No. 08-565: Mukasey v. ACLU - Appendix (Petition)

No. 08-565

In the Supreme Court of the United States

MICHAEL B. MUKASEY, ATTORNEY GENERAL OF THE UNITED STATES, PETITIONER

AMERICAN CIVIL LIBERTIES UNION, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

APPENDIX TO THE
PETITION FOR A WRIT OF CERTIORARI

GREGORY G. GARRE
Solicitor General
Counsel of Record
GREGORY G. KATSAS
Assistant Attorney General
EDWIN S. KNEEDLER
Deputy Solicitor General
WILLIAM M. JAY
Assistant to the Solicitor
General
SCOTT R. MCINTOSH
CHARLES W. SCARBOROUGH
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

APPENDIX A

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 07-2539

D.C. Civ. No. 98-cv-05591

AMERICAN CIVIL LIBERTIES UNION; ANDROGYNY
BOOKS, INC., D/B/A A DIFFERENT LIGHT BOOKSTORES;
AMERICAN BOOKSELLERS FOUNDATION FOR FREE
EXPRESSION; ADDAZI, INC., D/B/A CONDOMANIA;
ELECTRONIC FRONTIER FOUNDATION; ELECTRONIC PRIVACY INFORMATION CENTER; FREE SPEECH MEDIA; PHILADELPHIA GAY NEWS; POWELL'S BOOKSTORES; SALON MEDIA GROUP, INC.; PLANETOUT, INC.; HEATHER CORINNA REARICK; NERVE.COM, INC.; AARON PECKHAM, D/B/A URBAN DICTIONARY; PUBLIC COMMUNICATORS, INC.; DAN SAVAGE; SEXUAL HEALTH NETWORK

1MICHAEL B. MUKASEY, IN HIS OFFICIAL CAPACITY AS ATTORNEY GENERAL OF THE UNITED STATES MICHAEL B. MUKASEY, APPELLANT

On Appeal from the United States District Court for the Eastern District of Pennsylvania Honorable Lowell A. Reed, District Judge

Argued: June 10, 2008
Filed: July 22, 2008

OPINION OF THE COURT

Before: AMBRO, CHAGARES, and GREENBERG, Circuit Judges.
GREENBERG, Circuit Judge.

I. INTRODUCTION

This matter comes on before this Court on an appeal from an order of the District Court entered March 22, 2007, finding that the Child Online Protection Act ("COPA"), 47 U.S.C. § 231, facially violates the First and Fifth Amendments of the Constitution and permanently enjoining the Attorney General from enforcing COPA. The Government challenges the District Court's conclu sions that: (1) COPA is not narrowly tailored to advance the Government's compelling interest in protecting chil dren from harmful material on the World Wide Web ("Web"); (2) there are less restrictive, equally effective alternatives to COPA; and (3) COPA is impermissibly overbroad and vague. We will affirm.

II. FACTS AND PROCEDURAL HISTORY

It is useful at the outset to set forth a short history of the background of COPA and an explanation of the relationship between the Web and the Internet. Con gress enacted COPA to protect minors from exposure to sexually explicit material on the Web. The Web is just one portion of the Internet, which "is an interactive me dium based on a decentralized network of computers." American Civil Liberties Union v. Gonzales, 478 F. Supp. 2d 775, 781 (E.D. Pa. 2007) ("Gonzales"). "The Internet may also be used to engage in other activities such as sending and receiving emails, trading files, ex changing instant messages, chatting online, streaming audio and video, and making voice calls." Id. The Dis trict Court described how the Web functions:

On the Web, a client program called a Web browser retrieves information from the Internet, such as Web pages and other computer files using their network addresses and displays them, typically on a computer monitor. . . . Web pages, which can contain, inter alia, text, still and moving picture files, sound files, and computer scripts, are often arranged in collec tions of related material called Web sites, which con sist of one or more Web pages. . . . It is estimated that there are between 25 and 64 billion Web pages on the surface portion of the Web ('Surface Web') -that is, the portion of the Web that is capable of being indexed by search engines. These Web pages may be displayed on a monitor screen and, thus, the content may be seen by anyone operating a computer or other Internet capable device which is properly connected to the Internet.

Id. at 781-82 (citations omitted). The District Court indicated that "[a] little more than 1 percent of all Web pages on the Surface Web (amounting to approximately 275 million to 700 million Web pages) are sexually ex plicit." Id. at 788.

COPA provides for civil and criminal penalties-in cluding up to six months imprisonment-for anyone who knowingly posts "material that is harmful to minors" on the Web "for commercial purposes." 47 U.S.C. § 231(a)(1). "Intentional" violations result in heavier fines. Id. at § 231(a)(2). "[M]aterial that is harmful to minors" includes any communication that is obscene or that:

(A) the average person, applying contemporary com munity standards, would find, taking the material as a whole and with respect to minors, is designed to appeal to, or is designed to pander to, the prurient interest; (B) depicts, describes, or represents, in a manner patently offensive with respect to minors, an actual or simulated sexual act or sexual contact, an actual or simulated normal or perverted sexual act, or a lewd exhibition of the genitals or post-pubescent female breast; and (C) taken as a whole, lacks serious literary, artistic, political, or scientific value for mi nors.

Id. at § 231(e)(6). "The term 'minor' means any person under 17 years of age." Id. at § 231(e)(7). A person makes a communication "for commercial purposes" only if the person when making the communication "is en gaged in the business of making such communications." Id. at § 231(e)(2)(A). A person is "engaged in the busi ness" when the person:

devotes time, attention, or labor to such activities, as a regular course of such person's trade or busi ness, with the objective of earning a profit as a result of such activities . . . . [and] only if the person knowingly causes [or solicits] the material that is harmful to minors to be posted on the World Wide Web . . . .

Id. at § 231(e)(2)(B). A Web publisher can assert an affirmative defense to prosecution under COPA if he or she:

has restricted access by minors to material that is harmful to minors-(A) by requiring use of a credit card, debit account, adult access code, or adult per sonal identification number; (B) by accepting a digi tal certificate that verifies age; or (C) by any other reasonable measures that are feasible under avail able technology.

Id. at § 231(c)(1).

Congress enacted COPA after the Supreme Court declared Congress's first attempt to protect minors from exposure to sexually explicit materials on the Web to be unconstitutional. See Reno v. American Civil Liberties Union, 521 U.S. 844, 117 S. Ct. 2329 (1997) (holding that the Communications Decency Act violated the First Amendment). The day after COPA became law on Octo ber 21, 1998, plaintiffs, consisting of speakers, content providers, and users of the Web, filed this action in the District Court seeking an injunction barring COPA's enforcement. On February 1, 1999, the District Court preliminarily enjoined the Government from enforcing COPA pending a trial on the merits. American Civil Liberties Union v. Reno, 31 F. Supp. 2d 473 (E.D. Pa. 1999). In its opinion the court pointed out, among many other things, that the plaintiffs suggested that filtering and blocking technology was an "example of a more effi cacious and less restrictive means to shield minors from harmful materials" than COPA but that the final deter mination of whether this was so "must await trial on the merits." Id. at 497.

The Government appealed but we affirmed the Dis trict Court's order after concluding that the "community standards" language in section 231(e)(6)(A) by itself ren dered COPA unconstitutionally overbroad. American Civil Liberties Union v. Reno, 217 F.3d 162, 173 (3d Cir. 2000) ("ACLU I"). The Government then sought and obtained certiorari and the Supreme Court vacated our decision and remanded the case to us for further pro ceedings because the Court concluded that the "commu nity standards" language did not, standing alone, make the statute unconstitutionally overbroad. Ashcroft v. American Civil Liberties Union, 535 U.S. 564, 585, 122 S. Ct. 1700, 1713 (2002).

On the remand we ruled that, for a variety of rea sons, COPA was not narrowly tailored to serve the Gov ernment's compelling interest in preventing minors from being exposed to harmful material on the Web, was not the least restrictive means available to effect that inter est, and was substantially overbroad. American Civil Liberties Union v. Ashcroft, 322 F.3d 240, 251-271 (3d Cir. 2003) ("ACLU II"). Consequently, we again af firmed the District Court's order granting the prelimi nary injunction. Id. at 271. The Government again sought and obtained certiorari but this time the Su preme Court affirmed our decision though it remanded the case to the District Court for a trial on the merits. The Court contemplated that the record would be up dated on the remand to reflect the then current techno logical developments and to account for any changes in the legal landscape. The Court further directed that the District Court determine whether Internet content fil ters are more effective than enforcement of the COPA restrictions or whether other possible alternatives are less restrictive and more effective than COPA to effectu ate Congress's intention. Ashcroft v. American Civil Liberties Union, 542 U.S. 656, 670-73, 124 S. Ct. 2783, 2794-95 (2004).

After a bench trial, the District Court on March 22, 2007, issued extensive findings of fact, determined that plaintiffs have standing to maintain this action, and con cluded that:

COPA facially violates the First and Fifth Amend ment rights of the plaintiffs because: (1) COPA is not narrowly tailored to the compelling interest of Con gress; (2) defendant has failed to meet his burden of showing that COPA is the least restrictive and most effective alternative in achieving the compelling in terest; and (3) COPA is impermissibly vague and overbroad.

Gonzales, 478 F. Supp. 2d at 821. The District Court permanently enjoined the Attorney General and his offi cers, agents, employees, and attorneys, and those per sons in active concert or participation with him who re ceived actual notice of its order, from enforcing or pros ecuting matters premised upon COPA at any time for any conduct. Id.

The Government then filed a timely appeal to this Court.

III. JURISDICTION AND STANDARD OF REVIEW

The District Court had jurisdiction under 28 U.S.C. § 1331 and we have jurisdiction pursuant to 28 U.S.C. § 1291. We review the constitutionality of a federal stat ute and related questions of statutory interpretation de novo. Abdul-Akbar v. McKelvie, 239 F.3d 307, 311 (3d Cir. 2001). Although we generally review a district court's factual findings for clear error, "[i]n the First Amendment context, reviewing courts have a duty to engage in a searching, independent factual review of the full record." United States v. Scarfo, 263 F.3d 80, 91 (3d Cir. 2001). The Supreme Court has emphasized that "an appellate court has an obligation to 'make an independ ent examination of the whole record' in order to make sure that 'the judgment does not constitute a forbidden intrusion on the field of free expression.'" Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 499, 104 S. Ct. 1949, 1958 (1984) (quoting New York Times Co. v. Sullivan, 376 U.S. 254, 284-86, 84 S. Ct. 710, 728-29 (1964)).

IV. DISCUSSION

The First Amendment provides that "Congress shall make no law . . . abridging the freedom of speech, or of the press . . . ." U.S. Const. amend. I. COPA criminalizes a category of speech-"harmful to minors" material-that is constitutionally protected for adults. Because COPA is a content-based restriction on pro tected speech, it is presumptively invalid and the Gov ernment bears the burden of showing its constitutional ity. Ashcroft, 542 U.S. at 660, 124 S. Ct. at 2788.

The Government challenges the District Court's deci sion that COPA facially violated plaintiffs' First Amend ment rights because it was not narrowly tailored to fur ther a compelling government interest, i.e., was not the least restrictive alternative to advance that interest, the prevention of minors from being exposed to harmful material on the Web, and was impermissibly vague and overbroad.2

A. Law-of-the-Case Doctrine

Before we reach the merits of the case, we must ad dress the effect of our prior decision in ACLU II on this appeal, as the presence of that decision may make the law-of-the-case doctrine relevant here. Under the law- of-the-case doctrine, "when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case." Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 816, 108 S. Ct. 2166, 2177 (1988) (quoting Arizona v. California, 460 U.S. 605, 618, 103 S. Ct. 1382, 1391 (1983)). "This rule of practice promotes the finality and efficiency of the judicial process by protecting against the agitation of settled issues." Id. (citation and quota tion marks omitted).

We recently addressed the binding effect that our prior decisions on legal issues at the preliminary injunc tion stage on an earlier appeal in the same case have on later decisions. See Pitt News v. Pappert, 379 F.3d 96, 104-05 (3d Cir. 2004). Clearly the nature of the showing that an applicant for a preliminary injunction must make to obtain relief can present special difficulties in apply ing the law-of-the-case doctrine in later stages of the litigation. In Pitt News we noted that "three separate rules are relevant" when considering the effect of a pre liminary injunction later in ongoing litigation:

First, it is our Court's tradition that a panel may not overrule 'a holding' of a prior panel. Second, it is well established that neither this tradition nor the law-of- the-case doctrine requires a panel hearing an appeal from the entry of a final judgment to follow the legal analysis contained in a prior panel decision address ing the question whether a party that moved for pre liminary injunctive relief showed a likelihood of suc cess on the merits. Third, although a panel entertain ing a preliminary injunction appeal generally decides only whether the district court abused its discretion in ruling on the request for relief and generally does not go into the merits any farther than is necessary to determine whether the moving party established a likelihood of success, a panel is not always required to take this narrow approach. If a preliminary in junction appeal presents a question of law and the facts are established or of no controlling relevance, the panel may decide the merits of the claim.

Id. at 104-05 (citations and most internal quotation marks omitted). We explained:

In the typical situation-where the prior panel stopped at the question of likelihood of success-the prior panel's legal analysis must be carefully consid ered, but it is not binding on the later panel. Indeed, particularly where important First Amendment is sues are raised, the later panel has a duty, in the end, to exercise its own best judgment. On the other hand, if the first panel does not stop at the question of likelihood of success and instead addresses the merits, the later panel, in accordance with our Court's traditional practice, should regard itself as bound by the prior panel's opinion.

Id. at 105.

But even if we subsequently conclude that in a partic ular case our prior determination ordinarily would bind us, we may reconsider issues that we previously resolved if any of the following "extraordinary circumstances" are present: "(1) there has been an intervening change in the law; (2) new evidence has become available; or (3) reconsideration is necessary to prevent clear error or a manifest injustice." Council of Alternative Political Parties v. Hooks, 179 F.3d 64, 69 (3d Cir. 1999) (citing In re City of Philadelphia Litig., 158 F.3d 711, 718 (3d Cir. 1998)).

In ACLU II we concluded that plaintiffs were likely to succeed on the merits and thus concluded that the District Court could grant them a preliminary injunc tion. Nevertheless we did not stop our analysis after coming to that conclusion. Instead, we opined at length on the constitutionality of COPA and construed a num ber of terms of the statute. Consequently, the proce dural posture of this case and the scope of our prior de cision has set a foundation for the possible applicability of the law-of-the-case doctrine here.

Though we will explain in more detail the basis for our conclusions in ACLU II, for purposes of determining the binding effect of that decision on this appeal it is enough to note now that we expressly held the following: (1) COPA's definitions of "material that is harmful to minors," and "commercial purposes" and COPA's affir mative defenses are not narrowly tailored to achieve the Government's compelling interest in protecting minors from harmful material on the Web, 322 F.3d at 251; (2) filtering software is a less restrictive alternative than the COPA restrictions to advance the Government's compelling interest in preventing minors from being exposed to harmful material on the Web, id. at 265; (3) COPA is "substantially overbroad" because of its use of the terms "material harmful to minors," "minor," "commercial purposes," and "community standards"; (4) COPA's affirmative defenses do not save the statute from sweeping too broadly; and (5) a narrowing con struction of COPA is not available to permit it to be up held, id. at 266-71.

In its decision affirming ACLU II, the Supreme Court expressly declined to consider many of the issues that we had determined. Specifically, the Court stated:

[W]e agree with the Court of Appeals that the Dis trict Court did not abuse its discretion in entering the preliminary injunction. Our reasoning in support of this conclusion, however, is based on narrower, more specific grounds than the rationale the Court of Appeals adopted. The Court of Appeals, in its opin ion affirming the decision of the District Court, con strued a number of terms in the statute, and held that COPA, so construed, was unconstitutional. None of those constructions of statutory terminol ogy, however, were relied on by or necessary to the conclusions of the District Court. Instead, the Dis trict Court concluded only that the statute was likely to burden some speech that is protected for adults, which [the Government] does not dispute. As to the definitional disputes, the District Court concluded only that [the plaintiffs'] interpretation was 'not un reasonable,' and relied on their interpretation only to conclude that [the plaintiffs] had standing to chal lenge the statute, which, again, [the Government] does not dispute. Because we affirm the District Court's decision to grant the preliminary injunction for the reasons relied on by the District Court, we decline to consider the correctness of the other argu ments relied on by the Court of Appeals.

Ashcroft, 542 U.S. at 665, 124 S. Ct. at 2791 (citations omitted). The Court then addressed the issue of whether there are less restrictive alternatives to the COPA restrictions to further the Government's compel ling interest in COPA's objective and stated that "[f]ilters are less restrictive than COPA." Id. at 667, 124 S. Ct. at 2792. The Court recognized, however, that "there are substantial factual disputes remaining in the case. . . . [T]here is a serious gap in the evidence as to the effectiveness of filtering software. For us to assume, without proof, that filters are less effective than COPA would usurp the District Court's factfinding role." Id. at 671, 124 S. Ct. at 2794 (citation omitted). Thus, the Court recognized that restrictiveness and effectiveness are separate matters. The Court also noted that:

[T]he factual record does not reflect current techno logical reality-a serious flaw in any case involving the Internet. The technology of the Internet evolves at a rapid pace. Yet the factfindings of the District Court were entered in February 1999, over five years ago . . . . It is reasonable to assume that other technological developments important to the First Amendment analysis have also occurred during that time. More and better filtering alternatives may exist than when the District Court entered its find ings.

Id. Accordingly, the Court decided to remand the case to the District Court for a full trial on the merits to "up date and supplement the factual record to reflect cur rent technological realities" and "to take account of a changed legal landscape" to determine if other methods were less restrictive alternatives to COPA to further the Government's compelling interest in its objective. Id. at 672, 124 S. Ct. at 2795.

The Government contends that the portion of our opinion in ACLU II that goes beyond the Supreme Court's holding "is not binding because the Supreme Court's decision remanding for further consideration of the question whether filtering is a less restrictive alter native than COPA contemplates a fresh examination of all the issues in this case, including the scope of COPA's coverage and its efficacy and restrictiveness compared to filtering." Appellant's Letter at 1 (May 30, 2008).3 We conclude, however, that the Government is incorrect on this point. The Supreme Court's decision explicitly left untouched our conclusions in ACLU II other than our decision that filters are a less restrictive alternative than COPA for advancing the Government's compelling interest at stake in this litigation. Moreover, our other determinations-including our interpretation of the pro visions of COPA and whether they are narrowly con strued or impermissibly overbroad-did not depend on the factual record and thus would not be implicated by the evidence developed in the subsequent trial on the merits in the District Court. Accordingly, those conclu sions remain binding on us now.

The Government also contends that we should recon sider the issues addressed in ACLU II on the basis of an intervening change in the law since we decided that case. In this regard it points to the Supreme Court's recent decision in United States v. Williams, 128 S. Ct. 1830 (2008), where the Court found that the Prosecuto rial Remedies and Other Tools to end the Exploita- tion of Children Today Act of 2003, 18 U.S.C. § 2252A(a)(3)(B), is not overbroad under the First Amendment. But the Court in Williams merely re stated and applied the well-established legal doctrines of overbreadth and vagueness and did not change the law applicable to this case. Accordingly, we conclude that there are not "extraordinary circumstances" justi fying us in departing from our holdings in ACLU II other than that with respect to filtering.

Now that we have delineated the contours of ACLU II's effect on this appeal, we will address the issues the Government raises. As we consider these issues, we will determine whether, and if so the extent, that our conclu sions in ACLU II are the law-of-the-case here.

B. Strict Scrutiny

First, the Government challenges the District Court's decision that COPA is unconstitutional because it does not survive strict scrutiny, the standard that we apply in this case inasmuch as COPA is a content-based restriction on speech. See Turner Broadcasting Sys., Inc. v. Fed. Commc'ns Comm'n, 512 U.S. 622, 642, 114 S. Ct. 2445, 2459 (1994). To survive strict scrutiny anal ysis, a statute must: (1) serve a compelling governmen tal interest; (2) be narrowly tailored to achieve that in terest; and (3) be the least restrictive means of advanc ing that interest. Sable Commc'ns of Cal., Inc. v. Fed. Commc'ns Comm'n, 492 U.S. 115, 126, 109 S. Ct. 2829, 2836 (1989).

1. Compelling Interest

As we noted above, Congress enacted COPA to pro tect minors from exposure to sexually explicit material on the Web. The Supreme Court has held that "there is a compelling interest in protecting the physical and psy chological well-being of minors," Sable, 492 U.S. at 126, 109 S. Ct. at 2836, and the parties agree that the Gov ernment has a compelling interest to protect minors from exposure to harmful material on the Web. Inas much as we agree with them on that point, we turn to the question of whether COPA is narrowly tailored to effectuate its purpose.

2. Narrowly Tailored

As we stated above, to survive a strict scrutiny analy sis COPA must be narrowly tailored to advance a com pelling government interest. In ACLU II, we addressed this issue and held that the following provisions of COPA are not narrowly tailored:

(a) the definition of 'material that is harmful to mi nors,' which includes the concept of taking 'as a whole' material designed to appeal to the 'prurient interest' of minors; and material which (when judged as a whole) lacks 'serious literary' or other 'value' for minors; (b) the definition of 'commercial purposes,' which limits the reach of the statute to persons 'en gaged in the business' (broadly defined) of making communications of material that is harmful to mi nors; and (c) the 'affirmative defenses' available to publishers, which require the technological screening of users for the purpose of age verification.

ACLU II, 322 F.3d at 251.

First, we addressed why we found that the "taking the material as a whole" language in COPA's definition of "material that is harmful to minors," was not nar rowly tailored. COPA defines such material to include any matter that is obscene or that:

(A) the average person, applying contemporary com munity standards, would find, taking the material as a whole and with respect to minors, is designed to appeal to, or is designed to pander to, the prurient interest; (B) depicts, describes, or represents, in a manner patently offensive with respect to minors, an actual or simulated sexual act or sexual contact, an actual or simulated normal or perverted sexual act, or a lewd exhibition of the genitals or post-pubescent female breast; and (C) taken as a whole, lacks seri ous literary, artistic, political, or scientific value for minors.

47 U.S.C. § 231(e)(6) (emphasis added). We concluded that the taken "as a whole" language, when read in con text with other language in the statute, mandates evalu ation of an exhibit on the Internet in isolation, rather than in context. ACLU II, 322 F.3d at 253. We ex plained that:

Because we view such a statute, construed as its own text unquestionably requires, as pertaining only to single individual exhibits, COPA endangers a wide range of communications, exhibits, and speakers whose messages do not comport with the type of harmful materials legitimately targeted under COPA, i.e., material that is obscene as to minors. Accordingly, while COPA penalizes publishers for making available improper material for minors, at the same time it impermissibly burdens a wide range of speech and exhibits otherwise protected for adults. Thus, in our opinion, the Act, which pro scribes publication of material harmful to minors, is not narrowly tailored to serve the Government's stated purpose in protecting minors from such mate rial.

Id. (citation omitted).

We also explained why we found that "COPA's defini tion of the term 'minor,' viewed in conjunction with the 'material harmful to minors' test, is not tailored nar rowly enough to satisfy the First Amendment's require ments." Id. at 255. COPA defines "minor" as "any per son under 17 years of age." 47 U.S.C. § 231(e)(7). We stated that the term "thus applies in a literal sense to an infant, a five-year old, or a person just shy of age seven teen." ACLU II, 322 F.3d at 254. We reasoned that "Web publishers would face great uncertainty in decid ing what minor could be exposed to its publication, so that a publisher could predict, and guard against, poten tial liability." Id. at 255. We explicitly rejected the Gov ernment's argument that the term "should be read to apply only to normal, older adolescents," id. at 254, and stated that under either our definition or the Govern ment's proffered definition, "the term 'minor,' viewed in conjunction with the 'material harmful to minors' test, is not tailored narrowly enough to satisfy the First Amend ment's requirements," id. at 255.

We then proceeded to explain why we found that "COPA's purported limitation of liability to persons making communications 'for commercial purposes' does not narrow the reach of COPA sufficiently." Id. at 256. COPA states that "[a] person shall be considered to make a communication for commercial purposes only if such person is engaged in the business of making such communications," and that

[t]he term 'engaged in the business' means that the person who makes a communication . . . that in cludes any material that is harmful to minors, de votes time, attention, or labor to such activities, as a regular course of such person's trade or business, with the objective of earning a profit . . . . A per son may be considered to be engaged in the business . . . only if the person knowingly causes [or solicits] the material that is harmful to minors to be posted on the World Wide Web . . . .

47 U.S.C. § 231(e)(2). We stated that:

we read COPA to apply to Web publishers who have posted any material that is 'harmful to minors' on their Web sites, even if they do not make a profit from such material itself or do not post such material as the principal part of their business. Under the plain language of COPA, a Web publisher will be subjected to liability if even a small part of his or her Web site displays material 'harmful to minors.'

ACLU II, 322 F.3d at 256. We stated that this group included "those persons who sell advertising space on their otherwise noncommercial Web sites . . . [, includ ing] the Web publisher who provides free content on his or her Web site and seeks advertising revenue, perhaps only to defray the cost of maintaining the Web site." Id. We also rejected the Government's argument that "COPA's definition of 'engaged in the business' limits liability to those persons who publish material that is harmful to minors 'as a regular course of such person's business or trade'":

COPA's use of the phrase 'regular course' does not narrow the scope of speech covered because it does not place any limitations on the amount, or the pro portion, of a Web publisher's posted content that constitutes such material. Thus, even if posted mate rial that is harmful to minors constitutes only a very small, or even infinitesimal, part of a publisher's en tire Web site, the publisher may still be subject to liability.

Id. at 257.

Finally, we explained why we found that COPA's affirmative defenses were not narrowly tailored. As we already have noted above, a Web publisher can assert an affirmative defense if it:

47 U.S.C. § 231(c)(1). We first stated that implementa tion of the affirmative defenses in COPA "will likely de ter many adults from accessing restricted content, be cause many Web users are simply unwilling to provide identification information in order to gain access to con tent, especially where the information they wish to ac cess is sensitive or controversial." ACLU II, 322 F.3d at 259 (footnote omitted). For this particular conclusion we relied on factual findings the District Court made in granting the preliminary injunction, so to this extent it does not bind us on this appeal.

Though we are not bound by previous conclusions with respect to deterrence of adults seeking restricted content, in ACLU II we reached other conclusions about COPA's affirmative defenses that do not depend on the facts as developed in the District Court, and those con clusions are binding on us on this appeal. For instance, in ACLU II we stated that "the affirmative defenses do not provide Web publishers with assurances of freedom from prosecution" because "'[a]n affirmative defense applies only after prosecution has begun, and the speaker must himself prove . . . that his conduct falls within the affirmative defense.'" Id. at 260 (second al teration in original) (quoting Ashcroft v. Free Speech Coalition, 535 U.S. 234, 255, 122 S. Ct. 1389, 1404 (2002)). We also considered the Government's argument that other cases dealing with display restrictions have upheld the use of blinder racks to shield minors from viewing harmful material. We distinguished those cases because:

[t]he use of 'blinder racks' . . . does not create the same deterrent effect on adults as would COPA's credit card or adult verification screens. Blinder racks do not require adults to compromise their ano nymity in their viewing of material harmful to mi nors, nor do they create any financial burden on the user. Moreover, they do not burden the speech con tained in the targeted publications any more than is absolutely necessary to shield minors from its con tent.

Id. We concluded that "[t]he effect of the affirmative defenses, as they burden 'material harmful to minors' which is constitutionally protected for adults, is to drive this protected speech from the marketplace of ideas on the Internet. This type of regulation is prohibited under the First Amendment." Id.

In its decision made after the trial on the merits now on appeal before us, the District Court concluded that COPA is not narrowly tailored because it is both overinclusive and underinclusive. First, the court deter mined that COPA is impermissibly overinclusive be cause it "prohibits much more speech than is necessary to further Congress' compelling interest. For example, . . . the definitions of 'commercial purposes' and 'en gaged in the business' apply to an inordinate amount of Internet speech and certainly cover more than just com mercial pornographers . . . ." Gonzales, 478 F. Supp. 2d at 810 (citations omitted). The court also concluded that COPA is overinclusive because it "applies to speech that is obscene as to all minors from newborns to age sixteen, and not just to speech that is obscene as to older minors . . . " Id.

The Government contends that COPA is narrowly tailored because it applies only to commercial porno graphers and only to material that is harmful to "older" minors. But we addressed and rejected the Govern ment's arguments in ACLU II, when we found there is nothing in the text of COPA to limit its application solely to "commercial pornographers" or to limit the phrase "material that is harmful to minors" to include material that only is harmful to "older" minors. See 322 F.3d at 253-57. Our prior decision is binding on these issues on this appeal.

The District Court also found that COPA is not nar rowly tailored because it is underinclusive. In ACLU II we did not address whether COPA is impermissibly underinclusive and so we are free to review this finding on the merits. In its Findings of Fact, the District Court stated that "a substantial number (approximately 50 percent) of sexually explicit websites are foreign in origin." Gonzales, 478 F. Supp. 2d at 789. The court then reasoned:

[T]here is a significant amount of sexually explicit material on the Internet which originates from out side of the United States. . . . [U]nlike Internet content filters which are able to block from view un suitable material regardless of its origin, COPA has no extra-territorial application. As a result, . . . COPA is not applicable to a large amount of material that is unsuitable for children which originates over seas but is nevertheless available to children in the United States . . . . COPA's lack of extraterritorial application renders it underinclusive.

Id. at 810-11 (citations omitted). The Government con tends that the District Court erred by construing COPA not to apply to foreign Web sites, and thus the Govern ment argues that COPA is not underinclusive.

The problem with the Government's argument in this respect is that, as we explain below, the Supreme Court already has determined that COPA does not apply to foreign Web sites. But notwithstanding this significant limitation on COPA's scope, if we had to pass on the is sue we might conclude that COPA is not unconstitution ally underinclusive. The Supreme Court has explained the circumstances in which a court may find that a regu lation of speech is impermissibly underinclusive:

[A]n exemption from an otherwise permissible regu lation of speech may represent a governmental 'at tempt to give one side of a debatable public question an advantage in expressing its views to the people.' First Nat'l Bank of Boston v. Bellotti, 435 U.S. 765, 785-86, 98 S. Ct. 1407, 1420-21, 55 L. Ed. 2d 707 (1978). Alternatively, through the combined opera tion of a general speech restriction and its exemp tions, the government might seek to select the 'per missible subjects for public debate' and thereby to 'control . . . the search for political truth.' Consoli dated Edison Co. of N.Y. v. Public Serv. Comm'n of N.Y., 447 U.S. 530, 538, 100 S. Ct. 2326, 2333, 65 L. Ed. 2d 319 (1980).

City of Ladue v. Gilleo, 512 U.S. 43, 51, 114 S. Ct. 2038, 2043 (1994) (second alteration in original) (footnote omitted). These quite narrow circumstances are hardly applicable to COPA. Even though, as the District Court recognized, COPA does not apply to foreign Web sites, we cannot understand how that limitation on its scope would "represent a governmental attempt to give one side of a debatable public question an advantage in ex pressing its views to the people . . . [or] to select the permissible subjects for public debate." Id. (citations and quotation marks omitted). There is no evidence in the record of which we are aware that Congress sought to favor foreign Web site publishers over domestic Web site publishers when regulating sexually explicit mate rial on the Web, nor is there any suggestion in the re cord that the Government is selecting the permissible subject for public debate by excluding foreign Web sites from COPA's coverage.

In fact, we think that it is likely that Congress would have desired to place COPA's restrictions on foreign Web sites available for access in this country but chose not to do so because, as the District Court recognized:

[e]nforcement of COPA against overseas Web site owners would . . . be burdensome and impractical due to the knotty questions of jurisdiction which arise in the Internet context. Furthermore, even if a specific foreign Web site had sufficient contacts with the forum to allow personal jurisdiction, it could be quite difficult or impossible to ensure that the of fender would obey or could be forced to obey the judgment of the U.S. court.

Gonzales, 478 F. Supp. 2d at 811. In these circum stances, even though COPA's omission of foreign Web sites from its regulations certainly is relevant in an in quiry into whether it is the most effective means of ad vancing the Government's compelling interest in COPA's object, the omission might not lead us to a con clusion that the statute is impermissibly underinclusive. After all, as the Court of Appeals for the Eighth Circuit recently noted, "a limitation on speech that is not all- encompassing may still be narrowly tailored where the underinclusivity does not favor a particular viewpoint or undermine the rationale given for the regulation." Bow man v. White, 444 F.3d 967, 983 (8th Cir. 2006).

On the other hand, we might conclude that because COPA fails to apply to 50% of its purported commercial pornography targets, we lack the evidence necessary to satisfy us that Congress had in mind its stated goal of protecting minors from harmful material on the Web when it passed COPA. It is not as though Congress is unable to protect minors from harmful material on for eign Web sites; for instance, Congress could promote the use of Internet content filters, which do not discrimi nate on the basis of geography. COPA's failure to pro tect minors from harmful material on foreign Web sites might raise the inference that Congress had some ulte rior, impermissible motive for passing COPA.

We note, however, that our possible disagreement with the District Court on this one point would not change our ultimate decision to affirm its order granting a permanent injunction, as there are numerous other grounds that require us to find that COPA is not nar rowly tailored and is unconstitutional. Accordingly, we will refrain from deciding the matter.

The District Court also found that COPA's affirma tive defenses "do not aid in narrowly tailoring COPA to Congress' compelling interest." Gonzales, 478 F. Supp. 2d at 813. Specifically, the court found 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 ser vices or products that can effectively prevent access to Web pages by a minor.

Id. at 800. The court found that "[t]he rules of payment card associations in this country prohibit Web sites from claiming that use of a payment card is an effective method of verifying age, and prohibit Web site owners from using credit or debit cards to verify age," and that "a significant number of minors have access to [payment cards]." Id. at 801. The court also reviewed data verifi cation services, which are "non-payment card-based ser vices that attempt to verify the age or identity of an indi vidual Internet user," and found that they are unreliable because they "cannot determine whether the person entering information into the Web site is the person to whom the information pertains." Id. at 802. The court further found that the minimum information required by a data verification services company "can easily be cir cumvented by children who generally know the first and last name, street address and zip codes of their parents or another adult." Id.

The court later explained, "[t]he affirmative defenses cannot cure COPA's failure to be narrowly tailored be cause they are effectively unavailable. Credit cards, debit accounts, adult access codes, and adult personal identification numbers do not in fact verify age. As a result, their use does not, in good faith, 'restrict [] ac cess' by minors." Id. at 811 (second alteration in origi nal) (quoting 47 U.S.C. § 231(c)(1)(A)).

The court also concluded that COPA's affirmative defenses "raise unique First Amendment issues" that make the statute unconstitutional. Id. at 813. The court found that due to the fees associated with the use of the procedures enumerated in all of the affirmative defenses and verification services, "Web sites . . . which desire to provide free distribution of their information, will be prevented from doing so." Id. at 804. The court also found that:

[f]or a plethora of reasons including privacy and fi nancial concerns . . . and the fact that so much Web content is available for free, many Web users already refuse to register, provide credit card information, or provide real personal information to Web sites if they have any alternative. Because requiring age verification would lead to a significant loss of users, content providers would have to either self-censor, risk prosecution, or shoulder the large financial bur den of age verification.

Id. at 805. Moreover, the court found that "many users who are not willing to access information non-anony mously will be deterred from accessing the desired in formation. Web site owners . . . will be deprived of the ability to provide this information to those users." Id. at 806. The court also indicated that:

[r]equiring Internet users to provide payment card information or other personally identifiable informa tion to access a Web site would significantly deter many users from entering the site, because Internet users are concerned about security on the Internet and because Internet users are afraid of fraud and identity theft on the Internet.

Id. Based on these findings, the court concluded that:

[t]he affirmative defenses also raise their own First Amendment concerns. For example, the utilization of those devices to trigger COPA's affirmative de fenses will deter listeners, many of whom will be un willing to reveal personal and financial information in order to access content and, thus, will chill speech. Similarly, the affirmative defenses also imper missibly burden Web site operators with demon strating that their speech is lawful. Under the COPA regime, Web site operators are unable to de fend themselves until after they are prosecuted. Moreover, the affirmative defenses place substantial economic burdens on the exercise of protected speech because all of them involve significant cost and the loss of Web site visitors, especially to those plaintiffs who provide their content for free.

Id. at 812-13 (citations and quotations omitted).

The Government argues that the District Court erred in rejecting the limiting effect of COPA's affirma tive defenses. It contends that "[t]he possibility that some minors may have access to credit cards merely demonstrates that no system of age verification is fool proof. It does not call into question the availability of credit card screening as an affirmative defense that tai lors COPA more narrowly." Appellant's Br. at 37. The Government also argues that "the court ignored testi mony that minors do not have access to traditional pay ment cards under their own control but simply have ac cess to cards supervised by adults." Id.

But the District Court found that even if there is pa rental supervision of payment card use, the supervision does not prevent access to harmful material by minors because parents "may not be able to identify transac tions on sexually explicit Web sites because the adult nature of such transactions is often not readily identifi able . . . ." Gonzales, 478 F. Supp. 2d at 802. In any event, we conclude that the District Court correctly found that the affirmative defenses are "effectively un available" because they do not actually verify age.

