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Court Snuffs Internet Smut Law
Attorney Blogs | 2007/03/23 16:45

Nearly nine years after Congress passed the Child Online Protection Act (COPA), a Philadelphia federal court judge ruled Thursday that COPA is unconstitutional. As a result of his findings, Philadelphia Judge Lowell Reed issued a permanent injunction against enforcing the controversial, though never enforced, law.

Reed ruled that the American Civil Liberties Union's (ACLU) arguments against COPA, "true, reliable and credible and I accept those facts" and determined COPA violated the First Amendment's right to free speech.

Reed said that Attorney General Alberto Gonzales failed to "meet his burden of showing that COPA is the "least restrictive, most effective" alternative in achieving the "compelling [public] interest."

The ACLU filed a suit for permanent injunction relief against enforcing the law a week after Congress passed the measure in 1998. The organization argued that COPA overreached lawmakers' good intentions to protect children from "sexually explicit" material available online. Under COPA, children are defined as anyone under 17-years of age.

As written by Congress and signed by then President Bill Clinton, any commercial Web site operator that made "sexually explicit" material available to minors was, under COPA, subject to criminal and civil sanctions even if the online material was otherwise acknowledged as free speech for adults but deemed "harmful to minors."

COPA provided a safe harbor for Web site owners if they required the use of a credit card or other identification method used to verify age or, significantly, "any other reasonable measures that are feasible under available technology."

The ACLU immediately contended that Internet filtering technology was more feasible than any age verification methods, mitigating, the ACLU claimed, the impact on otherwise protected free speech. By the time the Bush administration inherited the political hot potato, it steadfastly maintained that filtering technology does not work and the threat of jail time and steep fines were the most effective defenses against making sexually explicit material available to minors.

Reed wrote that the ACLU's clients "post content on their Web sites including…resources on sexual health, safer sex, and sexual education; visual art and poetry; resources for gays and lesbians; online magazines and articles; music; and books and information about books that are being offered for sale." No matter Congress' valid interests to protect children, Reed ruled, such free speech restrictions on content stifled legal online free speech.

"I may not turn a blind eye to the law in order to attempt to satisfy my urge to protect this nation's youth by upholding a flawed statute, especially when a more effective and less restrictive alternative is readily available." Reed wrote.

As the case bounced all the way up from the district court to the Supreme Court and back down again, the Bush administration insisted filtering technology is not an effective tool for parents to censor adult content for their children. The ACLU argued otherwise. As the case dragged on for almost a decade, the Department of Justice (DoJ) eventually subpoenaed Google, Yahoo, MSN and AOL for proof child protection filters were ineffective tools against sites with sexually explicit material.

While Google successfully fought the subpoenas, the other search engines turned over evidence that convinced Roberts that "filtering products block both Web pages originating from within the United States and Web pages originating from outside the United States."

That determination, Roberts ruled, sank the DoJ's defense of COPA.

Roberts said that, in addition to their content-filtering features, filters can provide parents with a report indicating which Web sites a child visited, which sites were blocked, the number of e-mails and instant messages a child sent and to whom a child sent e-mail or instant messages.

Roberts further ruled that Internet-filtering technologies 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."

"Based upon the testimony of [ACLU witnesses], which I accept, I find that filters generally block about 95 percent of sexually explicit material," Roberts ruled. He also determined that two separate reports commissioned by Congress, "have confirmed that content filters can be effective at preventing minors from accessing harmful materials online."

The Bush administration has the right to appeal the decision, but the DoJ had not responded to Roberts' decision by press time.



2006 Tax Year Tough on IRS
Attorney Blogs | 2007/03/23 01:57

A new telephone refund, last-minute tax changes and a direct-deposit service made the 2006 tax filing season challenging for the Internal Revenue Service. So said IRS Commissioner Mark Everson, who noted during a Tuesday speech that the agency grappled with implementing the one-time telephone excise tax refund. During an address at the National Press Club in Washington, D.C., Everson added that he was surprised at the low claim rate for the refund, Government Executive magazine reported.

"We think some people may have skipped over it on the form – even with the software, in some instances – just completing the return as they did last year. We've been surprised by that," Everson said.

For this year only, most taxpayers can claim a refund of $30 to $60. The amount depends on the size of your family, for taxes the IRS mistakenly collected on long-distance phone services. So far, 30 percent of tax filers are failing to claim the refund, and half of the taxpayers paid preparers to complete their return, Forbes reported.

On the other hand, the IRS received huge telephone refund claims, allegedly fraudulent, for around $10,000 early in the filing season. "That's a lot of phone usage. Even my teenage kids can't generate that much phone usage," Everson joked. A subsequent crackdown on fraud appears to be effective, he said.

Other challenges for the IRS included extensions of tax breaks that did not become final until the end of December. The agency had to hussle to implement the changes in time for filing deadlines, and incorporate the changes into software programs.

A new direct-deposit service was also difficult: Filers can split their refund and have it sent electronically to different financial institutions. Everson said about 55,000 people took advantage of the service, that’s of 74 million returns processed so far, but he expects it to become more popular.



Insurance company refuses to cover law firm's blog
Headline News | 2007/03/23 00:59
A law firm in New Jersey has temporarily halted plans to launch a blog because its insurance company would not cover the blog under an existing malpractice insurance policy.

James Paone, a partner at Lomurro, Davison, Eastman and Munoz in Freehold, N.J., said that the firm's insurer -- The Chubb Corp. -- said several weeks ago that it would not add the blog to the existing policy. "We were in the process of beginning to set up a blog, having internal discussions about what areas of law would be the subjects," he said. "We wanted to cover the first base, which is Chubb's coverage. Our insurance carrier said a blog is not a risk they were interested in insuring. The entire discussion stopped."

