AMERICAN CIVIL LIBERTIES UNION, et al. v. Alberto R. GONZALES in his official capacity as Attorney General of the United States, 478 F. Supp. 2d 775

FINAL ADJUDICATION LOWELL A. REED, JR., Senior District Judge. 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 injunction against its enforcement due to its alleged constitutional 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 reasons that follow, notwithstanding the compelling interest of Congress in protecting children from sexually explicit material on the Web, I conclude today that COPA facially 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 Congress’ compelling interest; (3) defendant has failed to meet his burden of showing that COPA is the least restrictive, most effective alternative in achieving the compelling interest; and

(3) COPA is imper-missibly vague and overbroad. As a result, I will issue a permanent injunction against the enforcement of COPA. TABLE OF CONTENTS I. PROCEDURAL HISTORY.779 II. THE RELEVANT LANGUAGE OF COPA AND THE CONSTITUTION.779 OF FACT iH CO t— A Thp Tntprnpf. rH 00 Cr- "R TVip PnrtfpR <N3 OO The Experts. 1. Plaintiffs’ Experts .. ^ GO tr— 2. Defendant’s Experts lO 00 tr— Information Regarding Plaintiffs’ Web Sites and the and Select Plaintiffs’ Fear of Prosecution under COPA. HI 00 Sexually Explicit Materials Available on the Web. HI 1. In General. 2.

The Amount of Foreign Sexually Explicit on Internet Content Filtering Technology and its Effectiveness. HI 1. In General. 2. The Availability and Cost of Filters. HI CO 3. Filter Ease of Use and User Satisfaction. 4. The Effectiveness of Filters. a. In General. b. Study Results. Select Legislative History of COPA and the Limitations of COPA . p —3 CO Statistical Information on Obscenity Prosecutions. K Hj CO The Affirmative Defenses in COPA and Their Availability and ( -q CO CO The General Availability of Age Verification Technologies. rH oo O O The Effectiveness of Payment Cards as a Thereto ... CQ O o 00 3.

The Effectiveness of Data Verification Services. <N o 00 4. The Effectiveness of Digital Certificates and Other Reasonable Measures that Are Feasible under Available Technology. 00 o CO 5. The Economic Burdens and Loss of Web Viewership Associated with the Affirmative Defenses. CO o 00 6. Web Users’ Privacy Concerns and Reluctance to Provide Personal Information. LO o 00 a. Web Users’ Privacy Concerns. lo o 00 b. . (Tenlncation. . . . to oc IV. CONCLUSIONS OF LAW. O 00 A. O 00 B. Strict Scrutiny Applies to this Action. O 00 C. Defendant Has Failed to Meet His Burden of Proof rH 00 1.

Defendant Has Failed to Show that COPA Is Narrowly Tailored to Congress’ Compelling Interest. a. COPA Is Overinclusive. b. COPA Is Underinclusive. c. The Affirmative Defenses in COPA Do Not Aid in Narrowly Tailoring It to Congress’ Compelling Interest. 2. Defendant Has Failed to Show that COPA Is the Least Restrictive Alternative for Advancing Congress’ Compelling Interest. CO iH 00 3. Defendant Has Failed to Show that Other Alternatives Are Not at Least as Effective as COPA . t — I D. Vagueness and Overbreadth.. i-H 1. COPA Is Vague. rH 2. COPA Is Overbroad. 7 — 1 V. CONCLUSIONS. .820 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 designed to protect minors from exposure to sexually explicit 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 Communications Decency Act of 1996, 47 U.S.C. § 223 (“the CDA”) which the Supreme Court held was unconstitutional because it was not narrowly tailored to serve a compelling governmental interest and because less restrictive alternatives were available. See Ashcroft v. ACLU, 542 U.S. 656, 661; 124 S.Ct. 2783, 159 L.Ed.2d 690 (2004) (discussing Reno v. ALCU, 521 U.S. 844, 117 S.Ct. 2329, 138 L.Ed.2d 874 (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 February 1, 1999, after having previously granted the plaintiffs’ 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, 122 S.Ct. 1700, 152 L.Ed.2d 771 (2002)) this court’s decision 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 current technological developments, account for any changes in the legal landscape, and to determine whether Internet 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, 124 S.Ct. 2783.

