Child Online Protection Act

Child Online Protection Act
Citations

Acronyms (colloquial)	COPA
Public law	Pub. L.Tooltip Public Law (United States) 105–277 (text) (PDF)
Statutes at Large	112 Stat. 2681-736
Codification
Titles amended	47
U.S.C. sections created	47 U.S.C. § 231
Legislative history
Introduced in the House as H.R. 4328 Signed into law by President Bill Clinton on October 21, 1998
United States Supreme Court cases
Ashcroft v. American Civil Liberties Union I 535 U.S. 564 (2002) Ashcroft v. American Civil Liberties Union II, 542 U.S. 656 (2004)

The Child Online Protection Act^[1] (COPA)^[2] was a law in the United States of America, passed in 1998 with the declared purpose of restricting access by minors to any material defined as harmful to such minors on the Internet. The law, however, never took effect, as three separate rounds of litigation led to a permanent injunction against the law in 2009.

The law was part of a series of efforts by US lawmakers legislating over Internet pornography. Parts of the earlier and much broader Communications Decency Act had been struck down as unconstitutional by the Supreme Court in 1997 (Reno v. ACLU^[3]); COPA was a direct response to that decision, narrowing the range of material covered. COPA only limits commercial speech and only affects providers based within the United States.

COPA required all commercial distributors of "material harmful to minors" to restrict their sites from access by minors. "Material harmful to minors" was defined as material that by "contemporary community standards" was judged to appeal to the "prurient interest" and that showed sexual acts or nudity (including female breasts). This is a much broader standard than obscenity.

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Transcription

Speakers - Cristina Miranda, Peder Magee When it comes to information that companies collect online from kids under 13, parents should be in control. That's the thinking behind the Children's Online Privacy Protection Act and the COPPA rule. The rule has been in place for years. But the Federal Trade Commission, the nation's consumer protection agency, has revised COPPA to keep pace with technology. If your company has been complying with COPPA, the basics still apply. You still have to give notice to parents and get their verifiable consent before you collect, use, or disclose personal information from children under 13. You still have to keep kids information secure. And the revised COPPA rule retains Safe Harbor provisions so that groups can submit programs for FTC approval. But five key changes to COPPA take effect July 1, 2013. Here's what your business needs to know. I'm Peder Magee, an attorney with the FTC. So what's new about COPPA? The first important change is that the FTC has revised some definitions to expand who's covered by COPPA and the kinds of information that require companies to comply with the rule. The rule has always applied if you operate a website, an online service, or an app directed to children under 13. It also applies if you have a site, a service, or an app directed to a general audience and you have actual knowledge that you're collecting personal information online from kids in that under 13 age group. Revisions to the rule make it clear that COPPA also covers an operator of a child-directed site or service where it allows outside services like plug-ins or advertising networks to collect personal information from visitors. In addition, if a plug-in or ad network has actual knowledge that it's collecting personal information through a child-directed site or service, the plug-in or ad network is covered by COPPA too. The upshot? The rule applies to companies that may be new to COPPA compliance. The FTC also has revised the definition of the types of information COPPA covers. The rule has always applied if companies collect certain kinds of personal information from kids under 13, like their first and last name, a home address, a phone number, an email address, online contact information, or a screen or user name that functions as online contact information. But the FTC has clarified that definition. The COPPA rule covers geolocation information that can identify a street name and the city or town. And we've expanded the rule to include photos, videos, and audio files that contain a kid's image or voice as well. Something else covered under the revised COPPA rule, persistent identifiers that can be used to recognize a user over time and across different sites or online services. But there's a notable exception here. COPPA's parental notice and consent requirements don't apply if the identifier is used just to support your site's internal operations. Take a look at the rule for more about the meaning of internal operations in this context. Another change to COPPA relates to what operators need to tell parents. It's still the law that you have to notify parents directly and get their verifiable consent before collecting personal information online from their kids. But now you need to know to put certain key pieces of information upfront within the notice you send. You'll want to read the rule for the specifics. But the big picture is that it's not enough just to give parents a link to something on your site and expect them to figure things out for themselves. This change will make it easier for parents to get the important details they need when they need them. The rule also streamlines what you have to include in your online privacy policy about your information practices The third change involves new ways to get the parental consent COPPA requires. In addition to the methods already in the rule, including FTC approved Safe Harbor Programs, COPPA now gives businesses more ways to get a parent's OK. For example, electronic scans of signed consent forms, video conferencing, the use of government issued IDs, and alternative payment systems, assuming they meet the same stringent criteria as credit cards. The sliding scale mechanism of parental consent, often called e-mail plus, is still an acceptable method for operators that collect personal information just for their own internal use. Technology changes quickly. So to encourage innovation in this area, the revised rule sets up a voluntary process for businesses to get FTC approval for other methods of parental consent. The fourth change strengthens provisions for keeping kids information confidential and secure. Under the revised rule, operators must take reasonable steps to make sure that before releasing information to service providers or other third parties, those companies are capable of maintaining the confidentiality, security, and integrity of the information. It's not enough if they just talk the talk. You also need to get assurances they'll follow through. Under COPPA, you can retain kids' personal information only as long as it's reasonably necessary. And when you dispose of it, you have to take reasonable steps to protect against unauthorized access. The fifth change to COPPA deals with additional monitoring of self-regulatory safe harbors. The new rule strengthens the FTC's oversight of Safe Harbor Programs. It requires them to audit members and report the combined results of those audits to the FTC every year. That's just a brief recap of changes to COPPA. For compliance resources, visit the children's privacy page on the FTC business center at business.ftc.gov. For more how-to guidance, read the Children's Online Privacy Protection Rule and Complying With COPPA, frequently asked questions. Have a question that's not answer there, send us an email at [email protected].

