ࡱ>   Y BbjbjWW Xl==3 *]|Xnnn$PD&L:4$ %n%nnnnnnnnCnnr`?UdIn the United States District Court for the Eastern District of Pennsylvania ________________________ American Civil Liberties Union, et al., ) Civil No. 98-CV-5591 (LAR) ) Plaintiffs, ) v. ) ) Janet Reno, in her official capacity as ) Attorney General of the United States, ) ) Defendant. ) _________________________ BRIEF OF MEMBERS OF CONGRESS AS AMICI CURIAE, Senator Dan Coats (ret.), Representative Thomas J. Bliley, Representative Michael G. Oxley, Representative James C. Greenwood, IN OPPOSITION TO THE MOTION FOR PRELIMINARY INJUNCTION, __________________________ Bruce A. Taylor, Counsel of Record for Amici Curiae J. Robert Flores, Co-Counsel for Amici Curiae Chadwicke L. Groover, NLC Legal Fellow, on the brief National Law Center for Children and Families 4103 Chain Bridge Road, #410 Fairfax, VA 22030-4105 (703) 691-4626, Fax: 703-691-4669 James J. West Pa. Bar No. 331 Local Counsel for Amici Curiae LAW AND ARGUMENT I. THE CHILD ONLINE PROTECTION ACT, 47 U.S.C. 231, IS A VALID, NARROWLY TAILORD RESPONSE TO A MOST SERIOUS PROBLEM AND SHOULD BE SO CONSTRUED AND UPHELD These amici curiae, Members of Congress who sponsored the Act being challenged, maintain that the Child Online Protection Act of 1998 (COPA) is a constitutionally valid federal adoption of the traditional protections for minors that have existed for over thirty years in state Harmful To Minors (HTM) laws. This law, 47 U.S.C. 231, will protect the great majority of minor children in America from the instant and unrestricted access to the free pornographic teaser pictures now openly available at commercial porn sites on the World Wide Web. In light of the present situation existing since the Communications Decency Acts indecency provisions were invalidated in 1997, Congress found that this law would be an effective federal proscription to deal with this tragic feature of the Web, stating that the Committee concludes that H.R. 3783 is currently the most effective, yet least restrictive approach that should be taken given the current state of technology. Report to accompany H.R. 3783, House Committee on Commerce, 105th Cong. 2d Sess. (Rep. No. 105-775), Committee Report at 16. There are presently an increasing number of thousands of sites that openly allow children, as well as adult porn customers, to see hard-core and soft-core porn pictures by simply clicking on any link to a pornography companys web page, even when searching for innocent material such as teen, boy, girl, toy, pet, etc. Committee Report at 10, citing Testimony of National Law Center for Children and Families (copy in Appendix C hereto). The law was designed to require such commercial porn sellers to take a credit card or adult PIN or access number in order to protect a visiting child or teenager from seeing the graphic sex pictures on the front pages of the commercial porn WWW sites. As chronicled in the House Commerce Committees Report, COPA is carefully limited in scope to deal only with this problem as it exists on the Web and only for commercial sellers of pornography that is obscene as to minors or harmful to minors as that test is known. The technical capability of commercial pornographers on WWW sites to use credit cards and PIN/codes was recognized by the Supreme Court in last years decision in Reno v. ACLU, 117 S. Ct. 2329, 2349 (1997). The Act relied on the Courts pronouncement to deal with this narrow part of the problem of online pornography. This Act applies only to the World Wide Web and excludes other Internet, Usenet, email, BBS, chat, and online services. The Act applies only to commercial sellers of harmful pornography and excludes all non-commercial, non-profit, educational, governmental, and private communications. Finally, this Act employs the existing and constitutionally valid definition of harmful to minors to limit its reach to pornography that is not protected speech for juveniles to receive and unprotected when provided or displayed to juveniles by adults. Therefore, COPA is an intentionally narrow focus on a least restrictive means to control the unrestricted display to minors of blatantly harmful pornographic images on the front pages of porn Web sites. COPA is limited solely to regulating the manner of displaying for sale the adult pornography that is harmful to minors without taking a credit card or adult PIN or code to exclude minors. The Act would not prevent adult customers from purchasing or browsing adult pornography on the commercial Web sites. It would only require the commercial sites that are regularly in the businesses of trying to make money from the sale of material that is Harmful To Minors to require visitors wishing to sample the pornography to use a credit card, PIN, etc. The site is also protected by the defense in Section 231 (c) if it attempts to restrict access by any other reasonable measures that are feasible under available technology before allowing customers to browse the pornography that is for sale at the site. This is no different than the universally valid HTM display provisions existing under the laws of the States which require vendors of adult pornography to keep such legally harmful to minors materials away from the reach or viewing of minors in commercial and public places. Over the past four decades in every state, magazine retailers, video outlets, theaters, and even adult bookstores, have complied with existing state HTM laws, yet continued to sell such materials to adults while restricting access and display from minors. The standard in COPA separately incorporates both the adult Miller test for what is obscene, as well as the traditional definition of harmful to minors, thus making the Act applicable both to hard-core pornography that is obscene and soft-core pornography that is Harmful To Minors even if not obscene for adults. The HTM definition was first approved thirty years ago by the Supreme Court in the landmark case of Ginsberg v. New York, 390 U.S. 629 (1968), and is known as the Millerized-Ginsberg Test. The obscenity test derives from Miller v. California, 413 U.S. 15, at 24-25 (1973), as explained in Smith v. United States, 431 U.S. 291, at 300-02, 309 (1977), to clarify that the average person, applying contemporary community standards would judge patent offensiveness in prong two, and in Pope v. Illinois, 481 U.S. 497, at 500-01 (1987), to hold that a reasonable person would judge serious value in prong three. The Acts standard for what must be restricted from minor children is, therefore, a constitutionally valid test for harmful to minors as approved by the Supreme Court in Ginsberg in 1968 and universally followed and upheld by state and federal courts ever since. Though HTM laws have heretofore been State statutes and city ordinances, the harmful to minors standard is familiar to the federal courts, which have routinely upheld such laws. See, for example: Crawford v. Lungren, 96 F.3d 380 (9th Cir. 1996), cert. denied, 117 S.Ct. 1249 (1997), upholding Californias HTM statute regulating adult sidewalk vending machines; American Booksellers v. Webb, 919 F.2d 1493 (11th Cir. 1990), upholding Georgia HTM statute; American Booksellers Assn v. Com. of Virginia, 882 F.2d 125 (4th Cir. 1989), on remand from the Supreme Court, 488 U.S. 905 (1988), upholding Virginias HTM display law as construed by the Supreme Court of Virginia in Commonwealth v. American Booksellers Assn, 372 S.E.2d 618 (Va. 1988), which interpreted the law and materials on certified questions from the U.S. Supreme Court, 484 U.S. 383 (1988); Upper Midwest Booksellers v. City of Minneapolis, 780 F.2d 1389 (8th Cir. 1985), upholding city HTM ordinance; M.S. News Co. v. Casado, 721 F.2d 1281 (10th Cir. 1983), upholding city HTM ordinance. See Committee Report at 13. A. THE STANDARD OF HARMFUL OR OBSCENE TO MINORS IS HISTORICALLY AND JUDICIALLY LIMITED TO PORNOGRAPHIC DEPICTIONS AND DESCRIPTIONS OF SEXUALLY EXPLICIT MATTER. The statutory definition for what is Harmful To Minors adopted in COPA includes that which is obscene even as to adults, as well as that which is obscene as to minors under the variable obscenity test for what is unprotected as to minors. 47 U.S.C. 231 (e)(6). Many of the arguments of the ACLU Plaintiffs and their supporting amici curiae in the Brief of The Association of American Publishers, et al., would apply equally to their objections to the definitions and understanding of the elements of the Miller-Smith-Pope test for obscenity, as they do to those terms and understanding of the Millerized-Ginsberg test for what is Harmful To Minors. Nevertheless, the Plaintiffs and others must comply with COPAs technical and good faith restriction requirements for actual or simulated hard-core pornography that meets the obscenity tests under federal statutes and the various obscenity statutes and ordinances in almost every state. The obscenity provisions were specifically excluded from the scope of this Courts Temporary Restraining Order on November 19, 1998. Though there are scarce few actual cases enforcing state harmful to minors laws, due to the commonly found compliance with such sale and display laws by retail businesses across the nation, the obscenity prosecution cases and cases challenging harmful to minors laws provide guidance and authoritative construction precedent for understanding the scope of HTM laws. It is worth noting that issues of some mens magazines have been found obscene as a matter of law, even for adults, by federal and state courts: Penthouse v. McAuliffe, 610 F.2d 1353 (5th Cir. 1980) (Penthouse, Oui); Penthouse v. Webb, 594 F. Supp. 1186 (N.D. Ga. 1984) (Penthouse); City of Urbana v. Downing, 539 N.E.2d 140, 149-50 (Ohio, 1989) (Velvet, Nugget, Oui, Big Boobs); State v. Flynt, 264 S.E.2d 669, 679 (Ga. App. 1980), cert. denied, 449 U.S. 888 (1980) (Hustler); City of Belleville v. Morgan, 376 N.E.2d 704 (Ill. App. 1978) (Gallery, Genesis, Playgirl, et al.); City of Cleveland v. Hustler Magazine, Inc., No. 76-959230, Rec. vol. 330, pp. 545-55 (Ohio Common Pleas, 1976) (enjoining Sept. 1976 Hustler). Such mens sophisticate magazines are recognized, and universally treated in the magazine and print medium, as obviously harmful to minors. Consequently, this type of pornography is not displayed to minors in print form and is also the type of pornography that should be restricted from open commercial distribution or display to minors on the Web under COPA. This is no more or less than State