All Things Digital

The Department of Justice has failed a third time to resuscitate the Child Online Protection Act, or COPA, a federal law designed to protect children from the vast reams of smut upon which it believes the Internet to be built. The Third Circuit Court of Appeals struck the law down again today, ruling that it would criminalize a category of speech that, while inappropriate for minors and the DOJ, is constitutionally protected for adults.

Apparently, COPA is not just an unsettling attempt of the few to define the values of the many, but an unconstitutional one as well.

“It is apparent that COPA, like the Communications Decency Act before it, ‘effectively suppresses a large amount of speech that adults have a constitutional right to receive and to address to one another,’ Reno, 521 U.S. at 874, 117 S.Ct. at 2346, and thus is overbroad,” the court wrote. “For this reason, COPA violates the First Amendment. These burdens would chill protected speech.”

That would seem to be the consensus. After all, this isn’t the first time this 1998 law has been ruled unconstitutional. Sadly, the DOJ is unconvinced. “We are disappointed that the Third Circuit Court of Appeals struck down a Congressional statute designed to protect our children from exposure to sexually explicit material on the internet,” a DOJ representative said in a statement, indicating that it will likely appeal the decision.

Fourth time’s a charm, I guess.

Second, the [Temporary Restraining Order] against Wikileaks violates the First Amendment because judicial orders enjoining reporting on or dissemination of documents constitute prior restraints. Under Pentagon Papers, the First Amendment prohibits prior restraints in nearly every circumstance, even where national security may be at risk and the press’s source is alleged to have obtained the documents unlawfully. The privacy and commercial interests Plaintiffs cite are simply not on the same order of magnitude required to justify a prior restraint, and the grab bag of federal, state and foreign laws they cite do not authorize prior restraints.”

–Excerpt from amicus brief in Bank Julius Baer v. Wikileaks

The U.S. District Court judge who issued the injunction ordering Wikileaks.org disabled has, after a bit of thought, come to view it as privacy and civil-rights groups had: overly broad and violative of the whistleblower site’s First Amendment rights.

Responding to a barrage of motions filed by a coalition of media and public-interest organizations Friday, Judge Jeffrey White reversed the permanent injunction he issued two weeks ago shuttering Wikileaks. In his ruling, White–while not admitting that his original order may well have violated prior restraint –acknowledged it was complicated by free-speech issues. “There are serious questions about prior restraint, possible violations of the First Amendment, which the court can make no definitive findings about at this point,” he wrote. “It is clear that in all but the most exceptional circumstances, an injunction restricting speech pending final resolution of the constitutional concerns is impermissible.”

Clear, too, that attempting to restrict free speech on the Internet is a near impossibility these days. “There are serious concerns that the court has, and serious questions raised, about the effectiveness of any order that this court might issue given the current state of affairs,” White continued. “Maybe that’s just the reality of the world that we live in. When this genie gets out of the bottle, that’s it.”

Or as Internet pioneer John Gilmore once put it, “The Net interprets censorship as damage and routes around it.“

PREVIOUSLY:

Like Trying to Take Pee Out of a Swimming Pool …

When Daily Variety broke the news that Pixar had hired writers for the pitch that became the 2007 release ‘Ratatouille,’ Steve Jobs tracked the reporter down at the Sundance Film Festival, demanding to know her sources and threatening to fire the film’s writers. He called her on the private line of a rented condo–a number she had not given out to anyone. She still doesn’t know how he found it.”
–Daily Variety, June 18, 2006

Apple’s long-running war with the Fourth Estate–well, the Black Bag ops portion of it, anyway–has finally claimed its first victim. Think Secret, a Mac rumor site Apple sued for misappropriation of trade secrets back in 2005 after it pre-announced the Mac mini and the iLife ’05 software suite, has agreed to cease publication as part of its settlement with the company. “Apple and Think Secret have settled their lawsuit, reaching an agreement that results in a positive solution for both sides,” Think Secret said in a statement. “As part of the confidential settlement, no sources were revealed and Think Secret will no longer be published.”

A bit of an about-face for Think Secret and its 21-year-old publisher Nicholas Ciarelli, who up until this point had fought the suit tooth-and-nail, painting it as an effort to chill free speech and Apple as the tech industry’s version of the Nixon-era White House for filing it. “Apple’s lawsuit is an affront to the First Amendment and an attempt to use Apple’s economic power to intimidate small journalists,” Think Secret said in a 2005 Anti-SLAPP filing. “If a publication such as the New York Times had published such information, it would be called good journalism; Apple never would have considered a lawsuit.”

Probably not. And it would never consider a suit against analyst Gene Munster, who’s essentially Piper Jaffray’s version of Think Secret. So why settle? We may never know, though in his statement, Ciarelli seemed to suggest he simply wanted to get on with his life without the specter of Apple legal hanging over him. “I’m pleased to have reached this amicable settlement,” he said. “[I] will now be able to move forward with my college studies and broader journalistic pursuits.”

UPDATE: The Think Secret camp describes the settlement as a loss for Apple. “It’s clear that Apple filed the lawsuit with such fanfare, but then stopped the entire litigation because they thought they were going to lose, and that they’d end up paying [Nick] a lot of money for it,” Ciarelli’s lawyer, Terry Gross of Gross & Belsky LLP, told Computerworld. “This shows that lawsuits like Apple’s can be stopped dead. … Other companies are going to realize that if they try something like this, there will be an uproar, and groups like EFF will do what it takes [to represent defendants]. … I would have loved for Apple to go forward on this. Apple would have caved, which they should have in the beginning.”

Is government ever a good substitute for parenting? If you’re at a loss for an answer to that question, consider some of the statements coming out of this week’s “Protecting Children on the Internet” hearing in Congress. In testimony given at the hearing, Senate Commerce, Science and Transportation Committee Chairman Daniel K. Inouye (D., Hawaii) and Committee Vice Chairman Ted “Tubes” Stevens (R., Alaska) both argued that the Internet presents a threat to children–one best addressed with universal filtering and monitoring technologies.

“While filtering and monitoring technologies help parents to screen out offensive content and to monitor their child’s online activities, the use of these technologies is far from universal and may not be foolproof in keeping kids away from adult material,” Inouye said. “In that context, we must evaluate our current efforts to combat child pornography and consider what further measures may be needed to stop the spread of such illegal material over high-speed broadband connections.”

“Given the increasingly important role of the Internet in education and commerce, it differs from other media like TV and cable because parents cannot prevent their children from using the Internet altogether,” Stevens said. “The headlines continue to tell us of children who are victimized online. While the issues are difficult, I believe Congress has an important role to play to ensure that the protections available in other parts of our society find their way to the Internet.”