For a more detailed description of the history and background of this case, see the Supreme Court’s opinion. Id. at 663-664, 124 S.Ct. 2783. This court held á 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 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. 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, 93 S.Ct. 2607, 37 L.Ed.2d 419 (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— (

A) the average person, applying contemporary community 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 minors. 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).

Under COPA, the Internet “means the combination of computer facilities and electromagnetic transmission media, and related equipment and software, comprising the interconnected worldwide network of computer networks that employ the Transmission Control Protocol/Internet Protocol or any successor protocol to transmit information.” 47 U.S.C. § 231(e)(3). Another important feature of COPA for the purposes of this action is 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 communication.” 47 U.S.C. § 231(e)(2)(a).

Moreover, “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 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).

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 (

C) by any other reasonable measures that are feasible under available technology- 47 U.S.C. § 231(c)(1). Moreover, those exempt from liability include telecommunications carriers, Internet access service providers, those engaged in the business of providing an Internet information location tool, or those: similarly engaged in the transmission, storage, 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 consistent 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. III.

FINDINGS OF FACT Having presided at the trial, having seen and heard the testimony of the parties’ representatives and other witnesses, and having reviewed the other evidence received, 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 activities 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 Current 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 information 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 material 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 judicial 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 enforcing the provisions of COPA challenged in this action. Id. ¶ 1. Attorney General Gonzales is sued here in his official 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; resources for gays and lesbians; online magazines and articles; 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 potentially 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 principles 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 Francisco’s poet laureate. Ferlinghetti is the co-founder of City Lights Bookstore, which maintains a website “that promotes 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. Warren is a co-owner of Wildcat International and its publishing 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 condom store and a leading seller of condoms and distributor of safer sex materials. Condomania engages in speech on the Internet. Id. ¶ 8. Adam Glickman (“Gliekman”) is the CEO of Condomania. Ghckman Testimony, 10/30 Tr. 91:18-20. 16.

Plaintiff Heather Corinna (“Corin-na”) is a writer, artist, sex-educator, and activist whose primary presence on the Web consists of Scarletletters.com, Scarleteen.com, and Femmerotic.com, “each of which deals with issues of sex and sexuality with an explicit focus on challenging and combating the sexual oppression of traditionally marginalized groups.” J. Ex. 1 ¶¶ 9-10. 17.

Corinna operates the website Scarleteen.com. “Scarleteen is the Internet’s largest independent, unaffiliated, 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 Scarleteen 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 parents we have heard from have used it as a tool to initiate discussion with their teens on some of the topics addressed.

Home'schooling 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 “[generally, I intend to examine sexuality, to document sexual relationship^], 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 creates questions.” Id. ¶ 12. 19.

Plaintiff Electronic Frontier Foundation (“EFF”) sues in part on behalf of John W. “Bill” Boushka, 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 partnership with Public Communicators Inc., operates freespeech.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 Dictionary operates an online dictionary of contemporary slang “whose terms and

definitions are solely user-generated and user-rated.” J. Ex. 1 ¶¶ 18-19. 23. Plaintiff Philadelphia Gay News (“PGN”), is the “oldest gay newspaper in Philadelphia” and publishes both in print and online. The online and print editions “share much of the same content, including national and local news stories written by PGN correspondents, arts and events sections, regular columns, a calendar of events, and editorials on a variety of social and political topics.” The online edition also contains personal and classified advertisements. Id. ¶¶ 20-21. 24.

Plaintiff American Booksellers Foundation For Free Expression (“ABFFE”) is a non-profit organization 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”) publishes an online magazine featuring articles on current events, the arts, polities, the media, and relationships and states that it “is a well-known, popular online magazine” 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 compelling 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. ¶¶ 25-26; Walsh Testimony, 10/23 Tr. 107:17-18, 112:8-12. 27.