laws now require of retail stores, news stands, and mail order houses under present State law. No one can reasonably claim that these long-existing Harmful To Minors display laws are misunderstood or unreasonable in the print medium and film industry. This system works in all other media and commercial settings in this Country and the Child Online Protection Act would and should be no different for porn sellers on the Web. A major advantage in adopting the established test for Harmful To Minors, at least for those who wish to comply with the law and for the courts in reviewing or applying the law, is that its parameters have been interpreted and construed to narrow its reach to materials that are intentionally pornographic and inappropriate for minor children of the intended and probable age groups to which it is exhibited. As stated in the Committee Report at 28: The Committee also notes that the harmful to minors standard has been tested and refined for thirty years to limit its reach to materials that are clearly pornographic and inappropriate for minor children of the age groups to which it is directed. Cases such as Erznoznik v. City of Jacksonville, 422 U.S. 205 (1975), and Board of Education v. Pico, 457 U.S. 853 (1982), prevent the traditional harmful to minors test from being extended to entertainment, library, or news materials that merely contain nudity or sexual information, regardless of how controversial they may be for their political or sexual viewpoints. [Emphasis added.] As taught by such decisions as Erznoznik and Pico, viewpoint discrimination and suppression of ideas are not permitted under the Harmful To Minors test and minors are entitled to sexual information that has serious value for them, even if someone might find them offensive or prurient. These cases are not only binding on all courts with respect to the scope and applicability of state and federal Harmful to Minors law, but they should give comfort and guidance to members of the public in rejecting unfounded, hypothetical scare tactics of those who would have them believe that such protected speech may be in jeopardy. In Erznoznik, 422 U.S. at 213, the Court explains why that ordinance was overbroad in forbidding display of all nudity, irrespective of context or pervasiveness including babies, war victims, and indigenous cultures, reminding that all nudity cannot be deemed obscene even as to minors and referring back to Ginsberg and Miller and (because such expression must be, in some significant way, erotic) to Cohen v. California, 403 U.S. 15, 20 (1971). Such statements were repeated in later cases such as Carey v. Population Services Intl, 431 U.S. 678, 701 (1977) ([W]here obscenity is not involved, we have consistently held that the fact that protected speech may be offensive to some does not justify its suppression.) and FCC v. Pacifica Foundation, 438 U.S. at 745 (1978) (that society may find speech offensive is not a sufficient reason for suppressing it). The Court in Erznoznik, 422 U.S. at 213, clarified that the law was overbroad because it was not directed against sexually explicit nudity, nor is it otherwise limited....Speech that is neither obscene as to youths nor subject to some other legitimate proscription cannot be suppressed solely to protect the young from ideas or images that a legislative body thinks unsuitable for them. The similarity between these pronouncements of law and like statements by the Court in Reno v. ACLU, 117 S.Ct., at 2346, formed an admitted basis for COPA and counsel its constitutionally valid reach. These decisions were recognized in the Committee Report, at 28, on the House side and by the original sponsor of the bill to enact COPA when it was first introduced in the Senate. See the extensive discussion by Senator Coats that COPA is knowingly and intentionally limited by Supreme Court guiding precedents in such cases and for that type of sexually explicit pornography that is clearly obscene as to minors and not otherwise merely offensively controversial. Cong. Rec.- Senate, S.12146-54 (Daily ed., Nov. 8, 1997). It cannot be found by this Court that Congress intended the exact opposite or intended to contradict such pronouncements when it specifically recognized and relied on them. Such decisions do not aid the ACLU challengers in asking this Court to strike COPA from the Code, but rather mandate the authoritative construction of the new federal law in such a constitutional manner. B. THIS FEDERAL COURT SHOULD CONSTRUE AND UPHOLD COPA WITHIN REQUIRED CONSTITUTIONAL PARAMETERS. Though federal courts cannot authoritatively construe a state statute and must declare them wholly or partially valid, invalid, or severable, as in Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 503-05 (1985), the rule is appositive for federal statutes, which federal courts are bound to interpret in a constitutional fashion so as to protect legitimate rights, if the law is reasonably susceptible to such valid construction. As the rule was stated in New York v. Ferber, 458 U.S. 747, 769, n. 24 (1982): When a federal court is dealing with a federal statute challenged as overbroad, it should, of course, construe the statute to avoid constitutional problems, if the statute is subject to such a limiting construction. Just as it was recognized in Ferber, supra, that First Amendment challenges may be heard to a law that is facially overbroad as to all by one to whom the statute could have been validly applied, the opposite is also truethat the courts should not strike a statute on its face as to those to whom it has a legitimate reach when the court can protect the rights of those before it by limiting its reach as applied to those to whom it should not be applied by narrowly construing the law to exclude or guide those protected speakers. The Court in Ferber, at 766-74, discussed the substantial overbreadth doctrine and reiterated that facial invalidity is a drastic and narrow exception that must be carefully tied to the circumstances in which facial invalidation of a statute is truly warranted and is strong medicine employed only as a last resort. This Court recognized this burden in the preliminary statements from the Bench before issuing the Temporary Restraining Order on November 19, 1998, and these amici respectfully ask that the difficult process of carrying out that duty now commence by requiring the parties to offer proof of the real and substantial overbreadth claimed for this Act and then avoid such improper overbreadth by narrowly construing the Act so as to prevent and forbid any such unconstitutional applications. As further stated in Ferber, at 773-74: While the reach of the statute is directed at the hard core of child pornography, the Court of Appeals was understandably concerned that some protected expression, ranging from medical textbooks to pictorials in the National Geographic, would fall prey to the statute. ...Yet we seriously doubt, and it has not been suggested, that these arguably impermissible applications of the statute amount to more than a tiny fraction of the materials within the statutes reach. Nor will we assume that the New York courts will widen the possibly invalid reach of the statute by giving an expansive construction to the proscription on lewd exhibition[s] of the genitals. Under these circumstances, 263.15 is not substantially overbroad and ... whatever overbreadth may exist should be cured through case-by-case analysis of the fact situations to which its sanctions, assertedly, may not be applied. In the instant case, this statute is admittedly and explicitly directed at the pornographic core of what is obscene or harmful to minors, not at literary, artistic, political, or scientific treatments of sex and not at materials that are not intentionally pandered to prurient interests, even if the treatments could be found patently offensive for minors. In this case, the Plaintiffs do suggest that the Harmful To Minors test is feared to be expanded to reach much of the speech traditionally protected from prosecution under state harmful to minors laws for the past three decades, without any factual basis or experience in that regard to substantiate such fears. This Court, like the Supreme Court in Ferber, should not assume the federal District Courts will widen the possibly invalid reach of the statute by giving an expansive construction to COPA and ignore the clearly binding precedents discussed herein and in the Committee Report. That other courts recognize the need to follow these principles in applying these or similar laws is also seen in school cases such as: Bicknell v. Vergennes Union High School Board of Directors, 638 F.2d 438 (2d Cir. 1980) (finding book inappropriate for teenage students because of its vulgar and indecent language, not its ideas); Presidents Council v. Community School Board, 457 F.2d 289 (2d Cir. 1972), cert. denied, 409 U.S. 998 (1980) (upheld decision to restrict sexually explicit book from minors unless parental consent obtained). The application of state laws is likewise required to be viewpoint neutral and courts must apply the test in the specific context of that work, that audience of minors, and that circumstance of exhibition. See, for example, Grosser v. Woollett, 45 Ohio Misc. 15, 74 Ohio Ops.2d 233, 341 N.E.2d 356 (Ohio C.P. 1974), affd, 74 Ohio Ops.2d 243 (Ohio App. 1975), appeal dismissed for want of a substantial constitutional question, No. 75-719 (Ohio, 1975), a civil nuisance action by students and their parents seeking to protect the minors from having certain adult nature books assigned to them, wherein two books with graphic sexual descriptions were found Harmful to Juveniles and enjoined from use unless parental consent was obtained. In Grosser, the trial court found two books, Manchild in the Promised Land and One Flew Over the Cuckoos Nest, to meet Ohios Harmful to Juveniles test for that audience under those circumstances. The court construed the law as a Millerized-Ginsberg test and applied it to the pervasively graphic descriptions of sexual conduct contained in the two works. The court did not find the works obscene for minors as a whole on the basis of the messages or otherwise protected ideas expressed in the books, but because of the pornographic nature of the continual sexual descriptions which were notably absent from the film version of Cuckoos Nest, for example) and the court quoted several such examples at length in its opinion to illustrate this