Citations
- 478 F. Supp. 2d 775
Full opinion text
FINAL ADJUDICATION
LOWELL A. REED, JR., Senior District Judge.
At issue in this case is the constitutionality of the .Child Online Protection Act, 47 U.S.C. § 231 (“COPA”) and whether this court should issue a permanent injunction against its enforcement due to its alleged constitutional infirmities. COPA provides both criminal and civil penalties for transmitting sexually explicit materials and communications over the World Wide Web (“Web”) which are available to minors and harmful to them. 47 U.S.C. § 231(a). After a trial on the merits, for the reasons that follow, notwithstanding the compelling interest of Congress in protecting children from sexually explicit material on the Web, I conclude today that COPA facially violates the First and Fifth Amendment rights of the plaintiffs because: (1) at least some of the plaintiffs have standing; (2) COPA is not narrowly tailored to Congress’ compelling interest; (3) defendant has failed to meet his burden of showing that COPA is the least restrictive, most effective alternative in achieving the compelling interest; and (3) COPA is imper-missibly vague and overbroad. As a result, I will issue a permanent injunction against the enforcement of COPA.
TABLE OF CONTENTS
I. PROCEDURAL HISTORY.779
II. THE RELEVANT LANGUAGE OF COPA AND THE CONSTITUTION.779
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"R TVip PnrtfpR ting they want the product to apply. For example, AOL’s filtering product enables parents to choose from four different age settings: general (unrestricted); mature teen; young teen; and kids only. SurfCon-trol’s product has 13 different categories of speech that can be blocked if a parent so desires. Cranor Testimony, 10/23 Tr. 233:2-21; PLEx. 86; Allan Testimony, 11/2 Tr. 205:16-207:16, 240:18-243:2; Whittle Testimony, 10/31 Tr. 200:2-16, 202:10-203:8, 206:23-212:13, 220:5-25; Murphy Testimony, 11/1 Tr. 210:7-213:25, 217:25-221:7.
79. Filtering products can be used by parents even if they have more than one child. For example, if a family has four children, many filtering products will enable the parent to set up different accounts for each child, to ensure that each child is able to access only the content that the parents want that particular child to access. Cranor Testimony, 10/23 Tr. 239:11-22; Cranor Testimony, 10/24 Tr. 36:16-38:11; PLEx. 86, at 15-22, 33-39.
80. Filtering products block both Web pages originating from within the United States and Web pages originating from outside the United States. The geographic origin of a Web page is not a factor in how a filter works because the filter analyzes the content of the Web page, not the location from which it came. Cranor Testimony, 10/24 Tr. 46:20-47:8; Pl.Ex. 6; PI Ex. 54; Allan Testimony, 11/2 Tr. 185:6-12; Whittle Testimony, 10/31 Tr. 202:1-3; Murphy Testimony, 11/1 Tr. 224:6-14, 226:6-228:21; Pl.Ex. 133.
81. Filtering products block both noncommercial and commercial Web pages. It does not make a difference to filtering products’ effectiveness if a page is from a non-commercial or a commercial entity. Cranor Testimony, 10/24 Tr. 47:9-24; PI. Ex. 6; PLEx. 54; Whittle Testimony, 10/31 Tr. 202:7-9; Allan Testimony, 11/2 Tr. 246:6-11.
82. In addition to their content filtering features, filtering products have a number of additional tools to help parents control their children’s Internet activities. Other tools available to parents include monitoring and reporting features that allow supervising adults to know which sites a minor has visited and what other types of activities a minor has engaged in online. AOL, for example, offers a feature called AOL Guardian, which provides a parent with a report indicating which Web sites a child visited, which sites were blocked, the number of emails and instant messages a child sent, and to whom a child sent email or instant messages. Surfcontrol similarly provides parents with reports of the Web sites a child has visited, as well as those that were blocked. SurfControl’s product also has the ability simply to monitor a child’s activity without actually blocking anything, if a parent prefers that option. Some of the products, such as Content-watch’s filter, have features that permit parents to monitor their child’s Internet activities remotely, for example, while they are at work, and some products even send email alerts to parents when inappropriate material is accessed by a child so that, if a parent so desires, it can supervise their child’s Internet activities even when they are not physically with the child. Cranor Testimony, 10/23 Tr. 234:2-13, 249:21-251:15; Cranor Testimony, 10/24 Tr. 28:5-29:13; Pl.Ex. 2; Pl.Ex. 86, at 10-13, 32; Whittle Testimony, 10/31 Tr. 210:2-212:13; Murphy Testimony, 11/1 Tr. 218:23-220:23.
