The Progress & Freedom Foundation Blog

As I noted in the first part of this essay, The Child Online Protection Act of 1998, which was passed by Congress in 1998 in an effort to restrict minors’ access to adult-oriented websites, has again been struck down in the courts. The decision is fairly devastating for the government, which had been hoping to prove to the court that private Internet filtering technologies are ineffective in blocking objectionable material. The government had also hoped to prove that age verification technologies were available that might be used to block access by minors to various websites. The court rejected both of these arguments.

Here's a quick summary of the court's major findings on these two important issues:

"Filters can be programmed or configured in a variety of different ways according to, inter alia, the values of the parents using them and the age and maturity of their children." (p. 24)

"Some filtering programs offer only a small number of settings, while others are highly customizable, allowing a parent to make detailed decisions about what to allow and what to block. Filtering products do this by, among other things, enabling parents to choose which categories of speech they want to be blocked (such as sexually explicit material, illicit drug information, information on violence and weapons, and hate speech) and which age setting they want the product to apply." (p. 27)

"Some Internet content is now capable of being viewed on devices other than traditional personal computers" but… "Several vendors, including large, experienced software companies, currently offer content filtering products for alternative devices." (p. 29)

"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." (p. 30)

"Filtering programs are fairly easy to install, configure, and use and require only minimal effort by the end user to configure and update" and… "studies have found that many filtering products require little effort for parents to install and use." (p. 31)

"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." (p. 32)

"Filtering products have improved over time and are now more effective than ever before." (p. 33-34)

"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." (p. 34)

"Filtering companies actively take steps to make sure that children are not able to come up with ways to circumvent their filters." (p. 34)

"I find that filters generally block about 95% of sexually explicit material." (p. 35)

On mandatory age verification or data verification services as a potential alternative to private filters:

"From the weight of the evidence, I find that there is no evidence of age verification services or products available on the market to owners of Web sites that actually reliably establish or verify the age of Internet users. Nor is there evidence of such services or products that can effectively prevent access to Web pages by a minor." (p. 44)

"payment cards cannot be used to verify age because minors under 17 have access to credit cards, debit cards, and reloadable prepaid cards" and… "there are many other ways in which a minor may obtain and use payment cards." (p. 46)

"The minimum information required by a DVS [data verification services] company to attempt a verification is a first name, last name, street address, and zip code. This minimum information requirement can easily be circumvented by children who generally know the first and last name, street address and zip codes of their parents or another adult." (p. 49)

"I find from the testimony that without a physical delivery of goods and an accompanying visual age verification, neither the [data verification services] nor the Web page operator can know whether an adult or a child provided the information. Attempting to verify age with this information in a consumer-not-present transaction is therefore unreliable." (p. 49)

"It is not economically feasible for a Web page operator, especially one that
provides free content, to verify the information of every customer that visits the Web page with a [data verification service]." (p. 53)

"Requiring users to go through an age verification process would lead to a distinct loss of personal privacy." (p. 55)

[For more analysis of the impact of this decision on the debate over age verification for social networking sites, see Part 3 of my essay.]