With the news of its unwillingness to turn over large quantities of data to the federal government, the spotlight has been on Google all week: What exact information does the Department of Justice want, why is Google refusing to provide it, whose privacy might or might not be compromised?
These are certainly important questions. But the Google glare has obscured, in much of the coverage, the nature of the case that has caused this strange collateral damage — the proceeding that has been variously known through the years since its inception in 1998 as ACLU vs. Reno, ACLU vs. Ashcroft, and now ACLU vs. Gonzalez.
This case, a challenge to the constitutionality of the Child Online Protection Act (COPA), has dragged on for so many years that even people who once perceived it with great clarity have succumbed to varying degrees of fuzziness around it. We start with the misleading name of the original law, which leads many people (and many reporters) to assume, wrongly, that the law has something to do with stopping child pornography.
It is, in fact, a law that, according to its proponents, is intended to keep more garden-variety forms of Internet-based porn away from kids’ eyes. That’s not a goal I object to, either as a journalist or as the parent of young kids (they’re six now, though they weren’t even born when this case started). Unfortunately, COPA adopted both a much broader definition of the kind of content it aims to restrict and a harsh set of criminal remedies. The law says that if you publish material that is “harmful to minors” and you don’t use a credit-card verification check to make sure that everyone who accesses the material is a grownup, you’ll face extended imprisonment, hefty fines or both.
Which leaves publishers like Salon, along with other publishers who are plaintiffs in the ACLU suit, wondering exactly where the government would draw the line: which articles about sexual mores intended for adults? which pages of sex-ed information intended for teenagers? Who are we supposed to trust to draw the line between gross, “harmful to minors” porn and legitimate, First Amendment-protected expression — John Ashcroft and his ilk?
The government playbook in this matter is to say to publishers like Salon that are not commercial pornographers, “Hey, don’t worry, relax, you’re not the target here.” We’re supposed to trust the Bush Justice Department’s interpretation of the law and ignore what the law actually says. No wonder every court that has considered this matter to date has sided with the ACLU and against the government.
All of this explains why my hackles went up when I read Slate columnist Adam Penenberg, in an otherwise sensible column about the Google/Justice dispute, describe COPA as a law that “required that adult sites implement age-verification policies.” Any reader of that description of the law who doesn’t know more about it will think, “What’s the problem? Shouldn’t adult sites require age verification?”
The problem is, that’s not what the law says. Penenberg’s description plays right into the government’s spin; by describing COPA this way, he’s making it sound like a perfectly reasonable statute.
I emailed back and forth with Adam about this today, and as far as I can tell he believes he hasn’t written anything inaccurate. It’s true that COPA does “require adult sites to implement age-verification policies”; but that’s an incomplete description that fails to explain to readers why anyone would find the law problematic. Say there was a new law that aimed to reduce street crime by enforcing a universal national curfew; you could decribe it as a law that “required all convicts to stay indoors at night,” and technically you’d be right, but you wouldn’t be helping anyone understand why people would find the law objectionable.
I’m zeroing in on one sentence here because, really, it’s the crux of the issue at stake in the case. The press seems to have a very hard time providing a simple, accurate description of what COPA is. (The original Mercury News report on the Google dispute also garbled its attempt to summarize the law.) By describing COPA this way, Penenberg is simply assisting the government’s effort to deceive people into thinking that this extreme law is really nothing to get upset about. That, you know, upsets me.