02/23/2009 05:12 am ET Updated May 25, 2011

Ding-Dong, COPA is Dead!

WASHINGTON, DC -- After struggling to thrive for 13 agonizing years, the Child Online Protection Act (COPA) was allowed to die quietly today when the U.S. Supreme Court declined without comment the opportunity to reconsider Mukasey v. ACLU.

The Clinton-era law was allegedly designed in order to "protect" minors from viewing sexually explicit materials on commercial websites and required that such providers use a proactive method of ensuring that site visitors were of legal age. Among the age-verification approaches suggested was requiring the use of a credit card, which many consider to be a poor way of proving age as well as an unreasonable burden for adults who eschew credit.

Those found in violation of the law would have been threatened with as many as six months in prison and fines as high as $50,000 per day.

Although today's rejection of the federal government's request for an appeal is the end of the road for COPA, its way was never a clear one. After being signed into law in 1998, in an attempt to replace the equally unconstitutional Communication Decency Act (CDA), it was immediately challenged by a federal judge in Philadelphia on free speech grounds. The high court and other federal courts repeatedly determined that the law had serious free speech problems and was never actually implemented, although it struck fear into the hearts of many adult webmasters.

Among the law's short-comings was its US-centric view of Web content, which it hoped to sanitize legislatively. Additionally, given that it was penned in the late 1990s, COPA utterly ignored peer-to-peer networks, Usenet, online and console games, third party apps such as those used for iPhones or via video players such as RealPlayer and Windows Media Player.

Having effectively been laid to a well-deserved final rest, the ruling returns responsibility for children's online activities to their parents and adult guardians, where many believe that it belongs. As recently as last year, judges in Philadelphia opined that software filters provide an "equally effective" method for shielding minors from any number of materials deemed unacceptable by their care givers.

Bush administration lawyers disagreed even as recently as this past October, observing that as many as 700 million websites would qualify for censorship under the law and insisting that it be resuscitated. They warned that the lack of COPA "would leave millions of children unprotected from the harmful effects of the enormous amount of pornography on the World Wide Web."

Unsurprisingly, the American Civil Liberties Union (ACLU) and a collection of traditional publishers disagreed, pointing out that in addition to illegally controlling Internet commerce, COPA would hobble free discourse online for adults while doing nothing to actually keep sexually explicit material from minors given that at least half of all such content originates from outside of U.S. borders.

It is believed that only half of all parents bother to install and use content filters on their computers regardless of whether their children access the Internet from that location.

Alas, for adult content producers, legal battles that originated on the Internet are not yet over given that Paul Little (aka "Max Hardcore") is bracing for a four-year prison term and both Extreme Associates and Evil Angel remain poised for prosecution on obscenity charges.

As expected, the nation's conservatives see this as a betrayal, with Daniel Weiss, senior analyst for media and sexuality at Focus on the Family bemoaning the situation by insisting that "with the federal courts overturning reasonable online protections and the Department of Justice refusing to prosecute obscenity crimes, the U.S. government appears to have abandoned American children and families to the pornographers."

(Originally published on