An important anniversary just passed with little more notice than an email newsletter about the report that played a pivotal role in causing the courts to strike down the 1998 Child Online Protection Act (COPA) as an unconstitutional restriction on the speech of adults and website operators. (COPA required all commercial distributors of “material harmful to minors” to restrict their sites from access by minors, such as by requiring a credit card for age verification.)
The Congressional Internet Caucus Advisory Committee is pleased to report that even after 10 years of its release the COPA Commission’s final report to Congress is still being downloaded at an astounding rate – between 700 and 1,000 copies a month. Users from all over the world are downloading the report from the COPA Commission, a congressionally appointed panel mandated by the Child Online Protection Act. The primary purpose of the Commission was to “identify technological or other methods that will help reduce access by minors to material that is harmful to minors on the Internet.” The Commission released its final report to Congress on Friday, October 20, 2000. As a public service the Congressional Internet Caucus Advisory Committee agreed to virtually host the deliberations of the COPA Commission on the Web site COPACommission.org. The final posting to the site was the actual COPA Commission final report making it available for download. In the subsequent 10 years it is estimated that close to 150,000 copies of the report have been downloaded.
The COPA Report played a critical role in fending off efforts to regulate the Internet in the name of “protecting our children,” and marked a shift towards focusing on what, in First Amendment caselaw is called “less restrictive” alternatives to regulation. This summary of the report’s recommendations bears repeating:
After consideration of the record, the Commission concludes that the most effective current means of protecting children from content on the Internet harmful to minors include: aggressive efforts toward public education, consumer empowerment, increased resources for enforcement of existing laws, and greater use of existing technologies. Witness after witness testified that protection of children online requires more education, more technologies, heightened public awareness of existing technologies and better enforcement of existing laws.
In case you haven’t noticed, this is the message Adam Thierer and I have hammered home relentlessly in all the work we do concerning not only child protection but also privacy, data security and other areas of concern about online consumer protection.
On the child protection side, check out our recent joint comments with CDT and EFF warning the FTC not to expand the Child Online Privacy Protection Act (COPPA), lest it converge with COPA, which the courts have found unconstitutional—and also the lengthy paper we wrote on this subject back in June 2009 well before COPPA reemerged as an issue.
On the privacy side, allow me to quote from my November 2009 comments to the FTC on its Privacy Roundtables (primarily concerning online advertising). Specifically, I laid out a ”Principled Pro-Consumer Alternative to Further Regulation:”
The “Privacy Wars” that have waged over how government should regulate online collection and use of data might better be referred to as the “Privacy Proxy Wars” because the most clearly demonstrated “harm” at issue seems to be from government itself, not the private sector. The Fourth Amendment guarantees that “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated…” Americans have a legitimate expectation that this “security” extends to their digital “papers and effects,” yet that expectation is not given effect by current restraints on government access to consumer data in American law. Thus, we have proposed the following layered approach to concerns about online privacy, focusing on restraining government access to data, rather than crippling the private sector uses of data that directly benefit consumers:
- Erect a higher “Wall of Separation between Web and State” by increasing Americans’ protection from government access to their personal data—thus bringing the Fourth Amendment into the Digital Age.
- Educate users about privacy risks and data management in general as well as specific practices and policies for safer computing.
- Empower users to implement their privacy preferences in specific contexts as easily as possible.
- Enhance self-regulation by industry sectors and companies to integrate with user education and empowerment.
- Enforce existing laws against unfair and deceptive trade practices as well as state privacy tort laws.
I look forward to the day when Adam and I aren’t so alone in calling for a unified, consistent approach to online consumer protection across all these issues that begins with demanding a showing of genuine harm or true market failure, but also insists on using (or at least starting with) the least “restrictive” measures to address that problem. In privacy, as with child protection, that means starting with these E-words before rushing to R-words like “regulate, restrict, remove (options),” because those things ultimately retard, rather than encourage, Progress for digital consumers.