The Government also argues that the District Court incorrectly determined that the affirmative defenses present their own First Amendment concerns by impos ing undue burdens on Web publishers due to the high costs of implementing age verification technologies and the loss of traffic that would result from the use of these technologies. The Government contends that the:

court's evaluation of the burdens imposed by COPA was flawed because the court focused largely, if not exclusively, on Web publishers who provide their content for free. Whatever limited application COPA might have beyond its core regulation of commercial pornography, the court erred in evaluating the bur dens the statute imposes based entirely on these marginal cases and ignoring the heartland of the stat ute's proscriptions, where the burdens are far less onerous.

Appellant's Br. at 38-39 (citations and quotations omit ted). We reject this argument. The fact that COPA places burdens on Web publishers whom the Govern ment does not consider to be within the "heartland" of the statute does not make those burdens any less oner ous or offensive to the principles of the First Amend ment.

Moreover, there is good reason to believe that COPA unduly would burden even those Web publishers whom the Government considers to fall within the "heartland" of the statute, because the District Court found that those publishers also will face significant costs to imple ment the affirmative defenses and will suffer the loss of legitimate visitors once they do so. And, contrary to the Government's suggestion at oral argument, users would have alternatives to obtain pornography even if COPA was in effect because, as we already have indicated and discuss below, COPA does not apply to foreign Web sites. The loss of traffic that would result clearly is an undue burden on even those Web sites that the Govern ment contends are in the "heartland" of COPA.

We conclude that the District Court correctly found that implementation of COPA's affirmative defenses by a Web publisher so as to avoid prosecution would involve high costs and also would deter users from visiting im plicated Web sites. It is clear that these burdens would chill protected speech and thus that the affirmative de fenses fail a strict scrutiny analysis.

The Government contends that nevertheless these burdens "are no different in kind or degree from the burdens imposed by state laws regulating the sale and commercial display of 'harmful to minors' materials. . . . [T]he effect of the statute is simply to requir[e] the commercial pornographer to put sexually explicit images behind the counter." Appellant's Br. at 43 (citations and certain internal quotation marks omitted) (second alter ation in original).

We rejected this argument in ACLU II. See 322 F.3d at 260 ("Blinder racks do not require adults to compro mise their anonymity in their viewing of material harm ful to minors, nor do they create any financial burden on the user. Moreover, they do not burden the speech con tained in the targeted publications any more than is ab solutely necessary to shield minors from its content."). Blinder racks do not require adults to pay for speech that otherwise would be accessible for free, they do not require adults to relinquish their anonymity to access protected speech, and they do not create a potentially permanent electronic record. Blinder racks simply do not involve the privacy and security concerns that COPA's affirmative defenses raise, and so the Govern ment's attempted analogy is ill-fitting.

In sum, after considering our previous conclusions in ACLU II and our analyses of the issues ACLU II has not resolved, we are quite certain that notwithstanding Congress's laudable purpose in enacting COPA, the Gov ernment has not met its burden of showing that it is nar rowly tailored so as to survive a strict scrutiny analysis and thereby permit us to hold it to be constitutional.

3. Least Restrictive Alternative

In addition to failing the strict scrutiny test because it is not narrowly tailored, COPA does not employ the least restrictive alternative to advance the Government's compelling interest in its purpose, the third prong of the three-prong strict scrutiny test. "A statute that 'effec tively suppresses a large amount of speech that adults have a constitutional right to receive and to address to one another . . . is unacceptable if less restrictive al ternatives would be at least as effective in achieving the legitimate purpose that the statute was enacted to serve.'" Ashcroft, 542 U.S. at 665, 124 S. Ct. at 2791 (al teration in original) (quoting Reno, 521 U.S. at 874, 117 S. Ct. at 2346). "[T]he burden is on the Government to prove that the proposed alternatives will not be as effec tive as the challenged statute." Id. (citing Reno, 521 U.S. at 874, 117 S. Ct. at 2346). The Government's bur den is "not merely to show that a proposed less restric tive alternative has some flaws; its burden is to show that it is less effective." Id. at 669, 124 S. Ct. at 2793 (citing Reno, 521 U.S. at 874, 117 S. Ct. at 2346).

Based on the preliminary injunction record in this case, the Supreme Court held that "[b]locking and filter ing software is an alternative that is less restrictive than COPA, and, in addition, likely more effective as a means of restricting children's access to materials harmful to them." Id. at 666-67, 124 S. Ct. at 2792. We reached a similar conclusion in ACLU II. See 322 F.3d at 265.4 After the trial on the merits, the District Court con cluded that the Government did not meet its burden of showing that COPA is the least restrictive effective al ternative for advancing Congress's compelling interest because filter software and the Government's promotion and support of filter software is a less restrictive effec tive alternative to COPA.

The District Court discussed Internet content filters at length in its Findings of Fact. We will review these findings in detail, as the need to determine whether fil ters are more effective than COPA to effectuate Con gress's purpose in enacting that statute was the primary reason the Supreme Court remanded the case. Accord ing to the District Court:

Internet content filters ('filters') are computer appli cations which, inter alia, attempt to block certain categories of material from view that a Web browser or other Internet application is capable of displaying or downloading, including sexually explicit material. Filters categorize and block Web sites or pages based on their content. By classifying a site or page, and refusing to display it on the user's computer screen, filters can be used to prevent children from seeing material that might be considered unsuitable.

Gonzales, 478 F. Supp. 2d at 789. The court explained:

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. . . . [F]ilters can be set up to re strict materials available on Web pages and other Internet applications based on numerous factors in cluding the type of content they contain, the pres ence of particular words, the address of the Web site, the Internet protocol used, or computer application used. Some filters can also restrict Internet access based on time of day, day of week, how long the com puter has been connected to the Internet, or which user is logged onto a computer.

Id. at 790. The court then described in detail how filters operate:

Filters use different mechanisms to attempt to block access to material on the Internet including: black lists, white lists, and dynamic filtering. Black lists are lists of URLs or Internet Protocol ('IP') ad dresses that a filtering company has determined lead to content that contains the type of materials its fil ter is designed to block. White lists are lists of URLs or IP addresses that a filtering company has determined do not lead to any content its filter is designed to block, and, thus, should never be blocked. . . . In addition to its own black and white lists, filters often give parents or administrators the option of creating customized black or white lists. Dynamic filtering products use artificial intelligence to analyze Web site content in real-time as it is being requested and determine whether it should be blocked by evaluating a number of different parts of the content, both what the user can actually see on the Web page, and the various hidden pieces of infor mation contained with the content that are part of its software code or script, known as the 'metadata.' Among other things, dynamic filters analyze the words on the page, the metadata, the file names for images, the URLs, the links on a page, the size of images, the formatting of the page, and other statis tical pattern recognition features, such as the spatial patterns between certain words and images, which can often help filters categorize content even if the actual words are not recognized. In addition to ana lyzing the content of Web pages, dynamic filters also take the context of the page into consideration, to ensure that the determinations are as accurate as possible. For example, many companies will develop templates that provide additional context to teach the software how to recognize certain contexts-for example, to block the word 'breast' when used in combination with the word 'sexy,' but not when used in combination with the words 'chicken' or 'cancer.' The software analyzes context, in part, by utilizing statistical pattern recognition techniques to identify common features of acceptable and unacceptable Web pages, depending on the context in which the content appears.

Id. at 790-91 (citations omitted). The court found that:

[f]ilters can be used by parents to block material that is distributed on the Web and on the other widely used parts of the Internet through protocols other than HTTP and through other Internet applications. For example, filters can be used to block any Inter net application, including email, chat, instant mes saging, peer-to-peer file sharing, newsgroups, streaming video and audio, Internet television and voice over Internet protocol ('VoIP'), and other Internet protocols such as FTP. In addition to block ing access to these Internet applications completely, some products provide parents with the option of providing limited access to these applications. For example, instant messaging and email may be per mitted, but some of the filtering products will only permit the sending and receiving of messages from certain authorized individuals, and will block e-mails or instant messages containing inappropriate words or any images. Filtering programs can also com pletely prevent children from entering or using chat rooms, or some can merely filter out any inappropri ate words that come up during a chat session.

Id. at 791 (citations omitted). The court then described the flexible nature of filters:

Some filtering programs offer only a small number of settings, while others are highly customizable, allow ing 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 infor mation, information on violence and weapons, and hate speech) and which age setting they want the product to apply. . . . Filtering products can be used by parents even if they have more than one child. For example, if a family has four children, many filtering products will enable the parent to set up different accounts for each child, to ensure that each child is able to access only the content that the parents want that particular child to access.

Id. (citations omitted). The court found that:

[f]iltering products block both Web pages originating from within the United States and Web pages origi nating from outside the United States. The geo graphic origin of a Web page is not a factor in how a filter works because the filter analyzes the content of the Web page, not the location from which it came.

Id. at 791-92. The court found that "[f]iltering products block both non-commercial and commercial Web pages." Id. at 792. The court also found that:

[i]n addition to their content filtering features, filter ing products have a number of additional tools to help parents control their children's Internet activi ties. Other tools available to parents include moni toring and reporting features that allow supervising adults to know which sites a minor has visited and what other types of activities a minor has engaged in online.

Id.

The District Court found that "[f]ilters are widely available and easy to obtain," and that "[f]iltering pro grams are fairly easy to install, configure, and use and require only minimal effort by the end user to configure and update." Id. at 793. The court found that "[i]nstal ling 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." Id. at 794. The court then considered the evidence re garding the effectiveness of filters. It found that:

[f]iltering products have improved over time and are now more effective than ever before. This is be cause, as with all software, the filtering companies have addressed problems with the earlier versions of the products in an attempt to make their products better. 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. There is a high level of competition in the field of Internet content filtering. That factor, along with the development of new tech nologies, has also caused the products to improve over time.

Id. at 794-95 (citations omitted).

The District Court then found that:

[o]ne of the features of filtering programs that adds to their effectiveness is that they have built-in mech anisms to prevent children from bypassing or cir cumventing the filters, including password protec tion and other devices to prevent children from uninstalling the product or changing the settings. Some products even have a tamper detection feature, by which they can detect when someone is trying to uninstall or disable the product, and then cut off Internet access altogether until it has been properly reconfigured. Filtering companies actively take steps to make sure that children are not able to come up with ways to circumvent their filters. Filtering companies monitor the Web to identify any methods for circumventing filters, and when such methods are found, the filtering companies respond by putting in extra protections in an attempt to make sure that those methods do not succeed with their products.

Id. at 795 (citations omitted). The court also found that "[i]t is difficult for children to circumvent filters because of the technical ability and expertise necessary to do so . . . ." Id. Finally, the court found that "filters gener ally block about 95% of sexually explicit material." Id.

After describing filtering technology, the District Court concluded that the Government "failed to success fully defend against the plaintiffs' assertion that filter software and the Government's promotion and support thereof is a less restrictive alternative to COPA." Id. at 813. The court reasoned that "unlike COPA there are no fines or prison sentences associated with filters which would chill speech. Also unlike COPA, . . . filters are fully customizable and may be set for different ages and for different categories of speech or may be disabled altogether for adult use. As a result, filters are less re strictive than COPA." Id. (citations omitted).

The District Court also concluded that the Govern ment "failed to show that filters are not at least as effec tive as COPA at protecting minors from harmful mate rial on the Web." Id. at 814. The court determined that COPA will not reach sexually explicit materials on the Web that originate from foreign sources, its affirmative defenses are not effective, and it is unlikely that COPA will be enforced widely. The court found that:

filters block sexually explicit foreign material on the Web, parents can customize filter settings depending on the ages of their children and what type of content they find objectionable, and filters are fairly easy to install and use. . . . [F]ilters are very effective at blocking potentially harmful sexually explicit materi als.

Id. at 815 (citations omitted). The court concluded that "[e]ven defendant's own study shows that all but the worst performing filters are far more effective than COPA would be at protecting children from sexually explicit material on the Web . . . ." Id.

The Government does not challenge the District Court's factual findings and therefore we need not set forth the evidence on which the court based its findings. The Government does contend, however, that the Dis trict Court erred in concluding that filters are a less restrictive alternative because the court applied a "flawed analytical framework" and that filters cannot be considered a less restrictive alternative because they are part of the "status quo." Appellant's Br. at 43-44.

But the Supreme Court's statement on this issue con travenes the Government's argument:

In considering this question, a court assumes that certain protected speech may be regulated, and then asks what is the least restrictive alternative that can be used to achieve that goal . . . . The purpose of the test is to ensure that the speech is restricted no further than necessary to achieve the goal, for it is important to assure that legitimate speech is not chilled or punished. For that reason, the test does not begin with the status quo of existing regulations, then ask whether the challenged restriction has some additional ability to achieve Congress' legitimate in terest. Any restriction on speech could be justified under that analysis. Instead, the court should ask whether the challenged regulation is the least re strictive means among available, effective alterna tives.

Ashcroft, 542 U.S. at 666, 124 S. Ct. at 2791. This rea soning explains why the Court then instructed the par ties to update the factual record regarding "the effec tiveness of filtering software" so that the District Court could determine whether "filters are less effective than COPA." Id. at 671, 124 S. Ct. at 2794. Accordingly, the Government is incorrect in its assertion that the District Court applied an erroneous analytical framework.

We agree with the District Court's conclusion that filters and the Government's promotion of filters are more effective than COPA. The Supreme Court already has written how the Government could act to promote and support the use of filters:

Congress undoubtedly may act to encourage the use of filters. We have held that Congress can give strong incentives to schools and libraries to use them. It could also take steps to promote their de velopment by industry, and their use by parents. It is incorrect, for that reason, to say that filters are part of the current regulatory status quo. The need for parental cooperation does not automatically dis qualify a proposed less restrictive alternative. In enacting COPA, Congress said its goal was to pre vent the 'widespread availability of the Internet' from providing 'opportunities for minors to access materials through the World Wide Web in a manner that can frustrate parental supervision or control.' COPA presumes that parents lack the ability, not the will, to monitor what their children see. By enacting programs to promote use of filtering software, Con gress could give parents that ability without subject ing protected speech to severe penalties.

Id. at 669-70, 124 S. Ct. at 2793 (citations omitted).

As the District Court pointed out, filters can be used to block foreign Web sites, which COPA does not regu late. Though the Government contends that COPA ap plies to foreign Web sites, the Supreme Court already has rejected the Government's construction of the stat ute. In Ashcroft the Court stated that:

a filter can prevent minors from seeing all pornogra phy, not just pornography posted to the Web from America. . . . COPA does not prevent minors from having access to those foreign harmful materials.

. . . [I]f COPA is upheld, . . . providers of the ma terials that would be covered by the statute simply can move their operations overseas.

Id. at 667, 124 S. Ct. at 2792. In light of the Supreme Court's express conclusion that COPA does not apply to foreign Web sites-a determination that does not de pend upon the facts developed at the later trial in the District Court-we cannot construe COPA to apply to foreign Web sites.

Given the vast quantity of speech that COPA does not cover but that filters do cover, it is apparent that filters are more effective in advancing Congress's inter est, as it made plain it is in COPA. Moreover, filters are more flexible than COPA because parents can tailor them to their own values and needs and to the age and maturity of their children and thus use an appropriate flexible approach differing from COPA's "one size fits all" approach. Finally, the evidence makes clear that, although not flawless, with proper use filters are highly effective in preventing minors from accessing sexually explicit material on the Web.

At oral argument, the Government made much of a study that found that only 54 percent of parents use fil ters. But the Government has neglected the fact that this figure represents a 65 percent increase from a prior study done four years earlier, which indicates that sig nificantly more families are using filters. App. at 159-60. Furthermore, the circumstance that some parents choose not to use filters does not mean that filters are not an effective alternative to COPA. Though we recog nize that some of those parents may be indifferent to what their children see, others may have decided to use other methods to protect their children-such as by placing the family computer in the living room, instead of their children's bedroom-or trust that their children will voluntarily avoid harmful material on the Internet. Studies have shown that the primary reason that par ents do not use filters is that they think they are unnec essary because they trust their children and do not see a need to block content. Id. at 160, 164, 278, 1567. The Government simply has not carried its burden of show ing that COPA is a more effective method than filters in advancing the Government's compelling interest as evi denced in COPA.

In addition to being more effective, it is clear that filters are less restrictive than COPA. As the Supreme Court has stated:

[f]ilters are less restrictive than COPA. They impose selective restrictions on speech at the receiving end, not universal restrictions at the source. Under a fil tering regime, adults without children may gain ac cess to speech they have a right to see without hav ing to identify themselves or provide their credit card information. Even adults with children may obtain access to the same speech on the same terms simply by turning off the filter on their home com puters. Above all, promoting the use of filters does not condemn as criminal any category of speech, and so the potential chilling effect is eliminated, or at least much diminished. All of these things are true, moreover, regardless of how broadly or narrowly the definitions in COPA are construed.

Ashcroft, 542 U.S. at 667, 124 S. Ct. at 2792. Although the Supreme Court made this statement after reviewing the record from the hearing on the preliminary injunc tion, the evidence produced at the trial on the merits confirms the Court's initial impression. Unlike COPA, filters permit adults to determine if and when they want to use them and do not subject speakers to criminal or civil penalties.

During oral argument, the Government contended that the First Amendment does not prohibit Congress from adopting a "belt-and-suspenders" approach to ad dressing the compelling government interest of protect ing minors from accessing harmful material on the Web, with filters acting as the "belt" and COPA as the "sus penders." But as counsel for plaintiffs correctly pointed out, under the First Amendment, if the belt works at least as effectively as the suspenders, then the Govern ment cannot prosecute people for not wearing suspend ers. Here, based on the prior litigation in the Supreme Court and this Court in ACLU II and the District Court's findings on the remand, the Government has not shown that COPA is a more effective and less restrictive alternative to the use of filters and the Government's promotion of them in effectuating COPA's purposes. Indeed, we would reach this conclusion on the basis of either the prior litigation or the District Court's findings on the remand. Accordingly, COPA fails the third prong of a strict scrutiny analysis and is unconstitutional.

C. Vagueness and Overbreadth

The Government also challenges the District Court's decision that COPA facially violates the First and Fifth Amendments because it is impermissibly vague and overbroad.

1. Vagueness

The Supreme Court recently described the vague ness doctrine:

Vagueness doctrine is an outgrowth not of the First Amendment, but of the Due Process Clause of the Fifth Amendment. A conviction fails to comport with due process if the statute under which it is obtained fails to provide a person of ordinary intelligence fair notice of what is prohibited, or is so standardless that it authorizes or encourages seriously discrimina tory enforcement. Although ordinarily a plaintiff who engages in some conduct that is clearly pro scribed cannot complain of the vagueness of the law as applied to the conduct of others, we have relaxed that requirement in the First Amendment context, permitting plaintiffs to argue that a statute is overbroad because it is unclear whether it regulates a substantial amount of protected speech. But per fect clarity and precise guidance have never been required even of regulations that restrict expressive activity.

Williams, 128 S. Ct. at 1845 (citations, quotation marks, and brackets omitted). The Court further explained:

What renders a statute vague is not the possibility that it will sometimes be difficult to determine whether the incriminating fact it establishes has been proved; but rather the indeterminacy of pre cisely what that fact is. Thus, we have struck down statutes that tied criminal culpability to whether the defendant's conduct was 'annoying' or 'indecent'- wholly subjective judgments without statutory defi nitions, narrowing context, or settled legal meanings.

Id. at 1846.

Our discussion in ACLU II of the question of whether COPA is impermissibly vague was quite limited but in a footnote we stated that we considered COPA's use of the term "minor" as incorporated in COPA's defi nition of "material that is harmful to minors" to be impermissibly vague. We reached this conclusion be cause we believed that "a Web publisher will be forced to guess at the bottom end of the range of ages to which the statute applies," and thus will not have "fair notice of what conduct would subject them to criminal sanc tions under COPA" and "will be deterred from engaging in a wide range of constitutionally protected speech." 322 F.3d at 268 n.37.

The District Court on the remand concluded that COPA is vague for several reasons. First, the court pointed out that COPA utilizes two different scienter requirements-"knowingly" and "intentionally"-but does not define either standard. Gonzales, 478 F. Supp. 2d at 816-17. Second, the court determined that al though Congress intended COPA to apply solely to com mercial pornographers, the phrase "communication for commercial purposes" as modified by the phrase "en gaged in the business" does not limit COPA's application to commercial pornographers. Id. at 817. Thus, Web publishers that are not commercial pornographers will be uncertain as to whether they will face prosecution under the statute, chilling their speech. Id. Third, the court found that the definition of "minor" as any person under 17 years of age creates vagueness in COPA be cause materials that could have "serious literary, artis tic, political, or scientific value" for a 16-year-old would not necessarily have the same value for a three-year-old. Id. Thus, Web publishers cannot tell which of these mi nors should be considered in deciding the content of their Web sites. Id. at 817-18. Fourth, the court stated that COPA's use of the phrase "as a whole" is vague be cause it is unclear how that phrase would apply to the Web. Id. at 818.

The Government contends that the District Court erred in finding COPA impermissibly vague and argues that the statutory provisions that the District Court con cluded rendered the statute vague instead served to limit the reach of the statute.

We are bound by our conclusion in ACLU II that COPA's definition of "minor" renders the statute vague. Furthermore we agree with the District Court's conclu sion that COPA's use of the phrases and terms "commu nication for commercial purposes," "as a whole," "inten tional," and "knowing" renders it vague, for the reasons the District Court stated in its opinion.

2. Overbreadth

The Supreme Court also addressed the First Amend ment overbreadth doctrine in Williams, stating that:

[A] statute is facially invalid if it prohibits a substan tial amount of protected speech. The doctrine seeks to strike a balance between competing social costs. On the one hand, the threat of enforcement of an overbroad law deters people from engaging in consti tutionally protected speech, inhibiting the free ex change of ideas. On the other hand, invalidating a law that in some of its applications is perfectly con stitutional-particularly a law directed at conduct so antisocial that it has been made criminal-has obvi ous harmful effects. In order to maintain an appro priate balance, we have vigorously enforced the re quirement that a statute's overbreadth be substan tial, not only in an absolute sense, but also relative to the statute's plainly legitimate sweep. Invalidation for overbreadth is strong medicine that is not to be casually employed.

128 S. Ct. at 1838 (citations and quotation marks omit ted).

In ACLU II we held that COPA is "substantially overbroad" because:

it places significant burdens on Web publishers' com munication of speech that is constitutionally pro tected as to adults and adults' ability to access such speech. In so doing, COPA encroaches upon a signif icant amount of protected speech beyond that which the Government may target constitutionally in pre venting children's exposure to material that is ob scene for minors.

322 F.3d at 266-67. We found that COPA's definition of "material harmful to minors" "impermissibly places at risk a wide spectrum of speech that is constitutionally protected" because it "calls for evaluation of 'any mate rial' on the Web in isolation." Id. at 267. Thus, we ex plained:

an isolated item located somewhere on a Web site that meets the 'harmful to minors' definition can sub ject the publisher of the site to liability under COPA, even though the entire Web page (or Web site) that provides the context for the item would be constitu tionally protected for adults (and indeed, may be pro tected as to minors).

Id. We also found that COPA's definition of "minors" renders the statute overinclusive because it "broadens the reach of 'material that is harmful to minors' under the statute to encompass a vast array of speech that is clearly protected for adults-and indeed, may not be obscene as to older minors . . . ." Id. at 268. We next found that COPA's definition of "commercial purposes" rendered the statute overbroad for the same reasons that it failed strict scrutiny. Id. at 269.

We also found that "COPA's application of 'commu nity standards' exacerbates these constitutional prob lems in that it further widens the spectrum of protected speech that COPA affects." Id. at 270. We stated that "COPA essentially requires that every Web publisher subject to the statute abide by the most restrictive and conservative state's community standards in order to avoid criminal liability." Id. (quoting ACLU I, 217 F.3d at 166). Finally, we found that there was no available narrowing construction that would make COPA constitu tional. Id. at 270-71. These conclusions bind us here.

The District Court also found that COPA is overbroad for several reasons. First, the court deter mined that the vagueness of the phrases "communica tion for commercial purposes" and "engaged in the busi ness" means that COPA could apply to a wide swath of the Web and thus COPA would prohibit and chill a sub stantial amount of constitutionally protected speech for adults. Gonzales, 478 F. Supp. 2d at 819. Second, be cause the definition of "minor" includes any person un der 17, Web publishers do not have fair notice regarding what they can place on the Web that will not be consid ered harmful to any minor. Id. Thus, the definition of "minor" renders COPA overinclusive because it broad ens the statute to encompass a large array of protected speech. Id. Finally, the court found that because the statute does not reference commercial pornographers, it found that it could not read such a limitation into the statute to save it from being overbroad. Id. at 819-20.

The Government claims that COPA is not overbroad, but it is clear that our prior decision in ACLU II binds us on this issue. It is apparent that COPA, like the Communications Decency Act before it, "effectively sup presses a large amount of speech that adults have a con stitutional right to receive and to address to one an other," Reno, 521 U.S. at 874, 117 S. Ct. at 2346, and thus is overbroad. For this reason, COPA violates the First Amendment.

V. CONCLUSION

In sum, COPA cannot withstand a strict scrutiny, vagueness, or overbreadth analysis and thus is unconsti tutional. We reach our result both through the applica tion of the law-of-the-case doctrine to our determination in ACLU II and on the basis of our independent analysis of COPA and would reach the same result on either ba sis standing alone. For the foregoing reasons, we will affirm the District Court's March 22, 2007 order.

1 The Government, however, does not challenge the District Court's determination that plaintiffs have standing to bring this action.

2 The Government wrote this letter in response to our request that the parties file supplemental letter briefs on the law-of-the-case issue.

3 Our opinion in ACLU II is not entirely clear on this point. We started our discussion of the least restrictive alternative question by indicating that "[w]e are also satisfied that COPA does not employ the 'least restrictive means' to effect the Government's compelling interest in protecting minors." ACLU II, 322 F.3d at 261. Then in considering that question in more detail we discussed filters at length. At one point in the opinion we stated that "filtering software is a less restrictive alternative that can allow parents some measure of control over their children's access to speech that parents consider inappropriate." Id. at 263. At several other points, we also stated that COPA is not the least restrictive alternative. See id. at 261 ("We are . . . satisfied that COPA does not employ the 'least restrictive means' to effect the Government's compelling interest in protecting minors."); id. at 265-66 ("The existence of less restrictive alternatives renders COPA unconsti tutional under strict scrutiny. . . . COPA also fails strict scrutiny because it does not use the least restrictive means to achieve its ends. . . . Congress could have, but failed to employ the least restrictive means to accomplish its legitimate goal . . . ."). Nevertheless we stated that "[w]e agree with the District Court that the various blocking and filtering techniques which that Court discussed may be substan tially less restrictive than COPA in achieving COPA's objective of preventing a minor's access to harmful material." Id. at 265 (emphasis added). Because of this statement, we cannot state with certainty that ACLU II squarely holds that filters are less restrictive than COPA, though it probably does. Thus, for law-of-the-case purposes, we might not consider ourselves bound on this appeal by that determination. Of course, this discussion of whether we determined that filters are less restrictive than COPA or that filters only may be less restrictive than COPA is somewhat academic, for on the appeal of ACLU II the Supreme Court explicitly addressed this issue and, though remanding the case, flatly indicated that filters are "less restrictive" than COPA, Ashcroft, 342 U.S. at 667, 124 S. Ct. at 2792, and that Court's conclu sions supersede our decision in ACLU II on this point.

APPENDIX B

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 07-2539
D.C. Civ. No. 98-05591

AMERICAN CIVIL LIBERTIES UNION; ANDROGYNY
BOOKS, INC., D/B/A A DIFFERENT LIGHT BOOKSTORES;
AMERICAN BOOKSELLERS FOUNDATION FOR FREE
EXPRESSION; ADDAZI, INC., D/B/A CONDOMANIA;
ELECTRONIC FRONTIER FOUNDATION; ELECTRONIC
PRIVACY INFORMATION CENTER; FREE SPEECH
MEDIA; PHILADELPHIA GAY NEWS; POWELL'S
BOOKSTORES; SALON MEDIA GROUP, INC.; PLANETOUT, INC.; HEATHER CORINNA REARICK; NERVE.COM, INC.; AARON PECKHAM, D/B/A URBAN DICTIONARY; PUBLIC COMMUNICATORS, INC.; DAN SAVAGE; SEXUAL HEALTH NETWORK

MICHAEL B. MUKASEY, IN HIS OFFICIAL CAPACITY
AS ATTORNEY GENERAL OF THE UNITED STATES
MICHAEL B. MUKASEY, APPELLANT

On Appeal from the United States District Court
for the Eastern District of Pennsylvania

SUR PETITION FOR REHEARING

Before: SCIRICA, Chief Judge, and SLOVITER, MCKEE, RENDELL, BARRY, AMBRO, FUENTES, SMITH, FISHER, CHAGARES, JORDAN, HARDIMAN, and GREENBERG, Cir cuit Judges

The petition for rehearing filed by appellant, Michael B. Mukasey, in the above captioned matter having been submitted to the judges who participated in the decision of this court and to all the other available circuit judges of the court in regular active service, and no judge who concurred in the decision having asked for rehearing, and a majority of the circuit judges of the circuit in reg ular active service not having voted for rehearing by the court en banc, the petition for rehearing is denied. Judge Greenberg's vote is limited to denying rehearing before the original panel.

BY THE COURT:

/s/ MORTON I. GREENBERG
MORTON I. GREENBERG
Circuit Judge

DATED: 16 Sept. 2008

1 Substituted as per FRAP 43(b).

APPENDIX C

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

No. 98-5591

AMERICAN CIVIL LIBERTIES UNION, ET AL.

ALBERTO R. GONZALES IN HIS OFFICIAL CAPACITY AS
ATTORNEY GENERAL OF THE UNITED STATES

FINAL ADJUDICATION

Mar. 22, 2007

LOWELL A. REED, JR., SR. J.

At issue in this case is the constitutionality of the Child Online Protection Act, 47 U.S.C. § 231 ("COPA") and whether this court should issue a permanent injunc tion against its enforcement due to its alleged constitu tional infirmities. COPA provides both criminal and civil penalties for transmitting sexually explicit materials and communications over the World Wide Web ("Web") which are available to minors and harmful to them. 47 U.S.C. § 231(a). After a trial on the merits, for the rea sons that follow, notwithstanding the compelling interest of Congress in protecting children from sexually explicit material on the Web, I conclude today that COPA fa cially violates the First and Fifth Amendment rights of the plaintiffs because: (1) at least some of the plaintiffs have standing; (2) COPA is not narrowly tailored to Con gress' compelling interest; (3) defendant has failed to meet his burden of showing that COPA is the least re strictive, most effective alternative in achieving the com pelling interest; and (3) COPA is impermissibly vague and overbroad. As a result, I will issue a permanent in junction against the enforcement of COPA.

[Table of contents omitted]

I. PROCEDURAL HISTORY

The plaintiffs in this action, which include both the individual and institutional plaintiffs listed below, have challenged the constitutionality of COPA under the First and Fifth Amendments. COPA, which was de signed to protect minors from exposure to sexually ex plicit materials on the Web deemed harmful to them, was signed into law on October 21, 1998. COPA is the second attempt by Congress to protect children from such material. The first attempt was the Communica tions Decency Act of 1996, 47 U.S.C. § 223 ("the CDA") which the Supreme Court held was unconstitutional be cause it was not narrowly tailored to serve a compelling governmental interest and because less restrictive alter natives were available. See Ashcroft v. ACLU, 542 U.S. 656, 661 (2004) (discussing Reno v. ALCU, 521 U.S. 844 (1997)). COPA was designed to directly address the faults that the Supreme Court found with the CDA. The day after COPA was signed, the plaintiffs filed this suit seeking injunctive relief from its enforcement. On Feb ruary 1, 1999, after having previously granted the plain tiffs' motion for a temporary restraining order, this court granted the plaintiffs' motion for a preliminary injunction. ACLU v. Reno, 31 F. Supp. 2d 473 (E.D. Pa. 1999). After an interim trip to the Supreme Court (see Ashcroft v. ACLU, 535 U.S. 564 (2002))1, this court's de cision granting the preliminary injunction was finally affirmed by the Supreme Court on June 29, 2004, and remanded to this court for a trial on the merits in order to, inter alia, update the factual record to reflect cur rent technological developments, account for any chang es in the legal landscape, and to determine whether In ternet content filters are more effective than COPA or whether other possible alternatives are less restrictive and more effective than COPA. Ashcroft, 542 U.S. at 671-673. For a more detailed description of the history and background of this case, see the Supreme Court's opinion. Id. at 663-664. This court held a trial on the merits of the within action, beginning on October 23, 2006 and concluding on November 20, 2006.

II. THE RELEVANT LANGUAGE OF COPA AND THE CONSTITUTION

COPA provides that:

Whoever knowingly and with knowledge of the char acter of the material, in interstate or foreign com merce by means of the World Wide Web, makes any communication for commercial purposes that is available to any minor and that includes any mate rial that is harmful to minors shall be fined not more than $50,000, imprisoned not more than 6 months, or both.

47 U.S.C. § 231(a)(1). There is an additional monetary penalty for intentional violations of the above quoted language and a provision for additional civil penalties. 47 U.S.C. § 231(a)(2) & (3).

The crux of the statute is found in the definition of "harmful to minors" which tracks the familiar Miller obscenity standard. See Miller v. California, 413 U.S. 15, 24 (1973). Specifically, "material that is harmful to minors", means:

any communication, picture, image, graphic image file, article, recording, writing, or other matter of any kind that is obscene or that-

(B) depicts, describes, or represents, in a manner patently offensive with respect to minors, an actual or simulated sexual act or sexual contact, an actual or simulated normal or perverted sexual act, or a lewd exhibition of the genitals or post-pubescent female breast; and

47 U.S.C. § 231(e)(6). A minor is defined as "any person under 17 years of age." 47 U.S.C. § 231(e)(7).

"[B]y means of the World Wide Web" is defined as the "placement of material in a computer server-based file archive so that it is publicly accessible, over the Internet, using hypertext transfer protocol [("HTTP")] or any successor protocol." 47 U.S.C. § 231(e)(1). Un der COPA, the Internet "means the combination of com puter facilities and electromagnetic transmission media, and related equipment and software, comprising the interconnected worldwide network of computer net works that employ the Transmission Control Proto col/Internet Protocol or any successor protocol to trans mit information." 47 U.S.C. § 231(e)(3).

Another important feature of COPA for the pur poses of this action is that "[a] person shall be consid ered to make a communication for commercial purposes only if such person is engaged in the business of making such communication." 47 U.S.C. § 231(e)(2)(a). More over, "engaged in the business" means that:

the person who makes a communication, or offers to make a communication, by means of the World Wide Web, that includes any material that is harmful to minors, devotes time, attention, or labor to such ac tivities, as a regular course of such person's trade or business, with the objective of earning a profit as a result of such activities (although it is not necessary that the person make a profit or that the making or offering to make such communications be the per son's sole or principal business or source of income). A person may be considered to be engaged in the business of making, by means of the World Wide Web, communications for commercial purposes that include material that is harmful to minors, only if the person knowingly causes the material that is harmful to minors to be posted on the World Wide Web or knowingly solicits such material to be posted on the World Wide Web.

47 U.S.C. § 231(e)(2)(b).

Although COPA brands all speech falling within its reach as criminal speech, it also provides an affirmative defense against liability if:

the defendant, in good faith, has restricted access by minors to material that is harmful to minors-

(A) by requiring use of a credit card, debit account, adult access code, or adult personal identification number;

(B) by accepting a digital certificate that verifies age; or

47 U.S.C. § 231(c)(1).

Moreover, those exempt from liability include tele communications carriers, Internet access service provid ers, those engaged in the business of providing an Inter net information location tool, or those:

similarly engaged in the transmission, storage, re trieval, hosting, formatting, or translation (or any combination thereof) of a communication made by another person, without selection or alteration of the content of the communication, except that such person's deletion of a particular communication or material made by another person in a manner con sistent with subsection (c) of this section or section 230 of this title shall not constitute such selection or alteration of the content of the communication.

47 U.S.C. § 231(b).

The First Amendment to the Constitution of the United States provides that "Congress shall make no law . . . abridging the freedom of speech, or of the press." U.S. Const. Amend. I.2

III. FINDINGS OF FACT3

Having presided at the trial, having seen and heard the testimony of the parties' representatives and other witnesses, and having reviewed the other evidence re ceived, I find that, unless otherwise noted, the facts set forth in the parties' Joint Exhibit 1, and the testimony of the witnesses as well as the evidence excerpted and referenced in these Findings of Fact are true, reliable, and credible and I accept those facts and that testimony as the foundation of the following Findings of Fact and Conclusions of Law.

A. The Internet

1. The Internet is an interactive medium based on a decentralized network of computers. One portion of the Internet is known as the World Wide Web ("Web"). The Internet may also be used to engage in other activi ties such as sending and receiving emails, trading files, exchanging instant messages, chatting online, streaming audio and video, and making voice calls. Joint Exhibit ("J. Ex.") 1 ¶¶ 78-79, 94.

2. The results of the U.S. Census Bureau's Cur rent Population Survey show that in September 2001, approximately 54 percent of the U.S. population was using the Internet from any location. That figure rose to 59 percent in 2003. Id. ¶ 97.

3. On the Web, a client program called a Web browser retrieves information from the Internet, such as Web pages and other computer files using their network addresses and displays them, typically on a computer monitor, using a markup language that determines the details of the display. One can then follow hyperlinks in each Web page to other resources on the Web of infor mation whose location is provided by these hyperlinks. The act of following hyperlinks is frequently called "browsing" or "surfing" the Web. Id. ¶ 79.