83. Some Internet content is now capable of being viewed on devices other than traditional personal computers. Examples include mobile devices such as cellular phones, personal digital assistants (“PDAs”) such as the Blackberry, portable audio/video players such as the iPod, and game consoles such as the XBox or PlayStation. J. Ex. 1 ¶ 96.
84. Several vendors, including large, experienced software companies, currently offer content filtering products for alternative devices. Examples include products offered by Ace*comm, Bytemobile, Blue Coat, Cisco, and RuleSpace. Felten Testimony, 10/25 Tr. 25:4-20; Sena Testimony, 11/2 Tr. 33:4-6, 60:7-14; Pl.Ex.13, at 22-23; Pl.Ex. 70; Allan Testimony, 11/2 Tr. 223:2-23.
85. At this time, however, there are no U.S. mobile telecommunications carriers that use filters for their cellular phones other than walled garden filters and certain other parental control features which can prevent children from using chat rooms, instant messaging, text messaging, email, purchasing any file downloads or having any access to the Internet at all. Felten Testimony, 10/25 Tr. 25:22-26:17; Ryan Testimony, 11/6 Tr. 30:20-36:19; Allan Testimony, 11/2 Tr. 223:2-23.
86. Nonetheless, mobile carriers are actively soliciting bids for the provision of mobile content filtering services. The top five mobile carriers in the United States, Cingular, Verizon Wireless, T-Mobile, Sprint, and Alltel, are all soliciting bids. Sena Testimony, 11/2 Tr. 56:19-57:09.
2. The Availability and Cost of Filters
87. Filters are widely available and easy to obtain. Numerous filtering products are sold directly to consumers, either in stores or over the Internet. Filters are also readily available through ISPs. Because most ISPs offer filtering products, a parent does not have to do anything to obtain a filter other than to activate it through the ISP’s Web site or to call the ISP. Cranor Testimony, 10/24 Tr. 8:8 — 9:9.
88. Many of the ISPs offer filters to their customers for free. AOL’s filter is now even available for free to anyone who wants to use it, even non-AOL subscribers. Cranor Testimony, 10/24 Tr. 9:10-24.
89. Non-ISP filtering products vary in cost, ranging from approximately $20 to $60. Cranor Testimony, 10/24 Tr. 9:10-17.
90. Most of the filtering products offer money-back guarantees or free trial periods, so that parents can simply download a filtering product for free over the Internet and then use it for a set time period to see if it is something that they want to continue using. Cranor Testimony, 10/24 Tr. 12:12-22; Eisenach Testimony, 11/13 Tr. 177:8-25.
91. Microsoft’s new operating system for personal computers, Vista, also includes parental controls and filters which are available at no additional cost to users of computers with the Vista operating system. Vista’s content filter provides features similar to what are found in most current filtering products, including the ability to select which categories of speech should be filtered. Vista’s filter also provides parents with other access control tools, such as time management, the ability to filter non-Web Internet applications like email, and the ability to block or restrict access to online games. Cranor Testimony, 10/24 Tr. 12:23-13:7,16:14-17:8; Pl.Ex. 2.
3. Filter Ease of Use and User Satisfaction
92. Filtering programs are fairly easy to install, configure, and use and require only minimal effort by the end user to configure and update. Cranor Testimony, 10/24 Tr. 21:3-39:7; Pl.Ex. 3, at 4-5; PI. Ex. 6; Pl.Ex. 54, at 317-320; Pl.Ex. 85, at 4; Pl.Ex. 86.
93. The plaintiffs’ expert Dr. Cranor has confirmed this finding in various tests performed over the past decade in connection with her work for the Internet Online Summit, her testimony before the COPA Commission, and her expert testimony in the five previous lawsuits challenging state versions of COPA. For example, Dr. Cra-nor recently tested four filters and found that three were very, very easy to use and one was somewhat easy to use. Dr. Cra-nor also found that the current versions of the filter products had improved and were easier to use than the older versions. Cra-nor Testimony, 10/24 Tr. 18:13-19:1, 19:2-13,168:11-18.
94. Dr. Cranor’s opinion is consistent with the findings of filtering studies conducted over the years. Those studies have found that many filtering products require little effort for parents to install and use. For example, a study conducted for NetA-lert and the Australia Broadcast Authority concluded that certain products, such as AOL’s filter, were quite easy to use and install. Cranor Testimony, 10/24 Tr. 57:9-18, 68:7-21; Pl.Ex. 5, at 32; Pl.Ex. 6, at 21; Pl.Ex. 85, at 4.