Paone said his firm contacted Chubb to ask about insurance coverage in case someone tried to sue it over content in the blog. Now, the law firm is in the process of setting up a meeting with Chubb "so we can understand what their rationale is for saying they weren't interested in covering that kind of risk," Paone said.

Chubb did not immediately respond to a request for comment.



Court supports FCC in VoIP regulation
Court Feed News | 2007/03/22 16:17

A federal appeals court upheld a decision by the Federal Communications Commission that barred states from regulating Internet-based phone services, an Associated Press report said. The Associated Press report said a three-judge panel of the 8th Circuit Court of Appeals agreed with the FCC's determination in 2004 that companies like Vonage Holdings provide an interstate service that puts them outside state control.

Vonage uses VoIP, which involves converting the sound of a voice into packets of data and reassembling them into sound at the other end of the call. In 2003, Minnesota's Public Utilities Commission tried to register Vonage as a phone company, which would have subjected it to state tariffs and rate regulations, the report said. A federal judge barred Minnesota from doing so, and a year later at Vonage's request the FCC ruled that the company's services could not be regulated by the states.

Regulatory agencies in a number of states, including Minnesota, appealed that ruling, the report said. In the decision authored by Fargo, N.D.-based 8th Circuit Judge Kermit Bye, the court agreed with the FCC's determination that the nature of VoIP telephone calls allows customers to place "home" phone calls from nearly anywhere, irrespective of state lines, the report added.

When the FCC issued its ruling in 2004, officials with the agency indicated that they believed streamlined regulation was key to the growth of the fledgling industry.

The report further quoted Vonage CEO Mike Snyder as saying that the decision was good news for the company's 2.2 million subscribers.



U.S. judge blocks 1998 online porn law
Legal Career News | 2007/03/22 16:02

A federal judge on Thursday dealt another blow to government efforts to control Internet pornography, striking down a 1998 U.S. law that makes it a crime for commercial Web site operators to let children access "harmful" material.

In the ruling, the judge said parents can protect their children through software filters and other less restrictive means that do not limit the rights of others to free speech.

"Perhaps we do the minors of this country harm if First Amendment protections, which they will with age inherit fully, are chipped away in the name of their protection," wrote Senior U.S. District Judge Lowell Reed Jr., who presided over a four-week trial last fall.


The law would have criminalized Web sites that allow children to access material deemed "harmful to minors" by "contemporary community standards." The sites would have been expected to require a credit card number or other proof of age. Penalties included a $50,000 fine and up to six months in prison.

Sexual health sites, the online magazine Salon.com and other Web sites backed by the American Civil Liberties Union challenged the law. They argued that the Child Online Protection Act was unconstitutionally vague and would have had a chilling effect on speech.

The U.S. Supreme Court upheld a temporary injunction in 2004 on grounds the law was likely to be struck down and was perhaps outdated.

Technology experts said parents now have more serious concerns than Web sites with pornography. For instance, the threat of online predators has caused worries among parents whose children use social-networking sites such as News Corp.'s MySpace.

The case sparked a legal firestorm last year when Google challenged a Justice Department subpoena seeking information on what people search for online. Government lawyers had asked Google to turn over 1 million random Web addresses and a week's worth of Google search queries.

A judge sharply limited the scope of the subpoena, which Google had fought on trade secret, not privacy, grounds.

To defend the nine-year-old Child Online Protection Act, government lawyers attacked software filters as burdensome and less effective, even though they have previously defended their use in public schools and libraries.

"It is not reasonable for the government to expect all parents to shoulder the burden to cut off every possible source of adult content for their children, rather than the government's addressing the problem at its source," a government attorney, Peter D. Keisler, argued in a post-trial brief.

Critics of the law argued that filters work best because they let parents set limits based on their own values and their child's age.

The law addressed material accessed by children under 17, but applied only to content hosted in the United States.

The Web sites that challenged the law said fear of prosecution might lead them to shut down or move their operations offshore, beyond the reach of the U.S. law. They also said the Justice Department could do more to enforce obscenity laws already on the books.

The 1998 law followed Congress' unsuccessful 1996 effort to ban online pornography. The Supreme Court in 1997 deemed key portions of that law unconstitutional because it was too vague and trampled on adults' rights.

The newer law narrowed the restrictions to commercial Web sites and defined indecency more specifically.

In 2000, Congress passed a law requiring schools and libraries to use software filters if they receive certain federal funds. The high court upheld that law in 2003.



Hillary Clinton's net avenger unmasked
Law & Politics | 2007/03/22 13:04

The secret creator of a controversial web video portraying Democratic presidential candidate Senator Hillary Clinton as an Orwellian Big Brother has been outed. He is an employee of an internet consulting firm that works for one of Ms Clinton's opponents, Senator Barack Obama. The Obama campaign denied any involvement in the ad and the consulting firm said it had fired the worker.

The ad's reach -- it has received more than 1.7 million hits on YouTube in just a few days -- and the unmasking of its maker offer a glimpse of the changed media landscape of a nascent presidential campaign that is bitterly competitive 10 months before first voting.

The new popularity of web video allows broad distribution of clever political messages, which are often negative attack ads that may not readily be traced to their creators.

Phillip de Vellis, a strategist with the Washington-based consulting firm Blue State Digital, which hosts the Obama campaign web site, said he made the ad.

"I did it. And I'm proud of it," Mr de Vellis said in a response posted on a website site this week.

Mr de Vellis said he had acted on his own, without the knowledge of the Obama campaign or his employer.



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