retrieve."(17) Computer users can retrieve information in one of three ways. First, each Web site has an address called a Uniform Resource Locator (URL). Users can type a Web site's URL to directly access the site.(18) Second, a user can conduct a search through a search engine, such as Yahoo or Webcrawler, which are tools offered to Web users free of charge to help them navigate the Web. …