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From: CDT Info [mailto:[log in to unmask]]
Sent: 11 September 2004 00:08
To: [log in to unmask]
Subject: CDT Policy Post 10.14: Federal Court Strikes Down Pennsylvania Law
That Blocks Innocent Web Sites
CDT POLICY POST Volume 10, Number 14, September 10, 2004
A Briefing On Public Policy Issues Affecting Civil Liberties Online
from
The Center For Democracy and Technology
(1) Federal Court Strikes Down Pennsylvania Law That Blocks Innocent Web
Sites
(2) Court Decision Issued in Legal Challenge Filed by CDT, ACLU
(3) Pennsylvania Child Pornography Statute Raised Legal and Technical
Problems
(4) Child Pornography Deserves More Effective and Focused Law
Enforcement Efforts
------------------------------
(1) Federal Court Strikes Down Pennsylvania Law That Blocks Innocent Web
Sites
On September 10, 2004, Judge Jan DuBois of the U.S. District Court
for the Eastern District of Pennsylvania invalidated Pennsylvania's
"Internet Child Pornography" law, finding that the law has blocked
access to more than one million wholly innocent web sites, while
having little if any effect on the few hundred child pornography
sites that were targeted by the law. In one instance described by
Judge DuBois, access to the web site of a rural Pennsylvania
community recreation center was blocked as a result of a blocking
order issued to an Internet Service Provider (ISP) by the
Pennsylvania Attorney General. The blocking order targeted a single
child pornography site, but resulted in the blocking of thousands of
innocent web sites.
The Pennsylvania law imposed potential criminal liability on ISPs for
child pornography available on the Internet, even if the ISPs are not
hosting the offending content and have no relationship whatsoever
with the publishers of the content. The law makes any ISP doing
business in Pennsylvania potentially liable for content anywhere on
the Internet.
The court declared that the Pennsylvania statute violated the First
Amendment and the Commerce Clause of the United States Constitution.
The law was passed in 2002 by the Pennsylvania legislature without
any investigation into how the law would impact Internet
communications.
------------------------------
(2) Court Decision Issued in Legal Challenge Filed by CDT, ACLU
On September 9, 2003, CDT together with the ACLU of Pennsylvania and
Plantagenet, Inc., a Pennsylvania ISP, filed a constitutional
challenge to the Pennsylvania statute. The challenge argued that the
Pennsylvania law was a prior restraint on speech that violates the
First and Fourteenth Amendments and the Commerce Clause of the
Constitution.
The law provided that the state Attorney General or any county
district attorney can unilaterally apply to a local judge for an
order declaring that certain Internet content may be child
pornography, and requiring any ISP serving Pennsylvania citizens to
block the content. The entire court proceeding occurred with only
government participation and no prior notice to the ISP or the web
site owner, violating the First Amendment's protection against prior
restraints. As court testimony established, the technical design of
the Internet dictates that most ISPs can only comply with the
blocking orders by also blocking a significant amount of wholly
innocent web site content as well.
The Pennsylvania Attorney General went further, bypassing the law's
inadequate court procedures by simply issuing secret orders to ISPs
to block content. During 2002 and 2003, the Attorney General secretly
issued, without court approval or opportunity for appeal, almost 500
blocking orders directed at about 400 Internet web sites that the AG
asserted contained child pornography. The blocking orders had the
effect of blocking access to more than one million innocent web pages
that had no relationship with child pornography.
On the day CDT and the ACLU filed the lawsuit, the Attorney General
agreed to halt his secret censorship orders, and the court entered an
injunction against those orders. That injunction was reaffirmed by
the court decision striking down the entire statute.
------------------------------
(3) Pennsylvania Child Pornography Statute Raised Legal and Technical
Problems
The Pennsylvania law raised very serious problems - both legal and
technical. The law violated constitutional principles of free speech
and due process. Compliance with the law also resulted in the
blocking of web sites completely unrelated to any child pornography
sites also be blocked, simply because most Internet web sites today
share their "Internet Protocol" (or "IP") addresses with many other
wholly unrelated web sites.
Expert testimony presented by CDT evaluated the magnitude of
over-blocking. That testimony demonstrated that more than two-thirds
of all .COM, .NET, and .ORG web sites share their IP addresses with
at least fifty other web sites. Any blocking order aimed at one of
those web sites under the Pennsylvania law also blocked all fifty (or
more) sites, even if those sites are wholly unrelated to the targeted
web site. In some cases presented to the court, the IP address of a
child pornography site was shared by more than 400,000 other web
sites, and all 400,000 sites were blocked.
In addition, the law also forces ISPs to manipulate the sensitive
"routing tables" used to send communications around the Internet,
increasing the risk of major Internet service outages.
Information about the lawsuit is available at
http://www.cdt.org/speech/pennwebblock/, and key litigation documents
and expert reports are at
http://www.cdt.org/speech/pennwebblock/penndocs.shtml.
------------------------------
(4) Child Pornography Deserves More Effective and Focused Law
Enforcement Efforts
CDT shares the belief that child pornography has no place in any
civilized society, and supports the vigorous prosecution of those
responsible for the creation of such material.
The Pennsylvania statute struck down by the court's decision,
however, did very little to remove the child pornography at its
source or to prosecute those who create and post the content.
Evidence presented to the court established that the Pennsylvania
statute had little if any impact on people interested in accessing
child pornography, while at the same time having massive impact on
wholly innocent web sites.
There is a wide range of less constitutionally damaging but more
effective alternatives available to government to combat child
pornography, including working with national and international
investigators, including the Federal Bureau of Investigation and the
U.S. Customs Service, to investigate and prosecute the creators and
knowing distributors of child pornography. With the proper procedural
protections, law enforcement could also directly contact the web host
(or hosting ISP) about the alleged child pornography to seek to have
the content removed at the source.
In contrast to those approaches that directly target the child
pornography and its makers, the approach used in Pennsylvania
actually allows the child pornography to continue to circulate on the
Internet. Under the law struck down by the court, Pennsylvania took
no action against the makers or distributors of child pornography.
------------------------------
Detailed information about online civil liberties issues may be found
at http://www.cdt.org/.
This document may be redistributed freely in full or linked to
http://www.cdt.org/publications/pp_10.14.shtml.
Excerpts may be re-posted with prior permission of [log in to unmask]
Policy Post 10.14 Copyright 2004 Center for Democracy and Technology
_______________________________________________
http://www.cdt.org/mailman/listinfo/policy-posts
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