issue. (See the official published versions, since West Publishing Co. deleted those explicit passages from its published version, as explained in 341 N.E.2d at 359, n. 2.) This is a case the courts would not be expected to see twenty years later under todays standards, but it shows the rule of law as binding the process and narrowing its remedies, in that case to a civil order since Ohios school defense would have applied to a criminal prosecution. The combination of judicial interpretation and narrow applicability protects the balance of competing interests with respect to minors and requires that any contest among parties must be resolved in court and not on the basis of what one or the other personally believes to be suitable or unsuitable for the children they themselves deal with. In the Virginia Supreme Courts decision on the questions certified by the United States Supreme Court, the State Court held that each of the 16 works alleged to be threatened by the Virginia HTM law were not legally harmful to minors under Virginia law and First Amendment principles. As the Virginia Supreme Court held, Com. v. Am. Booksellers, supra, 372 S.E.2d at 622: The 16 books in question run the gamut, as the Supreme Court aptly put it, from classic literature to pot-boiler novels. Having examined them all, we conclude that although they vary widely in merit, none of them lacks serious literary, artistic, political or scientific value for a legitimate minority of older, normal adolescents. It would serve no purpose to review the books in detail. Because none of them meets the third prong of the tripartite test, we hold that none of the books is harmful to juveniles within the meaning of [Virginia] Code 18.2-390 and 391. This recognition that the Harmful To Minors test must consider the appropriate value to the age group to which it is directed was a major holding of the Supreme Court of Virginia in finding, on one of the certified questions, that none of the considered literary and political works were harmful to minors under the challenged Virginia law, even though the federal courts had surmised that the books were in jeopardy of the law as interpreted in an overly broad fashon. See Commonwealth v. American Booksellers Assn, 372 S.E.2d 618, 622 (Va. 1988), followed on remand, 488 U.S. 905, American Booksellers Assn v. Commonwealth of Virginia, 882 F.2d 125 (4th Cir. 1989). See also American Booksellers v. Webb, supra, 919 F.2d at 1504-06. In the Supreme Courts Erznoznik and Pico cases, and in the Harmful To Minors cases decided by the other federal and state courts cited above, the courts have already held that minors may receive sexual materials that are not harmful or obscene as to minors in the legal sense. Sexual information and sexually explicit materials that are not factually and legally Harmful To Minors under the Millerized-Ginsberg test may not be proscribed to minors simply because someone disapproves of the message, viewpoint, or orientation of the materials. Like obscenity generally, the terms harmful to minors or obscene as to minors are legal terms of art, subject to the constitutional procedures of the courts, and protected against unconstitutionally overbroad applications or vague interpretations. As the Court said in Hamling v. United States, 418 U.S. 87, 118 (1974): The definition of obscenity, however, is not a question of fact, but one of law; the word obscene, as used in ...[federal law], is not merely a generic or descriptive term, but a legal term of art. ... The legal definition of obscenity does not change with each indictment; it is a term sufficiently definite in legal meaning to give a defendant notice of the charge against him. So it is with the term harmful to minors as adopted into federal law by this Act and so it is that the federal courts are bound to apply this Act in accordance with First Amendment principles and thus protect even those who suffer the unfounded fear instilled by zealous advocacy or fear of the unknown. The courts cannot indulge such hypothetical possibilities, because the law, properly applied according to case law and the Constitution, cannot be so impermissibly applied or interpreted. The body of law and the diligence of the courts are expected to protect and apply these required legal principles, despite the lack of knowledge or confidence that some individuals may have in the law enforcement or judicial community. Properly construed and applied, HTM laws apply to pornographic adult materials, not serious or merely offensive or controversial treatments of sex. Serious sex education, AIDS/STD information, disease prevention, news accounts of sexual offenses or legal questions, and political or social treatments of sexual issues cannot be obscene or Harmful To Minors because the courts must find that they have serious literary, artistic, political, or scientific value for minors. The established test for Harmful To Minors only affects a minors unrestricted access to that which lacks serious literary, artistic, political, or scientific value for the intended and probable age group of the minors to which it is made available. Therefore, works such as the presently controversial Starr Report of the Office of the Independent Counsel that was submitted pursuant to federal law to the House of Representatives and released as a public document of political significance to the press and the Internet and World Wide Web would not be affected by COPA (or existing state HTM laws), since the Starr Report is not obscene or obscene as to minors and thus is not harmful to minors under this new federal law. That document and its attendant documentary and grand jury exhibits are not directed to or pandered to a prurient interest and do not depict or describe sexual conduct in a patently offensive way. The language used in a federal grand jury may well be clinical and graphic, but not salaciously lascivious or pruriently pornographic when judged by the average person of the law, as could be the case for intentionally pornographic materials sold as mens or adult materials in commercial establishments and porn Web sites. Furthermore, such a governmental or news or public information document does have serious political value, as a matter of law, inherently and for everyone, everywhere, at every time, both for minors as well as adults. This is true in law, no matter how offensive some persons may find it (and regardless of whether parents may choose to try to avoid exposing young children to it). The inherent political value of the Starr Report is its legal character and it cannot be said to appeal to the prurient interest when it is released and then re-released or re-sold solely to provide legal and political information for serious decision making by Government officials. The report was not pandered by the House of Representatives in releasing it to the public and it is not pandered by the New York Times or Amazon.com when reprinted or sold for public access. Furthermore, because of the restrictions on the statutory element, secondary transmissions would not, standing alone, violate the statute, even if commercial. COPA requires that an offender be the one who knows the character of the matter and then knowingly makes any communication for commercial purposes...that includes any material that is harmful to minors under Section 231 (a). The law then adds further limitations in the definition of such maker of the harmful communication as being one who is engaged in the business of trying to profit from such harmful communications as a regular course of such persons trade or business under Section 231 (e)(2). COPA, therefore, only applies to commercial WWW sites that can be proven by the Government to regularly and knowingly sell or attempt to profit from pornographic materials that are obscene or harmful to minors and does not apply to private, governmental, news organizations, non-profit, or other sites that cannot be shown to regularly market such harmful pornography. The Starr Report is not legally Harmful To Minors under the Ginsberg-Miller test in existing state laws and would not and could not be harmful to minors under the new federal law. COPA is a valid proscription against a definitive type of pornography, but it would not, as a matter of law, affect the release nor the commercial or public re-distribution of the Starr Report or any other such serious work. C. COPA IS A NECESSARY AND LEAST RESTRICTIVE MEANS OF PROTECTING MINORS FROM ADULT PORNOGRAPHY THAT IS OBSCENE AND HARMFUL FOR THEM AND NOT PROTECTED FOR SALE OR DISPLAY TO THEM. As the legislative record and the Commerce Committee Report and Committee Hearing should make clear, these amici Members of Congress fully support the constitutional validity and the law enforcement effectiveness of COPA. Since existing obscenity laws and the level of federal obscenity prosecutions are not deterring pornographic teasers now, this new law would add a much-needed level of protection for children. The law would empower the efforts of parents, police, and child advocates to require the porn industry to take responsibility for selling adult materials to adults by asking for adult-world identifications, like credit card numbers or PIN codes before showing pornography pictures on their sales sites. As recognized in the Committee Report at 14, COPAs allowed access restriction methods will protect most juveniles even though it cannot protect all juveniles. This is an adoption of the finding by the Supreme Court in Sable Communications of Cal. v. FCC, 429 U.S. 115, 130 (1989), that the credit card/access number regulations of the FCC for dial-porn would be extremely effective, and only a few of the most enterprising and disobedient young people would manage to secure access to such messages. Sable at 130 (emphasis added). In light of the Reno v. ACLU decision, Congress did not find that it could attempt to be as extremely effective as the FCC regulations approved in Sable, but that many reasonable restrictions should be enacted and, thus, the Committee believes that H.R. 3783 is currently the most effective, yet least restrictive, way to reduce a minors access to harmful material. Committee Report at 6. See also the discussion of protection issues and compliance alternatives in the Committee Report at 13-20. COPAs defenses are thus similar but not identical to prior FCC or even CDA defenses. The COPA requirement allows a defense if the Web site tries to restrict access by minors by