4. Web pages, which can contain, inter alia, text, still and moving picture files, sound files, and computer scripts, are often arranged in collections of related ma terial called Web sites, which consist of one or more Web pages. Id. ¶ 80.

5. Modern search engines search for and index Web pages individually. Search engines are Web sites that provide links to relevant Web pages, in response to search terms (words or phrases) entered by a user. They are a popular way of finding information online. Id. ¶ 83.

6. It is estimated that there are between 25 and 64 billion Web pages on the surface portion of the Web ("Surface Web")-that is, the portion of the Web that is capable of being indexed by search engines. Mewett Testimony, 11/7 Tr. 100:23-101:1; Def. Ex. 82, at 13. These Web pages may be displayed on a monitor screen and, thus, the content may be seen by anyone operating a computer or other Internet capable device which is properly connected to the Internet. The court takes ju dicial notice of the fact that the computers relevant to this case are used throughout the modern world in, inter alia, homes, schools, hotels, businesses, public Internet cafes, and libraries and that portable computers and other Internet capable devices can be operated almost anywhere and have wide access to the Internet.

7. HTTP stands for hypertext transfer protocol which is widely used on the Internet. In fact, most Web site addresses ("URLs") use HTTP. J. Ex. 1 ¶¶ 111, 113.

8. FTP stands for file transfer protocol. It is used primarily to transfer files across the Internet. Id. ¶ 110.

B. The Parties

9. Defendant Alberto R. Gonzales is the Attorney General of the United States and is charged with enforc ing the provisions of COPA challenged in this action. Id. ¶ 1. Attorney General Gonzales is sued here in his offi cial capacity. Doc. No. 175, at 15.

10. The plaintiffs represent a range of individuals and entities including speakers, content providers, and ordinary users on the Web, as that term is defined in COPA. The plaintiffs post content on their Web sites including, inter alia, resources on sexual health, safer sex, and sexual education; visual art and poetry; re sources for gays and lesbians; online magazines and arti cles; music; and books and information about books that are being offered for sale. J. Ex. 1 ¶ 2.

11. Some of the plaintiffs provide interactive fora on their Web sites, such as online discussion groups, bulletin boards and chat rooms, which enable users to create their own material on the plaintiffs' Web sites. Some of the verbal and visual exchanges that could po tentially occur in these chatrooms or in the postings on their bulletin boards may include language or images that contain sexually explicit content. Id. ¶ 3.

12. Plaintiff American Civil Liberties Union ("ACLU") is a nationwide, non-partisan organization which states that it is dedicated to defending the princi ples of the Bill of Rights. ACLU members Patricia Nell Warren ("Warren") and Lawrence Ferlinghetti ("Ferlinghetti") engage in speech on the Internet. Id. ¶ 4.

13. Plaintiff ACLU sues in part on behalf of its member Ferlinghetti, who is a writer and San Francis co's poet laureate. Ferlinghetti is the co-founder of City Lights Bookstore, which maintains a website "that pro motes books available from the bookstore" and "contains lists of literary events and a brief history of City Lights Bookstore and Publishing," has a section describing Ferlinghetti's 1956 obscenity trial for selling the Allen Ginsberg poem Howl, and also has Ferlinghetti's poetry. Id. ¶ 5.

14. Plaintiff ACLU also sues in part on behalf of Warren, who is an author of novels, poetry, numerous articles, and essays. Her novels are alleged to be the most popular novels among classic gay literature. War ren is a co-owner of Wildcat International and its pub lishing arm, Wildcat Press. The Web site for Wildcat Press contains excerpts of her work, including "sexually explicit details such as the description of a 'foursome' [of people] erotically dancing and a description of two men passionately kissing." Id. ¶ 7.

15. Plaintiff Condomania is the nation's first con dom store and a leading seller of condoms and distribu tor of safer sex materials. Condomania engages in speech on the Internet. Id. ¶ 8. Adam Glickman ("Glickman") is the CEO of Condomania. Glickman Tes timony, 10/30 Tr. 91:18-20.

16. Plaintiff Heather Corinna ("Corinna") is a writ er, artist, sex-educator, and activist whose primary pres ence on the Web consists of Scarletletters.com, Scarlet een.com, and Femmerotic.com, "each of which deals with issues of sex and sexuality with an explicit focus on chal lenging and combating the sexual oppression of tradi tionally marginalized groups." J. Ex. 1 ¶¶ 9-10.

17. Corinna operates the website Scarleteen.com. "Scarleteen is the Internet's largest independent, unaf filiated, free resource for young adult sex education, information, and discussion, serving nearly two million teens, young adults, parents, and educators each year." The Scarleteen Web site states that "[w]e offer Scar leteen as a far better resource for sex information for teens than adult sexuality sites, as well as a supplement to in-home and schoolbased sex education. Many par ents we have heard from have used it as a tool to initiate discussion with their teens on some of the topics ad dressed. Homeschooling parents have used Scarleteen as curricula for sex education; colleges add our articles to their syllabi often." Id. ¶ 11.

18. "Femmerotic is Heather Corinna's personal Web site for showcasing her photographic and textual work and providing an 'open and intimate look at her life as an artist and activist.'" On this Web site, Corinna states that "[g]enerally, I intend to examine sexuality, to document sexual relationship[s], to explore the human body and how I and viewers perceive it, to examine the female body and feelings about it, to explore my own identity and use all those aims to create work that cre ates questions." Id. ¶ 12.

19. Plaintiff Electronic Frontier Foundation ("EFF") sues in part on behalf of John W. "Bill" Boush ka, who has work on the Web site www.doaskdotell.com. In the Amended Complaint, Mr. Boushka states that he fears prosecution for his book "Do Ask, Do Tell: A Gay Conservative Lashes Back," which he describes as "an exposé about gays in the military" that is a "politically- charged text" containing "subject-matter and language that might be deemed harmful to minors." Id. ¶ 13.

20. Plaintiff Free Speech Media, LLC in partner ship with Public Communicators Inc., operates free speech.org, which provides speech on the Internet and is "designed to encourage the democratic expression of progressive ideals through promoting, curating and hosting independent creators of audio and video content on the Web." Its video and audio files "cover a wide range of topics, including human rights, homelessness, labor issues, racism, prison conditions, sexuality, AIDS, feminism and environmentalism." Id. ¶¶ 15-16.

21. Plaintiff Nerve.com, Inc. ("Nerve") is an online magazine consisting of original fiction, personal essays, columns, photography, video, blogs, quizzes, polls, and crosswords. Griscom Testimony, 10/23 Tr. 61:15-62:5; Pl. Ex. 38. Nerve is run by Rufus Griscom ("Griscom"). J. Ex. 1 ¶ 17. According to Griscom, "Nerve is, in theory and hopefully in practice, a smart magazine about sex and culture." Griscom Testimony, 10/23 Tr. 52:13-14.

22. Plaintiff Aaron Peckham d/b/a Urban Dictio nary operates an online dictionary of contemporary slang "whose terms and definitions are solely user-gen erated and user-rated." J. Ex. 1 ¶¶ 18-19.

23. Plaintiff Philadelphia Gay News ("PGN"), is the "oldest gay newspaper in Philadelphia" and pub lishes both in print and online. The online and print edi tions "share much of the same content, including na tional and local news stories written by PGN correspon dents, arts and events sections, regular columns, a cal endar of events, and editorials on a variety of social and political topics." The online edition also contains per sonal and classified advertisements. Id. ¶¶ 20-21.

24. Plaintiff American Booksellers Foundation For Free Expression ("ABFFE") is a non-profit organiza tion founded by the American Booksellers Association. Plaintiff Powell's Bookstore is a member of ABFFE. Id. ¶ 22.

25. Plaintiff Powell's Bookstore operates seven bookstores in Portland, Oregon and states that it is the "world's largest independent new and used bookstore." Powell's Bookstore also operates a website that "allows users to browse and purchase new, used, rare, and out- of-print books." Id. ¶ 23-24.

26. Plaintiff Salon Media Group, Inc. ("Salon") pub lishes an online magazine featuring articles on current events, the arts, politics, the media, and relationships and states that it "is a well-known, popular on-line maga zine" that contains "news articles; commentaries on and reviews of music, art, television, and film; and regular columns on politics, relationships, the media, business, and other areas of interest." Salon also has music and video downloads and user-generated content. Salon's "goal is to break news as well as produce the most com pelling sort of social commentary . . . on the web," and it seeks to attract a "broad general interest audience" with its readership. Joan Walsh ("Walsh") is the Editor and Chief of Salon. Id. ¶¶ 2526; Walsh Testimony, 10/23 Tr. 107:17-18, 112:8-12.

27. Plaintiff Sexual Health Network owns and op erates Sexualhealth.com which is "dedicated to provid ing easy access to sexuality information, education, sup port and other sexuality resources for everyone, includ ing those with disability, chronic illness or other health- related problems." The Web site is run by Dr. Mitchell Tepper ("Dr. Tepper"). Id. ¶¶ 27-28

28. Plaintiff Electronic Privacy Information Center ("EPIC") "is a nonprofit educational organization estab lished in 1994 to examine civil liberties and privacy is sues arising on the Internet." EPIC alleges that it ac cesses information on the Internet, including sexually explicit pages, as part of its mission, which includes re porting on how well content filters work. Id. ¶ 29.

C. The Experts

1. Plaintiffs' Experts

29. Professor Lorrie Faith Cranor ("Dr. Cranor") is currently employed at Carnegie Mellon University as an associate research professor in the school of com puter science. Cranor Testimony, 10/23 Tr. 201:25-202:4. Dr. Cranor was qualified in this case as an expert in the areas of Internet filtering products and other parental control tools used to control access to material on the Internet. Cranor Testimony, 10/23 Tr. 227:6-21.

30. Professor Edward William Felten ("Dr. Fel ten") is currently employed at Princeton University as a tenured professor of computer science and public af fairs and director of the Center for Information Tech nology Policy. Felten Testimony, 10/24 Tr. 182:2-22. Dr. Felten was qualified in this case as an expert on the technology and use of Internet protocols, the technology and use of filtering products, and the technology and use of search engines. Felten Testimony, 10/24 Tr. 186:25- 187:16.

31. Professor Matthew Alan Zook ("Dr. Zook") is currently employed at the University of Kentucky as an assistant professor of geography. Zook Testimony, 10/26 Tr. 53:12-19. Dr. Zook was qualified in this case as an expert in the area of Internet geography, which en tails finding the locations of people using the Internet. Zook Testimony, 10/26 Tr. 66:22-67:5, 70:23-71:12.

32. Michael Russo ("Russo") is currently employed as the president of the YNOT Network. Russo Testi mony, 10/25 Tr. 67:14-16. Russo was qualified as an ex pert in this case on the effectiveness of various online verification schemes, including payment card screens and data verification services, the availability of adult material outside the United States, and the availability of adult materials on the Internet. Russo Testimony, 10/25 Tr. 106:20-107:19.

33. Professor Ronald Mann ("Mann") is currently employed at the University of Texas as a law professor of electronic commerce and payment systems. Mann Testimony, 11/6 Tr. 59:6-10. Mann was qualified in this case as an expert on payment systems, payment card companies, business models of payment card companies, and the use of payment cards in E-commerce. Mann Testimony, 11/6 Tr. 73:2-75:16.

34. Professor Henry Reichman ("Dr. Reichman") is currently employed at California State University, East Bay, and is the associate editor of the American Library Association's "Newsletter on Intellectual Free dom." Reichman Testimony, 10/30 Tr. 5:5-7, 7:1-8:5. Dr. Reichman was qualified in this case as an expert in the area of censorship and the suppression of speech. Reichman Testimony, 10/30 Tr. 18:2-20.

2. Defendant's Experts

35. Dr. Jeffrey Eisenach ("Dr. Eisenach") is cur rently employed as chairman of Criterion Economics. Eisenach Testimony, 11/13 Tr. 42:1-5. Dr. Eisenach was qualified as an expert in this case on the Internet and its impact on markets and public policy. Eisenach Testi mony, 11/13 Tr. 71:25-72:10.

36. Professor Stephen Neale ("Dr. Neale") is cur rently employed at Rutgers University as a professor of philosophy. Neale Testimony, 11/8 Tr. 186:1-5. Dr. Neale was qualified in this case as an expert on informa tion content on the theoretical bases of linguistic classifi cation and the classification of text documents for con tent. Dr. Neale was also received as an expert regard ing the theoretical or inherent limits of Internet filtering software as a mechanism to block access to types of con tent on the Web to the extent that such software relies on text-based classification. Neale Testimony, 11/8 Tr. 203:11-205:21.

37. Professor Philip Bradford Stark ("Dr. Stark") is currently employed at the University of California, Berkley as a tenured statistics professor. Stark Testi mony, 11/8 Tr. 74:1-25. Dr. Stark was qualified as an expert in this case in the areas of statistics and com puter-related statistics. Stark Testimony, 11/8 Tr. 83:3- 12.

38. Paul Mewett ("Mewett") is currently employed at CRA International as the head of the Internet Intelli gence Unit. Mewett Testimony, 11/7 Tr. 85:18-86:11. Mewett was qualified in this case as an expert in the areas of computer technology, the interaction of comput ers with the Internet and the Web, and the identification of content on the Internet. Mewett Testimony, 11/7 Tr. 93:4-18.

39. Arthur E. Clark, Jr. ("Clark") is currently em ployed as a managing partner of Business Insights. Clark Testimony, 11/14 Tr. 11:12-13. Clark was quali fied as an expert in this case on the use and effective ness of payment cards on the Internet and related as pects. Clark Testimony, 11/14 Tr. 34:18-37:13.

40. Professor Scott Morris Smith ("Dr. Smith") is currently employed at Brigham Young University as a professor of marketing and director of the institute for marketing. S. Smith Testimony, 11/15 Tr. 4:3-9. Dr. Smith was qualified as an expert in this case in the areas of Internet research and methodology, advanced com puter applications for Internet survey research and analysis, Internet marketing in businesses, and buyer or consumer behavior. S. Smith Testimony, 11/15 Tr. 40:17-42:15.

D. Information Regarding Plaintiffs' Web Sites and the Content Thereon and Select Plaintiffs' Fear of Prosecution under COPA

41. There are numerous examples of material on the plaintiffs' Web pages that contain an actual or simu lated sexual act or sexual contact, an actual or simulated normal or perverted sexual act, or a lewd exhibition of the genitals or post-pubescent female breast which might be considered harmful to minors. Walsh Testi mony, 10/23 Tr. 141:10-17, 144:3-145:8, 146:6-13, 146:24- 147:5, 147:9-18, 147:25-148:12, 152:8-15; Pl. Ex. 39, at 1- 5, 61-78, 94-135; Findings of Fact 55, 58; Griscom Testi mony, 10/23 Tr. 68:16-69:1, 70:4-9, 73:25-74:6, 74:16-23, 77:10-14, 79:7-13; Pl. Ex. 38 at 13, 17-18; Findings of Fact 51-52; Glickman Testimony, 10/30 Tr. 130:23-131:10 (stating that Condomania has frank and honest discus sions on the "website about anal sex, lubricants and con doms for anal sex, lubricants for such acts as fisting, dental dams for both vaginal oral sex and anal oral sex"); Peckham Testimony, 10/31 Tr. 26:13-27:4; Pl. Ex. 41 (defining sexual slang words and giving sexually graphic examples of their use); Corinna Testimony, 11/2 Tr. 81:10-15, 82:7-12, 87:25-88:6, 89:6-11, 95:10-15; Pl. Ex. 42, at 2, 12, 13-15, 16-17, 26-28; Findings of Fact 46- 48.

42. The plaintiffs speak in support of their busi nesses on the Web. The speech on the plaintiffs' Web sites is designed to assist in making a profit. Walsh Tes timony, 10/23 Tr. 112:20-21; Tepper Testimony, 10/30 Tr. 176:11-13; Glickman Testimony, 10/30 Tr. 92:12-13; Griscom Testimony, 10/23 Tr. 52:25-53:1; Peckham Tes timony, 10/31 Tr. 23:6-10; Corinna Testimony, 11/2 Tr. 100:1-5.

43. Nonetheless, the majority of information on the plaintiffs' Web sites is provided to users for free. Walsh Testimony, 10/23 Tr. 161:4-6 (all of Salon's content is available today for free); Tepper Testimony, 10/30 Tr. 194:13-15 (all of Sexual Health Network's content is available for free); Glickman Testimony, 10/30 Tr. 108:11-20; Griscom Testimony, 10/23 Tr. 64:5-13 (most of Nerve's content is available for free); Peckham Testi mony, 10/31 Tr. 55:17-56:6; Corinna Testimony, 11/2 Tr. 74:10-11 (Scarleteen.com's content is available for free), 95:25-96:1 (some of the content on Femmerotic.com is available for free), 102:1-24, 126:2-127:9 (all of the con tent of Scarletletters.com posted in the last two years is available for free).

44. Most of the information on the plaintiffs' Web sites can be accessed without requiring users to regis ter, provide a password or log-in, or otherwise provide any personal, identifying information in order to access the material. Walsh Testimony, 10/23 Tr. 158:16-22; Tepper Testimony, 10/30 Tr. 190:11-18; Peckham Testi mony, 10/31 Tr. 30:12-18, 42:19-23.

45. A significant number of the Internet users who access the material on the plaintiffs' Web sites are indi viduals who do not live in the United States. Walsh Tes timony, 10/23 Tr. 113:23-114:19 ("we get roughly 20 per cent of our traffic now from international readers"); Tepper Testimony, 10/30 Tr. 181:10-18 ("approximately 15 percent" of users come from overseas); Griscom Tes timony, 10/23 Tr. 56:14-17 (15 percent of Nerve's visitors are from overseas); Peckham Testimony, 10/31 Tr. 25:14-17 (37 percent of Urban Dictionary's users are from overseas); Glickman Testimony, 10/30 Tr. 99:16-22.

46. Scarletletters.com is a Web site "intended to deliver sexuality information as well as entertainment by women for female users" and includes content that is sexually explicit. Corinna Testimony, 11/2 Tr. 73:2-5, 88:1-89:25; J. Ex. 1 ¶¶ 9-10, 35; Pl. Ex. 42, at 12 (showing sketches of male and female genitalia and intercourse), 13-15 (displaying an erotic story describing, inter alia, interludes involving masturbation, bondage, intercourse, and oral sex), 16 (depicting, inter alia, erotic photo graphs of genitalia and sexual situations).

47. Scarleteen.com is a "sex education and informa tion clearing house that's aimed at teenagers and young adults" which includes content that is sexual explicit. Corinna Testimony, 11/2 Tr. 74:1-2, 77:24-85:23; J. Ex. 1 ¶¶ 11, 34; Pl. Ex. 42.

48. Femmerotic.com provides sexuality information "by women pertaining to women" and includes content that is sexually explicit. Corinna Testimony, 11/2 Tr. 75:1-5, 94:21-95:15, 127:13-16; J. Ex. 1 ¶¶ 12, 36; Pl. Ex. 42, at 1-2, 17, 26-28 (displaying erotic pictures of naked breasts, genitalia and buttocks and sexual situations).

49. Scarleteen.com, Scarletletters.com, and Femm erotic.com are operated to make a profit. Corinna Testi mony, 11/2 Tr. 100:2-5.

50. Corinna does not understand the terms in COPA or what speech the statute prohibits. Corinna Testimony, 11/2 Tr. 75:20-22. Corinna also fears prose cution under COPA because she believes that some of her content is pornographic and would be prohibited by COPA. Corinna Testimony, 11/2 Tr. 76:7-17, 91:13-22, 97:13-19.

51. Nerve has speech that "frequently" includes nu dity and descriptions of sexual acts. Griscom Testimony, 10/23 Tr. 58:7-13, 66:18-79:13 (inter alia, discussing the Henry Miller awards which include excerpts of the best sex scenes in American novels); Pl. Ex. 38, at 13 (depict ing, inter alia, a photograph of a naked woman with stars obscuring her nipples and genitals apparently masturbating), 17-18 (describing, inter alia, vaginal and oral sex in graphic language), 22-24 (describing, in erotic detail, Tantric sex); J. Ex. 1 ¶¶ 39-40.

52. Nerve has video and blog sections that include nudity and depictions of sexual acts and sexual contact that are available for free and accessible to anyone. Griscom Testimony, 10/23 Tr. 73:25-74:6, 77:2-78:7.

53. Nerve is a for-profit venture with advertising being its largest revenue stream. Griscom Testimony, 10/23 Tr. 81:17-82:23.

54. Griscom, on behalf of Nerve, does not under stand the terms in COPA or what speech the statute prohibits. Griscom Testimony, 10/23 Tr. 56:18-57:21. Griscom also fears prosecution under COPA and be lieves that others could find that some content on Nerve is harmful to minors. Griscom Testimony, 10/23 Tr. 58:3- 59:7, 80:7-17.

55. Salon's Web site, Salon.com, contains content that describes and depicts sexual acts and sexual contact and exhibitions of the genitals or post-pubescent female breast. Walsh Testimony, 10/23 Tr. 141:10-17, 144:3- 145:8 (discussing article entitled "My Date With A Vir tual Sex Machine"), 146:6-13, 146:24-147:5 (discussing sexually explicit Japanese wood cuts), 147:9-18 (discuss ing sex gallery photographs from Kinsey Institute), 147:25-148:12 (discussing Abu Ghraib prison photo graphs including one in which a prisoner is "appearing to sodomize himself"), 152:8-15 (discussing explicit pho tographs on a blog entitled "My So-Called Lesbian Life"); Pl. Ex. 39, at 1-5 (depicting, inter alia, a photo graph of two topless women in an erotic position, and two other photographs of nude women posing erotically), 24, 29 (describing sexual encounters involving oral and vaginal sex), 57-59 (discussing anal sex with a strap-on phallus), 64-74 (describing a memoir of anal sex), 75-78, 94-100 (depicting Japanese wood cuts involving, inter alia, oral sex with sheet-like demons, hot wax, children engaging in digital penetration, intercourse with a half- woman, half-octopus creature, vaginal penetration with a demon's nose, and clitoral stimulation with chop- sticks), 101-111 (depicting Kinsey Institute images in volving bondage, naked breasts, buttocks, erect penises, vaginas, and a variety of sexual situations including a woman straddling a seated man whose penis is penetrat ing the woman's vagina), 112-118 (depicting erotic pho tographs of naked breasts buttocks and genitalia), 119- 135.

56. Salon is a for-profit company which primarily generates revenue through online advertising. Walsh Testimony, 10/23 Tr. 112:20-21, 157:17-158:4.

57. Walsh, on behalf of Salon, does not understand the terms in COPA or what speech the statute prohibits. Walsh Testimony, 10/23 Tr. 135:22-137:5. Walsh also believes that some of Salon's content might be consid ered harmful to minors. Walsh Testimony, 10/23 Tr. 137:15-138:10.

58. Walsh fears prosecution under COPA, in part, because Salon has received complaints about the sexual nature of some of its material and has lost some adver tising due to articles incorporating unpopular views on sexuality. Walsh Testimony, 10/23 Tr. 154:19-156:7, 157:4-15.

59. Glickman, on behalf of Condomania, does not understand the terms in COPA or what speech the stat ute prohibits. Glickman Testimony, 10/30 Tr. 130:3-22.

60. Dr. Tepper, on behalf of Sexual Health Net work, does not understand the terms in COPA or what speech the statute prohibits. Tepper Testimony, 10/30 Tr. 195:14-197:2.

61. If COPA is enforced, Griscom, Walsh, Glick man, and Corinna would have various reactions such as considering moving overseas and risking prosecution. Griscom Testimony, 10/23 Tr. 91:7-17; Walsh Testimony, 10/23 Tr. 173:21-24; Glickman Testimony, 10/30 Tr. 136:13-18; Corinna Testimony, 11/2 Tr. 104:17-105:5. Dr. Tepper does not know what he would do if COPA went into effect because he does not think it would be financially feasible for his company to use an age verifi cation system and he does not know if he would be will ing to risk violating COPA. Tepper Testimony, 10/30 Tr. 243:7-17.

E. Sexually Explicit Materials Available on the Web

1. In General

62. A little more than 1 percent of all Web pages on the Surface Web (amounting to approximately 275 million to 700 million Web pages) are sexually explicit. Zook Testimony, 10/26 Tr. at 88:22-89:17; Mewett Testi mony, 11/8 Tr. 48:19-49:9; Pl. Ex. 29, at 6-7; Pl. Ex. 54, at 101; Def. Ex. 65.

2. The Amount of Foreign Sexually Explicit Material on the Web

63. Although the parties disagree on how to deter mine whether a Web site is foreign or domestic in origin, their experts' views regarding the amount of foreign sexually explicit materials available on the Web are not dissimilar. The evidence submitted by the plaintiffs' expert Dr. Zook shows that 32 percent of adult member ship Web sites and 58 percent of free adult Web sites originate from outside the United States. Zook Testi mony, 10/26 Tr. 111:2-112:1; Pl. Ex. 29 at 18-19. The evidence submitted by defendant's expert Dr. Stark shows that 55.8 percent of the Web pages randomly sampled from the Google search engine index were hosted outside of the United States and 44.4 percent of the Web pages randomly sampled from the MSN search engine index were hosted outside of the United States. Def. Ex. 62 ¶ 10; Def. Ex. 65. From the weight of the evidence excerpted here, I find that a substantial num ber (approximately 50 percent) of sexually explicit web sites are foreign in origin.

64. Dr. Stark's data also indicated that, of the sexu ally explicit Web pages returned in response to a ran dom sample of search terms entered into the AOL, MSN and Yahoo! search engines, 11.6 percent of those Web pages were from foreign Web sites. Dr. Stark's data further indicated that, of the sexually explicit Web pages returned in response to the most popular search terms according to Wordtracker, which markets lists of the most popular search terms, 12.6 percent of those Web pages were from foreign Web sites. Def. Ex. 62, at 10- 11; Def. Ex. 65. However, I find that this data is not relevant because I find that Dr. Stark's samples from search engine index data (detailed in Finding of Fact 63), which consists of all of the Web sites indexed by the search engines, are a more accurate indication of how many Web sites are sexually explicit and foreign than samples of search term results which show only the fre quency with which searches return sexually explicit Web pages.

65. The National Research Council ("NRC") re port, commissioned by Congress, specifically noted that some estimates place as much as 75 percent of adult membership Web sites overseas. Pl. Ex. 54, at 101.

66. The percentage of adult Web sites registered overseas is increasing while, in the past five years, there has been a corresponding decrease in the percentage of adult Web sites located in the United States. Zook Tes timony, 10/26 Tr. 107:24-112:9; Pl. Ex. 29, at 13-17, Ta bles 4, 6, 8, 9. Free adult Web sites are migrating at the highest rates. From 2001 to 2006, the United States' share of free adult Web sites dropped from 60 percent to 42 percent. Zook Testimony, 10/26 Tr. 109:25-111:1; Pl. Ex. 29, Table 9.

F. Internet Content Filtering Technology and its Effectiveness

1. In General

67. Internet content filters ("filters") are computer applications which, inter alia, attempt to block certain categories of material from view that a Web browser or other Internet application is capable of displaying or downloading, including sexually explicit material. Fil ters categorize and block Web sites or pages based on their content. By classifying a site or page, and refusing to display it on the user's computer screen, filters can be used to prevent children from seeing material that might be considered unsuitable. In addition, businesses often use filters to prevent employees from accessing on employer controlled computers Internet resources that are either not work related or otherwise deemed inap propriate. J. Ex. 1 ¶ 85.

68. 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 matu rity of their children. As discussed more fully below, fil ters can be set up to restrict materials available on Web pages and other Internet applications based on numer ous factors including the type of content they contain, the presence of particular words, the address of the Web site, the Internet protocol used, or computer application used. Some filters can also restrict Internet access based on time of day, day of week, how long the com puter has been connected to the Internet, or which user is logged onto a computer. Cranor Testimony, 10/23 Tr. 233:1-234:13, 250:1-251:16; Cranor Testimony, Tr. 10/24 Tr. 5:9-6:8, 7:1-8:9; Allan Testimony, 11/2 Tr. 204:22- 207:16, 236:22-237:7, 238:16-20, 240:18-241:8, 246:19- 247:21; Allan Testimony, 11/6 Tr. 5:22-6:2; Whittle Testi mony, 10/31 Tr. 200:2-16, 201:18-212:24, 212:25-213:24, 220:5-221:14; Murphy Testimony, 11/1 Tr. 210:7-213:25, 217:21-221:7; Pl. Ex. 6; Pl. Ex. 11; Pl. Ex. 54; Pl. Ex. 86.

69. Some filters can be purchased on a Compact Disc ("CD") or downloaded from the Internet and in stalled on a personal computer. Some filters are de signed to be run on a server in a business, library, or school environment. Other filters are built into the ser vices provided by Internet Service Providers ("ISP"). J. Ex. 1 ¶ 86.

70. Filters use different mechanisms to attempt to block access to material on the Internet including: black lists, white lists, and dynamic filtering. Id. ¶¶ 87, 90, 92.

71. Black lists are lists of URLs or Internet Proto col ("IP") addresses that a filtering company has deter mined lead to content that contains the type of materials its filter is designed to block. Id. ¶ 87.

72. White lists are lists of URLs or IP addresses that a filtering company has determined do not lead to any content its filter is designed to block, and, thus, should never be blocked. A very restrictive filter, like a "walled garden" filter, might block all URLs except those included on a white list. Id. ¶ 90.

73. In addition to its own black and white lists, fil ters often give parents or administrators the option of creating customized black or white lists. Id. ¶ 91.

74. Dynamic filtering products use artificial intelli gence to analyze Web site content in real-time as it is being requested and determine whether it should be blocked by evaluating a number of different parts of the content, both what the user can actually see on the Web page, and the various hidden pieces of information con tained with the content that are part of its software code or script, known as the "metadata." Among other things, dynamic filters analyze the words on the page, the metadata, the file names for images, the URLs, the links on a page, the size of images, the formatting of the page, and other statistical pattern recognition features, such as the spatial patterns between certain words and images, which can often help filters categorize content even if the actual words are not recognized. Id., ¶ 92; Cranor Testimony, 10/23 Tr. 239:23-244:18.

75. In addition to analyzing the content of Web pages, dynamic filters also take the context of the page into consideration, to ensure that the determinations are as accurate as possible. For example, many companies will develop templates that provide additional context to teach the software how to recognize certain contexts- for example, to block the word "breast" when used in combination with the word "sexy," but not when used in combination with the words "chicken" or "cancer." The software analyzes context, in part, by utilizing statistical pattern recognition techniques to identify common fea tures of acceptable and unacceptable Web pages, de pending on the context in which the content appears. Cranor Testimony, 10/23 Tr. 243:5-244:6; Whittle Testi mony, 10/31 Tr. 201:4-17, 204:17-205:25.

76. Filters can be used by parents to block material that is distributed on the Web and on the other widely used parts of the Internet through protocols other than HTTP and through other Internet applications. For example, filters can be used to block any Internet appli cation, including email, chat, instant messaging, peer-to- peer file sharing, newsgroups, streaming video and au dio, Internet television and voice over Internet protocol ("VoIP"), and other Internet protocols such as FTP. J. Ex. 1 ¶ 95; Cranor Testimony, 10/24 Tr. 47:25-48:19; Pl. Ex. 6; Pl. Ex. 8; Pl. Ex. 54; Pl. Ex. 86; Pl. Ex. 88; Whittle Testimony, 10/31 Tr. 207:17-209:24, 212:25-213:15, 220:14-20; Murphy Testimony, 11/1 Tr. 203:21-204:3, 217:19-218:22; Allan Testimony, 11/2 Tr. 236:22-239:5, 246:19-248:10; Allan Testimony, 11/6 Tr. 5:22-8:23.

77. In addition to blocking access to these Internet applications completely, some products provide parents with the option of providing limited access to these ap plications. For example, instant messaging and email may be permitted, but some of the filtering products will only permit the sending and receiving of messages from certain authorized individuals, and will block e-mails or instant messages containing inappropriate words or any images. Filtering programs can also completely prevent children from entering or using chat rooms, or some can merely filter out any inappropriate words that come up during a chat session. Cranor Testimony, 10/24 Tr. 7:1- 17; Allan Testimony, 11/2 Tr. 236:24-237:3, 238:11-20; Allan Testimony, 11/6 Tr. 5:22-7:8; Whittle Testimony, 10/31 Tr. 202:10-209:24, 212:25-213:15, 220:14-20; Murphy Testimony, 11/1 Tr. 210:7-213:25, 217:19-221:7, 235:21-238:13; Pl. Ex. 86, at 6-7.

78. Some filtering programs offer only a small number of settings, while others are highly customiz able, 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. For example, AOL's filtering product enables parents to choose from four different age settings: general (unre stricted); mature teen; young teen; and kids only. Sur fcontrol's product has 13 different categories of speech that can be blocked if a parent so desires. Cranor Testi mony, 10/23 Tr. 233:2-21; Pl. Ex. 86; Allan Testimony, 11/2 Tr. 205:16-207:16, 240:18-243:2; Whittle Testimony, 10/31 Tr. 200:2-16, 202:10-203:8, 206:23-212:13, 220:5-25; Murphy Testimony, 11/1 Tr. 210:7-213:25, 217:25-221:7.

79. Filtering products can be used by parents even if they have more than one child. For example, if a fam ily has four children, many filtering products will enable the parent to set up different accounts for each child, to ensure that each child is able to access only the content that the parents want that particular child to access. Cranor Testimony, 10/23 Tr. 239:11-22; Cranor Testi mony, 10/24 Tr. 36:16-38:11; Pl. Ex. 86, at 15-22, 33-39.

80. Filtering products block both Web pages origi nating from within the United States and Web pages originating from outside the United States. The geo graphic origin of a Web page is not a factor in how a fil ter works because the filter analyzes the content of the Web page, not the location from which it came. Cranor Testimony, 10/24 Tr. 46:20-47:8; Pl. Ex. 6; Pl Ex. 54; Allan Testimony, 11/2 Tr. 185:6-12; Whittle Testimony, 10/31 Tr. 202:1-3; Murphy Testimony, 11/1 Tr. 224:6-14, 226:6-228:21; Pl. Ex. 133.

81. Filtering products block both non-commercial and commercial Web pages. It does not make a differ ence to filtering products' effectiveness if a page is from a non-commercial or a commercial entity. Cranor Testi mony, 10/24 Tr. 47:9-24; Pl. Ex. 6; Pl. Ex. 54; Whittle Testimony, 10/31 Tr. 202:7-9; Allan Testimony, 11/2 Tr. 246:6-11.

82. In addition to their content filtering features, filtering products have a number of additional tools to help parents control their children's Internet activities. Other tools available to parents include monitoring and reporting features that allow supervising adults to know which sites a minor has visited and what other types of activities a minor has engaged in online. AOL, for exam ple, offers a feature called AOL Guardian, which pro vides a parent with a report indicating which Web sites a child visited, which sites were blocked, the number of emails and instant messages a child sent, and to whom a child sent email or instant messages. Surfcontrol simi larly provides parents with reports of the Web sites a child has visited, as well as those that were blocked. Sur fcontrol's product also has the ability simply to monitor a child's activity without actually blocking anything, if a parent prefers that option. Some of the products, such as Contentwatch's filter, have features that permit par ents to monitor their child's Internet activities remotely, for example, while they are at work, and some products even send email alerts to parents when inappropriate material is accessed by a child so that, if a parent so de sires, it can supervise their child's Internet activities even when they are not physically with the child. Cranor Testimony, 10/23 Tr. 234:2-13, 249:21-251:15; Cranor Testimony, 10/24 Tr. 28:5-29:13; Pl. Ex. 2; Pl. Ex. 86, at 10-13, 32; Whittle Testimony, 10/31 Tr. 210:2-212:13; Murphy Testimony, 11/1 Tr. 218:23-220:23.

83. Some Internet content is now capable of being viewed on devices other than traditional personal com puters. Examples include mobile devices such as cellu lar phones, personal digital assistants ("PDAs") such as the Blackberry, portable audio/video players such as the iPod, and game consoles such as the XBox or PlaySta tion. J. Ex. 1 ¶ 96.

84. Several vendors, including large, experienced software companies, currently offer content filtering products for alternative devices. Examples include pro ducts offered by Ace*comm, Bytemobile, Blue Coat, Cis co, and RuleSpace. Felten Testimony, 10/25 Tr. 25:4-20; Sena Testimony, 11/2 Tr. 33:4-6, 60:7-14; Pl. Ex.13, at 22-23; Pl. Ex. 70; Allan Testimony, 11/2 Tr. 223:2-23.

85. At this time, however, there are no U.S. mobile telecommunications carriers that use filters for their cellular phones other than walled garden filters and cer tain other parental control features which can prevent children from using chat rooms, instant messaging, text messaging, email, purchasing any file downloads or hav ing any access to the Internet at all. Felten Testimony, 10/25 Tr. 25:22-26:17; Ryan Testimony, 11/6 Tr. 30:20- 36:19; Allan Testimony, 11/2 Tr. 223:2-23.

86. Nonetheless, mobile carriers are actively solic iting bids for the provision of mobile content filtering services. The top five mobile carriers in the United States, Cingular, Verizon Wireless, T-Mobile, Sprint, and Alltel, are all soliciting bids. Sena Testimony, 11/2 Tr. 56:19-57:09.

2. The Availability and Cost of Filters

87. Filters are widely available and easy to obtain. Numerous filtering products are sold directly to con sumers, 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. Cranor Testimony, 10/24 Tr. 8:8-9:9.