95. Almost all parents will be able to install filtering products and use them by selecting from one of their standard settings. Many filters have user interfaces that are quite easy to use and that make it easy for users to create customized settings, especially if all they are concerned about blocking is adult material. Cranor Testimony, 10/24 Tr. 19:19-20:7, 20:19-21:2, 27:1-24; Whittle Testimony, 10/31 Tr. 200:2-16, 206:23-212:13; Murphy Testimony, 11/1 Tr. 221:8-224:5; Pl.Ex. 2, at 17; Pl.Ex. 6; Pl.Ex. 85, at 4; Pl.Ex. 86, at 8-9.
96. Installing and setting up a filter will usually take a typical computer user no more than ten or fifteen minutes. The installation and set-up process is not technically complex and does not require any special training or knowledge. Cranor Testimony, 10/24 Tr. 21:3-22:8; Pl.Ex. 86.
97. Configuring a filtering product for more than one child is straightforward and easy with many products. For example, it takes about two minutes to set up an account for an additional child using AOL’s filter product. Cranor Testimony, 10/24 Tr. 36:16-38:15; Pl.Ex. 86, at 33-39.
98. Most filtering products do not pose any compatibility issues for computers, meaning that using filters will not affect the typical user’s ability to use other computer software. Cranor Testimony, 10/24 Tr. 40:9-41:6.
99. A study done for AOL found that 85 percent of parents are highly satisfied with their AOL Parental Controls products, and that 87 percent of the parents find them easy to use. Surfcontrol has also found that customer response is positive and that 70 to 80 percent of their customers renew their subscriptions to Surfcontrol’s filter. Cranor Testimony, 10/24 Tr. 83:7-11, 129:9-130:13; Murphy Testimony, 11/1 Tr. 222:25-223:20; Pl.Ex. 85, at 4.
4. The Effectiveness of Filters
a. In General
100. There are two main concerns regarding the effectiveness of filters: under-blocking and overblocking. Underblocking occurs when the filter fails to block content that the filter is configured to block. Ov-erblocking occurs when the filter prevents access to material that it is not configured to block. Cranor Testimony, 10/24 Tr. 52:16-21; Stark Testimony, 11/8 Tr. 95:16-96:13,105:25-106:12.
101. The plaintiffs contend that in determining whether filters are effective, the filter’s underblocking rate is more important than its overblocking rate. Cranor Testimony, 10/24 Tr. 52:22-53:6. Defendant claims that overblocking is a significant concern as well. Stark Testimony, 11/8 Tr. 95:22-96:18. While both aspects are important, I agree with the plaintiffs that underblocking is the more important concern since the underlying issue in this case is the prevention of children from accessing sexually explicit material deemed harmful to them. Moreover, when a filter overblocks, a parent may add the Web sites that were erroneously over-blocked to the filter’s white list so that those Web sites are not blocked again. J. Ex. 1 ¶ 91.
102. Even though the Web is very large, only a small fraction of it is actually viewed frequently. To ensure that those parts that are actually being viewed by users have been located, filtering companies review lists of the most popular Web sites because the pages on those sites are the most likely ones that a child will be able to find and access. Cranor Testimony, 10/23 Tr. 236:22-237:7; Murphy Testimony, 11/1 Tr. 194:6-196:6.
103. Filtering products have improved over time and are now more effective than ever before. This is because, as with all software, the filtering companies have addressed problems with the earlier versions of the products in an attempt to make their products better. Cranor Testimony, 10/24 Tr. 81:18-82:10; Murphy Testimony, 11/1 Tr. 194:6-196:6, 221:8-222:24.
104. Another reason the effectiveness of filtering products has improved is that many products now provide multiple layers of filtering. Whereas many filters once only relied on black lists or white lists, many of today’s products utilize black lists, white lists, and real-time, dynamic filtering to catch any inappropriate sites that have not previously been classified by the product. Cranor Testimony, 10/23 Tr. 246:20-247:9; Cranor Testimony, 10/24 Tr. 81:18-82:4.
105. There is a high level of competition in the field of Internet content filtering. That factor, along with the development of new technologies, has also caused the products to improve over time. Murphy Testimony, 11/1 Tr. 223:21-224:5; PI. Ex. 2, at 16-17.
106. One of the features of filtering programs that adds to their effectiveness is that they have built-in mechanisms to prevent children from bypassing or circumventing the filters, including password protection and other devices to prevent children from uninstalling the product or changing the settings. Some products ev