requiring use of a credit card, etc. by the visitor, whether or not the visitor is a minor and whether or not the visiting minor stole a real card or PIN or not. COPA protects a site that in good faith puts the burden on the visitor to use a credit card, even if the site is lied to or defrauded by an enterprising and disobedient juvenile. Presumably, this class of juveniles with such extraordinary computer and mathematical skills and the desire to use it dishonestly to satisfy some prurient interest in seeing pornography is a small part of the class of all minors and even a small portion of the class of older juveniles expected to be of that level and character. The COPA would, therefore, protect all children from open access to the porn teaser pictures and would reduce even the most sophisticated juveniles access to such inappropriate material. This would be a great benefit to confer on children and families and Congress sought to do so with COPA. This new law would protect children from commercial pornography that is harmful to them, because it is legally obscene as to them, not merely hurtful or objectionable. This is a compelling governmental purpose of surpassing importance that the Supreme Court and the other federal and state courts have said legislatures can provide for our most vulnerable citizens. It was the least Congress could do to accept that protection and extend it to Americas children and grandchildren. This is no more than State display laws do when requiring merchants of adult magazines and videos that are harmful to minors to sell them on display racks that are out of reach or sight of minors, while still available for purchase by adults. Such an adult sales method is what this Act intends to and would extend to the commercial Web, as it fairly should. D. THE SCOPE OF COPAS HARMFUL TO MINORS TEST IS CONSTITUTIONALLY VALID AND CAPABLE OF FAIR APPLICATION. COPA adopted a non-geographic, adult age community standard for judging the prurience and offensiveness prongs of the Harmful To Minors test. As stated in the Committee Report at 28: The Committee recognizes that the applicability of community standards in the context of the Web is controversial, but understands it as an adult standard, rather than a geographic standard, and one that is reasonably constant among adults in America with respect to what is suitable for minors. This is a reflection of the power of legislatures to do so, as recognized by the Court in upholding non-specific community standard instructions in state and federal courts. See Jenkins v. Georgia, 418 U.S. 87, 157 (1974), Hamling v. United States, 418 U.S. 87, 101-07 (1974), even though trials could occur in various federal districts, as they could under various state laws. It was in Jenkins, at 157, that the Court held that courts and juries need not attempt to use hypothetical statewide standards any more than any other hypothetical geographic standard: We also agree with the Supreme Court of Georgias implicit approval of the trial courts instructions directing jurors to apply community standards without specifying what community. ... A state may choose to define an obscenity offense in terms of contemporary community standards as defined in Miller without further specification, as was done here, or it may choose to define the standards in more precise geographic terms, as was done by California in Miller. In this case, Congress chose the non-geographic adult standard to accommodate the nature of the World Wide Web as accessed within the United States. Though Plaintiffs may not understand the legal tests for obscenity or Harmful To Minors, they are protected by the understanding of these legal terms of art in the courts. Guidance is also provided by the Courts treatment of the film Carnal Knowledge, found not capable of being obscene in Jenkins, 418 U.S. at 161: While the subject matter of the picture is, in a broader sense, sex, and there are scenes in which sexual conduct ... is to be understood to be taking place, the camera does not focus on the bodies of the actors at such times. There is no exhibition whatever of the actors genitals, lewd or otherwise, during these scenes. There are occasional scenes of nudity, but nudity alone is not enough to make material legally obscene under the Miller standards. Even today, such forms of sexual treatment in mainstream films (like todays R films), featuring brief nudity and suggested sex, would not be obscene for adults under the second prong of the Miller test if they do not depict patently offensive depictions of ultimate sexual acts, normal or perverted, actual or simulated, or lewd exhibitions of the genitals. However, such explicitly simulated sexual conduct is universally treated as for adults and is handled and displayed in all other streams of commerce as harmful to minors. Such depictions are less sexually explicit than todays versions of mens magazines, some of which, even where the penetration was not clearly visible, have been found legally obscene as a matter of law after independent appellate review. See, for example: Penthouse v. McAuliffe, 610 F.2d 1353, 1370-73 (5th Cir. 1980) (finding issues of Penthouse and Oui magazines obscene, but not Playboy -taken as a whole- because it had some serious value); City of Urbana v. Downing, 539 N.E.2d 140, 149-50 (Oh. 1989) (declaratory judgment and appellate review by Court of Appeals and Ohio Supreme Court finding five male sophisticate magazines obscene- Juggs, Nugget, Velvet, Oui, and Big Boobs); State v. Flynt, 264 S.E.2d 669, 679 (Ga. App. 1980), cert. denied, 449 U.S. 888 (1980) (jury conviction affirmed after appellate review finding Hustler obscene); City of Belleville v. Morgan, 376 N.E.2d 704 (Ill. App. 1978) (trial and appellate courts found several news stand pornography magazines obscene, including Gallery, Genesis, Playgirl, Dapper, Loving Couples, etc., but conviction based on Playboy reversed on appeal). See also, Penthouse v. Webb, 594 F. Supp. 1186 (N.D. Ga. 1984) (declaring a Penthouse issue within the scope of Georgias obscenity statute and the Miller Test). The Supreme Court in the landmark case of Ginsberg v. New York, 390 U.S. at 631-33, 634, 639 (1968), affirmed a conviction for the sale of girlie magazines to a 16 year old boy. The Court also referred to the materials as sex material and upheld the trial courts finding that the magazines were harmful to minors and unlawful to disseminate to juveniles. The Court emphasized in Erznoznik v. City of Jacksonville, 422 U.S. 205, 213-14 (1975), that all nudity cannot be deemed obscene even as to minors (such as a babys buttocks, nude body of war victim, indigenous cultural nudity, or fleeting and innocent glimpses of nudity) and found invalid an ordinance banning all nudity from drive-ins. The result could have been different, however, had the city passed or construed its ordinance to adopt a harmful to minors standard, noting, at 213, that it was not directed against sexually explicit nudity, and, at 216, n. 15, not limited to movies that are obscene as to minors. It is submitted that appellate decisions on what has or may be found to be harmful to minors are rare precisely because few prosecutions are brought due to general compliance with existing state display and sales regulations. However, authoritative and precedential guidance emanates from the cases where harmful to minors laws have been upheld, facially or as applied, by many state and federal courts since Ginsberg was decided in 1968. Committee Report at 13. As a result, American businesses and public speakers have for three decades complied with them in stores, theaters, and other public places and commercial establishments, including adult businesses and, at least in California after Crawford v. Lungren, 96 F.3d 380 (9th Cir. 1996), cert. denied, 117 S. Ct. 1249 (1997), with supervised or coin-operated newsracks on public thoroughfares. These laws as they have existed from coast to coast have coexisted with newspapers, magazines, films, books, and computer communications, with the obvious avoidance of public displays of the sexually explicit materials on the covers, advertisements, billboards, video cases, and even many Web pages. A groundless and judicially avoidable fear of the over-expansion of a federal harmful to minors law is an impermissible basis to assume or allow unconstitutional applications of such an historically constitutional standard and reasonably non-burdensome restrictions on adult access to adult materials that are harmful and obscene as to minor children. Most reported decisions are federal reviews of state harmful to minors display or sales laws and do not involve factual findings as to the harmful to minors nature vel non of any particular materials. Several decisions, however, have involved findings as to submitted trial exhibits as to what could be within the reach of the laws and general language is used to provide some guidance as to the scope of such laws. See: American Booksellers v. Webb, 919 F.2d 1493, 1503-05 (11th Cir. 1990) (upholding Georgias harmful to minors display law and Millerized-Ginsberg Test and finding that a defendants exhibit would be subject to the law, stating in footnote 22: This is not to say that the statute covers only material already subject to Georgias general obscenity statute.... For example, Defendants Exhibit 1, Human Digest (June 1984), found in a convenience store with no restrictions on in-store access by minors, would be harmful to minors and thus subject to section 16-12-103's bans on sales to minors and display. The cover refers to several articles within that are written from the juvenile perspective: Why My Mom Loves Oral Sex!; I Made X-Rated Videos for Dad!; Sex Slave Sis!; and My Anal Aunt!.); Upper Midwest Booksellers v. City of Minneapolis, 602 F. Supp. 1361, 1369 (D. Minn. 1985) (upholding harmful to minors display law and declaring that it was lawfully applicable to sexually explicit materials that are harmful to minors and stating: A child who walks into a store which openly displays material with sexually explicit covers may be harmed simply by viewing those covers.), affd, 780 F.2d 1389, 1395 (8th Cir. 1985) (upholding display provision as valid time, place, and manner protection for minors while allowing adults to obtain adult materials, even though adult must comply with incidental effect of the permissible regulation by purchase, request of a copy from a clerk, or perusal in adults only bookstores or in segregated sections of ordinary retail establishments). One of the most important cases in the history of harmful to minors laws since Ginsberg is Commonwealth of Virginia v. American Booksellers Assn, 372 S.E.2d 618, 622-24 (Va. 1988), which clarified and limited the scope of such laws at the request of the U.S. Supreme Court. Following a declaration that the states display law was invalid in American Booksellers Assn v. Strobel, 617 F. Supp. 699 (E.D. Va. 1985), affd, sub nom American Booksellers v. Com. of Va., 792 F.2d 1261 (4th Cir. 1986), amended opinion, 802 F.2d 691 (4th Cir. 1986), jurisdiction was noted on the appeal and two certified questions were proffered by the Supreme Court of the United States, Virginia v. American Booksellers Assn, 484 U.S. 383 (1988), to the Supreme Court of Virginia: 1. Does the phrase harmful to juveniles as used in Virginia Code 18.2-390 and 18.2-391 (1982 and Supp. 1987), properly construed, encompass any of the books introduced as plaintiffs exhibits below, and what general standard should be used to determine the statutes reach in light of juveniles differing ages and levels of maturity? 