88. Many of the ISPs offer filters to their custom ers for free. AOL's filter is now even available for free to anyone who wants to use it, even non-AOL subscrib ers. Cranor Testimony, 10/24 Tr. 9:10-24.

89. Non-ISP filtering products vary in cost, rang ing from approximately $20 to $60. Cranor Testimony, 10/24 Tr. 9:10-17.

90. Most of the filtering products offer money-back guarantees or free trial periods, so that parents can sim ply download a filtering product for free over the In ternet and then use it for a set time period to see if it is something that they want to continue using. Cranor Testimony, 10/24 Tr. 12:12-22; Eisenach Testimony, 11/13 Tr. 177:8-25.

91. Microsoft's new operating system for personal computers, Vista, also includes parental controls and filters which are available at no additional cost to users of computers with the Vista operating system. Vista's content filter provides features similar to what are found in most current filtering products, including the ability to select which categories of speech should be filtered. Vista's filter also provides parents with other access control tools, such as time management, the abil ity to filter non-Web Internet applications like email, and the ability to block or restrict access to online games. Cranor Testimony, 10/24 Tr. 12:23-13:7, 16:14- 17:8; Pl. Ex. 2.

3. Filter Ease of Use and User Satisfaction

92. Filtering programs are fairly easy to install, configure, and use and require only minimal effort by the end user to configure and update. Cranor Testi mony, 10/24 Tr. 21:3-39:7; Pl. Ex. 3, at 4-5; Pl. Ex. 6; Pl. Ex. 54, at 317-320; Pl. Ex. 85, at 4; Pl. Ex. 86.

93. The plaintiffs' expert Dr. Cranor has confirmed this finding in various tests performed over the past decade in connection with her work for the Internet On line Summit, her testimony before the COPA Commis sion, and her expert testimony in the five previous law suits challenging state versions of COPA. For example, Dr. Cranor recently tested four filters and found that three were very, very easy to use and one was somewhat easy to use. Dr. Cranor also found that the current ver sions of the filter products had improved and were eas ier to use than the older versions. Cranor Testimony, 10/24 Tr. 18:13-19:1, 19:2-13, 168:11-18.

94. Dr. Cranor's opinion is consistent with the find ings of filtering studies conducted over the years. Those studies have found that many filtering products require little effort for parents to install and use. For example, a study conducted for NetAlert and the Australia Broad cast Authority concluded that certain products, such as AOL's filter, were quite easy to use and install. Cranor Testimony, 10/24 Tr. 57:9-18, 68:7-21; Pl. Ex. 5, at 32; Pl. Ex. 6, at 21; Pl. Ex. 85, at 4.

95. Almost all parents will be able to install filter ing products and use them by selecting from one of their standard settings. Many filters have user interfaces that are quite easy to use and that make it easy for users to create customized settings, especially if all they are concerned about blocking is adult material. Cranor Tes timony, 10/24 Tr. 19:19-20:7, 20:19-21:2, 27:1-24; Whittle Testimony, 10/31 Tr. 200:2-16, 206:23-212:13; Murphy Testimony, 11/1 Tr. 221:8-224:5; Pl. Ex. 2, at 17; Pl. Ex. 6; Pl. Ex. 85, at 4; Pl. Ex. 86, at 8-9.

96. 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 tech nically complex and does not require any special train ing or knowledge. Cranor Testimony, 10/24 Tr. 21:3- 22:8; Pl. Ex. 86.

97. Configuring a filtering product for more than one child is straightforward and easy with many prod ucts. For example, it takes about two minutes to set up an account for an additional child using AOL's filter product. Cranor Testimony, 10/24 Tr. 36:16-38:15; Pl. Ex. 86, at 33-39.

98. Most filtering products do not pose any compat ibility issues for computers, meaning that using filters will not affect the typical user's ability to use other com puter software. Cranor Testimony, 10/24 Tr. 40:9-41:6.

99. A study done for AOL found that 85 percent of parents are highly satisfied with their AOL Parental Controls products, and that 87 percent of the parents find them easy to use. Surfcontrol has also found that customer response is positive and that 70 to 80 percent of their customers renew their subscriptions to Surf control's filter. Cranor Testimony, 10/24 Tr. 83:7-11, 129:9-130:13; Murphy Testimony, 11/1 Tr. 222:25-223:20; Pl. Ex. 85, at 4.

4. The Effectiveness of Filters

a. In General

100. There are two main concerns regarding the effectiveness of filters: underblocking and overblocking. Underblocking occurs when the filter fails to block con tent that the filter is configured to block. Overblocking occurs when the filter prevents access to material that it is not configured to block. Cranor Testimony, 10/24 Tr. 52:16-21; Stark Testimony, 11/8 Tr. 95:16-96:13, 105:25-106:12.

101. The plaintiffs contend that in determining whe ther filters are effective, the filter's underblocking rate is more important than its overblocking rate. Cranor Testimony, 10/24 Tr. 52:22-53:6. Defendant claims that overblocking is a significant concern as well. Stark Tes timony, 11/8 Tr. 95:22-96:18. While both aspects are important, I agree with the plaintiffs that underblocking is the more important concern since the underlying issue in this case is the prevention of children from accessing sexually explicit material deemed harmful to them. Moreover, when a filter overblocks, a parent may add the Web sites that were erroneously overblocked to the filter's white list so that those Web sites are not blocked again. J. Ex. 1 ¶ 91.

102. Even though the Web is very large, only a small fraction of it is actually viewed frequently. To ensure that those parts that are actually being viewed by users have been located, filtering companies review lists of the most popular Web sites because the pages on those sites are the most likely ones that a child will be able to find and access. Cranor Testimony, 10/23 Tr. 236:22-237:7; Murphy Testimony, 11/1 Tr. 194:6-196:6.

103. Filtering products have improved over time and are now more effective than ever before. This is be cause, as with all software, the filtering companies have addressed problems with the earlier versions of the pro ducts in an attempt to make their products better. Cra nor Testimony, 10/24 Tr. 81:18-82:10; Murphy Testi mony, 11/1 Tr. 194:6-196:6, 221:8-222:24.

104. Another reason the effectiveness of filtering products has improved is that many products now pro vide multiple layers of filtering. Whereas many filters once only relied on black lists or white lists, many of to day'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. Cranor Testimony, 10/23 Tr. 246:20-247:9; Cranor Testi mony, 10/24 Tr. 81:18-82:4.

105. There is a high level of competition in the field of Internet content filtering. That factor, along with the development of new technologies, has also caused the products to improve over time. Murphy Testimony, 11/1 Tr. 223:21-224:5; Pl. Ex. 2, at 16-17.

106. One of the features of filtering programs that adds to their effectiveness is that they have built-in mechanisms to prevent children from bypassing or cir cumventing the filters, including password protection and other devices to prevent children from uninstalling the product or changing the settings. Some products even have a tamper detection feature, by which they can detect when someone is trying to uninstall or disable the product, and then cut off Internet access altogether un til it has been properly reconfigured. Cranor Testi mony, 10/24 Tr. 86:19-87:21; Felten Testimony, 10/25 Tr. 37:5-38:7; Murphy Testimony, 11/1 Tr. 216:12-217:18; Whittle Testimony, 10/31 Tr. 215:7-14; Pl. Ex. 2; Pl. Ex. 86.

107. Filtering companies actively take steps to make sure that children are not able to come up with ways to circumvent their filters. Filtering companies monitor the Web to identify any methods for circumventing fil ters, and when such methods are found, the filtering companies respond by putting in extra protections in an attempt to make sure that those methods do not succeed with their products. Cranor Testimony, 10/24 Tr. 86:19- 87:21; Felten Testimony, 10/25 Tr. 38:8-39:1.

108. It is difficult for children to circumvent filters because of the technical ability and expertise necessary to do so by disabling the product on the actual computer or by accessing the Web through a proxy or intermedi ary computer and successfully avoiding a filter on the minor's computer. Cranor Testimony, 10/24 Tr. 86:19- 87:21; Felten Testimony, 10/25 Tr. 36:6-40:4; Murphy Testimony, 11/1 Tr. 216:12-217:18; Whittle Testimony, 10/31 Tr. 215:7-14.

109. Accessing the Web through a proxy or interme diary computer will not enable a minor to avoid a filter ing product that analyzes the content of the Web page requested, in addition to where the page is coming from. Any product that contains a real-time, dynamic filtering component cannot be avoided by use of a proxy, whether the filter is located on the network or on the user's com puter. Felten Testimony, 10/25 Tr. 38:08-39:24.

b. Study Results

110. Based upon the testimony of Dr. Cranor, which I accept, I find that filters generally block about 95% of sexually explicit material. Cranor Testimony, 10/24 Tr. 55:8-23.

111. One study, conducted for NetAlert and the Aus tralia Broadcast Authority, measured the effectiveness of various filtering products at blocking a variety of dif ferent categories of content that parents might want to block, including pornography and erotica. The study found that some products, such as AOL's filter, blocked close to 100 percent of all pornography or erotica when the most restrictive setting (for children under the age of 12) was chosen. When a less restrictive setting (for 13 to 15 year-olds) was selected, the study found that about 90 percent of the pornography and erotica was blocked. Pl. Ex. 5, at 35-36.

112. Another study, conducted by Corey Finnel ("Finnel") for the government in another case, analyzed the overblocking rates of three filtering products. Finnel found that the overblocking rates for those three products respectively were between 4.69 percent and 7.99 percent, between 5.25 percent and 11.03 percent, and between 6.92 and 9.36 percent, using a 95 percent confidence interval. Cranor Testimony, 10/24 Tr. 60:4- 61:25; Pl. Ex. 4.

113. Consumer Reports has also conducted reviews of the various filtering products available to parents. Their most recent study concluded that filters are very good or excellent at blocking pornography, and that they block most, but not all, of that content. More specifi cally, Consumer Reports found that three products, from AOL, KidsNet and MSN, blocked practically every pornographic site that they tested, and that the least effective product they tested still blocked 88 percent of pornography. Cranor Testimony, 10/24 Tr. 70:9-22; Pl. Ex. 8, at 3. Although the methodology for this study may well be less rigorous than that of other more academic studies, the study is still informative because Consumer Reports focuses its evaluations on the criteria that are important to potential consumers and helps to shed light on whether the filters tested will be usable by a parent. Cranor Testimony, 10/24 Tr. 69:14-70:4.

114. Two separate reports commissioned by Con gress, from the Commission on Child Online Protection ("COPA Commission") and the NRC, have confirmed that content filters can be effective at preventing minors from accessing harmful materials online. Cranor Testi mony, 10/24 Tr. 71:2-76:5; Pl. Ex. 6; Pl. Ex. 54.

115. The COPA Commission was established by Congress as part of the COPA legislation. The COPA Commission report concluded that although filters are not perfect, server-side filters (meaning filters provided by an ISP) using only black lists and not utilizing other technologies such as dynamic filtering "can be highly effective" and client-side filters (meaning filters in stalled on a home computer) using only black lists "can be effective" in "directly blocking access to global harm ful to minors content on the Web and also on news groups, email, and chat rooms." Cranor Testimony, 10/24 Tr. 71:22-72:9; Pl. Ex. 6, at 19, 21.

116. The NRC issued a lengthy report in 2005. The NRC report concluded that although not perfect because filters overblock and underblock, and children can gain access to computers without filters, "[f]ilters have some significant utility in denying access to content that may be regarded as inappropriate" and, "filters can be highly effective in reducing the exposure of minors to inappro priate content if the inability to access large amounts of appropriate material is acceptable." Cranor Testimony, 10/24 Tr. 75:15-76:3; Pl. Ex. 54, at 40, 331.

117. Defendant's expert Mewett found that, in the filter study conducted by Dr. Stark and himself, with regard to the Web pages that were returned in response to the most popular search terms, the AOL filter per formed the best and blocked 98.7 percent of sexually explicit Web pages. However, Mewett found that the AOL filter overblocked 19.6 percent of non-sexually ex plicit Web pages. Mewett also found that the other fil ters he tested accurately blocked between 98.6 and 87.4 percent of the sexually explicit Web pages. In fact, of the filters tested, only two failed to block at least 90 per cent of the sexually explicit Web pages and the vast ma jority blocked at least 95 percent of such pages. Mewett further found that these filters overblocked between 2.9 and 32.8 percent of non-sexually explicit Web pages. Def. Ex. 78.

118. Mewett also found that, with regard to the Web pages drawn randomly from the search engine indexes, the AOL filter again performed the best and blocked between 91.1 and 91.4 percent of sexually explicit Web pages. However, Mewett found that the AOL filter overblocked 22.3 to 23.6 percent of non-sexually explicit Web pages. Mewett further found that the other filters tested accurately blocked between 87.6 and 39.8 percent of the sexually explicit Web pages and overblocked be tween .4 and 21.9 percent of non-sexually explicit Web pages. Def. Ex. 68.

119. Mewett also found that, with regard to the Web pages that were returned in response to a random sam ple of search terms, the AOL filter again performed the best and blocked 93.8 percent of sexually explicit web pages. However, Mewett found that the AOL filter overblocked 12.5 percent of non-sexually explicit Web pages. Mewett further found that the other filters he tested accurately blocked between 90 and 56.6 percent of the sexually explicit Web pages and overblocked be tween 0 and 20.7 percent of the non-sexually explicit Web pages. Def. Ex. 74.

120. I do not find Mewett's overblocking rates to be reliable because he sometimes concluded that a filter had overblocked even when the filter was performing ex actly as intended. This occurred because Mewett was not always able to limit the filter to screening only sexu ally explicit material and sometimes the filter was con figured to block other types of material as well. Mewett Testimony, 11/7 Tr. 210:13-212:20; see e.g. Def. Ex. 82, at 17 (stating that the "AOL [filter] does not have a de fault setting, nor does it allow for customization beyond choosing an appropriate age range for the surfer. Thus, AOL was tested on the mature teen setting . . . the ma ture teen setting should allow the surfer to visit all Web sites except those known to contain violent or adult con tent") (emphasis added).

121. Many of the findings in defendant's Mewett/ Stark study are consistent with and similar to the find ings of other filtering studies which have been con ducted over the years in that the Mewett/Stark data shows that there are several filtering products that are quite effective and accurate at blocking sexually explicit material, especially the most popular Web content, and that many of the products have less than a 10 percent underblocking rate regarding such content. Cranor Tes timony, 10/24 Tr. 78:3-12, 81:1-17; Def. Ex. 68; Def. Ex. 74; Def. Ex. 78.

G. Select Legislative History of COPA and the Lim itations of COPA

122. According to House Report 105-775, "[t]he pur pose of [COPA] is to amend the Communications Act of 1934 [47 U.S.C. § 151, et seq.] by prohibiting the sale of pornographic materials on the World Wide Web (or the Web) to minors." H.R. Rep. 105-775, at *5.

123. The intended "effect of [COPA] is simply to re order the process in such a way as to require age verifi cation before pornography is made available, essentially requiring the commercial pornographer to put sexually explicit images 'behind the counter.'" Id. at *15.

124. The House Report also lists the following Con gressional findings:

(1) while custody, care, and nurture of the child re sides first with the parent, the widespread availabil ity of the Internet presents opportunities for minors to access materials through the World Wide Web in a manner that can frustrate parental supervision or control;

(2) the protection of the physical and psychological well-being of minors by shielding them from materi als that are harmful to them is a compelling govern mental interest;

(3) to date, while the industry has developed innova tive ways to help parents and educators restrict ma terial that is harmful to minors through parental control protections and self-regulation, such efforts have not provided a national solution to the problem of minors accessing harmful material on the World Wide Web;

(4) a prohibition on the distribution of material harmful to minors, combined with legitimate defens es, is currently the most effective means by which to satisfy the compelling government interest; and

(5) notwithstanding the existence of protections that limit the distribution over the World Wide Web of material that is harmful to minors, parents, educa tors, and industry must continue efforts to protect children from dangers posed by the Internet.

Id. at *2.

125. COPA was drafted in direct response to the Supreme Court's decision in Reno, 521 U.S. 844 regarding the CDA. Id. at *5.

126. COPA's reach is specifically limited only to files publically accessible over the Web via HTTP or a suc cessor protocol and does not reach other forms of com munication and data transfer over the Internet including email, newsgroups, message boards, peer-to-peer and other file sharing networks, chat, instant messaging, VoIP, and FTP. 47 U.S.C. § 231(e)(1); H.R. Rep. 105- 775, at *12.

127. Congress added this limitation in an attempt to not burden more speech than was necessary and to at tempt to ensure that COPA was narrowly tailored, un like the CDA. H.R. Rep. 105-775, at *12.

128. COPA does not apply to Web sites which are completely free and which do not fit within the defini tions of "commercial purposes" and "engaged in the business." 47 U.S.C. § 231(e)(2).

129. This limitation was specifically added by Con gress to address the Supreme Court's concern that the CDA was too broad in that it covered both commercial and noncommercial speech. H.R. Rep. 105-775, at *8, *12.

130. In discussing COPA, the Commerce Committee dismissed their opponent's concerns that a "domestic legislative solution will not stop material from being sent into the United States" and noted that the amount of foreign harmful to minors material was undocu mented while "the fact remains that much of the harmful material is produced and posted in the United States." Id. at *20. The Committee further noted that the United States had an eight million dollar adult entertainment industry and concluded that "[c]learly domestic restric tions in the United States will help reduce a child's ac cess to pornography. . . . To the extent that an inter national problem exists, the Committee has requested that the Commission on Online Child Protection study the matter and report back to Congress." Id.

131. In a letter dated October 5, 1998, from the Act ing Assistant Attorney General to the Chairman for the Commerce Committee, explaining the views of the De partment of Justice on COPA, the Assistant Attorney General explained why the Department felt that COPA would be problematic. Specifically, the Assistant Attor ney General stated, inter alia, that:

The Department's enforcement of [COPA] could require an undesirable diversion of critical investi gative and prosecutorial resources that the Depart ment currently invests in combating traffickers in hard-core child pornography, in thwarting child predators, and in prosecuting large-scale and multi district commercial distributors of obscene materi als.

And that:

We do not believe that it would be wise to divert the resources that are used for important initiatives

. . . to prosecutions of the kind contemplated under the COPA. Such a diversion would be particularly ill-advised in light of the uncertainty concerning whether the COPA would have a material effect in limiting minors' access to harmful materials. There are thousands of newsgroups and Internet relay chat channels on which anyone can access pornogra phy, and children would still be able to obtain ready access to pornography from a myriad of overseas web sites. The COPA apparently would not attempt to address those sources of Internet pornography, and admittedly it would be difficult to do so because restrictions on newsgroups and chat channels could pose constitutional questions, and because any at tempt to regulate overseas web sites would raise dif ficult questions regarding extraterritorial enforce ment.

Pl. Ex. 55, at 2-3. The Assistant Attorney General also stated the opinion that COPA contains "troubling ambi guities" concerning the scope of its coverage including the difference between "knowing" violations of COPA and "intentional" violations of COPA. Id. at 3.

H. Statistical Information on Obscenity Prosecu tions

132. Existing laws make it illegal to distribute mate rial over the Internet that constitutes obscenity, 18 U.S.C. ch. 71, or child pornography, 18 U.S.C. ch 110. From 2000 to 2005, defendant initiated fewer than 20 prosecutions for obscenity which did not also accompany charges of child pornography, travel in interstate com mence to engage in sex with a minor, or attempting to transfer obscene material to a minor. J. Ex. 1 ¶ 121.

133. There have been fewer than 10 prosecutions for obscenity which did not also accompany charges of child pornography, travel in interstate commerce to engage in sex with a minor, or attempting to transfer obscene ma terial to a minor since 2005. Id. ¶ 122.

I. The Affirmative Defenses in COPA and Their Availability and Effectiveness

134. It is an affirmative defense to liability under COPA when a Web site owner restricts access by minors to material that is harmful to them by requiring the use of a "credit card, debit account, adult access code, or adult personal identification number", "by accepting a digital certificate that verifies age", or by "any other reasonable measures that are feasible under available technology" in order to attempt to verify that the con sumer is not a minor. 47 U.S.C. § 231(c)(1).

135. Congress included these affirmative defenses in COPA, in part, because such defenses "requiring either payment by credit card or authorization by access or identification code" had been included in "the FCC's dial-a-porn regulations [for the Communications Act of 1934, 47 U.S.C. § 223(b)], which were upheld in Dial In formation Services Corp. v. Thornburgh, 938 F.2d 1535 (2d Cir. 1991)." H.R. Rep. 105-775, at *14.

136. In discussing this issue, the Commerce Com mittee also mistakenly asserted that these defenses had been "cited with approval in Sable [Communications of California, Inc. v. F.C.C.], [492] U.S. 115 (1989)" and stated that:

In Sable, the Court found that such commercial re strictions would be effective in excluding most juve niles, stating: "the FCC's technological approach to restricting dial-a-porn messages to adults who seek them would be extremely effective, and only a few of the most enterprising and disobedient young people would manage to secure access to such messages." [492] U.S. at 130.

Id. However, the Supreme Court in Sable actually stated:

For all we know from this record, the FCC's techno logical approach to restricting dial-a-porn messages to adults who seek them would be extremely effec tive, and only a few of the most enterprising and disobedient young people would manage to secure access to such messages. If this is the case . . . "

Sable, 492 U.S. at 130 (emphasis added). The Supreme Court did note that the FCC, after "lengthy proceed ings, determined that its credit card, access code, and scrambling rules were a satisfactory solution to the problem of keeping indecent dial-a-porn messages out of the reach of minors" and that the Court of Appeals had agreed with this assessment. Id. at 128. However, the Court ultimately did not rule on this issue but instead found only that Congress had not generated any "legis lative findings that would justify [the Court] in conclud ing that there is no constitutionally acceptable less re strictive means, short of a total ban [on indecent and obscene telephone communications], to achieve the Gov ernment's interest in protecting minors." Id. at 128-129. The Supreme Court concluded only that the congressio nal record "contain[ed] no evidence as to how effective or ineffective the FCC's [credit card, access code, and scrambling rules] were or might prove to be." Id. at 130 (emphasis original).

137. In the physical world, assessing the validity of an assertion about a person's age is relatively straight forward because of face-to-face interactions. In a retail establishment, for example, someone seeking to pur chase harmful to minors material can be asked to show identification indicating the purchaser's age. The pro vider can view the buyer face-to-face and compare this identification to the person presenting it. That level of assurance is not available during an Internet purchase because of the absence of face-to-face interactions over the Web. Pl. Ex. 25, at 30-31; Pl. Ex. 54, at 88, 91-92.

1. The General Availability of Age Verification Technologies

138. From the weight of the evidence, I find that there is no evidence of age verification services or prod ucts 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 prod ucts that can effectively prevent access to Web pages by a minor. Russo Testimony, 10/25 Tr. 124:1-6, 143:17-20, 157:3-158:8, 164:15-165:7, 166:14-167:12; Tepper Testi mony, 10/30 Tr. 234:13-15; Peckham Testimony, 10/31 Tr. 48:7-9; Cadwell Testimony, 10/31 Tr. 162:20-164:1, 174:17-175:16; Meiser Testimony, 10/31 Tr. 120:7-13, 122:15-123:20, 123:21-125:3, 127:23-128:15, 133:20-134:8, 135:13-135:25, 136:1-8, 138:3-139:21, 139:22-141:6, 143:5- 144:5; Pl. Ex. 54, at 88, 91, 376-77; Pl. Ex. 25, at 3.

2. The Effectiveness of Payment Cards as a De fense and Minors Access Thereto

139. "Traditional payment cards" consist of credit, debit, and reloadable prepaid cards. Utilization of a credit card essentially creates a loan from a card issuing company to the card holder. Clark Testimony, 11/14 Tr. 17:4-5. A debit card is a payment card that is used to make a purchase and is tied to a deposit account, pri marily a checking account. Purchases of goods and ser vices on a debit card are deducted from the individual's checking account. Clark Testimony, 11/14 Tr. 17:5-8. A prepaid card is a payment card that an individual elec tronically loads with cash and then proceeds to purchase goods and services. Clark Testimony, 11/14 16:24-25. Reloadable prepaid cards can be purchased for cash and after that amount is used up more money can be added; nonreloadable prepaid cards are one-time use cards such as gift cards. Clark Testimony, 11/14 Tr. 48:10-24.

140. The rules of payment card associations in this country prohibit Web sites from claiming that use of a payment card is an effective method of verifying age, and prohibit Web site owners from using credit or debit cards to verify age. Russo Testimony, 10/25 Tr. 72:23- 73:10; Cadwell Testimony, 10/31 Tr. 185:15-186:11, 187:3-187:23; Thaler Testimony, 11/1 Tr. 111:20-113:20; Bergman Testimony, 11/7 Tr. 16:4-17:17, 18:21-19:25; Pl. Ex. 106, at 4; Pl. Ex. 139, at 2-4; Pl. Ex. 141, at 1.

141. Payment card associations in this country ad vise consumers not to offer payment cards to merchants as a proxy for age. Russo Testimony, 10/25 Tr. 72:16- 73:3; Bergman Testimony, 11/7 Tr. 16:4-17:17; Pl. Ex. 139, at 2-4.

142. Defendant's expert Clark, concedes that pay ment cards cannot be used to verify age because minors under 17 have access to credit cards, debit cards, and reloadable prepaid cards. Clark Testimony, 11/14 Tr. 179:20-180:6.

143. Payment card issuers usually will not issue credit and debit cards directly to minors without their parent's consent because of the financial risks associated with minors. Clark Testimony, 11/14 Tr. 118:7-120:3; Rinchiuso Testimony, 11/6 Tr. 241:16-242:6; Def. Ex. 93, at 17. Nonetheless, as described below, there are many other ways in which a minor may obtain and use pay ment cards.

144. The plaintiffs contend that about one-half of all minors have access to credit cards, debit cards, or pre paid cards and that the percentage of 16 year-olds with access to payment cards is significantly higher than the percentage of 12 year-olds with access to such cards. Mann Testimony, 11/6 Tr. 86:12-17, 96:18-97:14, 114:17- 24; Pl. Ex. 17, at 2, 7; Pl. Ex. 34, at 3-8; Pl. Ex. 93, at 10. Defendant claims that about 22 percent of minors age 12 to 17 have access to traditional payment cards either through cards in their own name (with a co-signing par ent) or through a borrowed card. Clark Testimony, 11/14 Tr. 83:17-25, 84:6-85:9, 91:8-22, 96:2-96:12, 114:11- 15. Clark did admit, however, that this number would be higher if he were to include minors who have access to prepaid cards which were not included in his data source. Clark Testimony, 11/14 Tr. 190:6-24, 191:5-21, 192:11-18, 193:8-13. While the parties do not agree on the exact number of minors who have access to tradi tional payment cards, I find from the weight of the evi dence that even the lowest figures show that a signifi cant number of minors have access to them.

145. In addition, payment card issuers are increas ingly marketing credit cards, debit cards, and prepaid cards to minors as young as 13 because the "coveted youth segment" presents "dramatic revenue generating opportunities." Visa's "Visa Buxx" card is one example of a payment card that is specifically designed to be used by minors. Mann Testimony, 11/6 Tr. 75:18-77:2, 85:14- 86:11; Bergman Testimony, 11/7 Tr. 4:3-6:2, 21:16-23:19, 46:20-47:25; Pl. Ex. 25, at 23-24; Pl. Ex. 34, at 6-7; Pl. Ex. 54, at 371, 377; Pl. Ex. 148, at 2, 4.

146. It is also possible for minors to have access to credit or debit cards without the knowledge or consent of their parents. Bergman Testimony, 11/7 Tr. 8:8-9:22.

147. Even if parents review periodic payment card statements, either their own or those of cards issued with their permission to their children, they may not be able to identify transactions on sexually explicit Web sites because the adult nature of such transactions is often not readily identifiable from information provided on the statement. Clark Testimony, 11/14 Tr. 214:7-10; Pl. Ex. 54, at 93. Moreover, delay in issuing a payment card statement to parents means that unauthorized ac cess to harmful to minors materials can occur. Pl. Ex. 6, at 25.

3. The Effectiveness of Data Verification Services

148. Some companies offer non-payment card-based services that attempt to verify the age or identity of an individual Internet user. These companies are referred to as data verification services ("DVS"). They seek to accomplish in cyberspace what a clerk checking an ID card or driver's license accomplishes in an adult book store, only they do not verify the age or identity of an individual; instead, they merely verify the data entered by an Internet user. Russo Testimony, 10/25 Tr. 182:20- 183:13, 196:18-197:1; Meiser Testimony, 10/31 Tr. 127:25-128:15; Pl. Ex. 25, at 25-26; Pl. Ex. 54, at 367, 376. IDology is one such company. Dancu Testimony, 11/9 Tr. 143:25-144:15, 161:12-25.

149. DVS companies cannot determine whether the person entering information into the Web site is the per son to whom the information pertains. Nor is there any way for the person to whom the information pertains to know that his or her information has been used because the DVS companies do not notify people when their in formation has been verified. Dancu Testimony, 11/9 Tr. 260:12-261:12; Russo Testimony, 10/25 Tr. 97:24-98:8, 182:20-183:18; Meiser Testimony, 10/31 Tr. 127:23- 128:15, 138:3-139:21, 143:23-145:3; Pl. Ex. 79, at 5; Pl. Ex. 25, at 31.

150. Internet users attempting to access content on a Web page that is using a DVS system will be required to provide specified personal information, such as the person's name, last four digits of the social security number, home address, home telephone number, or dri ver's license number. The DVS company will check this information against commercially available databases that aggregate public records, and then provide a re sponse to the Web page operator who will have the abil ity to permit or decline access to that user. Russo Testi mony, 10/25 Tr. 95:22-96:10, 181:24-182:19; Pl. Ex. 25, at 26-27; Pl. Ex. 54, at 92; Dancu Testimony, 11/9 Tr. 160:15-161:3, 164:10-166:5; Def. Ex. 109.

151. DVS companies rely on public records such as property, voting, and vehicle registration records, re cords from state Departments of Motor Vehicles, and some privately acquired information in an attempt to verify information. Russo Testimony, 10/25 Tr. 175:24- 176:17; Dancu Testimony, 11/9 Tr. 164:10-18; Pl. Ex. 54, at 92.

152. The minimum information required by a DVS company to attempt a verification is a first name, last name, street address, and zip code. Russo Testimony, 10/25 Tr. 172:24-173:1; Dancu Testimony, 11/9 Tr. 160:15-22; Pl. Ex. 76.

153. 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. Russo Testimony, 10/25 Tr. 97:24-98:8; Dancu Testimony, 11/9 Tr. 244:11-245:3. However, in order to heighten reliability and for an ad ditional cost, it is possible for DVS companies to gener ate user-specific questions based on personal historical information, such as the color of a given car or the ad dress of a previous home. The more questions that are asked, the more apparently effective the verification process will be. Dancu Testimony, 11/9 Tr. 177:11-181:3; Russo Testimony, 10/25 Tr. 192:10-19; Def. Ex. 109, at 5. Nonetheless, I find from the testimony that without a physical delivery of goods and an accompanying visual age verification, neither the DVS nor the Web page op erator can know whether an adult or a child provided the information. Attempting to verify age with this informa tion in a consumer-not-present transaction is therefore unreliable. Russo Testimony, 10/25 Tr. 98:6-8, 183:2-13; Dancu Testimony, 11/9 Tr. 245:18-246:5; Pl. Ex. 25, at 31; Pl. Ex. 54, at 92-93.

154. DVS companies do not have access to every state's Department of Motor vehicle records, vehicle registration records, property records or voting records and not every adult in the United States has a driver's licence, owns property, or is registered to vote. As a result, it is less likely that the information from people in such states and in such situations will be properly verified. Dancu Testimony, 11/9 Tr. 252:7-20; Meiser Testimony, 10/31 Tr. 134:11-135:25; Pl. Ex. 54, at 370.

155. DVS companies also have difficulty verifying the information of people recently married, divorced, or who otherwise have legally changed their name. Russo Testimony, 10/25 Tr. 179:4-12; Pl. Ex. 79, at 4.

156. DVS databases do not contain foreign records and cannot verify information for individuals residing outside of the United States who are not United States citizens. This limits the audience of Web sites using DVS products exclusively to Americans whose data can be verified and would be problematic for the plaintiffs who have an international audience. Finding of Fact 45; Dancu Testimony, 11/9 Tr. 253:23-254:16; Meiser Testi mony, 10/31 Tr. 142:9-19; Russo Testimony, 10/25 Tr. 177:22-178:5, 180:14-181:1; Pl. Ex. 25, at 32; Pl. Ex. 79, at 1.

157. It is especially difficult for DVS companies to verify young adults (between the ages of 17 and 21) or minors, because there is little data available on younger adults, and very little, if any, data available on minors. Therefore, if Web page operators such as the plaintiffs utilize DVS products to comply with COPA, there will be young adults who will not be able to access those Web pages. Dancu Testimony, 11/9 Tr. 257:22-259:20; Meiser Testimony, 10/31 Tr. 140:1-18, 155:24-156:10; Russo Tes timony, 10/25 Tr. 178:16-179:3; Pl. Ex. 79, at 4.

158. DVS companies also have difficulty verifying information for recent immigrants, visa holders, or any one who is not a United States citizen. Dancu Testi mony, 11/9 Tr. 259:21-260:5; Meiser Testimony, 10/31 Tr. 140:1-18; Pl. Ex. 79, at 4; Pl. Ex. 76.

4. The Effectiveness of Digital Certificates and Other Reasonable Measures that Are Feasible under Available Technology

159. Defendant is unaware of any digital certificates that can be used to comply with COPA. 47 U.S.C. § 231(c)(1)(B); Pl. Ex. 163, at 1-2.

160. Defendant is also unaware of any other avail able or feasible options which would allow Web site own ers to restrict access to certain material to minors, while continuing to provide it to adults. 47 U.S.C. § 231(c)(1)(C); Pl. Ex. 163, at 1-2.

5. The Economic Burdens and Loss of Web Viewer ship Associated with the Affirmative Defenses

161. Based upon the below referenced evidence, I find that there are fees associated with all of the affir mative defenses and verification services identified in COPA, as well as all other services that claim to provide age verification. These fees apply any time a user at tempts to access material on a Web site, even if there is no purchase. The fees must either be paid by the Web site or passed on to the users. As a result, Web sites such as the plaintiffs' sites, which desire to provide free distribution of their information, will be prevented from doing so. Russo Testimony, 10/25 Tr. 162:17-163:7, 166:1-13; Pl. Ex. 25, at 24, 33; Pl. Ex. 106, at 5, 15; Tha ler Testimony, 11/1 Tr. 115:25-116:15, 116:16-117:8, 117:9-118:2; Cadwell Testimony, 10/31 Tr. 183:2-184:22; Meiser Testimony, 10/31 Tr. 146:23-147:17; Pl. Ex. 6, at 25; Pl. Ex. 54, at 93; Peckham Testimony, 10/31 Tr. 55:22-25 (Urban Dictionary's mission is to provide con tent for free); Corinna Testimony, 11/2 Tr. 104:13-16 (Corinna wishes to provide content for free); Griscom Testimony, 10/23 Tr. 84:25-85:14 (Nerve wants to reach widest audience possible).

162. Requiring the use of a payment card to enter a Web site would impose a significant economic cost on Web site owners. In addition to set-up fees and adminis trative fees, Web site owners would also need to pay fees for processing payment card information for each trans action. Russo Testimony, 10/25 Tr. 162:17-163:7; Lewis Testimony, 10/31 Tr. 109:6-24; Cadwell Testimony, 10/31 Tr. 183:2-184:22; Thaler Testimony, 11/1 Tr. 116:13- 117:8, 117:9-118:2, 118:3-119:7; Corinna Testimony, 11/2 Tr. 104:17-105:7; Clark Testimony, 11/14 Tr. 239:12- 240:15; Pl. Ex. 106, at 5, 15.

163. Financial institutions will not process or verify a payment card in the absence of a financial transaction. Express policies of the payment card associations pro hibit online merchants who sell content from processing transactions in the amount of zero dollars. Verification by payment card will therefore be practically unfeasible for all of the plaintiffs and most other Web site opera tors and content providers covered by COPA who dis tribute their content for free. Thaler Testimony, 11/1 Tr. 119:10-16; Rinchiuso Testimony, 11/6 Tr. 242:16-24; Clark Testimony, 11/14 Tr. 214:11-218:16; Pl. Ex. 6, at 25; Pl. Ex. 34, at 10; Pl. Ex. 54, at 373.

164. Defendant contends that a product called Bit pass enables consumers to utilize credit cards for near zero-dollar transactions. Defendant's Representative, 11/9 Tr. 89:22 90:6. The Bitpass product is used to facili tate online purchases of digital content and is not cur rently designed for Web sites which do not sell digital content. Knopper Testimony, 11/9 Tr. 93:7-14, 111:14- 112:15, 125:2-4. Moreover, Bitpass charges Web sites that use its services fees for each transaction. The fees range from 5 to 15 percent of each transaction. In addi tion, Bitpass may charge reporting fees and set-up fees. Knopper Testimony, 11/9 Tr. 106:17-22, 124:3-18.

165. Credit and verification charges must either be absorbed by the content provider or passed on to users. This cost will increase according to the number of visi tors to a Web site. Some plaintiffs, like Nerve and Sa lon, have one million to three million unique visitors per month. Russo Testimony, 10/25 Tr. 162:17-163:7, 166:1- 13; Griscom Testimony, 10/23 Tr. 54:25-55:4; Walsh Tes timony, 10/23 Tr. 116:1-117:1; Pl. Ex. 6, at 25; Pl. Ex. 106, at 5, 15; Peckham Testimony, 10/31 Tr. 24:16-23 (Urban Dictionary has 330,000 visitors per day).