Plaintiff Sexual Health Network owns and operates Sexualhealth.com which is “dedicated to providing easy access to sexuality information, education, support and other sexuality resources for everyone, including those with disability, chronic illness or other health-related problems.” The Web site is run by Dr. Mitchell Tep-per (“Dr.Tépper”). Id. ¶¶ 27-28. 28.

Plaintiff Electronic Privacy Information Center (“EPIC”) “is a nonprofit educational organization established in 1994 to examine civil liberties and privacy issues arising on the Internet.” EPIC alleges that it accesses information on the Internet, including sexually explicit pages, as part of its mission, which includes reporting on how well content filters work. Id. ¶ 29. C. The Experts 1. Plaintiffs’ Experts 29. Professor Lome Faith Cranor (“Dr.Cranor”) is currently employed at Carnegie Mellon University as an associate research professor in the school of computer 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. Cra-nor Testimony, 10/23 Tr. 227:6-21. 30. Professor Edward William Felten (“Dr.Felten”) is currently employed at Princeton University as a tenured professor of computer science and public affairs and director of the Center for Information Technology Policy. Felten Testimony, 10/24 Tr. 182:2-22. Dr.

Felten was qualified in this ease 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 entails 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 Testimony, 10/25 Tr. 67:14-16. Russo was qualified as an expert 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 Freedom.” Reichman Testimony, 10/30 Tr. 5:5-7, 7:l-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.Eise-nach”) is currently 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 Testimony, 11/13 Tr. 71:25-72:10. 36. Professor Stephen Neale (“Dr.Nea-le”) is currently employed at Rutgers University as a professor of philosophy. Nea-le Testimony, 11/8 Tr. 186:1-5. Dr.

Neale was qualified in this case as an expert on information content on the theoretical bases of linguistic classification and the classification of text documents for content. Dr. Neale was also received as an expert regarding the- theoretical or inherent limits of Internet filtering software as a mechanism to block access to types of content 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 Testimony, 11/8 Tr. 74:1-25. Dr. Stark was qualified as an expert in this case in the areas of statistics and computer-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 Intelligence 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 computers with the Internet and the Web, and the identification of content on the Internet. Mewett Testimony, 11/7 Tr. 93:4-18. 89. Arthur E.

Clark, Jr. (“Clark”) is currently employed as a managing partner of Business Insights. Clark Testimony, 11/14 Tr. 11:12-13. Clark was qualified as an expert in this case on the use and effectiveness of payment cards on the Internet and related aspects. 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 computer 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 There~ on 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 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 which might be considered harmful to minors.

Walsh Testimony, 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 Testimony, 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; Glick-man Testimony, 10/30 Tr. 130:23-131:10 (stating that Condomania has frank and honest discussions on the “website about anal sex, lubricants and condoms 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 1-2, 12, 13-15, 16-17, 26-28; Findings of Fact 46-48. 42.

The plaintiffs speak in support of their businesses on the Web. The speech on the plaintiffs’ Web sites is designed to assist in making a profit. Walsh Testimony, 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; Peck-ham Testimony, 10/31 Tr. 23:6-10; Corin-na 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 Testimony, 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 content 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 register, 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 Testimony, 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 individuals who do not live in the United States.

Walsh Testimony, 10/23 Tr. 113:23-114:19 (“we get roughly 20 percent of our traffic now from international readers”); Tepper Testimony, 10/30 Tr. 181:10-18 (“approximately 15 percent” of users come from overseas); Griscom Testimony, 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 photographs of genitalia and sexual situations). 47.

