A Briefing On Public Policy Issues Affecting Civil Liberties Online from The Center For Democracy and Technology
(1) Broad Group Challenges Utah Internet Censorship Law
(2) Utah Law Suffers from Constitutional Defects and Fails to Protect Children Online
(3) Law Will Lead to Blocking of Access to Broad Range of Lawful Content
Citing free speech violations, a broad group of Utah bookstores, artistic and informational websites, Internet service providers and national trade associations filed a federal lawsuit in Salt Lake City today, challenging as unconstitutional a Utah law that was meant to restrict children's access to material on the Internet but that will in fact restrict adults' access to a wide range of lawful material.
In a complaint filed by attorneys from the Center for Democracy & Technology and the ACLU of Utah, the plaintiffs challenged House Bill 260, which contains numerous provisions that infringe on the right of Internet users to publish and receive wholly lawful content . Prior to the law's passage and signing, CDT had warned leaders of the Utah legislature and the Utah Governor that the bill had serious problems and would likely face a constitutional challenge if enacted.
The lead plaintiff in the lawsuit is an independent bookstore in Salt Lake City, The King's English Bookshop, which sells books through its website in competition with national online book retailers. If the Utah law is allowed to stand, the bookstore would face criminal charges for advertising and selling a range of lawful books.
The June 9, 2005 complaint against H.B. 260 is available at http://www.cdt.org/speech/utahwebblock/20050609hb260complaint.pdf.
For a March 2005 analysis of the Utah law, see http://www.cdt.org/speech/20050307cdtanalysis.pdf.
One of the challenged sections of House Bill 260 makes it a crime to make content that is "harmful to minors" available to minors over the Internet. Because web sites have no practical way to prevent access to web content by minors, the Utah law means that anyone who posts adult-oriented content -- including educational materials on how to avoid sexually-transmitted diseases and other highly valuable speech -- could face criminal charges in Utah.
This part of the bill is very similar to the federal Communications Decency Act (CDA), which struck down by the U.S. Supreme Court in 1997. In that case, the Court declared that speech on the Internet deserves the highest level of constitutional protection, and that the government could not adopt rules for Internet web sites that would reduce all content on the Internet to a level suitable for children.
The Supreme Court also concluded that the availability of filtering software that parents could install was a "less restrictive" alternative way to protect children online. As CDT has long argued, such user-based filtering software is a far more effective way to protect children online, and does so without interfering with adults' right to access lawful content.
For more information on filtering software: http://www.GetNetWise.org.
Other parts of the challenged Utah law are very similar to a Pennsylvania statute that CDT successfully challenged in 2004. Like the Pennsylvania law, the Utah law requires ISPs to block access to content designated by the state Attorney General. The Utah law specifically indicates that ISPs can use "IP Address blocking" to comply with the law.
As shown in the Pennsylvania litigation, however, blocking the IP (Internet Protocol) address of an undesirable website can block access to a massive number of lawful web sites that innocently share the same address. In the Pennsylvania case, CDT showed that, in an effort to block access to fewer than 400 objectionable web sites, the ISPs ended up blocking access to more than 1 million other unrelated -- and perfectly legal -- sites.
The Utah law is in fact more problematic than the Pennsylvania law, because the Utah law does not even require that a judge be involved in the decision to block access to a web site. Under the challenged Utah law, the state Attorney General can designate web sites for blocking, with no oversight by any court.
The plaintiffs in the case have asked the U.S. District Court to declare the Utah law unconstitutional and to enjoin its enforcement.
For information about the Pennsylvania case, see http://www.cdt.org/speech/pennwebblock/.