166. DVS companies like IDology charge a minimum of 37 cents for each verification transaction. The cost can rise to 97 cents per transaction, for a more complete verification service. Every time an Internet user comes to a Web page that requires its visitors to pass through a DVS screen, the DVS will charge that Web page oper ator something in the range of 37 to 97 cents to perform the verification service. Dancu Testimony, 11/9 Tr. 221:25-222:4; Russo Testimony, 10/25 Tr. 186:2-6, 192:10-19; Meiser Testimony, 10/31 Tr. 146:23-147:17; Pl. Ex. 25, at 26-28.

167. In addition to the per-transaction fees, DVS companies also charge other fees such as application and set-up fees and optional integration fees which range from $195 to $495. Dancu Testimony, 11/9 Tr. 222:5-18; Russo Testimony, 10/25 Tr. 192:20-193:4, 195:8-14.

168. 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 DVS. Russo Testimony, 10/25 Tr. 96:25-97:14; Pl. Ex. 25, at 30, 33. As one example, Urban Dictionary had approximately 40 million visitors be tween January and October of 2006. Peckham Testi mony, 10/31 Tr. 24:20-23. If Urban Dictionary had been forced to have its users pass through a DVS such as IDology, and was not given a bulk discount, Urban Dic tionary would have incurred costs from between $14,800,000 to $38,800,000. Dancu Testimony, 11/9 Tr. 221:25-222:4.

169. Because of the sexually explicit nature of the content on their Web sites, many Web site owners, in cluding some of the plaintiffs, would be forced to place a credit card or age verification screen on the initial home page of their Web sites and/or on each individual Web page in order to ensure that no user could access any of the content on the site until passing through such a screen. Tepper Testimony, 10/30 Tr. 241:18-242:7; Peckham Testimony, 10/31 Tr. 48:1-6.

170. Requiring users to provide a credit card or per sonal information before they can browse a Web page to determine what it offers will deter most users from ever accessing those pages, causing the traffic to Web sites such as the plaintiffs' to fall precipitously. Walsh Testi mony, 10/23 Tr. 161:25-162:11, 163:4-164:2, 170:7-11, 171:15-172:9, 173:10-20; Glickman Testimony, 10/30 Tr. 134:6-136:4; Tepper Testimony, 10/30 Tr. 238:9-239:17; A. Smith Testimony, 10/26 Tr. 188:24-189:10; Snellen Testimony, 11/2 Tr. 136:2-12; Clark Testimony, 11/14 Tr. 242:13-243:16.

171. For a plethora of reasons including privacy and financial concerns (discussed further below) and the fact that so much Web content is available for free, many Web users already refuse to register, provide credit card information, or provide real personal information to Web sites if they have any alternative. Because re quiring age verification would lead to a significant loss of users, content providers would have to either self-cen sor, risk prosecution, or shoulder the large financial bur den of age verification. Griscom Testimony, 10/23 Tr. 88:8-20; Walsh Testimony, 10/23 Tr. 161:25-162:11, 163:4-11, 164:20-165:16, 170:7-11, 171:5-172:9, 173:10-20; Russo Testimony, 10/25 Tr. 146:14-148:16; A. Smith Tes timony, 10/26 Tr. 188:24-189:10; Glickman Testimony, 10/30 Tr. 135:14-136:4; Tepper Testimony, 10/30 Tr. 238:9-239:17; Peckham Testimony, 10/31 Tr. 51:15-53:13; Lewis Testimony, 10/31 Tr.110:4-13; Snellen Testimony, 11/2 Tr. 136:2-12; S. Smith Testimony, 11/15 Tr. 172:13- 16.

6. Web Users' Privacy Concerns and Reluctance to Provide Personal Information

a. Web Users' Privacy Concerns

172. Requiring users to go through an age verifica tion process would lead to a distinct loss of personal pri vacy. Many people wish to browse and access material privately and anonymously, especially if it is sexually explicit. Web users are especially unlikely to provide a credit card or personal information to gain access to sensitive, personal, controversial, or stigmatized content on the Web. As a result of this desire to remain anony mous, many users who are not willing to access informa tion non-anonymously will be deterred from accessing the desired information. Web site owners such as the plaintiffs will be deprived of the ability to provide this information to those users. Walsh Testimony, 10/23 Tr. 170:17-171:4; Tepper Testimony, 10/30 Tr. 178:7-23, 190:14-191:5, 212:1-10, 236:22-237:5, 238:9-239:17 (stat ing that anonymity is important for users with embar rassing medical and sexual questions which they would not even discuss with their mates or personal physi cians); Corinna Testimony, 11/2 Tr. 103:23-104:12 (ano nymity is particularly important to women seeking in formation about sexuality); A. Smith Testimony, 10/26 Tr. 188:24-189:10; Snellen Testimony, 11/2 Tr. 139:18- 141:8, 156:8-17; Griscom Testimony, 10/23 Tr. 89:25-90:2; Pl. Ex. 54, at 372.

173. COPA's requirement that Web sites maintain the confidentiality of information submitted for pur poses of age verification would not alleviate the deter rent effect of age verification on users, because users must still disclose the personal information to a Web site to pass through the screen, and then rely on these enti ties, many of whom are unknown and have no actual per son identified with them, to comply with the confidenti ality requirement. Tepper Testimony, 10/30 Tr. 238:9- 239:17; Pl. Ex. 6, at 25 (noting that the "[c]ollection of individually-identifiable information at central points via this system poses privacy risks"); 47 U.S.C. § 231(d).

b. Web Users' Security Concerns

174. Requiring Internet users to provide payment card information or other personally identifiable infor mation to access a Web site would significantly deter many users from entering the site, because Internet users are concerned about security on the Internet and because Internet users are afraid of fraud and identity theft on the Internet. S. Smith Testimony, 11/15 Tr. 116:4-6, 117:18-24; Walsh Testimony, 10/23 Tr. 171:15- 172:9.

175. Although the Internet has become much more familiar to most people, numerous studies show that In ternet users are concerned about identity theft and fraud on the Internet and that their fears have grown, not decreased, over time. S. Smith Testimony, 11/15 Tr. 119:11-15.

176. Consumer Reports Web Watch issued a report on Internet users' security concerns on October 26, 2005 which was based on a survey conducted by Princeton Survey Research Associates International, a reliable sources of information. S. Smith Testimony, 11/15 Tr. 119:20-120:12. The study found that nine out of ten U.S. Internet users over 18 years old have made changes to their behavior due to fear of identity theft including re ducing Internet use and stopping or cutting back on making Internet purchases. S. Smith Testimony, 11/15 Tr. 120:13-121:16.

177. The Consumer Reports study also found that 88 percent of the people surveyed said that keeping per sonal information safe and secure is very important for a Web site they visit, and that for all online users, con cern about identity theft is substantial and a worry that has changed their behavior in sweeping ways. More spe cifically, because of their concerns, a majority of Inter net users (53 percent) have stopped giving out personal information on the Internet. S. Smith Testimony, 11/15 Tr. 121:25-122:17, 124:14-18.

178. The Javelin company, a reliable source of infor mation, issued a report on identity fraud in 2005. The Javelin study similarly found that there are growing fears today about identity theft on the Internet. S. Smith Testimony, 11/15 Tr. 124:19-125:5.

179. In April 2006, Forrester Research, a reliable source of information, issued a report which found that overall satisfaction with e-commerce shopping experi ences and credit card security trust is declining, that credit card security concerns have intensified, and that whether founded on reality or not, all online shoppers, even experienced buyers, worry about credit card secu rity. S. Smith Testimony, 11/15 Tr. 125:6-128:13.

180. In a study published in July 2003 and in an up dated study published in Summer 2006 (after he submit ted his expert report), defendant's expert, Dr. Smith, found that consumers have serious concerns about using credit cards on the Internet, in part, because of fear of theft or fraud. S. Smith Testimony, 11/15 Tr. 151:1- 154:25, 158:24-160:13.

181. These two studies, along with many other stud ies discussed above, contradict Dr. Smith's opinion in this case that Internet users would not be significantly affected by having to provide credit card information to access free content on Web sites were COPA to go into effect. Moreover, Dr. Smith did not cite any evidence as to why his opinion had changed. S. Smith Testimony, 11/15 Tr. 118:7-20, 166:11-167:3. Therefore, I find Dr. Smith's testimony on this topic at trial to be unreliable.

J. Geolocation

182. Quova, Inc. provides IP intelligence services that allow online businesses to attempt to determine the location of users of their Web sites. Alexander Testi mony, 11/13 Tr. 5:5-9.

183. A product that Quova markets can determine, within a 20 to 30 mile radius, the location from which a user is accessing a Web site through a proxy server, satellite connection, or large corporate proxy. Alexan der Testimony, 11/13 Tr. 19:10-19, 28:2-7. The fact that Quova can only narrow down a user's location to a 20 to 30 mile radius results in Quova being unable to deter mine with 100 percent accuracy which side of a city or state border a user lives on if the user lives close to city or state borders. Alexander Testimony, 11/13 Tr. 28:8- 16.

184. If a visitor is accessing a Web site through AOL, Quova can only determine whether the person is on the East or West coast of the United States. Alexan der Testimony, 11/13 Tr. 20:20-21:3.

185. Quova has been used by Web site operators to direct traffic so that only users in the United States can view products that can only be distributed in the United States and to customize content for users in the United States as opposed to users in a another country. Alexan der Testimony, 11/13 Tr. 22:11-24:11.

186. The services Quova offers can cost anywhere from $6,000 to $500,000 a year. Alexander Testimony, 11/13 Tr. 24:12-20.

IV. CONCLUSIONS OF LAW4

A. Standing

1. In order to maintain standing, the plaintiffs must show, inter alia, that they have sustained or are immediately in danger of sustaining some direct injury that is not abstract, conjectural or hypothetical. City of Los Angeles v. Lyons, 461 U.S. 95, 102 (1983). In a pre- enforcement challenge to a statute carrying criminal penalties, standing exists when "the plaintiff has alleged an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecu tion." Babbitt v. United Farm Workers Nat. Union, 442 U.S. 289, 298 (1979); Virginia v. Am. Booksellers Ass'n, Inc., 484 U.S. 383, 392-93 (1988).

2. Because all of the plaintiffs in this case seek the same injunctive relief, if the court concludes that one of the plaintiffs has standing, it is unnecessary to deter mine the standing of the remaining plaintiffs. Dep't of Commerce v. U.S. House of Representatives, 525 U.S. 316, 330 (1999) (finding that the presence of one party with standing assures that controversy before the Court is justiciable); see Sec. of the Interior v. California, 464 U.S. 312, 319 n. 3 (1984); Babbitt, 442 U.S. at 299, n. 11.

3. As this court has found previously and today, and as the Third Circuit observed, there is nothing in the language of COPA which limits its reach to commer cial pornographers.5 ACLU, 322 F.3d at 256 (citing 31 F. Supp. 2d at 480); 47 U.S.C. § 231.

4. I conclude that under COPA, the terms "com mercial purposes" and "engaged in the business" are defined very broadly and include within their reach Web sites which only receive revenue from advertising or which generate profit for their owners only indirectly.6 47 U.S.C. § 231(e)(2)(A) & (B). Again this conclusion is in accord with an insight by the Third Circuit in ruling on the efficacy of the 1999 preliminary injunction. ACLU, 322 F.3d at 256 (observing that these definitions expand "COPA's reach beyond those enterprises that sell services or goods to consumers" to include "those persons who sell advertising space on their otherwise noncommercial Web sites").

5. Based upon Findings of Fact 16 through 18, 21, 26, and 41 though 58, Corinna, Nerve, and Salon engage in communications on the Web for commercial purposes and have content which an average person utilizing con temporary community standards could find was de signed to appeal to or pander to the prurient interest of minors and depicts, describes, or represents, in a man ner patently offensive with respect to minors, an actual or simulated sexual act or sexual contact, an actual or simulated normal or perverted sexual act, or a lewd ex hibition of the genitals or post-pubescent female breast. See 47 U.S.C. § 231(e)(6). The same content of these three plaintiffs could also be found by a reasonable per son to include content that lacks serious literary, artis tic, political, or scientific value for minors. See 47 U.S.C. § 231(e)(6). Therefore, this case is justiciable as a credi ble threat of prosecution exists and at least these three plaintiffs have standing. See Babbitt, 442 U.S. at 298.7

B. Strict Scrutiny Applies to this Action

6. There is no doubt that COPA restricts speech based upon its content. See 47 U.S.C. § 231; Ashcroft, 542 U.S. at 660. Therefore strict scrutiny applies to the claims in this action.8 Turner Broadcasting Sys., Inc. v. F.C.C., 512 U.S. 622, 642 (1994). Such regulations are presumptively invalid. R.A.V. v. City of St. Paul, 505 U.S. 377, 382 (1992).

7. Because COPA suppresses a large amount of speech that adults have a constitutional right to receive, under the strict scrutiny standard, COPA may only be upheld as constitutional if defendant meets his burden of proving that COPA is narrowly tailored to the com pelling interest that COPA was enacted to serve and there are no less restrictive alternatives that would be at least as effective in achieving that interest. Ashcroft, 542 U.S. at 665 (citing Reno, 521 U.S. at 874).

8. There has never been any question that the in terest espoused by Congress, as related to this court by defendant of "protecting minors from exposure to sexu ally explicit material on the World Wide Web" is a com pelling interest. Reno, 521 U.S. at 869-870 (stating that "'there is a compelling interest in protecting the physical and psychological well-being of minors' which extended to shielding them from indecent messages that are not obscene by adult standards") (quoting Sable, 492 US. at 126).

C. Defendant Has Failed to Meet His Burden of Proof

1. Defendant Has Failed to Show that COPA Is Narrowly Tailored to Congress' Compelling Interest

a. COPA Is Overinclusive

9. COPA is overinclusive. Simon & Schuster, Inc. v. Members of New York State Crime Victims Bd., 502 U.S. 105, 121 (1991) (finding that laws which are "signif icantly overinclusive" are not narrowly tailored). Due to the broad definitions and provisions of COPA, COPA prohibits much more speech than is necessary to further Congress' compelling interest. 47 U.S.C. § 231. For example, as discussed above in Conclusions of Law 3 and 4, the definitions of "commercial purposes" and "en gaged in the business" apply to an inordinate amount of Internet speech and certainly cover more than just com mercial pornographers, contrary to the claim of defen dant. Moreover, as discussed below in Conclusions of Law 42 and 49, the fact that COPA applies to speech that is obscene as to all minors from newborns to age sixteen, and not just to speech that is obscene as to older minors, also renders COPA over-inclusive. See ACLU, 322 F.3d at 253-254 (noting that the term "minor" in COPA applies to "an infant, a five-year old, or a person just shy of age seventeen").

b. COPA Is Underinclusive

10. COPA is also underinclusive. See Arkansas Writers' Project, Inc. v. Ragland, 481 U.S. 221, 232 (1987) (finding the statutory provision at issue unconsti tutional because it was "both overinclusive and under inclusive"). For example, as shown in Findings of Fact 63, 65, and 66, there is a significant amount of sexually explicit material on the Internet which originates from outside of the United States. As discussed below, unlike Internet content filters which are able to block from view unsuitable material regardless of its origin (see Finding of Fact 80), COPA has no extra-territorial appli cation. See also Finding of Fact 131 and Pl. Ex. 55, at 3 (the Department of Justice concluding that COPA "ap parently would not attempt to address", inter alia, sexu ally explicit overseas Web sites and that "any attempt to regulate overseas web sites would raise difficult ques tions regarding extraterritorial enforcement"); Pl. Ex. 54, at 235 (The NRC concluding that because a substan tial percentage of sexually explicit Web sites exist out side the United States, even strict enforcement of COPA will likely have only a marginal effect on the availability of such material on the Internet in the United States). As a result, and as is more fully discussed below, COPA is not applicable to a large amount of material that is un suitable for children which originates overseas but is nevertheless available to children in the United States.

11. Statutes are presumed to only have domestic ef fect unless a contrary intent appears. Foley Bros., Inc. v. Filardo, 336 U.S. 281, 285 (1949). Although, COPA claims to prohibit the transmission of material that is harmful to minors "in interstate or foreign commerce", 47 U.S.C. § 231(a)(1), such language is legally insuffi cient to demonstrate Congress' clear intent that COPA applies to Web sites hosted or registered outside of the United States. See E.E.O.C. v. Arabian American Oil Co., 499 U.S. 244, 251 (1991) (superceded by statute on the issue of retroactive application) (finding that the Supreme Court has "repeatedly held that even statutes that contain broad language in their definitions of 'com merce' that expressly refer to 'foreign commerce' do not apply abroad") (citing New York Cent. R. Co. v. Chis holm, 268 U.S. 29, 45 (1925) and McCulloch v. Sociedad Nacional de Marineros de Honduras, 372 U.S. 10 (1963)); U.S. v. Reeves, 62 M.J. 88 (C.A.A.F. 2005) (ap plying the presumption against extraterritoriality to a statute that prohibited conduct "in interstate or foreign commerce").

12. Defendant contends that there is precedent for reading into a criminal statute extraterritorial applica tion where a statute does not expressly provide for such. See U.S. v. Harvey, 2 F.3d 1318 (3d Cir. 1993). How ever, because COPA has both civil and criminal penal ties, and because of the lack of Congressional intent, the court will not read into COPA implied extraterritorial application. Smith v. U.S., 507 U.S. 197, 203-204 (1993) (stating that "[i]t is a longstanding principle of American law that legislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States") (internal quotation marks omitted).

13. As shown in Finding of Fact 130, the legislative history of COPA does not support a finding that Con gress intended for COPA to apply to Web sites that are hosted or registered outside of the United States and instead shows that Congress intended for the statute to have only domestic application. See also H.R. Rep. 105- 775, at *20.

14. If Congress had intended for COPA to have ex traterritorial application, it could have inserted appro priate language in the statute. Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 440 (1989) (remarking that "Congress knows how to place the high seas within the jurisdictional reach of a statute").

15. Enforcement of COPA against overseas Web site owners would also be burdensome and impractical due to the knotty questions of jurisdiction which arise in the Internet context. See e.g. Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F. Supp. 1119 (W.D. Pa. 1997). Fur thermore, even if a specific foreign Web site had suffi cient contacts with the forum to allow personal jurisdic tion, it could be quite difficult or impossible to ensure that the offender would obey or could be forced to obey the judgment of the U.S. court. As a result, COPA's lack of extraterritorial application renders it underin clusive.

16. As demonstrated in Finding of Fact 126, it is also accurate that COPA only concerns itself with mate rial that is accessible over the Internet using HTTP or a successor protocol. See also 47 U.S.C. § 231(e)(1). As advocated by the plaintiffs, it appears that this is yet another reason why COPA is underinclusive. However, as discussed below in Conclusions of Law 35 and 36, the compelling interest of Congress, as submitted by defen dant, is quite narrow in that it seeks only to protect chil dren form harmful materials on the Web. Therefore, I will restrict my analysis to materials available on the Web and will not consider the ramifications of COPA's failure to reach other harmful materials on the Internet accessible by means other than the Web.

c. The Affirmative Defenses in COPA Do Not Aid in Narrowly Tailoring It to Con gress' Compelling Interest

17. The affirmative defenses cannot cure COPA's failure to be narrowly tailored because they are effec tively unavailable. Credit cards, debit accounts, adult access codes, and adult personal identification numbers do not in fact verify age. As a result, their use does not, "in good faith," "restrict[] access" by minors. 47 U.S.C. § 231(c)(1)(A); See Findings of Fact 137, 138, 140-147, 148-158, 159-160.

18. As shown by Findings of Fact 138 and 140 through 147, because payment card issuers prohibit the use of their credit or debit cards to verify age and be cause a significant number of minors have access to pay ment cards, such cards are not an effective age verifica tion device.

19. The Commerce Committee's reliance on Sable was misplaced as the Court in Sable neither approved nor disapproved of credit card age verification and the other defenses listed in the FCC dial-a-porn regulations for 47 U.S.C. §§ 223(b)-(c). Findings of Fact 135, 136. Moreover, the evidence presented in this case is con trary to the findings of the Second Circuit in Dial Infor mation Services, 938 F.2d 1535, and, thus, I do not find that case persuasive. See Conclusion of Law 18. Fur ther distinguishing this case from Dial Information Ser vices is that 47 U.S.C. § 223(b) was designed to specifi cally combat commercial dial-a-porn, see Sable 492 U.S. at 120, while the range of speech restricted in COPA is much wider and effects even those noncommercial Web sites which garner profit for their owners only through advertising or other indirect means. See Conclusions of Law 3, 4. Instead, I agree with the Fourth Circuit in PSINet, Inc. v. Chapman, 362 F.3d 227 (4th Cir. 2004). In PSInet, the Fourth Circuit found the Virginia In ternet harmful-to-minors law overly broad and not nar rowly tailored. 362 F.3d at 239. In its analysis the court noted, in regards to the government's suggestion that the use of PIN numbers for access to Web pages would provide an adequate affirmative defense, that "the Com monwealth would certainly not agree that a liquor or tobacco store that sold to anyone with a valid credit card number, without some additional step to ascertain the age of the customer, was taking reasonable steps to ex clude juveniles from the purchase of age prohibitive products." Id. at 236. The Fourth Circuit also found that since some adults do not have credit cards and some would be unwilling to provide a credit card number on line, requiring a credit card to access a site would "un duly burden protected speech in violation of the First Amendment" and that "requiring adult Web sites to uti lize PIN numbers would unconstitutionally chill free speech." Id. at 236-37. I find the reasoning of the Fourth Circuit persuasive.

20. As demonstrated by Findings of Fact 138 and 148 through 158, because there are no DVS products that actually verify age but merely verify data, some times with as little as a name and address, DVS prod ucts are not effective age verification services.

21. The affirmative defenses also raise their own First Amendment concerns. For example, the utiliza tion of those devices to trigger COPA's affirmative de fenses will deter listeners, many of whom will be unwill ing to reveal personal and financial information in order to access content and, thus, will chill speech. See Denver Area Educ. Telecomms. Consortium, Inc. v FCC, 518 U.S. 727, 754 (1996) (striking down an identification re quirement because it would "further restrict viewing by subscribers who fear for their reputations should the operator, advertently or inadvertently, disclose the list of those who wish to watch the 'patently offensive' chan nel"); Findings of Fact 171, 172-181.

22. Similarly, the affirmative defenses also imper missibly burden Web site operators with demonstrating that their speech is lawful. See Ashcroft v. Free Speech Coalition, 535 U.S. 234, 255 (2002) (stating that "The Government raises serious constitutional difficulties by seeking to impose on the defendant the burden of prov ing his speech is not unlawful"); ACLU, 322 F.3d at 260 (noting that "the affirmative defenses [in COPA] do not provide the Web publishers with assurances of freedom from prosecution"). Under the COPA regime, Web site operators are unable to defend themselves until after they are prosecuted. See 47 U.S.C. § 231(c).

23. Moreover, the affirmative defenses place sub stantial economic burdens on the exercise of protected speech because all of them involve significant cost and the loss of Web site visitors, especially to those plaintiffs who provide their content for free. See Simon & Schus ter, Inc., 502 U.S. at 115 (stating that "A statute is pre sumptively inconsistent with the First Amendment if it imposes a financial burden on speakers because of the content of their speech"); Findings of Fact 161-163, 165- 171. Defendant's response to this proposition, that the defenses are not burdensome to commercial pornogra phers because they already accept credit cards to sell their content, shows his fundamental misunderstanding of the reach of COPA: COPA does not apply merely to commercial pornographers but to a wide range of speak ers on the Web. See Conclusions of Law 3, 4.

24. Based upon Finding of Fact 164, Bitpass is not a reasonable solution to the problem faced by Web site owners who provide their content for free but who can not accept zero-dollar transactions on credit cards.

25. As shown above, the affirmative defenses in COPA raise unique First Amendment issues and, in any event, do not aid in narrowly tailoring COPA to Con gress' compelling interest.

2. Defendant Has Failed to Show that COPA Is the Least Restrictive Alternative for Advancing Con gress' Compelling Interest

26. Defendant has failed to successfully defend against the plaintiffs' assertion that filter software and the Government's promotion and support thereof is a less restrictive alternative to COPA. The Supreme Court recognized, upon the evidence before it at the time of the issuance of the preliminary injunction in 1999, that:

Filters are less restrictive than COPA. They impose selective restrictions on speech at the receiving end, not universal restrictions at the source. Under a fil tering regime, adults without children may gain ac cess to speech they have a right to see without hav ing to identify themselves or provide their credit card information. Even adults with children may obtain access to the same speech on the same terms simply by turning off the filter on their home com puters. Above all, promoting the use of filters does not condemn as criminal any category of speech, and so the potential chilling effect is eliminated, or at least much diminished. All of these things are true, moreover, regardless of how broadly or narrowly the definitions in COPA are construed.

Ashcroft, 542 U.S. at 667. The evidence at trial shows that this is still the case today. It remains true, for ex ample, that unlike COPA there are no fines or prison sentences associated with filters which would chill speech. 47 U.S.C. § 231(a). Also unlike COPA, as shown by Findings of Fact 68, 78, and 79, filters are fully cus tomizable and may be set for different ages and for dif ferent categorizes of speech or may be disabled alto gether for adult use. As a result, filters are less restric tive than COPA.

27. Moreover, defendant contends that: (1) filters currently exist and, thus, cannot be considered a less restrictive alternative to COPA; and that (2) the private use of filters cannot be deemed a less restrictive alterna tive to COPA because it is not an alternative which the government can implement. These contentions have been squarely rejected by the Supreme Court in ruling upon the efficacy of the 1999 preliminary injunction by this court. The Supreme Court wrote:

Congress undoubtedly may act to encourage the use of filters. We have held that Congress can give strong incentives to schools and libraries to use them. It could also take steps to promote their de velopment by industry, and their use by parents. It is incorrect, for that reason, to say that filters are part of the current regulatory status quo. The need for parental cooperation does not automatically dis qualify a proposed less restrictive alternative. In enacting COPA, Congress said its goal was to pre vent the "widespread availability of the Internet" from providing "opportunities for minors to access materials through the World Wide Web in a manner that can frustrate parental supervision or control." COPA presumes that parents lack the ability, not the will, to monitor what their children see. By en acting programs to promote use of filtering soft ware, Congress could give parents that ability with out subjecting protected speech to severe penalties.

Ashcroft, 542 U.S. at 669-670 (internal citation omitted). I agree with the Supreme Court and conclude today that the mere fact that filters currently exist does not indi cate that they cannot be a less restrictive or effective alternative to COPA nor does it make them part of the regulatory status quo. I also agree and conclude that in conjunction with the private use of filters, the govern ment may promote and support their use by, for exam ple, providing further education and training programs to parents and caregivers, giving incentives or mandates to ISP's to provide filters to their subscribers, directing the developers of computer operating systems to provide filters and parental controls as a part of their products (Microsoft's new operating system, Vista, now provides such features, see Finding of Fact 91), subsidizing the purchase of filters for those who cannot afford them, and by performing further studies and recommendations regarding filters.

3. Defendant Has Failed to Show that Other Alter natives Are Not at Least as Effective as COPA

28. Defendant has also failed to show that filters are not at least as effective as COPA at protecting mi nors from harmful material on the Web. The first hur dle in this analysis is that there is no showing of how effective COPA will be. However, the evidence shows that at a minimum, COPA will not reach a substantial amount of foreign source sexually explicit materials on the Web, which filters will reach. Findings of Fact 63, 65, 66 and Conclusions of Law 10-14.

29. COPA will also not be effective because its affirmative defenses including the age verification schemes are not effective. See Conclusions of Law 17- 25.

30. Moreover, based on the recent sparse enforce ment history of the obscenity laws detailed in Findings of Fact 132 and 133 and the concern of the Department of Justice that COPA "could require an undesirable di version of critical investigative and prosecutorial re sources that the Department currently invests in . . . prosecuting . . . large-scale and multi district commer cial distributors of obscene materials", Pl. Ex. 55; Find ing of Fact 131, it is unlikely that COPA will be widely enforced, thus further limiting its effectiveness.

31. The Supreme Court recognized that, on the record before them at the time, filters were "likely more effective as a means of restricting children's access to materials harmful to them." Ashcroft, 542 U.S. at 667. I conclude that the evidence in this case now confirms the Supreme Court's prediction.

32. Although filters are not perfect and are prone to some over and under blocking, the evidence shows that they are at least as effective, and in fact, are more effective than COPA in furthering Congress' stated goal for a variety of reasons. For example, as shown by Findings of Fact 68, 78 through 80, 87 through 91, and 92 through 99, filters block sexually explicit foreign ma terial on the Web, parents can customize filter settings depending on the ages of their children and what type of content they find objectionable, and filters are fairly easy to install and use. See also Findings of Fact 102- 109.

33. Reliable studies also show that filters are very effective at blocking potentially harmful sexually explicit materials. Findings of Fact 110-116.

34. Even defendant's own study shows that all but the worst performing filters are far more effective than COPA would be at protecting children from sexually explicit material on the Web, garnering percentages as high as nearly 99 percent in successfully blocking such material. Findings of Fact 117-121. As a result of Con clusions of law 28 through 34, it is clear that defendant has failed to establish that COPA is the least restrictive means of protecting children from harmful sexually ex plicit materials on the Web.

35. As discussed briefly above in Conclusion of Law 16, there are also several other factors which technically make filters more effective than COPA at protecting children from harmful materials on the Internet. For example, filters cover many formats other than HTTP and filters can block content from a host of Internet ap plications. Findings of Fact 76, 77,

82. COPA specifically does not cover any of these items as it is limited only to materials found on the Web via HTTP or a successor protocol. Findings of Fact 126- 127. The plaintiffs allege that as a result, COPA ignores a substantial amount of Internet speech which could be deemed harmful to minors. This contention is techni cally correct, however for reasons stated below, it was not considered in my analysis. Defendant claims that COPA's limitations were added to the statute as a direct result of the Supreme Court's prior holding that the CDA was overbroad in part because it was not limited to commercial speech and it covered a wide array of In ternet speech other than simply that found on the Web.9 Defendant's contention is also correct. Findings of Fact 125-129. This creates an interesting conundrum for de fendant where broadening COPA's reach would likely make it overbroad, but by narrowing its reach to HTTP or successor protocols, Congress has made COPA un derinclusive and less effective than filters.

36. However, the compelling interest of Congress, as described to this court by defendant, is very narrow: to protect children from sexually explicit material on the Web. Although Congress' stated interest is listed more generally in the Congressional Findings as "the protec tion of the physical and psychological well-being of mi nors by shielding them from materials that are harmful to them", it is clear from the rest of the Findings that harmful material on the Web was Congress' true con cern. Finding of Fact 124; H.R. Rep. 105-775, at *2 (dis cussing minors access to materials on the Web that can frustrate parental supervision or control and stating that past efforts have not provided a national solution to the problem of minors accessing harmful material on the Web). Therefore, I accept defendant's narrow interpre tation of the compelling interest of Congress. I also rec ognize that Congress may legislate in stages and that "reform may take one step at a time, addressing itself to the phase of the problem that seem most acute to the legislative mind." McConnell v. Fed. Election Comm'n, 540 U.S. 93, 207-08 (2003). For this reason, and because it is clear that COPA is less effective than filters even without this additional contention, I have restricted my analysis to harmful materials available on the Web (and not beyond), which makes these other factors irrelevant to my decision.

D. Vagueness and Overbreadth

37. Facial challenges to legislation are "employed by the Court sparingly and only as a last resort."10 Nat'l Endowment for the Arts v. Finley, 524 U.S. 569, 580 (1998) (quoting Broadrick v. Oklahoma, 413 U.S. 601, 613 (1974)). To prevail on their facial challenge to COPA, the plaintiffs must "demonstrate a substantial risk that application of the provision will lead to sup pression of speech." Id.

1. COPA Is Vague

38. The vagueness doctrine was created to ensure fair notice and nondiscriminatory application of the laws. U.S. v. Tykarsky, 446 F.3d 458, 472 n.9 (3d Cir. 2006). A statute or regulation fails for vagueness if men of ordinary intelligence must speculate as to the mean ing of what the statute or regulation requires or prohib its. See Gibson v. Mayor & Council of Wilmington, 355 F.3d 215, 225 (3d Cir. 2004).

39. A party cannot bring a facial vagueness claim if the challenged regulation clearly applies to that party's speech. Gibson, 355 F.3d at 225; Rode v. Dellarciprete, 845 F.2d 1195, 1200 (3d Cir. 1988). Here, Congress in tended COPA to apply only to commercial pornograph ers as demonstrated by Findings of Fact 122, 123, 128, and 129 and Conclusions of Law 3 and 4. However, the plaintiffs in this action are not commercial pornograph ers, a fact which has not escaped defendant's notice in his challenges to their standing. Therefore, because COPA does not clearly apply to the plaintiffs' speech, the plaintiffs may bring a facial vagueness claim.

40. "[W]here Congress includes particular lan guage in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposefully in the dis parate inclusion and exclusion." Russollo v. U.S., 464 U.S. 16, 23 (1983) (quoting U.S. v. Wong Kim Bo, 472 F.2d 720, 722 (5th Cir. 1972)). In contrast to the sci enter requirement of "knowingly and with knowledge of the character of the material" found in 47 U.S.C. § 231(a)(1), the term "intentionally" is used in 47 U.S.C. § 231(a)(2). This court must assume that Congress in tended the disparate use of "knowingly and with knowl edge of the character of the material" and "intention ally" in 47 U.S.C. § 231(a)(1)-(2). However, since neither term is defined, the difference in scienter standards cre ates uncertainty in COPA's application and renders the terms vague.11 The chilling effect created by this uncer tainty is exacerbated by the fact that violations of both of the standards could result in criminal proceedings and violations of the intentional standard could result in a fine of up to $50,000 a day. See 47 U.S.C. § 231(a)(1)- (2).

41. Although Findings of Fact 122, 123, 128, and 129 demonstrate that Congress intended COPA to apply solely to commercial pornographers, as discussed previ ously in Conclusions of Law 3 and 4, the phrase "com munication for commercial purposes", as it is modified by the phrase "engaged in the business", does not limit COPA's application to commercial pornographers. See ACLU, 322 F.3d at 256 (citing 31 F. Supp. 2d at 480). The lack of clarity in these phrases results in Web sites, which only receive revenue from advertising or which generate profit for their owners only indirectly, from being included in COPA's reach. Conclusion of Law 4. Since the enforcement of COPA could result in prosecu tion of the plaintiffs in this case, it is reasonable for the plaintiffs to fear prosecution under COPA. See e.g. Findings of Fact 14, 41, 46-61; Conclusion of Law 5. The uncertainty resultant from the vagueness of "communi cation for commercial purposes" would cause the plain tiffs' speech to be chilled or self censored, as demon strated by Findings of Fact 50, 54, and 57 through 61.

42. As noted above, COPA defines a minor as "any person under 17 years of age." 47 U.S.C. § 231(e)(7). Although the government argues that the term minor should be interpreted to mean an older minor12 as the Third Circuit noted, such an interpretation would be "in complete disregard of the text" of COPA. ACLU, 322 F.3d at 253. As discussed by the Third Circuit, defining minors as "any person under 17 years of age," creates a serious issue with interpretation of COPA since no one could argue that materials that have "serious literary, artistic, political, or scientific value" for a sixteen-year- old would necessarily have the same value for a three- year old. Id. at 253-54. Likewise, what would be "pa tently offensive" to an eight-year-old would logically en compass a broader spectrum of what is available on the Web than what would be considered "patently offensive" for a sixteen-year-old. Presumably no material covered by COPA would be "designed to appeal to, or [be] de signed to pander to, the prurient interest" of a two or four-year old. Id., at 254. As the Third Circuit noted, "[i]n abiding by this definition, Web publishers who seek to determine whether their Web sites will run afoul of COPA cannot tell which of these 'minors' should be con sidered in deciding the particular content of their Internet postings." Id. Thus, the application of the defi nition of minors to COPA creates vagueness in the stat ute.

43. I recognize that state laws prohibiting obscene- as-to-minors material have been upheld by the Supreme Court with no discussion of whether they apply to mi nors of every age or only to older minors. See e.g. Gins berg v. State of N. Y., 390 U.S. 629 (1968). In a store, the cashier can easily discern if a patron is 10 or 11 years old instead of a claimed age of 17. The same cashier, however, may have trouble discerning whether a patron is 16 years old or 17 years old without some form of pho tographic identification. Thus, with laws that are con cerned with face-to-face transactions, in reality it is only those borderline cases in which a minor is close to the age of majority that are at issue. See e.g. Id. at 631 (wherein the patron at issue was 16 years old). As a re sult, in the pre-Internet age, it was not completely nec essary to be more specific in delineating what was ob scene as to minors of various age groups. However, on the Internet, everyone is faceless and fairly anonymous and, thus, the context is radically changed. The Internet merchant has no viable method of determining whether an individual is 6, 12, 17 or 51 years old. Consequently, we are presented with this novel problem where a gen eral prohibition on materials obscene as to minors cre ates a vagueness in the context of Internet transactions that is lacking in other situations.