Scarleteen.com is a “sex education and information 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 Femmerotic.com are operated to make a profit. Corinna Testimony, 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 prosecution 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 nudity 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); PLEx. 38, at 13 (depicting, 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 understand the terms in COPA or what speech the statute prohibits. Gris-com Testimony, 10/23 Tr. 56:18-57:21. Griscom also fears prosecution under COPA and believes 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.eom, contains content that describes and depicts sexual acts and sexual contact and exhibitions of the genitals or post-pubescent female breast. Walsh Testimony, 10/28 Tr. 141:10-17, 144:3-145:8 (discussing

article entitled “My Date With A Virtual Sex Machine”), 146:6-18, 146:24-147:5 (discussing sexually explicit Japanese wood cuts), 147:9-18 (discussing sex gallery photographs from Kinsey Institute), 147:25-148:12 (discussing Abu Ghraib prison photographs including one in which a prisoner is “appearing to sodomize himself’), 152:8-15 (discussing explicit photographs on a blog entitled “My So-Called Lesbian Life”); Pl.Ex. 39, at 1-5 (depicting, inter alia, a photograph 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 involving bondage, naked breasts, buttocks, erect penises, vaginas, and a variety of sexual situations including a woman straddling a seated man whose penis is penetrating the woman’s vagina), 112-118 (depicting erotic photographs 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 considered 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 advertising 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 Condoma-nia, does not understand the terms in COPA or what speech the statute prohibits. Glickman Testimony, 10/30 Tr. 130:3-22. 60. Dr. Tepper, on behalf of Sexual Health Network, 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, Glickman, 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 verification system and he does not know if he would be willing 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 Testimony, 11/8 Tr. 48:19-49:9; PI. 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 determine 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 membership Web sites and 58 percent of free adult Web sites originate from outside the United States. Zook Testimony, 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 number (approximately 50 percent) of sexually explicit websites are foreign in origin. 64. Dr.

Stark’s data also indicated that, of the sexually explicit Web pages returned in response to a random 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 frequency with which searches return sexually explicit Web pages. 65. The National Research Council (“NRC”) report, commissioned by Congress, specifically noted that some estimates place as much as 75 percent of adult membership Web sites overseas. PLEx. 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 Testimony, 10/26 Tr. 107:24-112:9; Pl.Ex. 29, at 13-17, Tables 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. 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.

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 inappropriate. 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 maturity of their children.

As discussed more fully below, filters can be set up to restrict materials available on Web pages and other Internet applications based on numerous 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 computer 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 Testimony, 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 installed on a personal computer.

Some filters are designed to be run on a server in a business, library, or school environment. Other filters are built into the services 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 Protocol (“IP”) addresses that a filtering company has determined 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, filters often give parents or administrators the option of creating customized black or white lists. Id. ¶ 91. 74.

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 information 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 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 features of acceptable and unacceptable Web pages, depending on the context in which the content appears. Cranor Testimony, 10/23 Tr. 243:5-244:6; Whittle Testimony, 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 application, including email, chat, instant messaging, 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. J.

Ex. 1 ¶ 95; Cranor Testimony, 10/24 Tr. 47:25-48:19; PLEx. 6; PLEx. 8; PLEx. 54; PLEx. 86; PLEx. 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 applications.

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; PLEx. 86, at 6-7. 78. Some filtering programs offer only a small number of settings, while others are highly customizable, allowing a parent to make detailed decisions about what to allow and what to block.

Filtering products do this by, among other things, enabling parents to choose which categories of speech they want to be blocked (such as sexually explicit material, illicit drug information, information on violence and weapons, and hate speech) and which age se1> ting they want the product to apply. For example, AOL’s filtering product enables parents to choose from four different age settings: general (unrestricted); mature teen; young teen; and kids only. SurfCon-trol’s product has 13 different categories of speech that can be blocked if a parent so desires.

Cranor Testimony, 10/23 Tr. 233:2-21; PLEx. 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 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.