2. What meaning is to be given to the provision of Virginia Code 18.2-391(a) (Supp. 1987) making it unlawful to knowingly display for commercial purpose in a manner whereby juveniles may examine or peruse certain materials? Specifically, is the provision complied with by a plaintiff bookseller who has a policy of not permitting juveniles to examine and peruse materials covered by the statute and who prohibits such conduct when observed, but otherwise takes no action regarding the display of restricted materials? If not, would the statute be complied with if the stores policy were announced or otherwise manifested to the public? As concluded by the Virginia Supreme Court, 372 S.E.2d at 625: The first certified question is answered in the negative. The second certified question is answered in the affirmative. The Virginia Supreme Court interpreted Virginias harmful to juveniles display law in light of Miller, Ginsberg, Pope, etc., as applicable only to explicit sexual content, pornographic, or borderline obscenity and found that sixteen exhibits would not be harmful to juveniles because they contained serious literary, artistic, political, or scientific value for a legitimate minority of older, normal adolescents, including Where Do Babies Come From?, Ulysses, The New Our Bodies, Ourselves, Witches of Eastwick, etc.). As so construed, Virginias law was then upheld on remand, sub nom American Booksellers Assn v. Com. of Va., 882 F.2d 125 (4th Cir. 1989). It is clear, these amici submit, that the concerns of the U.S. Supreme Court were in whether the reach of such harmful to minors laws as upheld in Ginsberg were still limited to pornographic adult materials, rather than to serious or redeeming, if frank, sexual information or treatments; whether the variable obscenity standard was variable, not only for minors as a class, but variable as to age groups of minors within that class; and whether possible restrictions on marketing or display of such harmful pornography that is obscene as to minors are reasonably related to safeguarding children from exposure to such unprotected materials as to them by various methods available to businesses in modern commerce. Just as the highest federal Court asked the highest state Court for its authoritative interpretation and construction of the law under consideration, your Congressional amici similarly request that this federal District Court, with a corresponding power and duty to interpret and construe this federal law, fairly and authoritatively read the Child Online Protection Act so as to protect the legitimate rights of those to whom it is applied and to uphold it as to all others to whom it is facially applicable and who are not challenging the act or who may face the Act only on a fact specific case-by-case basis in the future. In any event, the guidance of the historical precedent and the limitations recognized in the Congressional Record, the Committee Hearing, and in the House Committees Report, should be adopted by this Court and thus avoid any real or substantial overbreadth or vagueness claimed by the Plaintiffs or their amici in this matter. This Court thus protects the rights of those before it and all those who are not before it, since both groups will benefit from the limiting focus and clarifying gloss put on the law by an authoritative declaratory judgment by this District Court. II. THE CHILD ONLINE PROTECTION ACT IS CONSTITUTIONAL AS SPEAKERS COVERED BY ITS REGULATIONS CAN READILY COMPLY WITH THE ACTS REQUIREMENTS CONTRARY TO PLAINTIFFS ALLEGATIONS Amici bring to the attention of this Court information which they believe may not be provided by the parties or, if provided, will not be sufficiently developed so as to assist the Court in making a searching inquiry of the soundness of Plaintiffs allegations. This information pertains to the question of whether Plaintiffs can comply, as a practical matter, with the Act while balancing the right of the Government to protect children and the right of adults to have access to material which is constitutionally protected as to them. Statement of Senator Dan Coats, Hearing before the Subcommittee on Telecommunication, Trade, and Consumer Protection of the House Committee on Commerce, Serial Number 105-119 (Sept. 11, 1998) (House Hearing at 3-4). As Amici have demonstrated above, the Child Online Protection Act is designed to apply to a limited category of speech, pertain only to that portion of the Internet known as the World Wide Web, and place a least restrictive burden on those involved in pornographic commercial speech activities. As made plain by the Acts sponsors, the statute is directed at material which when taken as a whole appeals to the prurient interest, which describes sexual conduct in a patently offensive manner, and which, as a whole, lacks serious value for minors. Coats Statement, House Hearing at 3. In a word, it is directed at pornography. Thus, at the outset, Amici urge this Court to examine what the industry, whose behavior is the focus of this Act, has said about restricting access. As the industrys trade association, it is the position of the Free Speech Coalition that the mechanism required [credit card verification] under the former Communications Decency Act to screen for minors is effective and appropriate. Prior to the viewer seeing sexually explicit images, the Web site should require that a credit card be provided. No charge need be put on the account. By requiring the credit card, the only mechanism by which minors could gain access to sexually explicit imagery is through the consent or negligence of the parents. That is the case now with the other media for sexually explicit materials. [Emphasis added.] Prepared Statement of Jeffrey J. Douglas, Executive Director, Free Speech Coalition, House Hearing at 48. Though Congress can disagree with their other conclusions, we note that even pornographers understand the efficacy of such a restriction. Simply put, childrens access to material which is harmful to them will be curtailed by requiring that knowing purveyors of such material obtain a credit card number that can be verified as such. Plaintiffs base their claim that they cannot constitutionally comply with the Acts requirement on the allegation that they cannot verify credit card numbers. Plaintiffs Memorandum of Law In Support of Their Motion for a Temporary Restraining Order and Preliminary Injunction at 33. What do they offer as support for this claim? They offer their parties declarations that state that they: (a) have insufficient funds to use the verification method used to process sale transactions; (b) verification, if used, would disrupt their business or speech; (c) requiring that individuals provide any identification would frighten away customers and future users. Amici contend that an inquiry by the Court, before acceding to Plaintiffs draconian request to preliminarily enjoin the statute, will reveal that these reasons fail either because current technology exists which does not result in the problems identified by Plaintiffs or because any minimal restrictions are outweighed by the Governments compelling need to protect children. Before directly addressing Plaintiffs claims regarding their ability to comply with the statute, it is instructive to briefly discuss several of Plaintiffs declarations. This discussion will give the Court a frank picture of the Plaintiffs use of hyperbole, misinterpretation of the Acts reach, and incorrect statements regarding the requirements necessary for satisfying the Act. For example, in the Declaration of Mark Segal on behalf of Philadelphia Gay News (News), submitted by Plaintiffs, Mr. Segal makes the statement, [c]redit card and age verification pose insurmountable technological, economic and other burdens to PGN Online. Declaration of Mark Segal at 15. His basis for these beliefs is information he gathered from his PGN Online technical staff. Id. at 16. He does not explain or detail their areas of expertise and indeed undermines any information they may provide by admitting that his technical staff does not deal with verification at all since PGN Online does not have any system of credit card verification in place at this time because it does not charge for its online resources ... . Id. Looking further at Mr. Segals Declaration, one also discovers that he has interpreted the Acts affirmative defense to require that PGN Online verify the age of prospective Web site users. Id. at 15 and 16. A plain reading of the affirmative defense reveals clearly that such is not the case and that verifying the age of the prospective Web site user is simply one way to satisfy the statute. The Act states: (c) AFFIRMATIVE DEFENSES. (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 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. (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 specified in this section. Child Online Protection Act, 47 U.S.C. Section 231(c)(1). [A]s the legislation provides, the commercial provider and operator enjoys a defense from prosecution simply by having the access restriction measures in place. Coats Statement, House Hearing at 4. Thus, if the Web site operator adapts his Web site, so that before making available those materials he knows are harmful to minors, persons requesting such access must provide credit card numbers