44. COPA does not define the term "as a whole" and the plain language of the statute does not lend itself to a obvious definition of "as a whole" as it might be ap plied to the Internet. 47 U.S.C. § 231. The Third Circuit concluded in a dictum that the language of COPA clearly demonstrated that each individual "communication, pic ture, image, graphic image file, article, recording, writ ing or other matter of any kind" should be considered without context. ACLU, 322 F.3d at 252. But, as Justice Breyer noted in his dissent, "as a whole" has been tradi tionally interpreted in obscenity cases to require an ex amination of the challenged material within the context of the book or magazine in which it is contained. Ashcroft, 542 U.S. at 681 (citing Roth v. U.S., 354 U.S. 476, 490 (1957)). As Justice Kennedy noted in his con curring opinion, "The notion of judging work as a whole is familiar in other media, but more difficult to define on the World Wide Web. It is unclear whether what is to be judged as a whole is a single image on a Web page, a whole Web page, an entire multipage Web site, or an interlocking set of Web sites." 535 U.S. at 592-93. Thus, with the disparate views noted above, and as discussed below, in the context of the Web, I conclude that the use in COPA of the phrase "as a whole" without any further definition, is vague.

45. There is no question that a printed book or magazine is finite, and, as a result, it is very easy to dis cern what needs to be examined in order to make an "as a whole" evaluation. The same is not true for a Web page or Web site since Web pages and sites are hyper linked to other Web pages and sites. As demonstrated by online magazines such as Nerve and Salon, even the Web sites for online magazines, without considering the hyperlinks to off-site materials, have greater depth and breadth than their counterpart in print. See Findings of Fact 3, 21, 26. Instead of having a two-hundred page book or an issue of a magazine to look to for context, COPA invokes some undefined portion of the vast ex panse of the Web to provide context for material alleg edly violating the statute. As a result, a Web publisher cannot determine what could be considered context by a fact finder, prosecutor, or court, and therein lies the source of the vagueness.

46. The vagueness of COPA, like the vagueness of CDA, is especially concerning since they are both content-based regulations. See Reno, 521 U.S. at 871-72. "An impermissible chill is created when one is deterred from engaging in protected activity by the existence of a governmental regulation or the threat of prosecution thereunder." Aiello v. City of Wilmington, 623 F.2d 845, 857 (3d Cir. 1980). The plaintiffs have demon strated, as recounted in Factual Findings 50, 54, and 57 through 61, that COPA has a chilling effect on free speech. The fact that Web publishers are faced with criminal prosecution for an alleged violation of COPA only serves to exacerbate the chilling effect resultant from the vagueness of the terms employed in COPA. See Reno, 521 U.S. at 872. Thus, I conclude that COPA is clearly unconstitutionally vague.

2. COPA Is Overbroad

47. "The overbreadth doctrine prohibits the Gov ernment from banning unprotected speech if a substan tial amount of protected speech is prohibited or chilled in the process." Free Speech Coalition, 535 U.S. at 255. The Supreme Court has noted that, "the possible harm to society in permitting some unprotected speech to go unpunished is outweighed by the possibility that pro tected speech of others may be muted." Broadrick, 413 U.S. at 612.

48. Since the vagueness of "communication for commercial purposes" and "engaged in business" would allow prosecutors to use COPA against not only Web publishers with commercial Web sites who seek profit as their primary objective but also those Web publishers who receive revenue through advertising or indirectly in some other manner, the array of Web sites to which COPA could be applied is quite extensive. Such a wide spread application of COPA would prohibit and undoubt ably chill a substantial amount of constitutionally pro tected speech for adults.

49. As discussed above, because a story that might have "serious literary value" for a sixteen-year-old could be considered to appeal to the "prurient interest" of an eight-year-old and be "patently offensive" and without "serious value" to that child, Web publishers do not have fair notice regarding what they can place on the Web that will not be considered harmful to "any person under 17 years of age." As the Third Circuit stated in ruling on the efficacy of the 1999 preliminary injunction by this court, "[b]ecause COPA's definition of 'minor' therefore broadens the reach of 'material that is harmful to mi nors' under the statute to encompass a vast array of speech that is clearly protected for adults . . . the defi nition renders COPA significantly overinclusive." ACLU, 322 F.3d at 268.

50. As demonstrated by Conclusions of Law 17 through 25 and as noted by the Third Circuit, the affir mative defenses in COPA do not prevent it from sweep ing too broadly since they do not verify age, impose ad ditional burdens, and add to the statute's chilling effect. See ACLU, 322 F.3d at 268.

51. "When a federal court is dealing with a federal statute challenged as being overly broad, it should, of course, construe the statute to avoid constitutional prob lems, if the statute is subject to such a limiting construc tion." New York v. Ferber, 458 U.S. 747, 769 n.24 (1982). If the statute is not subject to a limiting construction but can be severed so that a constitutional part remains, the statute should be severed accordingly. Id. However, a law should not be rewritten by a court so that it can pass constitutional muster. Am. Booksellers Ass'n, 484 U.S. at 397.

52. Nothing in the statute references commercial pornographers, for whom the statute was apparently intended, as demonstrated by Findings of Fact 122, 123, 128, and 129 and Conclusions of Law 3 and 4. To read such a limitation into the statute would result in an im permissible rewriting of the statute and assumption of the role of the legislature by this court. The term "mi nor" is clearly not subject to a narrowing construction, because, as noted by the Third Circuit, acting as if COPA only applied to older minors would be "in com plete disregard of the text" of COPA. ACLU, 322 F.3d at 253. There is no portion of the statute that could be severed to satisfy the First Amendment since the terms "commercial purposes" and "minor" cannot be removed and leave a viable statute. Thus, I conclude that COPA is unconstitutional as a result of its overbreadth.13

V. CONCLUSIONS

I agree with Congress that its goal of protecting children from sexually explicit materials on the Web deemed harmful to them is especially crucial. This court, along with a broad spectrum of the population across the country yearn for a solution which would pro tect children from such material with 100 percent effec tiveness. However, I am acutely aware of my charge under the law to uphold the principles found in our na tion's Constitution and their enforcement throughout the years by the Supreme Court. 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 stat ute, especially when a more effective and less restrictive alternative is readily available (although I do recognize that filters are neither a panacea nor necessarily found to be the ultimate solution to the problem at hand). My feelings resonate with the words of Justice Kennedy, who faced a similar dilemma when the Supreme Court struck down a statute that criminalized the burning of the American flag:

The hard fact is that sometimes we must make deci sions we do not like. We make them because they are right, right in the sense that the law and the Constitution, as we see them, compel the result. And so great is our commitment to the process that, except in the rare case, we do not pause to express distaste for the result, perhaps for fear of undermin ing a valued principle that dictates the decision. This is one of those rare cases.

Texas v. Johnson, 491 U.S. 397, 420-421 (1989) (Ken nedy, J. concurring). Despite my personal regret at having to set aside yet another attempt to protect our children from harmful material, I restate today, as I stated when granting the preliminary injunction in this case, that "I without hesitation acknowledge the duty imposed on the Court [as Justice Kennedy observed] and the greater good such duty serves. Indeed, perhaps we do the minors of this country harm if First Amend ment protections, which they will with age inherit fully, are chipped away in the name of their protection." 31 F. Supp. 2d at 498.

For the forgoing reasons, I conclude that COPA facially violates the First and Fifth Amendment rights of the plaintiffs because: (1) COPA is not narrowly tai lored to the compelling interest of Congress; (2) defen dant has failed to meet his burden of showing that COPA is the least restrictive and most effective alterna tive in achieving the compelling interest; and (3) COPA is impermissibly vague and overbroad.14 Therefore, I will enter a permanent injunction against the enforce ment of COPA.

An appropriate Order follows.

4. UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

No. 98-5591

AMERICAN CIVIL LIBERTIES UNION, ET AL.

ALBERTO R. GONZALES IN HIS OFFICIAL CAPACITY AS

ATTORNEY GENERAL OF THE UNITED STATES

ORDER

AND NOW, this 22nd day of March, 2007, upon con sideration of the evidence, testimony of the witnesses and experts, and the arguments of counsel presented during the trial of this matter and the pre and post-trial submissions by the parties (see Doc. Nos. 319, 342, 343, 430, 429), it is hereby ORDERED, that based upon the Findings of Fact and Conclusions of Law detailed above:

(1) The Child Online Protection Act, 47 U.S.C. § 231, is facially violative of the First and Fifth Amendments of the United States Constitution; and

(2) Defendant Alberto R. Gonzales, in his official capacity as Attorney General of the United States, and his officers, agents, employees, and attorneys, and those persons in active concert or participation with defendant who receive actual notice of this Order are PERMA NENTLY ENJOINED from enforcing or prosecuting matters premised upon 47 U.S.C. § 231 at any time for any conduct.

This is a FINAL ORDER and this case is CON CLUDED.

/s/ LOWELL A. REED, JR.

LOWELL A. REED, JR., S.J.

1 The Court of Appeals for the Third Circuit twice reviewed the ef ficacy of the preliminary injunction, once on direct appeal (ACLU v. Reno, 217 F.3d 162 (3d Cir. 2000)) and once upon remand from the Sup reme Court (ACLU v. Ashcroft, 322 F.3d 240 (3d Cir. 2003)), each time affirming the decision of this court.

2 The plaintiffs also rely upon the Fifth Amendment to the Constitu tion which is the due process vehicle by which this action arrives in fed eral court.

3 To the extent that the following Findings of Fact include Conclu sions of Law or mixed Findings of Fact and Conclusions of Law, those Findings and Conclusions are hereby adopted by this court.

4 To the extent that the following Conclusions of Law include Find ings of Fact or mixed Findings of Fact and Conclusions of Law, those Findings and Conclusions are hereby adopted by this court.

5 Like Congress and both parties, I will not attempt to define "com mercial pornographer." Such a definition is not necessary to this ad judication, however, as: (1) COPA clearly covers far more speakers on the Web than those who might be defined as commercial pornograph ers; and (2) defendant contends and, thus, admits that the plaintiffs are not commercial pornographers. see Conclusions of Law 3, 4, 9, 39, 41, 52; Doc. No. 429, Def.'s Proposed Finding of Fact 11.

6 For example, Barbara DeGenevieve ("DeGenevieve"), a tenured professor at the School of the Art Institute in Chicago, uses her Web site to generate profit even though all of her work on her Web site is free to view, she does not sell anything directly on her Web site, and she does not provide advertising space. Instead, DeGenevieve's Web site gives others the opportunity to contact her in order to purchase copies of her work or engage her to give lectures or workshops, which is a common way to do business in her academic field. DeGenevieve Testi mony, 11/1 Tr. 25:18-27:9, 31:14-24, 42:22-43:3, 61:22-66:7.

7 As stated previously, under COPA, the relevant inquiry relies on whether an average person, utilizing community standards would find that the material was: (1) as a whole, designed to appeal to the prurient interest of minors; (2) depicts sexual acts or contact or certain pro scribed nudity that is patently offensive to minors; and (3) whether a reasonable person would find that the content as a whole lacked certain types of value for minors. 47 U.S.C. § 231(e)(6); Pope v. Illinois, 481 U.S. 497, 500-501 (1987) (stating that under the Miller test for obscen ity, in determining whether a given work has value, the proper inquiry is "whether a reasonable person would find such value in the material, taken as a whole"). As a result, because the plaintiffs' subjective beliefs are unimportant to the statutory analysis, it does not matter whether the plaintiffs themselves believe that their content is harmful to minors as such beliefs are irrelevant.

8 Defendant's contention that COPA regulates only commercial speech and, thus, should be analyzed under the less exacting standard for such speech is utterly meritless. If accepting advertising or selling subscriptions transformed speech into commercial speech, the First Amendment protections afforded to many modes of communication, including print, would be completely destroyed. See e.g. Central Hud son Gas & Elec. Corp. v. Public Serv. Comm'n of New York, 447 U.S. 557, 561 (1980) (defining commercial speech as "expression related solely to the economic interests of the speaker and its audience"); Friedman v. Rogers, 440 U.S. 1, 10 (1979) (stating that commercial speech "relates to a particular product or service"); Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 761-762 (1976) (recognizing that speech receives full First Amend ment protection "even though it is carried in a form that is sold for profit" or "even though it may involve a solicitation to purchase or otherwise pay or contribute money" and defining commercial speech as speech that does "no more than propose a commercial transaction") (internal quotation marks omitted).

9 The plaintiffs likewise contend that COPA is underinclusive and less effective than filters because it is limited to commercial speech. However, as shown above in Conclusions of Law 3 and 4, COPA is not actually limited to commercial speech as its reach is sufficiently broad to cover virtually every Web site which has sexually explicit materials. I conclude that the commercial restriction in COPA is nearly a nullity and, thus, no restriction at all. As a result, I will not consider the plain tiffs' argument regarding COPA's commercial limitations.

10 Although facial challenges should be avoided and the holding here is merely supplemental, addressing vagueness and overbreadth in re gards to COPA is very important to the facilitation of any subsequent legislation in this area, since Congress clearly relied on the Supreme Court's vagueness and overbreadth analyses of the CDA in drafting COPA. See 535 U.S. at 569-70; ACLU, 322 F.3d at 244-45.

11 The court notes that the Department of Justice contended in a 1998 letter that the lack of clarity created by the use of these two terms was one of ten "confusing or troubling ambiguities" in COPA. Pl. Ex. 55; Finding of Fact 131.

12 As the Third Circuit found, the cases cited by defendant in support of his argument are inapposite. ACLU, 322 F.3d at 254 n.16. I agree. The Eleventh Circuit's interpretation in American Booksellers v. Webb of the Supreme Court's use of the "reasonable person" standard in Pope, 481 U.S. at 500-01 does not logically follow the holding in Pope, since nothing in Pope implies that where a reasonable minor standard is employed, that the reasonable minor should be considered an older reasonable minor. See ACLU, 322 F.3d at 254 n.16; Am. Booksellers v. Webb, 919 F.2d 1493, 1508-09 (11th Cir. 1990). Additionally, the decis ions of the Tennessee and Virginia Supreme Courts to apply an older minor standard to state statutes for minors are not binding on this Court. See ACLU, 322 F.3d at 254 n.16; Davis-Kidd Booksellers, Inc. v. McWhereter, 866 S.W.2d 520, 527 (Tenn. 1993); Am. Booksellers Ass'n v. Virginia, 882 F.2d 125, 127 (4th Cir. 1989).

13 Findings of Fact 182 through 186 show that technology related to limiting access to Web sites based on the geographic location of the us er has progressed since the preliminary injunction was issued by this court in 1999. But, these same Findings also establish that this technol ogy is far from perfect and cost prohibitive for many Web site operators that could be subject to COPA. See 31 F. Supp. 2d at 484. Such tech nology is relevant in addressing how "community standards" in the def inition of harmful to minors applies to the Internet which does not lend itself easily to geographic constraints. 47 U.S.C. § 231(e)(6). However, since this court's overbreadth holding is only supplemental and the additional analysis of the thorny "community standards" question would merely serve to unnecessarily complicate this adjudication, I will not reach the issue.

14 As a result, it is unnecessary to address the plaintiffs' other claims that COPA interferes with the First and Fifth Amendment rights of older minors to access and view sexually explicit material that is not harmful to them and that COPA violates the First and Fifth Amend ment right to communicate and access information anonymously. Superintendent, Massachusetts. Corr. Inst., Walpole v. Hill, 472 U.S. 445, 453 (1985) (noting "the rule of judicial restraint requiring [courts] to avoid unnecessary resolution of constitutional issues").

APPENDIX D

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 99-1324

AMERICAN CIVIL LIBERTIES UNION; ANDROGYNY BOOKS, INC. D/B/A A DIFFERENT LIGHT BOOKSTORES; AMERICAN BOOKSELLERS FOUNDATION FOR FREE EXPRESSION; ARTNET WORLDWIDE CORPORATION; BLACKSTRIPE; ADDAZI INC. D/B/A CONDOMANIA; ELECTRONIC FRONTIER FOUNDATION; ELECTRONIC PRIVACY INFORMATION CENTER; FREE SPEECH MEDIA; INTERNET CONTENT COALITION; OBGYN.NET; PHILADELPHIA GAY NEWS; POWELL'S BOOKSTORE; RIOTGRRL; SALON INTERNET, INC.; WEST STOCK, INC.; PLANETOUT CORPORATION

JOHN ASHCROFT, IN HIS OFFICIAL CAPACITY AS ATTORNEY GENERAL OF THE UNITED STATES, APPELLANT

Filed: Mar. 6, 2003

Before: NYGAARD and MCKEE, Circuit Judges, and GARTH, Senior Circuit Judge.

OPINION OF THE COURT

GARTH, Circuit Judge.

This case comes before us on vacatur and remand from the Supreme Court's decision in Ashcroft v. ACLU, 535 U.S. 564, 122 S. Ct. 1700, 152 L. Ed. 2d 771 (2002), in which the Court held that our decision affirming the District Court's grant of a preliminary injunction against the enforcement of the Child Online Protection Act ("COPA") 1 could not be sustained because "COPA's reliance on community standards to identify 'material that is harmful to minors' does not by itself render the statute substantially overbroad for purposes of the First Amendment." Id. at 1713 (emphasis in original). Pursu ant to the Supreme Court's instructions in Ashcroft, we have revisited the question of COPA's constitutionality in light of the concerns expressed by the Supreme Court.

Our present review of the District Court's decision and the analysis on which that decision was based does not change the result that we originally had reached, albeit on a ground neither decided nor discussed by the District Court. See ACLU v. Reno, 217 F.3d 162 (3d Cir. 2000) ("Reno III" ), vacated and remanded, 535 U.S. 564, 122 S. Ct. 1700, 152 L. Ed. 2d 771 (2002). We had affirmed the District Court's judgment granting the plaintiffs a preliminary injunction against the enforce ment of COPA because we had determined that COPA's reliance on "community standards" to identify material "harmful to minors" could not meet the exacting stan dards of the First Amendment. On remand from the Supreme Court, with that Court's instruction to consider the other aspects of the District Court's analysis, we once again will affirm.

COPA, Pub. L. No. 105-277, 112 Stat. 2681 (1998) (codified at 47 U.S.C. § 231), is Congress's second at tempt to regulate pornography on the Internet. The Su preme Court struck down Congress's first endeavor, the Communications Decency Act, ("CDA"), on First Amendment grounds. See Reno v. ACLU, 521 U.S. 844, 117 S.Ct. 2329, 138 L. Ed. 2d 874 (1997) ("Reno I"). To place our COPA discussion in context, it is helpful to understand its predecessor, the CDA, and the opinion of the Supreme Court which held it to be unconstitutional.

In Reno I, the Supreme Court analyzed the CDA, which prohibited any person from posting material on the Internet that would be considered either indecent or obscene. See Reno I, 521 U.S. at 859, 117 S. Ct. 2329. Like COPA, the CDA provided two affirmative defenses to prosecution: (1) the use of a credit card or other age verification system, and (2) any good faith effort to re strict access by minors. See id. at 860, 117 S.Ct. 2329.

The Court, in a 7-2 decision, and speaking through Justice Stevens, held that the CDA violated many differ ent facets of the First Amendment. The Court held that the use of the term "indecent," without definition, to describe prohibited content was too vague to withstand constitutional scrutiny.2 Justice Stevens further deter- mined that "[u]nlike the regulations upheld in Ginsberg and Pacifica, the scope of the CDA is not limited to com mercial speech or commercial entities. . . . [Rather, i]ts open- ended prohibitions embrace all nonprofit enti ties and individuals posting indecent messages or dis playing them on their own computers." Id. at 877, 117 S. Ct. 2329.3

In holding that "the breadth of the CDA's coverage is wholly unprecedented," the Court continued by noting that "the 'community standards' criterion as applied to the Internet means that any communication available to a nationwide audience will be judged by the standards of the community most likely to be offended by the mes sage." Id. at 877-78, 117 S. Ct. 2329.

The Court also discussed the constitutional propriety of the credit card/age verification defenses authorized by the CDA. Utilizing the District Court's findings, the Court held that such defenses would not be feasible for most noncommercial Web publishers, and that even with respect to commercial publishers, the technology had yet to be proven effective in shielding minors from harmful material. See id. at 881, 117 S. Ct. 2329. As a result, the Court determined that the CDA was not nar rowly tailored to the Government's purported interest, and "lacks the precision that the First Amendment re quires when a statute regulates the content of speech." Id. at 874, 117 S. Ct. 2329.

COPA, by contrast, represents an attempt by Con gress, having been informed by the concerns expressed by the Supreme Court in Reno I, to cure the problems identified by the Court when it had invalidated the CDA. Thus, COPA is somewhat narrower in scope than the CDA. COPA provides for civil and criminal penalties for an individual who, or entity that,

knowingly and with knowledge of the character of the material, in interstate or foreign commerce by means of the World Wide Web, makes any communication for commercial purposes that is available to any mi nor and that includes any material that is harmful to minors.

47 U.S.C. § 231(a)(1) (emphasis added).

Unfortunately, the recited standard for liability in COPA still contains a number of provisions that are con stitutionally infirm. True, COPA, in an effort to circum vent the fate of the CDA, expressly defines most of these key terms. For instance, the phrase "by means of the World Wide Web" is defined as the "placement of material in a computer server-based file archive so that it is publicly accessible, over the Internet, using hyper text transfer protocol or any successor protocol." Id. § 231(e)(1).4 As a result, and as is detailed below, COPA does not target all of the other methods of online com munication, such as e-mail, newsgroups, etc. that make up what is colloquially known as the "Internet." See ACLU v. Reno, 31 F. Supp. 2d 473, 482-83 (Finding of Fact ¶ 7) (E.D. Pa. 1999) ("Reno II" ).

Further, only "commercial" publishers of content on the World Wide Web can be found liable under COPA. The statute defines "commercial purposes" as those in dividuals or entities that are "engaged in the business of making such communications." 47 U.S.C. § 231(e)(2)(A). In turn, a person is "engaged in the business" under COPA if that person

who makes a communication, or offers to make a communication, by means of the World Wide Web, that includes any material that is harmful to minors, devotes time, attention, or labor to such activities, as a regular course of such person's trade or business, with the objective of earning a profit as a result of such activities (although it is not necessary that the person make a profit or that the making or offering to make such communications be the person's sole or principal business or source of income).

Id. § 231(e)(2)(B) (emphasis added). Individuals or enti ties therefore can be found liable under COPA if they seek to make a profit from publishing material on the World Wide Web-thus, individuals who place such ma terial on the World Wide Web solely as a hobby, or for fun, or for other than commercial profiteering are not in danger of either criminal or civil liability.

Furthermore, and of greater importance, is the man ner in which the statute defines the content of prohib ited material; that is, what type of material is considered "harmful to minors." The House Committee Report that accompanied COPA explains that the statute's definition of the "harmful to minors" test constitutes an attempt to fuse the standards upheld by the Supreme Court in Ginsberg v. New York, 390 U.S. 629, 88 S. Ct. 1274, 20 L. Ed. 2d 195 (1968), and Miller v. California, 413 U.S. 15, 93 S. Ct. 2607, 37 L. Ed. 2d 419 (1973).5 See H.R. Rep. No. 105-775, at 12-13 (1998).

In particular, whether material published on the World Wide Web is "harmful to minors" is governed by a three-part test, each prong of which must be satisfied before one can be found liable under COPA:

47 U.S.C. § 231(e)(6).6

This definition follows a formulation similar to that which the Supreme Court articulated in Miller. Impor tantly, however, whereas Miller applied such standards as related to the average adult, the "harmful to minors" test applies them with respect to minors.7

COPA, as earlier noted, also provides a putative de fendant with affirmative defenses. If an individual or entity "has restricted access by minors to material that is harmful to minors" through the use of a "credit card, debit account, adult access code, or adult personal iden tification number . . . a digital certificate that verifies age . . . or by any other reasonable measures that are feasible under available technology," the individual will not be liable if a minor should access this restricted ma terial. Id. § 231(c)(1). The defense also applies if an individual or entity attempts "in good faith to implement a defense" listed above. Id. § 231(c)(2).

On October 22, 1998, the day after President Clinton signed COPA into law, the American Civil Liberties Un ion, as well as a number of individuals and entities that publish information on the World Wide Web (collec tively, the "plaintiffs" or "ACLU"), brought an action in the United States District Court for the Eastern Dis trict of Pennsylvania, challenging the constitutionality of the Act. After five days of testimony, the District Court rendered sixty-eight separate findings of fact con cerning the Internet and COPA's impact on speech ac tivity. See Reno II, 31 F. Supp. 2d at 481-92 (Findings of Fact ¶¶ 0-67). These findings were detailed in our original opinion. See Reno III, 217 F.3d at 168-69. We recite only those relevant findings in this opinion when we discuss and analyze the constitutionality of COPA. These findings bind us in this appeal unless found to be clearly erroneous. See Lackawanna County Dist. Attor ney v. Coss, 532 U.S. 394, 406, 121 S. Ct. 1567, 149 L. Ed. 2d 608 (2001). None of the parties dispute the accuracy of the findings, and as we recited in Reno III, 217 F.3d at 170, "none of the parties dispute the District Court's findings (including those describing the Internet and Web), nor are any challenged as clearly erroneous."

The District Court granted the plaintiffs' motion for a preliminary injunction against the enforcement of COPA on the grounds that COPA is likely to be found unconstitutional on its face for violating the First Amendment rights of adults. Reno II, 31 F. Supp. 2d at 495.8 In so doing, the District Court applied the familiar four-part test in connection with the issuance of a pre liminary injunction. See Allegheny Energy, Inc. v. DQE, Inc., 171 F.3d 153, 158 (3d Cir. 1999) (explaining that a preliminary injunction is appropriate where the movant can show (1) a likelihood of success on the merits; (2) irreparable harm without the injunction; (3) a balance of harms in the movant's favor; and (4) the injunction is in the public interest).

In evaluating the likelihood of the plaintiffs' success, the District Court first determined that COPA, as a content-based restriction on protected speech (in this case, nonobscene sexual expression), violated the strict scrutiny test. More specifically, it found that although COPA addressed a compelling governmental interest in protecting minors from harmful material online, it was not narrowly tailored to serve that interest, nor did it provide the least restrictive means of advancing that interest. See Reno II, 31 F. Supp. 2d at 493 (citing Sable Communications of Cal., Inc. v. FCC, 492 U.S. 115, 126, 109 S. Ct. 2829, 106 L. Ed. 2d 93 (1989)).

The District Court then addressed the remaining prongs of the preliminary injunction standard, conclud ing that a failure to enjoin enforcement of COPA would result in irreparable harm, that the balance of harms favored the plaintiffs because the Government does not have "an interest in the enforcement of an unconstitu tional law," and that the public interest was "not served by the enforcement of an unconstitutional law. Indeed, [held the District Court,] . . . the interest of the public is served by preservation of the status quo until such time that this Court may ultimately rule on the merits of plaintiffs' claims at trial." Reno II, 31 F. Supp. 2d at 498.

As a result, the District Court held that the plaintiffs had satisfied the requirements for a preliminary injunc tion which enjoined the enforcement of COPA.

We affirmed the District Court's holding, but on dif ferent grounds.9 See Reno III. We held that the refer ence to "community standards" in the definition of "ma terial that is harmful to minors" resulted in an over broad statute. Because the Internet cannot, through modern technology, be restricted geographically, we held that the "community standards" language subjec ted Internet providers in even the most tolerant commu nities to the decency standards of the most puritanical.

As a result, we held that even if we were to assign a narrow meaning to the language of the statute or even if we would sever or delete a portion of the statute that is unconstitutional, we could not remedy the over breadth problems created by the community standards language. Hence, we affirmed the District Court's pre liminary injunction. See id. at 179-81.

The Supreme Court vacated our judgment and re manded the case for further proceedings. The majority opinion, consisting of Parts I, II, and IV of the principal opinion authored by Justice Thomas, was joined by Chief Justice Rehnquist and Justices O'Connor, Scalia, and Breyer. It addressed the "narrow question whether the Child Online Protection Act's . . . use of 'commu nity standards' to identify 'material that is harmful to minors' violates the First Amendment." Ashcroft, 122 S. Ct. at 1703.

After reviewing its decision in Reno I and the two prior decisions in this case, the Supreme Court referred to the "contemporary community standards" language from Miller, as representative of the primary concern in evaluating restrictions on speech: "to be certain that . . . [material] will be judged by its impact on an aver age person, rather than a particularly susceptible or sensitive person-or indeed a totally insensitive one." Miller, 413 U.S. at 33, 93 S. Ct. 2607.

As a result, the Court merely held "that COPA's reli ance on community standards to identify 'material that is harmful to minors' does not by itself render the stat ute substantially overbroad for purposes of the First Amendment." Ashcroft, 122 S. Ct. at 1713 (emphasis in original). The Court was careful, however, not to "ex press any view as to whether . . . the statute is uncon stitutionally vague, or whether the District Court cor rectly concluded that the statute likely will not survive strict scrutiny analysis once adjudication of the case is completed below." Id. The Court did not vacate the District Court's preliminary injunction. Id. at 1713-14.

In addition to the limited Opinion of the Court, the Ashcroft Court issued a number of other opinions auth ored and joined by other Justices, each of which is in structive to us on remand.

For example, Part III-B of Justice Thomas' opinion was joined only by Chief Justice Rehnquist and Justices O'Connor and Scalia. That portion of Justice Thomas' opinion explained that we relied too heavily on the Reno I Court's criticism that "the 'community standards' cri terion [in the CDA] as applied to the Internet means that any communication available to a nationwide audi ence will be judged by the standards of the community most likely to be offended by the message," Ashcroft, 122 S. Ct. at 1709 (opinion of Thomas, J.) (quoting Reno I, 521 U.S. at 877-78, 117 S. Ct. 2329), particularly in light of the fact that COPA was drafted to cover a smal ler category of communication than the CDA-namely, communication that appeals to the prurient interest and lacks "serious literary, artistic, political or scientific value to minors." 47 U.S.C. § 231(e)(6)(C).

Moreover, Parts III-A, III-C, and III-D of Justice Thomas' opinion were joined only by Chief Justice Rehnquist and Justice Scalia. Those Parts explained that the consideration of community standards was not invalid simply because providers of material on the Internet are unable to limit the availability of their speech on a geographic basis. He instead pointed out that jurors in different communities are likely to apply their own sensibilities to any consideration of commu nity standards, even national ones. Justice Thomas then concluded that no meaningful distinction existed be tween the instant case and prior Supreme Court deci sions upholding the use of a community standards test with respect to speech transmitted by phone or mail, see Sable (phone); Hamling v. United States, 418 U.S. 87, 94 S. Ct. 2887, 41 L. Ed. 2d 590 (1974) (mail), stating that speakers bear the burden of determining their audience, and that those who find themselves disadvantaged by the fact that Internet communications cannot be limited geographically can simply choose a different, more con trollable, medium for their communication. See Ash croft, 122 S. Ct. at 1711-12 (opinion of Thomas, J.).

Justice O'Connor filed an opinion concurring in part and in the judgment. Although she agreed that COPA is not overbroad solely because of its reliance on commu nity standards, she acknowledged the possibility that "the use of local community standards will cause prob lems for regulation of obscenity on the Internet . . . in future cases." Id. at 1714 (O'Connor, J., concurring). She also disagreed with Justice Thomas' argument in Parts III-C and III-D that the Internet may be treated the same as telephone or mail communications: "[G]iven Internet speakers' inability to control the geographic location of their audience, expecting them to bear the burden of controlling the recipients of their speech

. . . may be entirely too much to ask." Id. As a result, Justice O'Connor advocated the adoption of a national standard for regulating Internet obscenity. She noted that Supreme Court precedents do not forbid such a result, and argued that such a standard would be no more difficult or unrealistic to implement than the stan dard created for the entire state of California in Miller. Id. at 1715.

Justice Breyer filed an opinion concurring in part and in the judgment in which he argued that "Congress intended the statutory word 'community' to refer to the Nation's adult community taken as a whole." Id. (Brey er, J., concurring). This standard would serve the pur pose, argued Justice Breyer, of avoiding the difficult question of constitutionality under the First Amendment while experiencing no more "regional variation" than is "inherent in a system that draws jurors from a local geo graphic area." Id. at 1716.

Justice Kennedy filed an opinion concurring in the judgment, in which he was joined by Justices Souter and Ginsburg. Although Justice Kennedy agreed with us that a community standards factor when applied to the Internet is a greater burden on speech than when ap plied to the mails or to telephones, he did not agree that the extent of that burden could be ascertained without analyzing the scope of COPA's other provisions. See id. at 1719-20 (Kennedy, J., concurring). More specifically, Justice Kennedy felt that we should consider the effect of the provisions limiting COPA's scope to speech used for commercial purposes and to speech that is harmful to minors when taken "as a whole." See id. at 1720-21. Only after these provisions are analyzed, argued Justice Kennedy, can the true effect of varying community stan dards be evaluated, and the question of overbreadth be properly addressed.

Finally, Justice Stevens authored a dissenting opin ion, in which he reiterated our concerns expressed in Reno III that COPA's community standards factor was itself sufficient to render the statute constitutionally overbroad because communication on the Internet (un like that through the mails or telephones) may not be re stricted geographically. This fact, Justice Stevens claimed, was sufficient to invalidate COPA, particularly in light of the fact that many of the "limiting provisions" (i.e., the prurient interest, the patently offensive and the serious value prongs of the statute) mentioned by Jus tices Thomas and Kennedy apply only to minors, there by burdening protected material which should be avail able to adults. See id. at 1726-27 (Stevens, J., dissent ing).

Accordingly, on remand, we must again review the District Court's grant of a preliminary injunction in fa vor of the plaintiffs. This time, however, we must do so in light of the Supreme Court's mandate that the com munity standards language is not by itself a sufficient ground for holding COPA constitutionally overbroad. This direction requires an independent analysis of the issues addressed by the District Court in its original opinion. To assist us in this task, we asked the parties for additional submissions addressed to the opinion of the Supreme Court and to authorities filed subsequent to that opinion and since we last addressed COPA in Reno III.

II.

As mentioned above, in order to grant a motion for a preliminary injunction, a district court must address the following four factors:

(1) whether the movant has shown a reasonable prob ability of success on the merits; (2) whether the movant will be irreparably harmed by denial of the relief; (3) whether granting preliminary relief will result in even greater harm to the nonmoving party; and (4) whether granting the preliminary relief will be in the public interest.

Allegheny Energy, 171 F.3d at 158 (citing ACLU v. Black Horse Pike Reg'l Bd. of Educ., 84 F.3d 1471, 1477 n.2 (3d Cir. 1996) (en banc)). We review the District Court's grant of a preliminary injunction in favor of the ACLU to determine "whether the court abused its dis cretion, committed an obvious error in applying the law, or made a clear mistake in considering the proof." In re Assets of Martin, 1 F.3d 1351, 1357 (3d Cir. 1993) (citing Philadelphia Marine Trade Ass'n v. Local 1291, 909 F.2d 754, 756 (3d Cir. 1990), cert. denied, 498 U.S. 1083, 111 S. Ct. 953, 112 L. Ed. 2d 1041 (1991)).10

The most significant and, indeed, the dispositive prong of the preliminary injunction analysis in the in stant appeal is whether the plaintiffs bore their burden of establishing that they had a reasonable probability of succeeding on the merits-that is, whether COPA runs afoul of the First Amendment to the United States Con stitution.11

We hold that the District Court did not abuse its dis cretion in granting the preliminary injunction, nor did it err in ruling that the plaintiffs had a probability of pre vailing on the merits of their claim inasmuch as COPA cannot survive strict scrutiny. By sustaining that hold ing, as we do, we would not then be obliged to answer the question of whether COPA is overly broad or vague. However, in order to "touch all bases" on this remand, we will nevertheless address the overbreadth doctrine with respect to COPA and the related doctrine of vague ness. See infra Part II.B.12 In doing so, we hold that COPA is similarly deficient in that aspect as well.

A. Strict Scrutiny

We turn first, however, to the question of whether COPA may withstand strict scrutiny. Strict scrutiny requires that a statute (1) serve a compelling govern mental interest; (2) be narrowly tailored to achieve that interest; and (3) be the least restrictive means of ad vancing that interest. Sable, 492 U.S. at 126, 109 S. Ct. 2829.

1. Compelling Interest

The Supreme Court has held that "there is a compel ling interest in protecting the physical and psychological well-being of minors." Id. (citing Ginsberg, 390 U.S. at 639-40, 88 S.Ct. 1274). The parties agree that the Gov ernment's stated interest in protecting minors from harmful material online is compelling. This being so, we proceed to the next question of whether COPA is nar rowly tailored to meet that interest.

2. Narrowly Tailored

We hold that the following provisions of COPA are not narrowly tailored to achieve the Government's com pelling interest in protecting minors from harmful mate rial and therefore fail the strict scrutiny test: (a) the definition of "material that is harmful to minors," which includes the concept of taking "as a whole" material de signed to appeal to the "prurient interest" of minors; and material which (when judged as a whole) lacks "se rious literary" or other "value" for minors; (b) the defi nition of "commercial purposes," which limits the reach of the statute to persons "engaged in the business" (broadly defined) of making communications of material that is harmful to minors; and (c) the "affirmative de fenses" available to publishers, which require the tech nological screening of users for the purpose of age veri fication.

(a) "Material Harmful to Minors"

We address first the provision defining "material harmful to minors."13 Because COPA's definition of harmful material is explicitly focused on minors, it auto matically impacts non-obscene, sexually suggestive speech that is otherwise protected for adults.14 The re maining constitutional question, then, is whether the def inition's subsets of "prurient interest" and lacking "seri ous . . . value for minors" are sufficiently narrowly tailored to satisfy strict scrutiny in light of the statute's stated purpose. We address each of these subsets.