Cranor Testimony, 10/23 Tr. 239:11-22; Cranor Testimony, 10/24 Tr. 36:16-38:11; PLEx. 86, at 15-22, 33-39. 80. Filtering products block both Web pages originating from within the United States and Web pages originating from outside the United States. The geographic 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. Cranor Testimony, 10/24 Tr. 46:20-47:8; Pl.Ex. 6; PI 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 noncommercial and commercial Web pages. It does not make a difference to filtering products’ effectiveness if a page is from a non-commercial or a commercial entity. Cranor Testimony, 10/24 Tr. 47:9-24; PI. Ex. 6; PLEx. 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 example, offers a feature called AOL Guardian, which provides 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 similarly provides parents with reports of the Web sites a child has visited, as well as those that were blocked.

SurfControl’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 Content-watch’s filter, have features that permit parents 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 desires, 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 computers. Examples include mobile devices such as cellular 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 PlayStation. J. Ex. 1 ¶ 96. 84.

Several vendors, including large, experienced software companies, currently offer content filtering products for alternative devices. Examples include products offered by Ace*comm, Bytemobile, Blue Coat, Cisco, 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 certain other parental control features which can prevent children from using chat rooms, instant messaging, text messaging, email, purchasing any file downloads or having 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 soliciting 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 consumers, either in stores or over the Internet. Filters are also readily available through ISPs. Because most ISPs offer filtering products, a parent does not have to do anything to obtain a filter other than to activate it through the ISP’s Web site or to call the ISP.

Cranor Testimony, 10/24 Tr. 8:8 — 9:9. 88. Many of the ISPs offer filters to their customers for free. AOL’s filter is now even available for free to anyone who wants to use it, even non-AOL subscribers. Cranor Testimony, 10/24 Tr. 9:10-24. 89. Non-ISP filtering products vary in cost, ranging 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 simply download a filtering product for free over the Internet and then use it for a set time period to see if it is something that they want to continue using. 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 ability 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 Testimony, 10/24 Tr. 21:3-39:7; Pl.Ex. 3, at 4-5; PI. 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 Online Summit, her testimony before the COPA Commission, and her expert testimony in the five previous lawsuits challenging state versions of COPA. For example, Dr.

Cra-nor recently tested four filters and found that three were very, very easy to use and one was somewhat easy to use. Dr. Cra-nor also found that the current versions of the filter products had improved and were easier to use than the older versions. Cra-nor Testimony, 10/24 Tr. 18:13-19:1, 19:2-13,168:11-18. 94. Dr. Cranor’s opinion is consistent with the findings 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 NetA-lert and the Australia Broadcast 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 filtering 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 Testimony, 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 technically complex and does not require any special training 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 products.

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 compatibility issues for computers, meaning that using filters will not affect the typical user’s ability to use other computer 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 Surfcontrol’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: under-blocking and overblocking. Underblocking occurs when the filter fails to block content that the filter is configured to block. Ov-erblocking 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 whether 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 Testimony, 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 over-blocked 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 because, 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.

Cranor Testimony, 10/24 Tr. 81:18-82:10; Murphy Testimony, 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 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. Cranor Testimony, 10/23 Tr. 246:20-247:9; Cranor Testimony, 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; PI. 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 circumventing 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 until it has been properly reconfigured. Cranor Testimony, 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; PI. 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 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. 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 intermediary 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 intermediary computer will not enable a minor to avoid a filtering 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 computer. 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 Australia Broadcast Authority, measured the effectiveness of various filtering products at blocking a variety of different 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 specifically, 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 Congress, 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 Testimony, 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 installed on a home computer) using only black lists “can be effective” in “directly blocking access to global harmful to minors content on the Web and also on newsgroups, 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 over-block and underblock, and children can gain access to computers without filters, “[flitters have some significant utility in denying access to content that may be regarded as inappropriate” and, “fitters can be highly effective in reducing the exposure of minors to inappropriate 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 fitter 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 fitter performed 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 explicit Web pages. Mewett also found that the other filters he tested accurately blocked between 98.6 and 87.4 percent of the sexually explicit Web pages. In fact, of the fitters tested, only two failed to block at least 90 percent of the sexually explicit Web pages and the vast majority 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 over-blocked 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 between .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 sample 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 between 0 and 20.7 percent of the non-sexually explicit Web pages. Def. Ex. 74. 120. I do not find Mewett’s over-blocking rates to be reliable because he sometimes concluded that a filter had ov-erblocked even when the filter was performing exactly as intended. This occurred because Mewett was not always able to limit the filter to screening only sexually explicit material and sometimes the filter was configured 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 default 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 mature teen setting should allow the surfer to visit all Web sites except those known to contain violent or adult content”) (emphasis added). 121.