which can be verified as such, the Act is satisfied, even if the card number is stolen, belongs to another, has been generated by some fraudulent means, or has insufficient credit remaining to allow even the smallest purchase. Similarly, just as Mr. Segals Declaration is revealed as nothing more than speculation and unsubstantiated lay opinions disguised as expert opinions that [c]redit card and age verification pose insurmountable technological, economic and other burdens to PGN Online, Segal Decl. at 15. An analysis of the Declaration of Nadine Strossen reveals that it would do more to distress the public and the other Plaintiffs, than offer an objective viewpoint on legal issues, and she colors the Acts requirements in a way that could chill the speech of even the most staunch advocate[s] of free speech. Strossen Decl. at 6. Additionally, Ms. Strossen interprets the statute so as to imply that it will reach her conduct even though she does not identify any of her writing as harmful to minors. Instead, as one would expect from an attorney, she identifies the conduct of another, removing any risk of incriminating herself should the Court uphold the statute. With respect to whether the Act could in any way reach her conduct, basing it for argument sake on her Declaration, amici note that there is nothing to suggest, and certainly nothing which would support, a finding that she is engaged in the business of making commercial communications which are legally harmful to minors. Thus, even if she were responsible for posting her communications on the Word Wide Web, she would not qualify as being, engaged in the business, because she does not, as a regular course of [her] trade or business, make commercial communications by means of the World Wide Web which includes matter that is harmful to minors. (Emphasis added.) 47 U.S.C. Section 231(e)(2). Finally, amici note that although at one point in her Declaration she claims that she cannot take advantage of any of the affirmative defenses, because she do[es] not have control over how IC [the e-magazine she writes for] chooses to publish its Web site, she claims she is afraid that she could be criminally prosecuted or face severe civil penalties for the material that other people post on the bulletin board which follows her column. Strossen Decl. at 4. Amici urge this Court to recognize the unrealistic nature of this claim, that although she has no control of the Web site she is afraid that entirely independent actions taken by others can be imputed to her and that her column for the ACLUs viewpoint will be prosecuted by a U.S. Attorney or the Department of Justice if COPA goes into effect. It could be suggested that such an argument to this Court is pure sophistry. As one can see from even a brief review of two representative declarations submitted by Plaintiffs, their arguments are based on endlessly repeating the mantra of fear, resorting to a tortured reading of the statute, and merely claiming that they cannot or dont want to comply with the Act. Thus, at the end of a review of Plaintiffs case, one is left solely with the question of compliance can it be done? Amici contend that compliance is possible, however, because amici have not been privy to evidence developed by the Government or provided by the Plaintiffs, since they allege that such information is proprietary, we urge this Court to require that the parties provide information on the following techniques, including information pertaining to what would be required for implementation of one or more of these methods and why the use of one or more of the following methods imposes an undue burden on their speech given the benefit to children which the Act affords: (1) merchant accounts, (2) authorization only accounts, and (3) Luhn Check Algorithm software. A. Credit Card Number Verification As discussed above, COPA provides for several ways in which a commercial Web site operator who knowingly makes available material which is harmful to minor may comply with the statute. A plain reading of the Act makes clear that while a commercial Web site operator may opt to verify the age of the individual seeking access to such material, he can choose other methods of restricting access which fall short of actually verifying the age of the individual. This portion of the brief discusses the three methods by which access may be restricted through the use of credit card numbers, though Amici do not mean to imply that these are the only ways currently available. The three methods for use of a credit card number on the Internet which these amici bring to the Courts attention are: (1) merchant accounts, which entail a pre-authorization and settlement process, (2) authorization only accounts, which also utilize merchant accounts, but only proceed to the pre-authorization process never reaching settlement of the transaction, and (3) the use of Luhn check algorithm software, which verifies credit card numbers by testing them with an algorithm that checks the digits of the numbers to see if they match the format used by the various credit card associations. Each method is described below in detail. A. 1 Merchant Accounts The most prevalent method for use of a credit card number over the Internet is the merchant account. For this method, the commercial Web site obtains an account with a merchant bank, such as Bank of America, Wells Fargo, or First of Omaha. The bank then establishes accounts for the merchant with the major credit card networks, most often the Visa and MasterCard Networks. The credit card networks authorize transactions on behalf of the credit card association, which represents the member bank that issues the credit card. Once a merchant account has been established, the bank will contract with a transaction processing clearinghouse to process transactions. Some banks have an in-house merchant processing service. Those banks which do not use in-house merchant processing contract with companies such as Automated Transaction Services, Inc., Payment Net, and Payment Tech. These clearing houses function as an intermediary between the merchant and the credit card network. In order to make a connection between the merchant and the clearinghouse, a gateway is needed. In traditional commerce, as opposed to e-commerce, a cash register is typically accompanied by a cardswipe machine (the little gray box attached to the register). In the world of e-commerce, however, because the merchant never has physical possession of the credit card, it is impossible for her to utilize this physical gateway. Therefore, the Internet merchant must use some other means to connect with the clearinghouse. There are two such mechanisms. The first is desktop software which transmits the account numbers given the merchant over a one or two day period. Some examples of these are ICVerify, PCAuthorize, and MacAuthorize. The second is a real time Web site gateway, such as CyberCash, VerifonevPOS, or Anacom Merchant Services SecurePay. The Web site gateways utilize a modem channel separate from the channel used to run the Web site to communicate with the clearinghouse in real time. Thus, the desktop software and the Web site gateway are functionally the same as the little gray box found next to the cash register in almost every commercial business. Transactions typically take the following form: First the purchaser gives the merchant a credit card number and the expiration date of the credit card. The merchant then by means of a Web site gateway, such as CyberCash, or a desktop software package, such as ICVerify, transmits the card number to the clearinghouse (also known as an acquirer in the credit card industry) for processing the transaction. The credit card number which is transmitted is often checked at this stage to screen what could be a actual account number from one which is obviously false. The method used is called the Luhn check algorithm and it is extremely accurate in screening out incorrectly formatted numbers. After determining the validity of the number transmitted, the acquirer relays the number to the credit card network for authorization. Once the network determines that the number represents a valid account with sufficient funds, the network notifies the processor who in turn informs the merchant that the transaction has been authorized or in the alternative declined. Upon receiving authorization the merchant can sell the item to the purchaser and settle with the credit card network for the amount of the sale. For Web site gateways this process takes place in a matter of seconds, thus it is commonly known as a real time authorization. For desktop software the authorization is received from the network in a relatively short time period, however, the software accumulates the credit card numbers given to the merchant over a one or two day period before transmitting them to the clearinghouse. The majority of Web sites involved in e-commerce, use merchant accounts and Web site gateways for the purposes of credit card verification, pre-authorization, and settlement. In fact, many if not all of the plaintiffs, engaging in e-commerce, utilize this system for credit transactions. Although this system occurs in real time and is virtually one hundred percent secure, it can be costly. This fact has been much ballyhooed by the plaintiffs at the T.R.O. hearing and in their briefs and declarations in spite of the fact that many of them already have this system in place for the purchase of products from their Web site. (For example, A Different Light Bookstore and Condomania may or do use this system for the sale of their merchandise.) The costs to the merchant for this means of pre-authorizing and settling credit card transactions can vary greatly depending upon the merchant and the bank with which the merchant has a merchant account. The costs are generated by the merchant bank, the clearinghouse, and the credit card network. The merchant bank charges an application fee, a per transaction fee, a minimum monthly processing fee, and a discount rate. The application fee is a one time fee charged by many, but not all, banks and it ranges from nothing to $500. The per transaction fee is charged by the bank and/or the gateway and it ranges between fifteen and thirty cents. This fee is determined by the annual sales volume of the Web site and the average transaction amount. The greater the volume and average transactions amount, the lower the per transaction fee. Because of this fact, the