BOB GARFIELD: This is On the Media. I'm Bob Garfield. In a 5 to 4 decision on Tuesday, the Supreme Court ruled that the Child Online Protection Act or COPA probably violates the First Amendment and the justices sent the case back to a lower court. This is the latest in an ongoing conflict between free speech and parental piece of mind, a conflict that has seen various legislative solutions sent back to the drawing board. Professor Jonathan Zittrain is the co-founder of the Berkman Center for Internet and Society at Harvard. He says that the COPA law, deemed excessive by the high court, at least had honorable intentions.
JONATHAN ZITTRAIN: The act is one of a series of acts that Congress has worked on starting in 1995 designed primarily to keep materials that could be harmful to minors -- basically indecent material -- off the worldwide web to the extent that minors could see it.
BOB GARFIELD: Which is probably not something that, that a whole lot of people object to per se. Nobody wants young children to be exposed to smut.
JONATHAN ZITTRAIN: The courts have always granted that this is a compelling government interest to keep kids away from pornography, and what that has translated to in this round of the litigation has been to ask the question -- is there a lesser restrictive alternative? Is there something else Congress could have done to achieve this admittedly compelling end that does not burden adults getting constitutionally protected access to the very same speech.
BOB GARFIELD: And the court ruled a couple of things -- number one, that COPA was an excessive breach of the First Amendment, but also that it was a kind of ineffectual way of going about keeping kids away from porn.
JONATHAN ZITTRAIN: The idea was that if somebody putting information on to the internet puts out something harmful to children and kids get to it, it would be a felony, but then you can raise a defense, and one of the defenses the act talks about is that you checked for the existence of a credit card on the other side of the transaction, and that gets you off the hook, once you raise it as a defense.
BOB GARFIELD: The court suggested, for example, that internet filters would be far more effective in blocking especially content from outside of the country whose purveyors are not subject to the credit card mechanism that is cited in the law.
JONATHAN ZITTRAIN: Yes. The court makes a fairly subtle technological distinction here by saying that they understand that you could try to block the connection between kids and this material either at the source, asking the source to take on certain burdens, which might entail the source just saying well I'm not even going to provide this any more. Or you could say wait a minute -- how about if we try to block it closer to the destination? And what the court mostly had in mind, and what has been pressed in the case has been that you could install filters as a parent upon your PC; there are ways to encourage libraries and schools to put filters of a similar nature on their PCs, and through those filters, kids cannot get access to this stuff, and the suppliers can still, without really any burden, put it onto the internet. That was thought to be the less-restrictive alternative.
BOB GARFIELD: Under the category of unintended consequences, you said there were risks to this ruling because of its suggestion that filters are a better mechanism than criminal statutes for keeping certain material out of certain people's hands.
JONATHAN ZITTRAIN: Yes. Filters are certainly not a panacea, and even their most enthusiastic supporters tend to acknowledge that these filters will block out stuff that they really shouldn't be blocking just accidentally or overbroad, and at the same time will let things through that they wouldn't have intended to let through. But even more worrisome than over-blocking and under-blocking, is the fact that filters implemented at the level of simply a PC can fairly readily be ported vertically up to the internet service provider, and in certain government situations, right up to the level of the government to block material from an entire populace. Saudi Arabia, for example, has used Smart Filter -- that's a filtering product that parents can use in the States, and Saudi Arabia uses for virtually every internet connection in the kingdom. It's that double-edged sword that it would be nice to avoid. If there were some way to develop the technology precisely to go after the problem of kids and pornography and implementing it PC by PC. That would be great, but there are clearly larger issues where we've seen this technology just embraced at the governmental level to filter out information deemed subversive or even just controversial.
BOB GARFIELD: All right, well Jonathan, as always, thank you very much. Thank you.
BOB GARFIELD: Harvard Law School Assistant Professor Jonathan Zittrain is co-founder of the Berkman Center for Internet and Society. [MUSIC]