COPA limits its targeted material to that which is designed to appeal to the "prurient interest" of minors. It leaves that judgment, however, to "the average per son, applying contemporary community standards" and "taking the material as a whole."

As discussed in our initial opinion on the matter, when contemporary community standards are applied to the Internet, which does not permit speakers or exhibi tors to limit their speech or exhibits geographically, the statute effectively limits the range of permissible mate rial under the statute to that which is deemed acceptable only by the most puritanical communities. This limita tion by definition burdens speech otherwise protected under the First Amendment for adults as well as for minors living in more tolerant settings. See Reno III, 217 F.3d at 173-80.

This burden becomes even more troublesome when those evaluating questionable material consider it "as a whole" in judging its appeal to minors' prurient inter ests. As Justice Kennedy suggested in his concurring opinion, it is "essential to answer the vexing question of what it means to evaluate Internet material 'as a whole,' when everything on the Web is connected to everything else." Ashcroft, 122 S. Ct. at 1721 (internal citation omitted). We agree with Justice Kennedy's suggestion, and consider this issue here.

While COPA does not define what is intended to be judge "as a whole," the plain language of COPA's "harm ful material" definition describes such material as "any communication, picture, image file, article, recording, writing, or other matter of any kind" that satisfies the three prongs of the "material harmful to minors" test: prurient interest, patently offensive, and serious value. 47 U.S.C. § 231(e)(6) (emphasis added). In light of the particularity and specificity of Congress's language, Congress had to mean that each individual communica tion, picture, image, exhibit, etc. be deemed "a whole" by itself in determining whether it appeals to the prurient interests of minors, because that is the unmistakable manner in which the statute is drawn.

The taken "as a whole" language is crucial because the First Amendment requires the consideration of con text. As Justice Kennedy observed in his concurring opinion in Ashcroft, the application of the constitutional taken "as a whole" requirement is complicated in the Internet context: "It is unclear whether what is to be judged as a whole is a single image on a Web page, a whole Web page, an entire multipage Web site, or an interlocking set of Web sites." Ashcroft, 122 S. Ct. at 1717. As the Supreme Court has recently noted:

[It is] an essential First Amendment rule [that t]he artistic merit of a work does not depend on the pres ence of a single explicit scene. . . . Under Miller, the First Amendment requires that redeeming value be judged by considering the work as a whole. Where the scene is part of the narrative, the work itself does not for this reason become obscene, even though the scene in isolation might be offensive.

Ashcroft v. Free Speech Coalition, 535 U.S. 234, 122 S. Ct. 1389, 1401, 152 L. Ed. 2d 403 (2002) (citation omit ted).

Yet, here the plain meaning of COPA's text mandates evaluation of an exhibit on the Internet in isolation, rather than in context. As such, COPA's taken "as a whole" definition surely fails to meet the strictures of the First Amendment.

By limiting the material to individual expressions, rather than to an expanded context, we would be hard- pressed to hold that COPA was narrowly tailored to ach ieve its designed purpose. For example, one sexual im age, which COPA may proscribe as harmful material, might not be deemed to appeal to the prurient interest of minors if it were to be viewed in the context of an en tire collection of Renaissance artwork. However, evalu ating just that one image or picture or writing by itself rules out a context which may have alleviated its pruri ent appeal. As a result, individual communications that may be a integral part of an entirely non-prurient pre sentation may be held to violate COPA, despite the fact that a completely different result would obtain if the entire context in which the picture or communication was evaluated "as a whole."

Because we view such a statute, construed as its own text unquestionably requires, as pertaining only to sin gle individual exhibits, COPA endangers a wide range of communications, exhibits, and speakers whose messages do not comport with the type of harmful materials legiti mately targeted under COPA, i.e., material that is ob scene as to minors. See Ginsberg, 390 U.S. at 639-43, 88 S. Ct. 1274. Accordingly, while COPA penalizes publish ers for making available improper material for minors, at the same time it impermissibly burdens a wide range of speech and exhibits otherwise protected for adults. Thus, in our opinion, the Act, which proscribes publica tion of material harmful to minors, is not narrowly tai lored to serve the Government's stated purpose in pro tecting minors from such material.

Lastly, COPA's definition of "material that is harm ful to minors" only permits regulation of speech that when "taken as a whole, lacks serious literary, artistic, political, or scientific value for minors." 47 U.S.C. § 231(e)(6)(C) (emphasis added). COPA defines the term minor as "any person under 17 [seventeen] years of age." Id. § 231(e)(7).15 The statute does not limit the term minor in any way, and indeed, in its briefing, the Government, in complete disregard of the text, contends that minor means a "normal, older adolescent." Orig. Gov't Br. at 32; Gov't Br. on Remand at 27-28; Gov't Re ply Br. on Remand at 4-5.

We need not suggest how the statute's targeted pop ulation could be more narrowly defined, because even the Government does not argue, as it could not, that ma terials that have "serious literary, artistic, political or scientific value" for a sixteen-year-old would have the same value for a minor who is three years old. Nor does any party argue, despite Congress's having targeted and included all minors seventeen or under, that pre-adoles cent minors (i.e., ages two, three, four, etc.) could be pa tently offended by a "normal or perverted sexual act" or have their "prurient interest" aroused by a "post-pubes cent female breast," or by being exposed to whatever other material may be designed to appeal to prurient interests.

The term "minor," as Congress has drafted it, thus applies in a literal sense to an infant, a five- year old, or a person just shy of age seventeen. In abiding by this definition, Web publishers who seek to determine whe ther their Web sites will run afoul of COPA cannot tell which of these "minors" should be considered in decid ing the particular content of their Internet postings. Instead, they must guess at which minor should be con sidered in determining whether the content of their Web site has "serious . . . value for [those] minors." 47 U.S.C. § 231(e)(6)(C). Likewise, if they try to comply with COPA's "harmful to minors" definition, they must guess at the potential audience of minors and their ages so that the publishers can refrain from posting material that will trigger the prurient interest, or be patently offensive with respect to those minors who may be deemed to have such interests.

The Government has argued that "minors" should be read to apply only to normal, older adolescents. We re alize as a pragmatic matter that some pre- adolescent minors may, by definition, be incapable of possessing a prurient interest. It is not clear, however, that the Gov ernment's proffered definition meets Congress's in tended meaning for the term "minor" with respect to the "patently offensive" and "serious value" prongs. Fur thermore, Congress has identified as objects of its con cern children who cannot be described as "older" adoles cents:

Moreover, because of sophisticated, yet easy to use navigating software, minors who can read and type are capable of conducting Web searches as easily as operating a television remote. While a four-year old may not be as capable as a thirteen year old, given the right tools (e.g., a child trackball and browser software) each has the ability to 'surf' the Net and will likely be exposed to harmful material.

H.R. Rep. No. 105-775, at 9-10 (emphasis added). More over, the statute, if meant to pertain only to normal, older adolescents (as the Government claims it does), does not by its own definition restrict its application to older adolescents, although we assume that Congress could have defined that universe in that manner.

Because the plain meaning of the statute's text is evident, we decline to rewrite Congress's definition of "minor."16 We would note, however, that even if we accepted the Government's argument, the term "mi nors" would not be tailored narrowly enough to satisfy strict scrutiny.

Regardless of what the lower end of the range of rel evant minors is, Web publishers would face great uncer tainty in deciding what minor could be exposed to its publication, so that a publisher could predict, and guard against, potential liability. Even if the statutory mean ing of "minor" were limited to minors between the ages of thirteen and seventeen, Web publishers would still face too much uncertitude as to the nature of material that COPA proscribes.

We do not suggest how Congress could have tailored its statute-that is not our function. We do no more than conclude that the use of the term "minors" in all three prongs of the statute's definition of "material harmful to minors" is not narrowly drawn to achieve the statute's purpose-it is not defended by the Government in the exact terms of the statute, and does not lend itself to a commonsense meaning when consideration is given to the fact that minors range in age from infants to seven teen years. Therefore, even if we were to accept the narrowing construction that the Government proposes -and we do not-COPA's definition of the term "mi nor," viewed in conjunction with the "material harmful to minors" test, is not tailored narrowly enough to sat isfy the First Amendment's requirements.

(b) "Commercial Purposes"

COPA's purported limitation of liability to persons making communications "for commercial purposes" does not narrow the reach of COPA sufficiently. Instead, COPA's definitions subject too wide a range of Web pub lishers to potential liability. As the District Court ob served, "There is nothing in the text of COPA . . . that limits its applicability to so-called commercial pornogra phers only." Reno II, 31 F. Supp. 2d at 480. Indeed, as we read COPA, it extends to any Web publisher who makes any communication "for commercial purposes." 47 U.S.C. § 231(a)(1).

The statute includes within "commercial purposes" any Web publisher who meets COPA's broad definition of being "engaged in the business" of making such com munications. Id. § 231(e)(2)(A). The definition of "en gaged in the business" applies to any person whose com munication "includes any material that is harmful to minors" and who "devotes time . . . to such activities, as a regular course of such person's trade or business, with the objective of earning a profit," if that person "knowingly causes [or solicits] the material that is harm ful to minors to be posted on the World Wide Web." Id. § 231(e)(2)(B) (emphasis added).

Based on this broad definition of "engaged in the business," we read COPA to apply to Web publishers who have posted any material that is "harmful to mi nors" on their Web sites, even if they do not make a profit from such material itself or do not post such mate rial as the principal part of their business. Under the plain language of COPA, a Web publisher will be sub jected to liability if even a small part of his or her Web site displays material "harmful to minors."17

Moreover, the definition of "commercial purposes" further expands COPA's reach beyond those enterprises that sell services or goods to consumers, including those persons who sell advertising space on their otherwise noncommercial Web sites. See Reno II, 31 F. Supp. 2d at 487 (Finding of Fact ¶ 33). Thus, the "engaged in the business" definition would encompass both the commer cial pornographer who profits from his or her online traffic, as well as the Web publisher who provides free content on his or her Web site and seeks advertising revenue, perhaps only to defray the cost of maintaining the Web site.18 See also Ashcroft, 122 S. Ct. at 1721 (Kennedy, J., concurring) ("Indeed, the plain text of the Act does not limit its scope to pornography that is of fered for sale; it seems to apply even to speech provided for free, so long as the speaker merely hopes to profit as an indirect result."). The latter model is a common phe nomenon on the Internet. See Reno II, 31 F. Supp. 2d at 484 (Findings of Fact ¶¶ 23, 30). This expansive defini tion of "engaged in the business" therefore includes a large number of Web publishers. Indeed, the District Court in its findings of fact cited to testimony that ap proximately one-third of the 3.5 million global Web sites (existing at that time) are "commercial," or "intend[ed] to make a profit." Id. at 486 (Finding of Fact ¶ 27).

Contrary to our reading and understanding of COPA, the Government contends that COPA's definition of "en gaged in the business" limits liability to those persons who publish material that is harmful to minors "as a reg ular course of such person's business or trade," 47 U.S.C. § 231(e)(2)(B), claiming that this qualification limits the coverage of COPA. Based on this language, the Government argues that "COPA by its terms covers only those 'harmful to minors' communications that are made by a person as a normal part of his or her for- profit business." Gov't Br. on Remand at 36 (internal quotation marks added). Indeed, the Government con tends that COPA "covers only those communications that have a substantial connection to the regular online marketing of material that is harmful to minors." Id. at 36-37 (emphasis added).

We do not find the Government's argument persua sive. COPA's use of the phrase "regular course" does not narrow the scope of speech covered because it does not place any limitations on the amount, or the propor tion, of a Web publisher's posted content that consti tutes such material. Thus, even if posted material that is harmful to minors constitutes only a very small, or even infinitesimal, part of a publisher's entire Web site, the publisher may still be subject to liability. For exam ple, if a Web site whose content deals primarily with medical information, but also "regularly" publishes a bi- weekly column devoted to sexual matters which could be deemed "harmful to minors," the publisher might well be subject to criminal liability under COPA. Although such a Web site primarily publishes medical information that is not "harmful to minors," the biweekly column, ac cording to the Government's reading of COPA, would be a publication in "regular course."

In sum, while the "commercial purposes" limitation makes the reach of COPA less broad than its predeces sor, inasmuch as the Communications Decency Act (CDA) was not limited to commercial entities, see Reno I, 521 U.S. at 877, 117 S. Ct. 2329, COPA's definition of "commercial purposes" nevertheless imposes content restrictions on a substantial number of "commercial," non- obscene speakers in violation of the First Amend ment. We are satisfied that COPA is not narrowly tai lored to proscribe commercial pornographers and their ilk, as the Government contends, but instead prohibits a wide range of protected expression.

The Government argues that COPA's burdens are limited and reasonable, and points to COPA's affirma tive defenses in support of the statute's constitutional ity. We examine whether the affirmative defenses in COPA serve to tailor the statute narrowly, as the Gov ernment asserts.

COPA's affirmative defenses shield Web publishers from liability under the statute if they, in good faith, restrict access to material deemed harmful to minors. COPA provides as follows:

It is an affirmative defense to prosecution under this section that the defendant, in good faith, has restricted access by minors to material that is harmful to minors-

(A) by requiring use of a credit card, debit account, adult access code, or adult personal identification number;

(B) by accepting a digital certificate that verifies age; or

47 U.S.C. § 231(c)(1).19

The District Court held that COPA's affirmative de fenses burdened otherwise protected adult speech in a way that prevented the statute from surviving strict scrutiny. In determining that the application of these defenses would unduly burden protected adult speech, the District Court concluded that

Evidence presented to this Court is likely to estab lish at trial that the implementation of credit card or adult verification screens in front of material that is harmful to minors may deter users from accessing such materials and that the loss of users of such ma terial may affect the speakers' economic ability to provide such communications. The plaintiffs are likely to establish at trial that under COPA, Web site operators and content providers may feel an eco nomic disincentive to engage in communications that are or may be considered to be harmful to minors and thus, may self-censor the content of their sites. Further, the uncontroverted evidence showed that there is no way to restrict the access of minors to harmful materials in chat rooms and discussion groups, which the plaintiffs assert draw traffic to their sites, without screening all users before access ing any content, even that which is not harmful to minors, or editing all content before it is posted to exclude material that is harmful to minors. I con clude that based on the evidence presented to date, the plaintiffs have established a substantial likeli hood that they will be able to show that COPA im poses a burden on speech that is protected for adults.

Reno II, 31 F. Supp. 2d at 495 (citations omitted).

The Government maintains that the District Court overstated the burdens on protected speech created by utilization of COPA's affirmative defenses. The record and our own limited standard of review, however, belie that claim.

First, the actual effect on users as a result of COPA's affirmative defenses, which the Government minimizes, was determined by the District Court in its factual find ings, after hearing testimony from both parties. Both the expert offered by the plaintiffs and one of the ex perts proffered by the Government testified that users could be deterred from accessing the plaintiffs' Web sites as a result of COPA's affirmative defenses. The plaintiffs' expert went on to testify that "economic harm . . . would result from loss of traffic." Id. at 491 (Find ing of Fact ¶ 61).

Although the Government presented its own expert who testified that "COPA would not impose an unrea sonable economic burden . . . on the seven Web sites of the plaintiffs," the District Court, in exercising its fact-finding function, determined that "plaintiffs have shown that they are likely to convince the Court that im plementing the affirmative defenses in COPA will cause most Web sites to lose some adult users to the portions of the sites that are behind screens." Id. at 492 (Find ings of Fact ¶¶ 61-62). We cannot say, nor has the Gov ernment claimed, that the District Court's factual deter mination is clearly erroneous.

COPA's restrictions on speech, as the District Court has found and as we agree, are not, as the Government has argued, analogous to the incidental restrictions caused by slow response times, broken links, or poor site design that "already inhibit a user's . . . experience." Orig. Gov't Br. at 42 (citation omitted); Gov't Br. on Re mand at 40-41 (citation omitted). Requiring a user to pay a fee for use of an adult verification service or to enter personal information prior to accessing certain material constitutes a much more severe burden on speech than any technical difficulties, which are often repairable and cause only minor delays.

We agree with the District Court's determination that COPA will likely deter many adults from accessing restricted content, because many Web users are simply unwilling to provide identification information in order to gain access to content, especially where the informa tion they wish to access is sensitive or controversial.20 People may fear to transmit their personal information, and may also fear that their personal, identifying infor mation will be collected and stored in the records of var ious Web sites or providers of adult identification num bers.21

The Supreme Court has disapproved of content- based restrictions that require recipients to identify themselves affirmatively before being granted access to disfavored speech, because such restrictions can have an impermissible chilling effect on those would-be recipi ents.22

Second, the affirmative defenses do not provide the Web publishers with assurances of freedom from prose cution. As the Supreme Court noted in Free Speech Co alition, "The Government raises serious constitutional difficulties by seeking to impose on the defendant the burden of proving his speech is not unlawful." Free Speech Coalition, 122 S. Ct. at 1404. Although the crimi nal penalties under the federal statute concerning vir tual child pornography, at issue in Free Speech Coali tion, were more severe than the penalties under COPA, the logic is applicable: "An affirmative defense applies only after prosecution has begun, and the speaker must himself prove . . . that his conduct falls within the af firmative defense." Id.

Lastly, none of the display-restriction cases relied on by the Government are apposite here, as each involved the use of blinder racks to shield minors from viewing harmful material on display. Orig. Gov't Br. at 43-44; Gov't Br. on Remand at 44-45; Gov't Reply Br. on Re mand at 13-14.23 The use of "blinder racks," or some analogous device, does not create the same deterrent effect on adults as would COPA's credit card or adult verification screens. Blinder racks do not require adults to compromise their anonymity in their viewing of mate rial harmful to minors, nor do they create any financial burden on the user. Moreover, they do not burden the speech contained in the targeted publications any more than is absolutely necessary to shield minors from its content. We cannot say the same with respect to COPA's affirmative defenses.

The effect of the affirmative defenses, as they burden "material harmful to minors" which is constitutionally protected for adults, is to drive this protected speech from the marketplace of ideas on the Internet. This type of regulation is prohibited under the First Amend ment. As the Supreme Court has recently said, "[S]peech within the rights of adults to hear may not be silenced completely in an attempt to shield children from it." Free Speech Coalition, 122 S. Ct. at 1402 (cita tion omitted). COPA, though less broad than the CDA, "effectively resembles [a] ban," on adults' access to pro tected speech; the chilling effect occasioned by the affir mative defenses results in the "unnecessarily broad sup pression of speech addressed to adults." Reno I, 521 U.S. at 875, 117 S. Ct. 2329.

3. Least Restrictive Means

As we have just explained, COPA is not narrowly tailored and as such fails strict scrutiny. We are also satisfied that COPA does not employ the "least restric tive means" to effect the Government's compelling inter est in protecting minors.

The Supreme Court has stated that "[i]f a less re strictive alternative would serve the Government's pur pose, the legislature must use that alternative." United States v. Playboy Entertainment Group, 529 U.S. 803, 813, 120 S. Ct. 1878, 146 L. Ed. 2d 865 (2000); see also Reno I, 521 U.S. at 874, 117 S. Ct. 2329 ("[The CDA's Internet indecency provisions'] burden on adult speech is unacceptable if less restrictive alternatives would be at least as effective in achieving the legitimate purpose that the statute was enacted to serve"); Sable, 492 U.S. at 126, 109 S. Ct. 2829.

The District Court determined, based on its findings of fact, that COPA would be of limited effectiveness in achieving its aim. See Reno II, 31 F. Supp. 2d at 496 (COPA has "problems . . . with efficaciously meeting its goal."). To reach that conclusion, the District Court relied on its findings that (1) under COPA children may still be able to access material deemed harmful to them on "foreign Web sites, non-commercial sites, and . . . via protocols other than http," id. at 496; see also id. at 482-84, 492 (Findings of Fact ¶¶ 7-8, 19-20, 66); and (2) that children may be able to obtain credit cards-either their parents' or their own-legitimately and so circum vent the screening contemplated by COPA's affirmative defenses. See id. at 489 (Finding of Fact ¶ 48).

We first examine the alternative of blocking and fil tering technology. The District Court described this technology as follows:

[B]locking or filtering software may be used to block Web sites and other content on the Internet that is inappropriate for minors. Such technology may be downloaded and installed on a user's home computer at a price of approximately $40.00. Alternatively, it may operate on the user's ISP (Internet Service Provider)]. Blocking technology can be used to block access by minors to whole sites or pages within a site.

Id. at 492 (Finding of Fact ¶ 65).24 The District Court concluded that blocking and filtering technology, al though imperfect, "may be at least as successful as COPA would be in restricting minors' access to harmful material online without imposing the burden on constitu tionally protected speech that COPA imposes on adult users." Id. at 497. Indeed, the District Court found that blocking and filtering technology, if installed by parents, would shield minors from harmful Internet communica tion occurring within a broader range of venues than that covered by COPA: "Blocking and filtering software will block minors from accessing harmful to minors ma terials posted on foreign Web sites, non-profit Web sites, and newsgroups, chat, and other materials that utilize a protocol other than HTTP." Id. at 492 (Finding of Fact ¶ 65).

The Government, however, argues that filtering soft ware is not a viable means of protecting children from harmful material online because it is not nearly as effec tive as COPA at protecting minors. The Government offers the following three reasons for this conclusion: (1) filtering software is voluntary-it transfers the burden of protecting children from the source of the harmful material, i.e., the Web publishers, to the potential vic tims and their parents; (2) filtering software is often both over- and underinclusive of targeted material; and (3) it is more effective to screen material "prior to it be ing sent or posted to minors" on the Internet. See Gov't Br. on Remand at 47.25

The Government makes much of the notion that the voluntary use of blocking and filtering software places an onus on parents. Id. (noting "the concern that the expense of purchasing and updating such software pro grams might 'discourage adults or schools from using them.'") (quoting H.R. Rep. No. 105-775, at 1920).

But the Supreme Court has effectively answered this contention. The Court stated in Playboy, "A court should not assume a plausible, less restrictive alterna tive would be ineffective; and a court should not pre sume parents, given full information, will fail to act." Playboy, 529 U.S. at 805, 120 S. Ct. 1878. The Playboy Court held unconstitutional a federal statutory provision that required cable operators who provide channels pri marily dedicated to sexually-oriented programming to scramble or block those channels completely, or to "time channel" their transmission, i.e., limit their availability to hours between 10 p.m. and 6 a.m., when, in Congress's view, children are unlikely to be viewing television. By this provision Congress sought to prevent children's exposure to content contained on such channels as a re sult of "signal bleed."26

The Court determined that this provision constituted a "significant restriction of [protected] communication between speakers and willing adult listeners." Id. at 812, 120 S. Ct. 1878. The Court held that this provision failed strict scrutiny because Congress had available to it an effective, less restrictive means of achieving its ends. In particular, Congress had provided for an "optout" provision whereby a cable subscriber could re quest the cable company to scramble fully or block com pletely the receipt of sexually explicit channels. The Court explained that the voluntary nature of the "opt- out" provision rendered it less restrictive: "It is no re sponse that voluntary blocking requires a consumer to take action, or may be inconvenient, or may not go per fectly every time." Id. at 824, 120 S. Ct. 1878. Instead, the Court explained that reliance upon "informed and empowered parents," id. at 825, 120 S. Ct. 1878, was the preferable alternative:

The regulatory alternative of a publicized ["opt-out" provision], which has . . . the choice of an effective blocking system, would provide parents the informa tion needed to engage in active supervision. The government has not shown that this alternative, a regime of added communication and support, would be insufficient to secure its objective, or that any overriding harm justifies its intervention.

Id. at 825-26, 120 S. Ct. 1878.

In Fabulous Associates Inc. v. Pennsylvania Public Utility Commission, 896 F.2d 780 (3d Cir. 1990), we had held unconstitutional a Pennsylvania law that required adults to obtain nine-digit access codes in order to listen to dial-a-porn messages on their telephones. We held that the statute was not the least restrictive means of achieving the state's interest in protecting minors from such messages because it required a loss of anonymity on the part of adults. Although we recognized that pre- blocking would not protect minors in homes where adult residents had unblocked the lines, we held that the "re sponsibility for making such choices [between individu ally accessing such speech and protecting minor depend ents from that speech] is where our society has tradi tionally placed it-on the shoulders of the parent." Id. at 788 (citing Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 73-74, 103 S. Ct. 2875, 77 L. Ed. 2d 469 (1983)).

As with the "opt-out" alternative available in Play boy, which would allow parents to block sexually-ori ented cable channels effectively, and as with the pre- blocking alternative described in Fabulous Associates, here filtering software is a less restrictive alternative that can allow parents some measure of control over their children's access to speech that parents consider inappropriate.27

The Government also argues that the blocking and filtering software is not as effective as COPA in that it is both over- and underinclusive. To be sure, blocking and filtering software may sometimes block too little and sometimes block too much Internet speech. As the District Court found, blocking and filtering technology is not perfect in that "some Web sites that may be deemed inappropriate for minors may not be blocked while some Web sites that are not inappropriate for mi nors may be blocked." Reno II, 31 F. Supp. 2d at 492 (Finding of Fact ¶ 66). The District Court found, how ever, that no evidence had been presented "as to the percentage of time that blocking and filtering technol ogy is over- or underinclusive." Id. Moreover, the Dis trict Court, as noted above, determined that blocking and filtering software could be at least as effective as COPA, because COPA does not reach "foreign Web sites, noncommercial sites, and . . . [materials avail able online] via protocols other than http." Reno II, 31 F.Supp.2d at 496.28

A three-judge court has recently held that a federal law requiring the use of filtering and blocking software on computers at libraries that received federal funding violates the First Amendment. See American Library Ass'n v. United States, 201 F. Supp. 2d 401, 406 (E.D. Pa.) (three-judge court), prob. juris. noted, ___U.S. ___, 123 S. Ct. 551, 154 L. Ed. 2d 424 (2002). This decision does not compel a different result here. In that case, the American Library court noted that blocking and filter ing technology overblocks and underblocks Internet content.29 That decision, however, is distinguishable because, whereas the Act at issue in American Library involved Government-mandated use of blocking and fil tering software, here we only consider the voluntary use of such software by parents who have chosen to use this means to protect their children. We also note that, in American Library, the Government sought to defend the legislation at issue by reference to the statute's "disabling provision," which required adults to identify themselves to librarians in order to disable the filtering software on library computers, and thus gain unfettered access to the wide range of speech on the Internet. The court held that this "disabling provision" created a chill ing effect on adult library patrons' access to protected speech, 30 just as we have determined that COPA's affir mative defenses, by requiring the use of a credit card or adult identification number, similarly place an imper missible burden on adult users.

We agree with the District Court that the various blocking and filtering techniques which that Court dis cussed may be substantially less restrictive than COPA in achieving COPA's objective of preventing a minor's access to harmful material. We are influenced further in this conclusion by our reading of the Report of the House Committee on Commerce, which had advocated the enactment of COPA. See H.R. REP. NO. 105-775 (1998). That Report described a number of techniques and/or alternatives to be used in conjunction with block ing and filtering software, although the techniques were not adopted at that time. In each instance, these tech niques would appear to constitute a less restrictive al ternative than COPA's prescriptions. Moreover, we are at least four years beyond the technology then consid ered by the Committee, and as we had initially observed, "in light of rapidly developing technological advances, what may now be impossible to regulate constitutionally may, in the not-too-distant future, become feasible." Reno III, 217 F.3d at 166.

Because the techniques and/or alternatives consid ered by the Committee (i.e., "tagging," "domain name zoning," etc.), see H.R. REP. NO. 105-775, at 16-20, were not addressed either by the parties or the District Court, we do not rely upon them here. We do no more than draw attention to the fact that other possibly less restrictive alternatives existed when COPA was enacted and more undoubtedly will be available in the fu ture-many of which might well be a less restrictive alternative to COPA.31

The existence of less restrictive alternatives renders COPA unconstitutional under strict scrutiny. As the Supreme Court has said:

"Precision of regulation must be the touchstone in an area so closely touching our most precious free doms." If the State has open to it a less drastic way of satisfying its legitimate interests, it may not choose a legislative scheme that broadly stifles the exercise of fundamental personal liberties . . . and the benefit gained must outweigh the loss of constitu tionally protected rights.

Elrod v. Burns, 427 U.S. 347, 363, 96 S. Ct. 2673, 49 L. Ed. 2d 547 (1976) (quoting Kusper v. Pontikes, 414 U.S. 51, 59, 94 S. Ct. 303, 38 L. Ed. 2d 260 (1973)).

* * * * * *

In sum, the District Court did not abuse its discre tion in granting the plaintiffs a preliminary injunction on the grounds that COPA, in failing to satisfy strict scru tiny, had no probability of success on the merits. COPA is clearly a content-based restriction on speech. Al though it does purport to serve a compelling governmen tal interest, it is not narrowly tailored, and thus fails strict scrutiny. COPA also fails strict scrutiny because it does not use the least restrictive means to achieve its ends. The breadth of the "harmful to minors" and "commercial purposes" text of COPA, especially in light of applying community standards to a global medium and the burdens on speech created by the statute's affir mative defenses, as well as the fact that Congress could have, but failed to employ the least restrictive means to accomplish its legitimate goal, persuade us that the Dis trict Court did not abuse its discretion in preliminarily enjoining the enforcement of COPA.

B. Overbreadth

Though the Supreme Court held in Ashcroft that COPA's reliance on community standards did not alone render the statute overbroad, the Court specifically de clined to "express any view as to whether COPA suffers from substantial overbreadth for other reasons [or] whether the statute is unconstitutionally vague," instead explaining that "prudence dictates allowing the Court of Appeals to first examine these difficult issues." Ash croft, 122 S. Ct. at 1713. In this Part, therefore, we dis cuss whether COPA is substantially overbroad, and hold that it is.32

In Broadrick v. Oklahoma, 413 U.S. 601, 93 S. Ct. 2908, 37 L. Ed. 2d 830 (1973), the Supreme Court ruled that a statute that burdens otherwise protected speech is facially invalid if that burden is not only real, but "substantial as well, judged in relation to the statute's plainly legitimate sweep." Id. at 615, 93 S. Ct. 2908. As the Court has recently stated, "The overbreadth doc trine prohibits the Government from banning unpro tected speech if a substantial amount of protected speech is prohibited or chilled in the process." Free Speech Coalition, 122 S. Ct. at 1404.33

Our analysis of whether COPA is overbroad is akin to the portion of the strict scrutiny analysis we have con ducted in which we concluded that COPA is not narrowly tailored. Overbreadth analysis-like the question whe ther a statute is narrowly tailored to serve a compelling governmental interest-examines whether a statute en croaches upon speech in a constitutionally overinclusive manner.

We conclude that the statute is substantially over broad in that it places significant burdens on Web pub lishers' communication of speech that is constitutionally protected as to adults and adults' ability to access such speech. In so doing, COPA encroaches upon a signifi cant amount of protected speech beyond that which the Government may target constitutionally in preventing children's exposure to material that is obscene for mi nors. See Ginsberg, 390 U.S. at 639-43, 88 S. Ct. 1274; see also, e.g., Sable, 492 U.S. at 126, 109 S. Ct. 2829; Erznoznik v. City of Jacksonville, 422 U.S. 205, 212-14, 95 S. Ct. 2268, 45 L. Ed. 2d 125 (1975).

1. "Material Harmful to Minors"

First, COPA's definition of "material harmful to mi nors" impermissibly places at risk a wide spectrum of speech that is constitutionally protected. As we have dis cussed in our strict scrutiny analysis, two of the three prongs of the "harmful to minors" test-the "serious value" and "prurient interest" prongs-contain require ments that material be "taken as a whole." See 47 U.S.C. § 231(e)(6)(C). We have earlier explained that the First Amendment requires the consideration of con text. COPA's text, however, as we have interpreted it, see Part II.A.2(a), supra, calls for evaluation of "any ma terial" on the Web in isolation. Such evaluation in iso lation results in significant overinclusiveness. Thus, an isolated item located somewhere on a Web site that meets the "harmful to minors" definition can subject the publisher of the site to liability under COPA, even though the entire Web page (or Web site) that provides the context for the item would be constitutionally pro tected for adults (and indeed, may be protected as to minors).

An examination of the claims of certain amici curiae that COPA threatens their speech illustrates this prob lem. For example, amicus California Museum of Pho tography/University of California at Riverside, main tains a Web site that, among other things, displays art work from the museum's collection. The Web site con tains a page that introduces the "photographers" section of the Web site. See California Museum of Photogra phy/University of California at Riverside, UCR/CMP Photographers, at http://www.cmp.ucr.edu/ pho tos/photographers.html (last visited Feb. 6, 2003).34 This Web page contains several photographs, each which serves as a link to that museum's on-line exhibit on a particular photographer. One of these photographs on the introductory page, by Lucien Clergue, links to the museum's exhibit of his work. This photograph is of a naked woman whose "post-pubescent female breast," 47 U.S.C. § 231(e)(6)(B), is exposed.

Viewing this photograph "as a whole," but without reference to the surrounding context, as per COPA's definition of "material," the photograph arguably meets the definition of "harmful to minors." Yet, this same photograph, when treated in context as a component of the entire Web page, cannot be said to be "harmful to minors." In the context of the Web page, which displays several art exhibits, none of which are even arguably "harmful to minors," the Clergue photograph and its surroundings would have "serious [artistic] value." Of course, it would also be protected speech as to adults.35 As another example, amicus Safer Sex Institute pub lishes a Web site that contains sexual health and educa tional materials. On one page of this Web site is a tex tual description of how to use a condom with accompany ing graphic drawings. See Safer Sex Institute, safersex /a journal of safer sex, http://safersex.org/condoms/how. to.use/ (last visited Feb. 6, 2003). The page lists six steps for properly using a condom. Next to this text are four drawings that detail how to place a condom on the penis and how to remove it after sex. Three of these drawings each "exhibit[ ] . . . the genitals." 47 U.S.C. § 231(e)(6)(B). An evaluation of any of these three draw ings alone, all of which depict an erect penis "as a whole," might lead to the conclusion that they fit the "harmful to minors" standard. Yet, these same draw ings, viewed in the larger context of the Web page, which provides instruction on the proper use of a con dom, is protected speech as to adults.36 We also note that the same Web page provides links to other informa tion within the same Web site of potential importance to adults (and possibly certain minors) regarding safe sex.

As these examples illustrate-and they are but a few of the very many produced by the plaintiffs and the amici-the burden that COPA would impose on harm less material accompanying such single images causes COPA to be substantially overinclusive.

2. "Minor"

As we have earlier explained, the term "minor" ap pears in all three prongs of the statute's modified- forminors Miller test. COPA's definition of a "minor" as any person under the age of seventeen serves to place at risk too wide a range of speech that is protected for ad ults. The type of material that might be considered harmful to a younger minor is vastly different-and en compasses a much greater universe of speech-than material that is harmful to a minor just shy of seventeen years old.

Thus, for example, sex education materials may have "serious value" for, and not be "patently offensive" as to, sixteen-year-olds. The same material, however, might well be considered "patently offensive" as to, and with out "serious value" for, children aged, say, ten to thir teen, and thus meet COPA's standard for material harmful to minors.

Because COPA's definition of "minor" therefore broadens the reach of "material that is harmful to mi nors" under the statute to encompass a vast array of speech that is clearly protected for adults-and indeed, may not be obscene as to older minors-the definition renders COPA significantly overinclusive.37

3. "Commercial Purposes"

COPA's purported limitation of liability to persons making communications "for commercial purposes" does not narrow the sweep of COPA sufficiently. Instead, the definition subjects too wide a range of Web publishers to potential liability. As we have explained, under the plain language of COPA, a Web publisher will be subjected to liability due to the fact that even a small part of his or her Web site has material "harmful to minors." Fur thermore, because the statute does not require that a Web publisher seek profit as a sole or primary objective, COPA can reach otherwise non-commercial Web sites that obtain revenue through advertising. We have ex plored this subject in greater detail in the strict scrutiny section of this opinion. The conclusion we reach there is every bit as relevant here.

4. Affirmative Defenses

The affirmative defenses do not save the statute from sweeping too broadly. First, the affirmative defenses, if employed by Web publishers, will result in a chilling effect upon adults who seek to view, and have a right to access, constitutionally protected speech. Compliance with COPA's affirmative defenses requires that Web publishers place obstacles in the way of adults seeking to obtain material that may be considered harmful to minors under the statute. As the District Court found, these barriers, which would require adults to identify themselves as a precondition to accessing disfavored speech, are likely to deter many adults from accessing that speech.

Second, the affirmative defenses impose a burden on Web publishers, and as such, do not alleviate the chilling effect that COPA has on their speech. Web publishers will be forced to take into account the chilling effect that COPA's affirmative defenses have on adult Web users. Consequently, COPA will cause Web publishers to recoil from engaging in such expression at all, rather than availing themselves of the affirmative defenses. Addi tionally, the financial costs of implementing the barriers necessary for compliance with COPA may further deter some Web publishers from posting protected speech on their Web sites.

Moreover, because the affirmative defenses are not included as elements of the statute, Web publishers are saddled with the substantial burden of proving that their "conduct falls within the affirmative defense." Free Speech Coalition, 122 S. Ct. at 1404.

Thus, the affirmative defenses do not cure nor dimin ish the broad sweep of COPA sufficiently.