fee can be quite nominal or it can be quite extravagant. In the event that the Web site fails to generate a certain volume of business, some banks will charge a minimum monthly processing fee of fifteen to thirty dollars. The greatest cost to the merchant who settles transactions (as opposed to those who use the system for authorization only, which is discussed later in the brief) is the discount rate. The bank charges a rate of 1.5% to 5% of the purchase price of the item charged. The rate is also determined based upon the annual sales volume and the average transaction amount. There are several other nominal charges associated with this method for taking credit card transactions. The gateway software ranges from $350 to $994 depending upon whether you choose a desktop software gateway or a real time Web site gateway. Most gateways also charge a monthly fee ranging from nothing to fifty dollars. The credit card networks also charge a per authorization fee of one half of one percent of the transaction amount charged. There are several other costs associated with the set up and upkeep of the gateway, but these costs are negligible to most if not all commercial Web sites. Amici submit that while this method is not warranted for the vast majority of most commercial web sites which do not sell pornography, it may very well be appropriate and desired by those companies which wish to protect children from harmful material and can segregate their limited amount of such material to different web pages. For example, if the Web site operator for OBGYN.net chose to allow the posting of sexually explicit portions of sex education tapes which a doctor or medical organization made available for sale, they could easily segregate such depictions on a separate web page which utilized the full use of a merchant account to check, not only to verify the number, but make sure that the viewer had sufficient means available to purchase the materials. Such utilization would, amici submit, make sense since it would provide a high level of protection for minors while not prohibiting individuals who were genuinely interested in such material. A. 2 Authorization Only Accounts These accounts are identical to the above merchant accounts with the exception that these accounts are designed for the pre-authorization process only, thus they never do reach settlement or the charges associated with settlement. This type of account is used most often by the telemarketing industry and the pay per minute telephone services (i.e. psychic hotlines, dial-a-porn, sports score services, etc.). The typical scenario for this method of credit card number use is that a telemarketing company will use its authorization only merchant account to obtain authorization from the quickest of the credit card networks (usually MasterCard) and then settle the transaction on a separate merchant account with a cheaper credit card network (usually Visa). In this way, the merchant can get the quickest authorization while paying the lowest discount rate. While this method may, like the use of a merchant account, not be appropriate in every instance, Web site operators who have little in the way of material which is harmful to minors and seek to provide a high level of protection to minors may prefer to use this method. A. 3 Luhn Check Algorithm In the Plaintiffs' testimony at the T.R.O. hearing and in both their depositions and affidavits, they rely heavily on their inability or unwillingness to comply with COPA, due to their perception that the Act requires verification of a credit card by each visitor to the site. Section 231 (c)(1)(A), however, actually allows a full defense by requiring use of a credit card by the visitor. That subsection does not actually mandate verification or authorization by the site. As discussed earlier in this Brief, this position is not consistent with the language of the Act, which lists other affirmative defenses available to the Plaintiffs, as well. However, amici recognizes that the merchant account and possibly even the authorization only merchant account methods may be too costly for the smallest of commercial Web sites, but at the same time, call to the attention of the Court the existence of another viable mechanism available to commercial Web sites for verifying credit card numbers. This mechanism is Luhn Check Algorithm software (also known as Mod-10 algorithm checks). To date this method has not been suggested to the court by either the Plaintiffs or the Defendant. We believe that this mechanism could offer the Court an opportunity to find COPA constitutional. The Luhn Check Algorithm was first formulated by a group of mathematicians in the late 1960's. It was shortly thereafter adopted by the credit card industry as a method for generating the checksum digit of credit card numbers. This algorithm is in the public domain and has been used for a number of years as a method for verifying credit card numbers. Any commercial Web site, including the Plaintiffs, could purchase such software utilizing the Luhn algorithm to verify credit cards numbers. In fact, as will be discussed below, there are several programs available from software companies that implement the Luhn Algorithm Check. The majority of these programs are marketed specifically for small businesses that want to accept credit card numbers, but cannot afford a merchant account. This software subjects the credit card number to a test to determine if the number is consistent with the format of the standard Visa or MasterCard number. The format for a credit card number is as follows: (1) the first digit identifies the credit card type (for example: Visa or MasterCard), (2) the middle digits are the Bank and Customer identifiers, and (3) the last digit is the checksum digit which is calculated by the Luhn Algorithm. The verifying software determines if the first digit matches one of the major credit card associations, if the middle digits are of the same quantity and type as those used to identify banks and customers, and if the last digit matches the checksum calculated by the algorithm. Software utilizing this algorithm is virtually full proof in verifying that a number matches the formula used by the credit card companies. Not only do small businesses use this software, but, as stated previously, many clearing houses which process credit card transactions also use this algorithm to weed out bad numbers before processing a credit card number for authorization. This software is typically found as shareware or freeware from software dealers on the World Wide Web. Induction Software, Inc., offers a version called the "Credit Card Verifier 1.0" on its Web site, inductionsoftware.com (copy in Appendix D). This is a freeware program that is available for use in both Java and Visual Basic Web site development. Induction claims the following in its advertisement, "[p]erfect for small businesses that want to take credit cards over the Internet but don't want to pay for expensive real time verification. The chance of someone actually guessing a real credit number, without knowing the algorithm, is fairly slim." This program is also advertised by DaveCentral.com (copy in Appendix D). The software company, Softseek, offers a shareware program authored by Mr. Hassan Fehik of Donia Software called the "CardCheck ActiveX Control." (Copy in Appendix D.) This program costs $20 and is available for Visual Basic development. A search on any search engine uncovers several other offers for software programs that use the Luhn Check Algorithm for verifying credit cards. The parties have been silent as to this method for compliance with the Act. This silence is disturbing, since the Luhn Check Algorithm gives the Plaintiffs a free to nominal cost method for verifying credit cards numbers, without incurring the expense of a merchant account or authorization only account. It is critical to note here that the only cost associated with this software is the initial purchase price of less than twenty dollars. There is never a per transaction fee for use the algorithm to verify a credit card number. As demonstrated above, even if Plaintiffs choose to proceed with a merchant account for their sales, they may also verify credit card numbers given them by prospective viewers by testing the numbers with the Luhn Check Algorithm which is extremely accurate in identifying invalid credit card numbers, widely used, and exceedingly inexpensive. In contrast to Plaintiffs efforts to rely on allegations and opinion, these amici submit that the algorithm method could satisfy the Act because it could allow Web site operators to have restricted access by minors (most juveniles except the most enterprising and disobedient) as a good faith defense under Section 231 (c) (1) (A) or (C). Use of a math algorithm, if shown to the satisfaction of the Court to screen out almost all fake credit card numbers that a minor could make up, would, as much as the real number stolen from a parent that lets a minor into a site, exclude and make access to teaser pornography all but impossible for almost all children and impose an incidental burden on adults with real card numbers. Such an algorithm may provide a high degree of expectation that persons seeking access to their Web site are providing credit card numbers which are verifiable as such. Such a good faith effort to screen out unrestricted visits by minors to those pages of a Web site containing the pornographic images is all the Act requires. Because it is possible for all or virtually all commercial Web sites to comply with the Act in such a manner, which is reasonable, minimally burdensome, and essentially deminimus in cost. If so found by the Court, either on its own examination of the witnesses or by requiring submission of evidence and arguments to address this issue, this Court has the ability to interpret the Act as satisfied, if this technology or something similar were used. Amici urge this Court to examine and consider approving by construction such an available and feasible measure to protect children from material which is harmful and obscene as to them. Amici submit that Plaintiffs have asked this Court for an extraordinary remedy without factual support that they cannot comply with COPAs requirements. Plaintiffs have not shown that they have attempted to comply but failed, rather that they believe that such efforts will be futile. Lastly, as demonstrated by amici, there exists a technology which we submit