Many of the findings in defendant’s Mewett/Stark study are consistent with and similar to the findings of other filtering studies which have been conducted 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 Testimony, 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 Limitations of COPA 122. According to House Report 105-775, “[t]he purpose 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 reorder the process in such a way as to require age verification 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 Congressional findings: (1) while custody, care, and nurture of the child resides first with the parent, the widespread availability 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 materials that are harmful to them is a compelling governmental interest; (3) to date, while the industry has developed innovative 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 defenses, 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, educators, 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, 117 S.Ct. 2329, 138 L.Ed.2d 874 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 successor protocol and does not reach other forms of communication 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 attempt to ensure that COPA was narrowly tailored, unlike 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

definitions of “commercial purposes” and “engaged in the business.” 47 U.S.C. § 231(e)(2). 129. This limitation was specifically added by Congress 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 undocumented 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 “[cjlearly domestic restrictions in the United States will help reduce a child’s access to pornography....

To the extent that an international 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 Acting Assistant Attorney General to the Chairman for the Commerce Committee, explaining the views of the Department of Justice on COPA, the Assistant Attorney General explained why the Department felt that COPA would be problematic.

Specifically, the Assistant Attorney General stated, inter alia, that: The Department’s enforcement of [COPA] could require an undesirable diversion of critical investigative and pros-ecutorial resources that the Department 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 materials. 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 pornography, 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 attempt to regulate overseas web sites would raise difficult questions regarding extraterritorial enforcement. Pl.Ex. 55, at 2-3. The Assistant Attorney General also stated the opinion that COPA contains “troubling ambiguities” 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 Prosecutions 132.Existing laws make it illegal to distribute material over the Internet that constitutes obscenity, 18 U.S.C. eh. 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 commence 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 material 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 consumer 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 Information 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 Committee 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, 109 S.Ct. 2829, 106 L.Ed.2d 93 (1989)” and stated that: In Sable, the Court found that such commercial restrictions would be effective in excluding most juveniles, 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, 109 S.Ct. 2829. Id.

However, the Supreme Court in Sable actually stated: For all we know from this record, 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. If this is the case ... Sable, 492 U.S. at 130, 109 S.Ct. 2829 (emphasis added).

The Supreme Court did note that the FCC, after “lengthy proceedings, 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, 109 S.Ct. 2829.

However, the Court ultimately did not rule on this issue but instead found only that Congress had not generated any “legislative findings that would justify [the Court] in concluding that there is no constitutionally acceptable less restrictive means, short of a total ban [on indecent and obscene telephone communications], to achieve the Government’s interest in protecting minors.” Id. at 128-129, 109 S.Ct. 2829.

The Supreme Court concluded only that the congressional record “contained] 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, 109 S.Ct. 2829 (emphasis original). 137.In the physical world, assessing the validity of an assertion about a person’s age is relatively straightforward because of face-to-face interactions. In a retail establishment, for example, someone seeking to purchase harmful to minors material can be asked to show identification indicating the purchaser’s age.

The provider 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 products available on the market to owners of Web sites that actually reliably establish or verify the age of Internet users.

Nor is there evidence of such services or products that can effectively prevent access to Web pages by a minor. Russo Testimony, 10/25 Tr. 124:1-6, 143:17-20, 157:3-158:8, 164:15-165:7, 166:14-167:12; Tepper Testimony, 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 Defense 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, 1

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