CDT Reports Calls Pennsylvania ISP Law Unconstitutional and Unsound
Request Filed for Records of Undisclosed Web Site Blocking

FOR IMMEDIATE RELEASE -- February 20, 2003

The Center for Democracy and Technology today released a major report calling unconstitutional a recent Pennsylvania law that forces Internet Service Providers (ISPs) to block access to numerous web sites without adequate court oversight. The reportÕs release coincides with a request under Pennsylvania's right-to-know law seeking records of the Attorney General's previously undisclosed demands to block web sites pursuant to the law.

The CDT report - entitled The Pennsylvania ISP Liability Law: An Unconstitutional Prior Restraint and a Threat to the Stability of the Internet - analyzes a 2002 Pennsylvania law that forces ISPs to block access to any web site deemed child pornography without notice to the siteÕs publisher and without any opportunity to challenge the determination. ISPs are required to block the sites even if they do not host the content and have no relationship whatsoever with the publishers of the content. The Pennsylvania Attorney General has since gone even further, bypassing the lawÕs inadequate court procedures to simply demand by letter that sites be blocked. The report argues that the statute, which blocks access to sites that are wholly innocent, is an unconstitutional restriction on speech, blocks access to sites that are wholly innocent.

While acknowledging the grave nature of the problem of child pornography, CDT's report details the serious problems - both legal and technical - inherent in the law and the Attorney General's actions:

• CDT concludes that the law violates constitutional principles of free speech and due process, and is unconstitutional under both the First and Fourteenth Amendments of the U.S. Constitution.
• Because ISPs must block web sites based on their numeric "Internet Protocol" (IP) address, the law also blocks web sites that are completely unrelated to any child pornography sites, simply because most Internet web sites today share their IP addresses with many other wholly unrelated web sites.
• Because of how the Internet is structured, Pennsylvania's blocking orders reach far outside of the state and prevent people across the country from accessing lawful Internet content.
• The Pennsylvania law forces ISPs to manipulate the sensitive "routing tables" used to send communications around the Internet, increasing the risk of major Internet service outages.
• The law does nothing to remove the child pornography at its source or to prosecute the creators and posters of the content. The law merely attempts to shield Pennsylvania citizens from the content while allowing children to continue to be victimized in the production of the child pornography.

Child pornography is abhorrent and cannot be tolerated in a civilized society, said CDT Associate Director Alan Davidson, but the Pennsylvania ISP law attempts to fight child pornography through means that are unconstitutional and technically flawed. This law does little to punish the producers of child pornography, but by blocking sites that are not pornographic will have serious ramifications for free expression and the stability of the Internet.

The magnitude of over-blocking under the Pennsylvania law is demonstrated in a separate report - also released this week - by Benjamin Edelman of the Berkman Center for Internet & Society at the Harvard Law School. In that report, Edelman finds 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 would block all fifty (or more) sites, even if those sites are wholly unrelated to the targeted web site.

It would be as if mail delivery for an entire apartment building were stopped because one tenant was accused of wrongdoing, said John Morris, CDT Staff Counsel and a primary author of the report. This law will prevent many Internet users around the country from accessing hundreds or perhaps thousands of innocent web sites, with no notice or explanation whatsoever.

In conjunction with the release of its report, CDT has also assisted in the filing today of a Pennsylvania "Right to Know" Request to the Attorney General, demanding that he disclose the hundreds of web sites that he has blocked since the law went into effect. Professor Seth Kreimer of the University of Pennsylvania Law School, with CDT as counsel, submitted the "open records" request seeking all orders and notices served pursuant to the law on ISPs by the Attorney General's office. Under Pennsylvania's open records system, the Attorney General must produce the requested documents within ten days. In addition to Professor Kreimer, CDT has consulted with Professors David Post (Temple University Law School), Polk Wagner (University of Pennsylvania Law School), Dan Hunter (the Wharton School of the University of Pennsylvania), and Jonathan Zittrain (Harvard Law School) on this matter.

CDT's report is available at http://www.cdt.org/speech/pennwebblock/030200pennreport.pdf.

Benjamin Edelman's report, entitled Web Sites Sharing IP Addresses: Prevalence and Significance, was released by Mr. Edelman this week, and is available at http://cyber.law.harvard.edu/people/edelman/ip-sharing/.

For more information, please contact:
Alan Davidson, CDT Associate Director, 202-637-9800 x110
John Morris, CDT Staff Counsel, 202-637-9800 x116
Paula Bruening, CDT Staff Counsel, 202-637-9800 x114

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