meets the test and which they have not attempted to use, research, or inform this Court. While their failure to inform this Court may have resulted from their lack of knowledge about verification, authorization, or number checking technologies or their determination that doing any of it will interfere with their choices on how to do business, amici submit that their lack of knowledge is insufficient to show a fault in the statute and speculation over whether using verification or number checking algorithms will interfere with their business are likewise no factual basis to strike the new law. Plaintiffs should be required to do more before this Court is asked to issue a preliminary injunction against the Act. Therefore, these amici respectfully urge this Honorable Court to deny Plaintiffs motion. The safety of children is simply too important for this Court to base its decision on such an incomplete and speculative record. CONCLUSION Your Congressional amici submit that these principles should guide this District Court in reviewing COPA and that the constructions and interpretations of the United States Supreme Court, the Virginia Supreme Court, and the U.S. Courts of Appeals decisions referenced in the Committee Report and discussed below, are equally applicable to the scope and compliance questions posed in this litigation. Such decisions were considered binding and applicable precedent in the passage of the Child Online Protection Act and would be binding upon any prosecution under the Act in any federal district by the Department of Justice or a United States Attorney. As stated in the Committee Report, particularly at 13-14 and 27-28, Congress relied upon the disposition of these cases and of federal challenges to state HTM laws as applicable precedent for the required scope of the federal harmful to minors law as limited to sexually explicit adult pornography and that the anticipated restrictions on its commercial sale and display be reasonably good faith measures that are feasible under available technology that would protect most juveniles except the most enterprising and disobedient young people. As stated above, the guidance of the historical precedent and limitations recognized by Congress should be adopted by this Court and thus avoid any real or substantial overbreadth or vagueness feared or alleged for litigation purposes by the Plaintiffs or their amici in this matter. This Court would thus be the forum that protects the rights of those before it and all those who are not before it, since both groups will benefit from the constitutionally limiting focus and clarifying gloss put on the law by an authoritative declaratory judgment by this District Court that recognizes, saves, and declares COPA to be valid and enforceable. Such reasonable judicial limitation of the law should not, therefore, be disregarded in determining the validity of any arguably hypothetical overbreadth or vagueness as perceived by a challenger of the Act, as is the case now before this Court. Respectfully submitted, Bruce A. Taylor J. Robert Flores Co-counsel for Amici Curiae, January 14, 1999 Members of Congress  The books are: ...Changing Bodies, Changing Lives..., ...Am I Normal?..., ...Forever..., ...American Couples..., Hollywood Wives..., ...The Facts of Love..., ...Lord Fouls Bane..., ...The Family of Woman..., ...The Diamond Waterfall..., ...Ulysses..., ...Tender is the Storm..., ...The New Our Bodies, Ourselves..., ...Lucifers Hammer..., ...The Penguin Book of Love..., ...Where Do Babies Come From?..., ...The Witches of Eastwick.... (372 S.E.2d at 622.)  See "Unraveling the Mysteries of Merchant Credit Card Accounts for Web Commerce", Dr. Ralph Wilson, Web Commerce Today, Issue 1, August 15, 1997 ( GOTOBUTTON BM_1_ www.wilsoninet.com/articles/merch-cc.htm). (Copy in Appendix D.)  Interview with Vinay Shiriwastaw, Sales Representative for Bank of America.  Interview with Betty Knackstedt, Sales Representative for First of Omaha Merchant Processing and First of Omaha Internet Commerce brochure. (Copy in Appendix D.)  Interview with Scott Lockwood, Vice President of Engineering and Technical Support for Automated Transaction Services, Inc.  Interview with Colleen Isaacs, Sales Representative for Payment Net, Inc.  Shiriwastaw interview.  Lockwood interview.  Interview with Adam Langdon, Manager of Regional Sales for First of Omaha Merchant Processing.  Shiriwatsaw interview.  Isaacs interview.  Interview with Paul Confrey, Account Representative for the MasterCard Association. Amici note that in the case of commercial Web sites which make material available to professional audiences like doctors, lawyers, therapists, etc., material which could be found to be harmful to minors could be restricted by limiting access using bar numbers, federal controlled substance numbers, or other professional identifiers. Using such a system to restrict access would also have the tangential benefit of assuring that bits and pieces of information or data, which would not be misconstrued or misused by a professional, was not available to the general public who might misuse or misunderstand it..  Langdon interview. His merchant bank, First of Omaha, is the sixth largest merchant bank in the world and has the first or second largest number of authorization only accounts.  Confrey interview.  Confrey interview. In this interview Mr. Confrey explained the history of, function of, and capabilities of the Luhn algorithm.  Interview with Hassan Fekih of Donia Software, author of CardCheck ActiveX Control, a software program which uses the Luhn algorithm to verify credit card numbers.  Isaacs interview. Ms. Isaacs stated that Payment Net utilizes this algorithm before presenting a credit card number for authorization.  See www.induction.com/products.htm. (Copy in Appendix D.)  This bill does not restrict an adults right to access adult material on the net, it simply requires that users have a verified credit card number. Cong. Rec. H9909 (Oct. 7, 1998) (statement of Rep. Sheila Jackson-Lee) (emphasis added). PAGE 5 PAGE  PAGE 37 %Nhi!"#)+89Uu<=Z[m  #$~ P ǽ6CJCJ 5:CJ6::>*65::55CJ 56CJ5CJ5CJ:CJ>*CJ 5>*CJ 56CJ 5:CJCJCJCJ D%Nghi%*89STU P !   @ P ! P ! P !$%Nghi%*89STU<=XYZ$B[~"W~#D#y###'p/3133q????ABBHKKQOpQ`Z[^^atdeehksxjyky҄.P| d<=XYZ$B[~$H HP ! 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Taylor'C:\WINDOWS\Desktop\COPA brief draft.docBruce A. Taylor'C:\WINDOWS\Desktop\COPA brief draft.docBruce A. Taylor'C:\WINDOWS\Desktop\COPA brief draft.docBruce A. Taylor'C:\WINDOWS\Desktop\COPA brief draft.docBruce A. Taylor'C:\WINDOWS\Desktop\COPA brief draft.docBruce A. Taylor'C:\WINDOWS\Desktop\COPA brief draft.docv\RC@`.@@ `.@`.@`()@ `()@!`()@`'`)@-`)@2`v\RC@E)E)$E)=)> @GTimes New Roman5Symbol3& Arial=Calisto MTY New YorkTimes New RomanSTimesTimes New Roman?5 Courier New"qh:l1fr1r1l,6gP)!20d6^NATIONAL LAW CENTER Chad GrooverBruce A. Taylor Oh+'0  8 D P \hpxNATIONAL LAW CENTER 8ATI Chad GrooverCENhadNormaloBruce A. Taylor15cMicrosoft Word 8.0 @,@j c?@??@?l,6 ՜.+,D՜.+,P  hp  National Law Center6 NATIONAL LAW CENTER Title 6> _PID_GUIDAN{154B9E67-4D52-11D2-B2F1-00C0DF81DF89}  !"#$%&'()*+,-./0123456789:;<=>?@ABCDEFGHIJKLMNOPQRSTUVWXYZ[\]^_`abcdefghijklmnopqrstuvwxyz{|}~Root Entry F1??`m?1Table WordDocumentXlSummaryInformation(DocumentSummaryInformation8CompObjjObjectPool`m?`m?  FMicrosoft Word Document MSWordDocWord.Document.89q Oh+'0  8 D P \hpxNATIONAL LAW CENTER 8ATI Chad GrooverCENhadNormaloBruce A. Taylor16cMicrosoft Word 8.0 @VP@j c?@??@%?', ՜.+,D՜.+,P  hp  National Law Center"|: NATIONAL LAW CENTER Title 6> _PID_GUIDAN{154B9E67-4D52-11D2-B2F1-00C0DF81DF89}X@Y@@@AAAAAA%B[B^BhBBBBBBBBBBBBBBBBBBBBBBBBB\ll^nbndnfnqrRr\rPsTsVs6CJCJH*CJ 0JmHnH0JmH0J j0JU:>*CJCJjCJH*U2* 00&PP/ =!"#$%* 00&PP/ =!"#$% CERTIFICATE OF SERVICE Two copies of the foregoing Motion for Leave to File a Brief Amicus Curiae and Brief of Members of Congress as Amici Curiae in Opposition to the Motion for Preliminary Injunction were served by delivery to Federal Express on this 13th of January for delivery on the morning of January 14, 1999, to the counsel for the parties: Ann Beeson, Esq. Theodore Hirt, Esq. Christopher Hansen, Esq. Karen Stewart, Esq. ACLU Foundation DOJ Civil Division 125 Broad Street 901 E Street, N.W. New York, NY 10004 Washington, D.C. 20530 (212) 549-2500 (202) 514-2849 A copy hereof is also being mailed to local counsel for the ACLU Plaintiffs, Stefan Presser, Esq., and to counsel for amici curiae, Ass n of American Publishers, et al., Marguerite S. Walsh, Esq. and R. Bruce Rich, Esq. So certified, Bruce A. Taylor January 13, 1999 37 rrrr"sPsVsBBBBBBBBBBBBZlllonoopjpp q qrrrd$&`#$&`#$ [$@$NormalmH BB Heading 1 $$@&59CJ0OJQJ<A@<Default Paragraph Font8C@8Body Text IndentDD memo head,mh $5CJOJQJNNheader info,hidx  CJOJQJ,@",Header  !&)@1& Page Number.@B. Footnote Text8&@Q8Footnote ReferenceH*LbL 2Paragraph0 CJhmH nH HR@rHBody Text Indent 2 CJOJQJ(O( Footnote Ref<O< Footnote TexCJhmH nH 4 @4Footer  !hnH WWe<wL"`B  .{ $8B r '     !"#$%&O B   !"#$%&`Bl,l'                               ! " # $ % & +#%,5=GOjWx_gp8xҀ =z@c. B$f,3`B@   _ \7T } ! "#$}%&%Nghi%*89STU<=XYZ$B[~"W~ Dy#p+3-//q;;;;=>>DGGQKpM`VWZZ]t`aadgotjukuҀ.P|}ҋs[C@=Юz@ {5ach`{fM! 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Taylor "%,!!!f 28@0(  B S  ?`BS U  mupssv " """%&&&2&5&R&V&&&&&&&<.E.//.272c3k3557799W<`<h<p<==>>@@D DxGG`JfJKKKK'L*LLL\NdNNNPP;QNQ[["\'\\\\\]&]^^@`G`ggiijjHmMm s%sYsasttmxsxQ|W|`g]f"ܒ[g%,?B`b&)i|ӣڣVZǥʥ̧ѧƨʨ(+WZ9AڰEJmp  &+{ sxy}},5PYbl' + ;?LP U[%%|444455556@8H8_9d9e9p999Y:a:::;;(;0;R;Y;;;;;;;>>@BCFFGHI8JKK?NQPQCSSUU_VZ[[ \\\a%c'ccffgijjVjkqsTtWtxxx9zZz{_~.:&*rtҋH0>˔8/BS"T<=zLN¶ Wx %+lrtw;Lfha (ln8Z`t-$? 4|px9M %(T[O1f!!!%%&&&(y)~)V*+,/&0144x4444 55&5+56668691;:;>>5@B@AA5B?BEBMBPB[B^BaBBruce A. Taylor'C:\WINDOWS\Desktop\COPA brief draft.docBruce A. Taylor'C:\WINDOWS\Desktop\COPA brief draft.docBruce A. Taylor9C:\WINDOWS\TEMP\AutoRecovery save of COPA brief draft.asdBruce A. Taylor'C:\WINDOWS\Desktop\COPA brief draft.docBruce A. Taylor'C:\WINDOWS\Desktop\COPA brief draft.docBruce A. Taylor'C:\WINDOWS\Desktop\COPA brief draft.docBruce A. Taylor'C:\WINDOWS\Desktop\COPA brief draft.docBruce A. Taylor'C:\WINDOWS\Desktop\COPA brief draft.docBruce A. 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FMicrosoft Word Document MSWordDocWord.Document.89q ՜.+,D՜.+,P  hp  National Law Center"|: NATIONAL LAW CENTER Title 6> _PID@??@%?',  !"#$%&'()*+,-./0123456789:;<=>?@ABCDEFGHIJKLMNOPQRSTUVWXYZ[\]^_`abcdefghijklmnopqrstuvwxyz{|}~