5. "Community Standards"

As the Supreme Court has now explained, community standards by itself did not suffice to render COPA sub stantially overbroad. Justice Kennedy's concurring opinion, however, explained that community standards, in conjunction with other provisions of the statute, might render the statute substantially overbroad. See Ash croft, 122 S. Ct. at 1720 (Kennedy, J., concurring) ("We cannot know whether variation in community standards renders the Act substantially overbroad without first assessing the extent of the speech covered and the varia tions in community standards with respect to that speech.").

As we have just discussed earlier, the expansive defi nitions of "material harmful to minors" and "for com mercial purposes," as well as the burdensome affirma tive defenses, likely render the statute substantially overbroad. COPA's application of "community stan dards" exacerbates these constitutional problems in that it further widens the spectrum of protected speech that COPA affects. As we said in our original decision, "COPA essentially requires that every Web publisher subject to the statute abide by the most restrictive and conservative state's community standards in order to avoid criminal liability." Reno III, 217 F.3d at 166; see also Ashcroft, 122 S. Ct. at 1719 (Kennedy, J., concur ring) ("if an eavesdropper in a more traditional, rural community chooses to listen in, there is nothing the pub lisher can do. As a practical matter, COPA makes the eavesdropper the arbiter of propriety on the Web.").

The "community standards" requirement, when viewed in conjunction with the other provisions of the statute-the "material harmful to minors" provision and the "commercial purposes" provisions, as well as the affirmative defenses-adds to the already wide range of speech swept in by COPA. Because the community stan dards inquiry further broadens the scope of speech cov ered by the statute, the limitations that COPA purports to place on its own reach are that much more ineffective.

6. Unavailability of Narrowing Construction

Before concluding that a statute is overbroad, we are required to assess whether it is subject to "a narrowing construction that would make it constitutional." Vir ginia v. American Booksellers Ass'n, 484 U.S. 383, 397, 108 S. Ct. 636, 98 L. Ed. 2d 782 (1988). We may impose such a narrowing construction, however, "only if it is readily susceptible to such a construction," Reno I, 521 U.S. at 884, 117 S. Ct. 2329, because courts "will not re write a . . . law to conform it to constitutional require ments." American Booksellers, 484 U.S. at 397, 108 S.Ct. 636. As the Supreme Court once noted, "It would certainly be dangerous if the legislature could set a net large enough to catch all possible offenders, and leave it to the courts to step inside and say who could be right fully detained, and who should be set at large. This would, to some extent, substitute the judicial for the leg islative department of the government." United States v. Reese, 92 U.S. 214, 221, 23 L. Ed. 563 (1875).

We originally declined to redraw COPA when we held that the "contemporary community standards" ren dered the statute overbroad; we certainly decline to per form even more radical surgery here. In order to satisfy the constitutional prerequisites consistent with our hold ing today, we would be required, inter alia, to redraw the text of "commercial purposes" and redraw the mean ing of "minors" and what is "harmful to minors," includ ing the reach of "contemporary community standards." We would also be required to redraw a new set of affir mative defenses. Any attempt to resuscitate this statute would constitute a "serious invasion of the legislative domain." United States v. National Treasury Employ ees Union, 513 U.S. 454, 479 n. 26, 115 S. Ct. 1003, 130 L. Ed. 2d 964 (1995).

* * * * * *

Accordingly, we hold that the plaintiffs will more probably prove at trial that COPA is substantially over broad, and therefore, we will affirm the District Court on this independent ground as well.

III.

This appeal concerns the issuance of a preliminary injunction pending the resolution of the merits of the case. Because the ACLU will likely succeed on the mer its in establishing that COPA is unconstitutional because it fails strict scrutiny and is overbroad, we will affirm the issuance of a preliminary injunction.

1 We attach the text of COPA as Appendix A.

2 In particular, the Court cited to discussions of society's concerns regarding prison rape and homosexuality-matters that would have redeeming value, but were nonetheless prohibited by the statute. See id. at 871, 117 S. Ct. 2329; see also id. at 877, 117 S.Ct. 2329 ("The general, undefined terms . . . cover large amounts of non-porno graphic material with serious educational or other value.").

3 Justice Stevens was referring to the Supreme Court's decisions in Ginsberg v. New York, 390 U.S. 629, 88 S. Ct. 1274, 20 L. Ed. 2d 195 (1968), which upheld against a First Amendment challenge a statute prohibiting the sale to minors of materials deemed harmful to them (in that case, "girlie" magazines), id. at 634, 88 S. Ct. 1274; and FCC v. Pacifica Foundation, 438 U.S. 726, 98 S. Ct. 3026, 57 L. Ed. 2d 1073 (1978), which upheld under the First Amendment the FCC's authority to regulate certain broadcasts it deemed indecent.

4 HTTP, or HyperText Transfer Protocol, has been described as follows: "Invisible to the user, HTTP is the actual protocol used by the Web Server and the Client Browser to communicate over the 'wire.' In short, [it is] the protocol used for moving documents around the In ternet." NEWTON'S TELECOM DICTIONARY 335 (17th ed.2001).

Essential concepts that are part of HTTP include (as its name im plies) the idea that files can contain references to other files whose sel ection will elicit additional transfer requests.

5 As stated earlier, see note 3, supra, Ginsberg upheld a New York statute prohibiting the sale to persons under seventeen years of age of material deemed to be obscene to minors, noting that "the concept of obscenity . . . may vary according to the group to whom the question able material is directed." Ginsberg, 390 U.S. at 636, 88 S. Ct. 1274 (quoting Bookcase, Inc. v. Broderick, 18 N.Y. 2d 71, 271 N.Y.S.2d 947, 218 N.E.2d 668, 671 (1966)). Five years later, the Supreme Court announced its decision in Miller, which advanced the familiar three-part test for determining obscenity:

(a) whether "the average person, applying contemporary community standards" would find that the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

Miller, 413 U.S. at 24, 93 S. Ct. 2607 (internal citations and quotation omitted).

6 The statute also provides that material is "harmful to minors" if it is "obscene." 47 U.S.C. § 231(e)(6). That part of the definition of mater ial harmful to minors is not at issue here.

7 Under COPA, a minor is defined as one under age seventeen. See 47 U.S.C. § 231(e)(7).

8 The plaintiffs, however, did not limit their argument before the Dis trict Court to the facial invalidity of COPA with regard to adults. They also argued that COPA was facially invalid for violating the First Amendment rights of minors, and that COPA was unconstitutionally vague in violation of the First and Fifth Amendments. See Reno II, 31 F. Supp. 2d at 478-79.

9 In so doing, however, we also addressed the four preliminary in junction factors and held that the plaintiffs had met their burden as to each of the four factors. See Reno III, 217 F.3d at 180-81.

10 We have jurisdiction pursuant to the Supreme Court's order re manding the case to us for further proceedings. See Ashcroft, 122 S. Ct. at 1714. The plaintiffs have standing to sue because they could all rea sonably fear prosecution under COPA, as their Web sites contained ma terial that could be considered harmful to minors under the statute. Reno III, 217 F.3d at 171 (citing Reno II, 31 F. Supp. 2d at 479).

11 In addition to being the only portion of the preliminary injunction standard addressed by the Supreme Court in its majority opinion or by the parties in their briefs before this Court, the probability of success prong is the only one about which any real debate exists.

In our earlier opinion in this case, we made clear that "Web publish ers would most assuredly suffer irreparable harm" under COPA, that preliminary injunctive relief will not result in greater harm to the Gov ernment, as "COPA's threatened constraint on constitutionally protec ted free speech far outweighs the damage that would be imposed by our failure to affirm this preliminary injunction," and that preliminary in junctive relief is in the public interest because "'neither the Govern ment nor the public generally can claim an interest in the enforcement of an unconstitutional law.'" Reno III, 217 F.3d at 180-81 (citation omitted).

12 We note that much of our overbreadth analysis overlaps with much of the strict scrutiny analysis we discuss below.

13 We note that the text of the statute reads "material that is harmful to minors." 47 U.S.C. § 231(e)(6) (emphasis added). For purposes of brevity, we often refer to this phrase as "material harmful to minors."

14 Obscene materials are not protected under the First Amendment. See, e.g., Ashcroft, 122 S. Ct. at 1704 ("[O]bscene speech enjoys no First Amendment protection.").

15 The term "minor" appears in both the "prurient interest" and "pa tently offensive" prongs of COPA's "material that is harmful to minors" definition. See statutory text supra Part I.B.2. The problems with the definition of minor which we identify in this section are applicable to both these two prongs. As such, these prongs are also constitutionally infirm on that ground.

16 The Government has cited cases from two other Circuits in support of its proffered narrowing construction of "minor." We do not find these analyses helpful. In American Booksellers v. Webb, 919 F.2d 1493 (11th Cir.1990), cert. denied, 500 U.S. 942, 111 S. Ct. 2237, 114 L. Ed. 2d 479 (1991), the Eleventh Circuit upheld a Georgia law restricting the display of material "harmful to minors" in light of the fact that the use of blinder racks would satisfy the statute's requirement. Id. at 1508-09. In analyzing the "harmful to minors" test contained in that statute, the Eleventh Circuit interpreted the Supreme Court's opinion in Pope v. Illinois, 481 U.S. 497, 107 S. Ct. 1918, 95 L. Ed. 2d 439 (1987), to "teach[] that if any reasonable minor, including a seventeen-year-old, would find serious value, the material is not 'harmful to minors.'" American Booksellers, 919 F.2d at 1504- 05.

We do not think that Pope leads to the conclusions that the Eleventh Circuit drew. In Pope, the Court explained that, under the "serious value" prong of the Miller test for obscenity, "The proper inquiry is not whether an ordinary member of any given community would find ser ious literary, artistic, political, or scientific value in allegedly obscene material, but whether a reasonable person would find such value in the material, taken as a whole." Pope, 481 U.S. at 500-01, 107 S. Ct. 1918 (emphasis added). It does seem logical that if Pope requires a reason able person standard for the "serious value" prong of the Miller test, then an analogous "serious value for minors" prong of a "harmful to minors" test would look to the value for a "reasonable minor." It does not follow, however, that the "reasonable minor" must be judged by ref erence to minors at the upper end of the spectrum of ages encompassed in the term "minor," unless the statute is drawn in that particular man ner. We are not persuaded that COPA can be read and enforced that way.

The Fourth Circuit's opinion in American Booksellers Ass'n v. Vir ginia, 882 F.2d 125 (4th Cir.1989), cert. denied, 494 U.S. 1056, 110 S. Ct. 1525, 108 L. Ed. 2d 764 (1990), is likewise inapplicable. That case dealt with the interpretation of a Virginia statute prohibiting the display of sexually explicit materials to "juveniles [less than eighteen years of age]." Id. at 127 (citing Va. Code § 18.2390(6)(c) (1982 & Supp. 1987)). The Fourth Circuit adopted the Virginia Supreme Court's interpreta tion of the state statute: "The Virginia Court then concluded that the ["serious value"] standard [of the Virginia statute] should be applied as it affects a 'legitimate minority of normal, older adolescents.'" Id. (citing Commonwealth v. American Booksellers Ass'n, 236 Va. 168, 372 S.E.2d 618, 624 (1988)). Of course, the Virginia Supreme Court's inter pretation of the state statute (a question that had been certified to the Virginia Court by the Supreme Court, see Virginia v. American Book sellers Ass'n, 484 U.S. 383, 108 S. Ct. 636, 98 L. Ed. 2d 782 (1988)), is not binding on our interpretation of COPA. Hence, there is no reason to adopt or be persuaded by the statutory construction of the Virginia Supreme Court in our construction of COPA.

The Fourth Circuit has recently certified to the Virginia Supreme Court two questions relating to the scope of a 1999 amendment to the Virginia statute at issue in American Booksellers Ass'n v. Virginia. See PSINet, Inc. v. Chapman, 317 F.3d 413 (4th Cir.2003) (citing Va. Code § 18.2- 391, 1999 Va. Act ch. 936). Subsequent to oral argument, the Government submitted a letter pursuant to Federal Rule of Appel late Procedure 28(j) calling to our attention this order pertaining to the constitutionality of the 1999 amendment, which extends the regulation of sexually explicit material deemed "harmful to juveniles" to the Internet context. For the reasons we have identified, the Fourth Cir cuit's certification order has no bearing on our interpretation of COPA.

17 As we have explained earlier, see Part II.A.2(a), supra, COPA's def inition of material refers to any single "communication, picture, image, graphic image file, article, recording, writing, or other matter of any kind." 47 U.S.C. § 231(e)(6).

18 We do not here confront the question of statutory interpretation whether the term "profit," in the context of COPA's definition of "en gaged in the business," includes only those Web publishers seeking to earn economic profits or also includes nonprofit organizations or char ities that seek to obtain revenue or contributions-though not economic profits-from their Web sites. As one amicus brief notes, Congress did not exempt non-profit organizations as designated under the Internal Revenue Code. See Br. of Amici Curiae American Society of Journal ists and Authors et al. at 6-7. If the term "profit," (and therefore the term "engaged in the business") includes Web publishers that are non- profit organizations, the scope of persons covered by COPA would be greatly expanded. Because of the large number of commercial entities that maintain Web sites (as found by the District Court), the scope of COPA, regardless of whether it covers non-profits, is in any event far broader than the core of commercial pornographers and the like that the Government has argued that COPA is intended to target.

19 The District Court found, and the Government does not argue otherwise, that the "digital certificate" and "other reasonable mea sures" are not effective or feasible: "The parties' expert witnesses agree that at this time, while it is technologically possible, there is no certificate authority that will issue a digital certificate that verifies a user's age. . . . The plaintiffs presented testimony that there are no other reasonable alternatives that are technologically feasible at this time to verify age online. . . . The defendant did not present evidence to the contrary." Reno II, 31 F. Supp. 2d at 487-88 (Finding of Fact ¶ 37) (emphasis added) (internal citations omitted).

20 The Government's argument to the contrary is not persuasive. Its reliance on the success of online publishers such as The Wall Street Journal, as well as online merchants such as Amazon.com, is misplaced. The Government noted that those publishers' and merchants' Web sites require persons to provide personal information. See Gov't Br. on Re mand at 11. Such sites, however, are not analogous to Internet sites that provide speech that is protected for adults that might nonetheless be harmful to minors. As the District Court noted in its findings of fact, certain of the plaintiffs testified that their Web sites contain controver sial or sensitive information that adult readers would be deterred from obtaining if they were required to register or otherwise identify themselves. See Reno II, 31 F. Supp. 2d at 485-86 (Findings of Fact ¶¶ 25-26).

21 The Government asserts that 47 U.S.C. § 231(d)(1), which limits the disclosure of "any information collected for the purposes of restricting access" to material harmful to minors without prior written consent (subject to exceptions), constitute "substantial privacy protections." Gov't Br. on Remand at 41. But the statute does not appear to impose any penalties on those who fail to comply with the privacy protection in § 231(d)(1). Furthermore, the existence of the statutory privacy protec tion does not negate the likelihood that adults will be chilled in access ing speech protected for them; adults may reasonably fear that their information will be disclosed, this provision notwithstanding.

22 See, e.g., Lamont v. Postmaster General, 381 U.S. 301, 85 S. Ct. 1493, 14 L. Ed. 2d 398 (1965) (holding that federal statute requiring Postmaster to halt delivery of communist propaganda unless affirma tively requested by addressee violated First Amendment); Denver Area Educ. Telecomms. Consortium v. FCC, 518 U.S. 727, 732-33, 116 S. Ct. 2374, 135 L. Ed. 2d 888 (1996) (holding unconstitutional a federal law requiring cable operators to allow access to sexually explicit program ming only to those subscribers who request access to the programming in advance and in writing). Cf. American Library Ass'n v. United States, 201 F. Supp. 2d 401, 406 (E.D.Pa.) (three- judge court) (holding as unconstitutional federal statute that conditions receipt of federal funds by public libraries on use of filtering software because, inter alia, provision requiring adults to request library to disable filters to access protected speech imposed too great a burden), prob. juris. noted,-U.S. -, 123 S. Ct. 551, 154 L. Ed. 2d 424 (2002).

23 See, e.g., Crawford v. Lungren, 96 F.3d 380 (9th Cir.1996) (uphold ing statute banning sale of material harmful to minors in unsupervised sidewalk vending machines), cert. denied, 520 U.S. 1117, 117 S.Ct. 1249, 137 L. Ed. 2d 330 (1997); Webb, 919 F.2d 1493 (11th Cir.1990) (uphold ing statute making it unlawful to "exhibit, expose, or display in public at newsstands or any other business or commercial establishment or at any other public place frequented by minors" material harmful to them); Upper Midwest Booksellers Ass'n v. City of Minneapolis, 780 F.2d 1389 (8th Cir.1985) (upholding an ordinance requiring an opaque cover on and the sealing of any material deemed harmful to minors and displayed for commercial purposes); M.S. News Co. v. Casado, 721 F.2d 1281 (10th Cir.1983) (upholding a blinder rack ordinance); Davis-Kidd Booksellers, Inc. v. McWherter, 866 S.W.2d 520 (Tenn.1993) (upholding statute restricting the display for sale of material harmful to minors "anywhere minors are lawfully admitted"); American Booksellers Ass'n v. Rendell, 332 Pa. Super. 537, 481 A.2d 919 (1984) (upholding statute prohibiting display of sexually explicit materials where minors could see them).

24 The Report of the House Committee on Commerce, prepared in support of COPA, provides a more detailed discussion of this technol ogy:

In general, blocking or filtering software programs work in con junction with Internet browsers such as Netscape Navigator and Microsoft's Internet Explorer, and are either installed directly onto individual computers or onto a host server used with a network of computers. Blocking or filtering software could also be installed at the site of the Internet access provider. Software to block access to websites has existed for many years. . . .

In order to block Internet sites, a software vendor identifies cate gories of material to be restricted and then configures the software to block sites containing those categories of speech. Some software blocking vendors employ individuals who browse the Internet for sites to block, while others use automated searching tools to identify which sites to block. New products are constantly being developed, however, that could improve the effectiveness of the blocking soft ware. For example, at least one product has been designed that is capable of analyzing the content being retrieved by the computer. By analyzing the content, rather than a predefined list of sites, the pro duct is capable of screening inappropriate material from chat rooms, e-mail, attached documents, search engines, and web browsers. Such products will help parents and educators reduce a minor's exposure to sexually explicit material.

H.R. Rep. No. 105-775, at 19.

25 We see no need for sustained discussion of the Government's third argument. The Government's assertion that it is more effective to screen material before it is posted on the Internet, is no answer at all. First, we cannot say that the blocking and filtering technology is suf ficiently less effective than COPA such that the technology could not be considered as an alternative for purposes of the least restrictive means analysis. Second, to the extent that the Government relies on pre- screening as the rationale for claiming that COPA is more effective, the argument proves too much. It is of course true that Web publishers' self- censorship will reduce the potential for communication of material harmful to minors, but the cost results in an intolerable chilling effect. See Part II.A.2(c), supra.

26 "Signal bleed" refers to a phenomenon whereby scrambled pro gramming becomes visible or audible from time to time. Playboy, 529 U.S. at 807, 120 S. Ct. 1878.

27 We recognize that parents may face financial costs in purchasing such software. See Reno II, 31 F. Supp. 2d at 492 (Finding of Fact ¶ 65) ("Such technology may be downloaded and installed on a user's home computer at a price of approximately $40.00.").

28 The District Court's findings of fact on which the above conclusions are based are not clearly erroneous. As we recited earlier, the Govern ment did not, and does not, contend that the findings are clearly erron eous. See Reno III, 217 F.3d at 170. It follows that both COPA and blocking and filtering technology are over-and underinclusive in differ ing ways, and we agree with the District Court's conclusion that as a result, such technology may be at least as effective as COPA.

For further discussion of COPA's overinclusiveness, see our discus sion of overbreadth, infra.

29 As the American Library court explained:

Although [blocking and filtering software] programs are somewhat effective in blocking large quantities of pornography, they are blunt instruments that not only "underblock," i.e., fail to block access to substantial amounts of content that the library boards wish to ex clude, but also, central to this litigation, "overblock," i.e., block ac cess to large quantities of material that library boards do not wish to exclude and that is constitutionally protected.

American Library, 201 F. Supp. 2d at 406.

In addition, we recognize that a report approved by the governing board of the National Research Council, by a committee chaired by the Honorable Dick Thornburgh, four years after COPA was enacted (2002), similarly concluded that:

Filters are capable of blocking inappropriate sexually explicit ma terial at a high level of effectiveness-if a high rate of over-blocking is also acceptable. Thus, filters are a reasonable choice for risk- averse parents or custodians (e.g., teachers) who place a very high priority on preventing exposure to such material and who are willing to accept the consequences of such overblocking.

COMMITTEE TO STUDY TOOLS AND STRATEGIES FOR PROTECTING KIDS FROM PORNOGRAPHY, NATIONAL RESEARCH COUNCIL, YOUTH, PORNOGRAPHY AND THE INTERNET § 12.1.8 (Dick Thorn burgh & Herbert S. Lin eds., 2002), available at http://www.nap. edu/html/youth_internet/ (last visited Feb. 6, 2003).

30 See American Library, 201 F. Supp. 2d at 486 ("By requiring li brary patrons affirmatively to request permission to access certain speech singled out on the basis of its content, [the federal law at issue] will deter patrons from requesting that a library disable filters to allow the patron to access speech that is constitutionally protected, yet sen sitive in nature.").

31 Indeed, as the National Research Council's report noted:

[T]he problem of protecting children from inappropriate material and experiences on the Internet is complex. . . .

The effectiveness of technology-based on tools and social and edu cational strategies in practice, should be examined and characterized. Chapter 12 [of this Report] discussed one aspect of evaluating the performance of filters, based on a "head-to-head" comparison of how filters performed in blocking inappropriate materials. But protection of children is a holistic enterprise that must account for the totality of their Internet experience-which suggests the need for a examina tion of all of the tools in all of the venues in which children use the Internet.

YOUTH, PORNOGRAPHY AND THE INTERNET, supra note 29, at § 14.6.

32 The Supreme Court has explained that it has "traditionally viewed vagueness and overbreadth as logically related and similar doctrines." Kolender v. Lawson, 461 U.S. 352, 358 n. 8, 103 S. Ct. 1855, 75 L. Ed. 2d 903 (1983) (citing Keyishian v. Board of Regents, 385 U.S. 589, 609, 87 S. Ct. 675, 17 L. Ed. 2d 629 (1967); NAACP v. Button, 371 U.S. 415, 433, 83 S. Ct. 328, 9 L. Ed. 2d 405 (1963)). We consider an aspect of the statute that we consider vague in note 37, infra.

33 In assessing facial challenges of overbreadth, as we do here, the courts have "altered [their] traditional rules of standing to permit-in the First Amendment area-'attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with the requi site narrow specificity.'" Broadrick, 413 U.S. at 612, 93 S. Ct. 2908 (quoting Dombrowski v. Pfister, 380 U.S. 479, 486, 85 S. Ct. 1116, 14 L. Ed. 2d 22 (1965)). This exception to traditional rules of standing "is deemed necessary because persons whose expression is constitutionally protected may well refrain from exercising their right for fear of crim inal sanctions provided by a statute susceptible of application to pro tected expression." Los Angeles Police Dept. v. United Reporting Pub. Corp., 528 U.S. 32, 38, 120 S. Ct. 483, 145 L. Ed. 2d 451 (1999) (quoting Gooding v. Wilson, 405 U.S. 518, 520-521, 92 S. Ct. 1103, 31 L. Ed. 2d 408 (1972)). The District Court held that the plaintiffs had standing. See Reno II, 31 F. Supp. 2d at 479. We agree. See Reno III, 217 F.3d at 171.

34 The Web site page can be reached by accessing the museum's main Web page at http://www.cmp.ucr.edu and then by clicking on a link marked "photographers."

35 Another such example is noted in the American Society of Journal ists' amicus brief. See Br. of Amici Curiae American Society of Journal ists and Authors et al. at 23 n. 19. The American Society points to the work of photographer Paul Outerbridge as displayed on the J. Paul Getty Museum Web site. The Web site includes a Web page featuring a discussion of Outerbridge and containing three small photographs, one of which is entitled "Woman with Meat Packer's Gloves." See J. Paul Getty Museum, Paul Outerbridge (Getty Museum), http://www. getty.edu/art/collections/bio/a1971-1.html (last visited Feb. 6, 2003). The museum describes this photograph as a ("disturbing image of a [naked] woman piercing her own breast and abdomen with the sharp tips of meat packer's gloves."). This photograph in isolation arguably meets COPA's "harmful to minors" definition. When viewed in the con text of the Web page discussing the artist and displaying his other art work, however, this image, as a component of the Web page in its en tirety, does not meet the "harmful to minors" standard.

36 Indeed, though we do not reach this issue, we note that this speech may not even be obscene as to minors, at least as to older minors, be cause it arguably has "serious value" for them.

37 We also consider the use of the term "minor," as incorporated in COPA's definition of "material that is harmful to minors," to be imper missibly vague. A statute is void for vagueness if it "forbids ... the doing of an act in terms so vague that [persons] of common intelligence must necessarily guess at its meaning and differ as to its application." Con nally v. General Constr. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 70 L.Ed. 322 (1926). "[S]tandards of permissible statutory vagueness are strict in the area of free expression. . . . The objectionable quality of vague ness and overbreadth does not depend upon absence of fair notice to a criminally accused or upon unchanneled delegation of legislative pow ers, but upon the danger of tolerating, in the area of First Amendment freedoms, the existence of a penal statute susceptible of sweeping and improper application." Button, 371 U.S. at 432-33, 83 S. Ct. 328. See also Reno I, 521 U.S. at 871-72, 117 S. Ct. 2329 (because the CDA was "a content-based regulation of speech," its "vagueness . . . raise[d] special First Amendment concerns because of its obvious chilling effect on free speech"). COPA's definition of "minor" includes all children un der the age of seventeen, as we have noted. Because the statute's def inition of minor is all-inclusive, and provides no age "floor," a Web pub lisher will be forced to guess at the bottom end of the range of ages to which the statute applies. The fearful Web publisher therefore will be forced to assume, and conform his conduct to, the youngest minor to whom the statute conceivably could apply. We cannot say whether such a minor would be five years of age, three years, or even two months. Because we do not think a Web publisher will be able to make such a determination either, we do not think that they have fair notice of what conduct would subject them to criminal sanctions under COPA. As a result of this vagueness, Web publishers will be deterred from engaging in a wide range of constitutionally protected speech. The chilling effect caused by this vagueness offends the Constitution.

APPENDIX A

CHILD ONLINE PROTECTION ACT

47 U.S.C. § 231

Restriction of access by minors to materials commer cially distributed by means of world wide web that are harmful to minors

(a) Requirement to restrict access

(1) Prohibited conduct

Whoever knowingly and with knowledge of the char acter of the material, in interstate or foreign commerce by means of the World Wide Web, makes any communi cation for commercial purposes that is available to any minor and that includes any material that is harmful to minors shall be fined not more than $50,000, imprisoned not more than 6 months, or both.

(2) Intentional violations

In addition to the penalties under paragraph (1), whoever intentionally violates such paragraph shall be subject to a fine of not more than $50,000 for each viola tion. For purposes of this paragraph, each day of viola tion shall constitute a separate violation.

(3) Civil penalty

In addition to the penalties under paragraphs (1) and (2), whoever violates paragraph (1) shall be subject to a civil penalty of not more than $50,000 for each violation. For purposes of this paragraph, each day of violation shall constitute a separate violation.

(b) Inapplicability of carriers and other service provid ers

For purposes of subsection (a), a person shall not be considered to make any communication for commercial purposes to the extent that such person is

(1) a telecommunications carrier engaged in the provision of a telecommunications service;

(2) a person engaged in the business of providing an Internet access service;

(3) a person engaged in the business of providing an Internet information location tool; or

(4) similarly engaged in the transmission, stor age, retrieval, hosting, formatting, or translation (or any combination thereof) of a communication made by another person, without selection or alteration of the content of the communication, except that such person's deletion of a particular communication or material made by another person in a manner consis tent with subsection (c) or section 230 shall not con stitute such selection or alteration of the content of the communication.

(1) Defense

It is an affirmative defense to prosecution under this section that the defendant, in good faith, has re stricted access by minors to material that is harmful to minors-

(A) by requiring use of a credit card, debit ac count, adult access code, or adult personal identifica tion number;

(B) by accepting a digital certificate that verifies age; or

(2) Protection for use of defenses

No cause of action may be brought in any court or administrative agency against any person on account of any activity that is not in violation of any law pun ishable by criminal or civil penalty, and that the per son has taken in good faith to implement a defense authorized under this subsection or otherwise to re strict or prevent the transmission of, or access to, a communication specified in this section.

(d) Privacy protection requirements

(1) Disclosure of information limited

A person making a communication described in subsection (a)-

(A) shall not disclose any information collected for the purposes of restricting access to such commu nications to individuals 17 years of age or older with out the prior written or electronic consent of-

(i) the individual concerned, if the individual is an adult; or

(ii) the individual's parent or guardian, if the indi vidual is under 17 years of age; and

(B) shall take such actions as are necessary to prevent unauthorized access to such information by a person other than the person making such commu nication and the recipient of such communication.

(2) Exceptions

A person making a communication described in subsection (a) may disclose such information if the disclosure is-

(A) necessary to make the communication or conduct a legitimate business activity related to making the communication; or

(B) made pursuant to a court order authorizing such disclosure.

(e) Definitions

For purposes of this subsection, the following defini tions shall apply:

(1) By means of the world wide web

The term "by means of the World Wide Web" means by placement of material in a computer server-based file archive so that it is publicly accessible, over the Internet, using hypertext transfer protocol or any suc cessor protocol.

(2) Commercial purposes; engaged in the business

(A) Commercial purposes

A person shall be considered to make a communi cation for commercial purposes only if such person is engaged in the business of making such communica tions.

(B) Engaged in the business

The term "engaged in the business" means that the person who makes a communication, or offers to make a communication, by means of the World Wide Web, that includes any material that is harmful to minors, devotes time, attention, or labor to such ac tivities, as a regular course of such person's trade or business, with the objective of earning a profit as a result of such activities (although it is not necessary that the person make a profit or that the making or offering to make such communications be the per son's sole or principal business or source of income). A person may be considered to be engaged in the business of making, by means of the World Wide Web, communications for commercial purposes that include material that is harmful to minors, only if the person knowingly causes the material that is harmful to minors to be posted on the World Wide Web or knowingly solicits such material to be posted on the World Wide Web.

(3) Internet

The term "Internet" means the combination of computer facilities and electromagnetic transmission media, and related equipment and software, compris ing the interconnected world-wide network of com puter networks that employ the Transmission Con trol Protocol/Internet Protocol or any successor pro tocol to transmit information.

(4) Internet access service

The term "Internet access service" means a ser vice that enables users to access content, informa tion, electronic mail, or other services offered over the Internet, and may also include access to propri etary content, information, and other services as part of a package of services offered to consumers. Such term does not include telecommunications services.

(5) Internet information location tool

The term "Internet information location tool" means a service that refers or links users to an on line location on the World Wide Web. Such term in cludes directories, indices, references, pointers, and hypertext links.

(6) Material that is harmful to minors

The term "material that is harmful to minors" means any communication, picture, image, graphic image file, article, recording, writing, or other mat ter of any kind that is obscene or that-

(B) depicts, describes, or represents, in a man ner patently offensive with respect to minors, an actual or simulated sexual act or sexual contact, an actual or simulated normal or perverted sexual act, or a lewd exhibition of the genitals or postpu bescent female breast; and

(7) Minor

The term "minor" means any person under 17 years of age.

APPENDIX E

1. Section 231 of the Communications Act of 1934, 47 U.S.C. 231, provides as follows:

Restriction of access by minors to materials commercially distributed by means of World Wide Web that are harmful to minors

(a) Requirement to restrict access

(1) Prohibited conduct

Whoever knowingly and with knowledge of the character of the material, in interstate or foreign commerce by means of the World Wide Web, makes any communication for commercial purposes that is available to any minor and that includes any material that is harmful to minors shall be fined not more than $50,000, imprisoned not more than 6 months, or both.

(2) Intentional violations

In addition to the penalties under paragraph (1), whoever intentionally violates such paragraph shall be subject to a fine of not more than $50,000 for each violation. For purposes of this paragraph, each day of violation shall constitute a separate violation.

(3) Civil penalty

In addition to the penalties under paragraphs (1) and (2), whoever violates paragraph (1) shall be sub ject to a civil penalty of not more than $50,000 for each violation. For purposes of this paragraph, each day of violation shall constitute a separate violation.

(b) Inapplicability of carriers and other service providers

For purposes of subsection (a) of this section, a per son shall not be considered to make any communication for commercial purposes to the extent that such person is-

(1) a telecommunications carrier engaged in the pro vision of a telecommunications service;

(2) a person engaged in the business of providing an Internet access service;

(3) a person engaged in the business of providing an Internet information location tool; or

(4) similarly engaged in the transmission, storage, retrieval, hosting, formatting, or translation (or any combination thereof) of a communication made by an other person, without selection or alteration of the con tent of the communication, except that such person's deletion of a particular communication or material made by another person in a manner consistent with subsec tion (c) of this section or section 230 of this title shall not constitute such selection or alteration of the content of the communication.

(1) Defense

It is an affirmative defense to prosecution under this section that the defendant, in good faith, has restricted access by minors to material that is harmful to minors-

(A) by requiring use of a credit card, debit ac count, adult access code, or adult personal identifica tion number;

(B) by accepting a digital certificate that verifies age; or

(2) Protection for use of defenses

No cause of action may be brought in any court or administrative agency against any person on account of any activity that is not in violation of any law punishable by criminal or civil penalty, and that the person has taken in good faith to implement a defense authorized under this subsection or otherwise to restrict or prevent the transmission of, or access to, a communication speci fied in this section.

(d) Privacy protection requirements

(1) Disclosure of information limited

A person making a communication described in sub section (a) of this section-

(A) shall not disclose any information collected for the purposes of restricting access to such communica tions to individuals 17 years of age or older without the prior written or electronic consent of-

(i) the individual concerned, if the individual is an adult; or

(ii) the individual's parent or guardian, if the indi vidual is under 17 years of age; and

(B) shall take such actions as are necessary to pre vent unauthorized access to such information by a per son other than the person making such communication and the recipient of such communication.

(2) Exceptions

A person making a communication described in sub section (a) of this section may disclose such information if the disclosure is-

(A) necessary to make the communication or con duct a legitimate business activity related to making the communication; or

(B) made pursuant to a court order authorizing such disclosure.

(e) Definitions

For purposes of this subsection,1 the following defini tions shall apply:

(1) By means of the World Wide Web

The term "by means of the World Wide Web" means by placement of material in a computer server-based file archive so that it is publicly accessi ble, over the Internet, using hypertext transfer pro tocol or any successor protocol.

(2) Commercial purposes; engaged in the business

(A) Commercial purposes

A person shall be considered to make a com munication for commercial purposes only if such person is engaged in the business of making such communications.

(B) Engaged in the business

The term "engaged in the business" means that the person who makes a communication, or offers to make a communication, by means of the World Wide Web, that includes any material that is harmful to minors, devotes time, attention, or labor to such activities, as a regular course of such person's trade or business, with the objec tive of earning a profit as a result of such activi ties (although it is not necessary that the person make a profit or that the making or offering to make such communications be the person's sole or principal business or source of income). A per son may be considered to be engaged in the busi ness of making, by means of the World Wide Web, communications for commercial purposes that include material that is harmful to minors, only if the person knowingly causes the material that is harmful to minors to be posted on the World Wide Web or knowingly solicits such mate rial to be posted on the World Wide Web.

(3) Internet

The term "Internet" means the combination of computer facilities and electromagnetic transmission media, and related equipment and software, compris ing the interconnected worldwide network of com puter networks that employ the Transmission Con trol Protocol/Internet Protocol or any successor pro tocol to transmit information.

(4) Internet access service

(5) Internet information location tool

(6) Material that is harmful to minors

The term "material that is harmful to minors" means any communication, picture, image, graphic image file, article, recording, writing, or other mat ter of any kind that is obscene or that-

(B) depicts, describes, or represents, in a man ner patently offensive with respect to minors, an actual or simulated sexual act or sexual contact, an actual or simulated normal or perverted sexual act, or a lewd exhibition of the genitals or post- pubescent female breast; and

(7) Minor

The term "minor" means any person under 17 years of age.

2. Section 1402 of the Child Online Protection Act, Pub. L. No. 105-277, Div. C, Tit. XIV, 112 Stat. 2681-736, pro vides as follows:

CONGRESSIONAL FINDINGS

The Congress finds that-

(1) while custody, care, and nurture of the child resid[e] first with the parent, the widespread avail ability of the Internet presents opportunities for mi nors to access materials through the World Wide Web in a manner that can frustrate parental supervi sion or control;

(2) the protection of the physical and psychologi cal well-being of minors by shielding them from ma terials that are harmful to them is a compelling gov ernmental interest;

(3) to date, while the industry has developed inno vative ways to help parents and educators restrict material that is harmful to minors through parental control protections and self-regulation, such efforts have not provided a national solution to the problem of minors accessing harmful material on the World Wide Web;

(4) a prohibition on the distribution of material harmful to minors, combined with legitimate de fenses, is currently the most effective and least re strictive means by which to satisfy the compelling government interest; and

(5) notwithstanding the existence of protections that limit the distribution over the World Wide Web of material that is harmful to minors, parents, edu cators, and industry must continue efforts to find ways to protect children from being exposed to harmful material found on the Internet.

1 So in original. Probably should be "section,".