Litigation history

On February 1, 1999, Judge Lowell A. Reed Jr. of the Eastern District of Pennsylvania granted a preliminary injunction blocking COPA enforcement.^[4] In 1999, the United States Court of Appeals for the Third Circuit upheld the injunction and struck down the law, ruling that it was too broad in using "community standards" as part of the definition of harmful materials.^[5]

In May 2002, the Supreme Court reviewed this ruling in Ashcroft v. American Civil Liberties Union (2002), and found the given reason insufficient and returned the case to the Circuit Court. The law remained blocked there. On March 6, 2003, the 3rd Circuit Court again struck down the law as unconstitutional, this time finding that it would hinder protected speech among adults.^[6] The government again sought review in the Supreme Court.^[7]

On June 29, 2004, in Ashcroft v. American Civil Liberties Union (2004),^[8] the Supreme Court upheld the injunction on enforcement, ruling that the law was likely to be unconstitutional. Notably, the court mentioned that "filtering’s superiority to COPA is confirmed by the explicit findings of the Commission on Child Online Protection, which Congress created to evaluate the relative merits of different means of restricting minors' ability to gain access to harmful materials on the internet." The court also wrote that it was five years since the district court had considered the effectiveness of filtering software and that two less-restrictive laws had been passed since COPA. One law prohibits misleading domain names, and the other prohibits creating a child-safe .kids domain. Given the rapid pace of internet development, government officials thought these two laws might be sufficient to restrict access by minors to specific material.

Further proceedings

The Supreme Court remanded the case back to the district court for a trial, which began on October 25, 2006. In preparation for that trial, the Department of Justice issued subpoenas to various search engines to obtain Web addresses and records of searches as one part of a study undertaken by a witness in support of the law. The search engines turned over the requested information, except for Google, which challenged the subpoenas. The court limited the subpoena to a sample of URLs in Google's database, but declined to enforce the request for searches conducted by users; Google then complied.^[9]

On March 22, 2007, Judge Reed once again struck down COPA, finding the law facially in violation of the First and Fifth Amendments to the United States Constitution.^[10] In addition to the plaintiffs ACLU et al., several witnesses testified in defense of First Amendment rights on the Internet, including the director of the Erotic Authors Association, Marilyn Jaye Lewis.^[11] Reed issued an order permanently enjoining the government from enforcing COPA, commenting that "perhaps we do the minors of this country harm if First Amendment protections, which they will with age inherit fully, are chipped away in the name of their protection."^[12] The government again appealed, and the case was heard before the Third Circuit.^[13]

On July 22, 2008, the 3rd U.S. Circuit Court of Appeals upheld the 2007 decision.^[14]^[15]

On January 21, 2009, the United States Supreme Court refused to hear appeals of the lower court decision,^[16] effectively shutting down the law.^[17]^[18]

Notes

^ 47 U.S.C. § 231.
^ COPA is sometimes confused with COPPA, the Children's Online Privacy Protection Act, which remains in force and limits the ability of sites to offer services to those aged twelve and under without explicit parental consent.
^ Reno v. Am. Civil Liberties Union, 521 U.S. 844 (1997).
^ American Civil Liberties Union v. Reno, 31 F. Supp. 2d 473 (E.D. Pa. 1999).
^ American Civil Liberties Union v. Reno, 217 F.3d 162 (3d Cir. 2000).
^ American Civil Liberties Union v. Reno, 322 F.3d 240 (3d Cir. 2003).
^ "Ashcroft v. ACLU – The Legal Challenge to the Child Online Protection Act". Electronic Privacy Information Center. Retrieved January 19, 2006.
^ Ashcroft v. American Civil Liberties Union, 535 U.S. 564 (2002).
^ Gonzales v. Google, Inc., 234 F.R.D. 674 (N.D. Cal. 2006).
^ American Civil Liberties Union v. Gonzales, 478 F. Supp. 2d 775 (E.D. Pa. 2007).
^ "US District Court Transcripts".
^ "Judge Strikes '98 Law Aimed At Online Porn". Associated Press. 22 March 2007. Retrieved March 22, 2007.
^ Lamut, Anna (3 August 2008). "ACLU v. Mukasey; Third Circuit Holds Child Online Protection Act Unconstitutional". Harvard Journal of Law & Technology. Jolt Digest. Archived from the original on 12 July 2012. Retrieved 24 January 2009.
^ Singel, Ryan (22 July 2008). "Net Censorship Law Struck Down Again". Wired. Retrieved July 22, 2008.
^ American Civil Liberties Union v. Mukasey, 534 F.3d 181 (3d Cir. 2008).
^ Mukasey v. American Civil Liberties Union, 555 U.S. 1137 (2009).
^ Sherman, Mark (21 January 2009). "Anti-Porn Online Law Dies Quietly in Supreme Court". Yahoo! News. AP. Archived from the original on January 24, 2009. Retrieved 24 January 2009.
^ Nichols, Scott (22 January 2009). "COPA Child-Porn Law Killed". PC World. Archived from the original on 15 June 2012. Retrieved 24 January 2009.

External links

This page was last edited on 23 January 2024, at 22:06

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