A Briefing On Public Policy Issues Affecting Civil Liberties Online from The Center For Democracy and Technology
(1) Utah Enacts Internet Blocking Law Similar to Pennsylvania Law Overturned in 2004
(2) Vast Numbers of Innocent Sites Likely to Be Censored
(3) Court Challenge to Utah Law Likely
On Monday, March 21, 2005, the Governor of Utah signed into law House Bill 260, passed by the Utah legislature early in March in the face of strong criticism of the bill as unconstitutional. The Center for Democracy & Technology had written to legislative leaders and Governor Jon Huntsman warning that the legislation was unconstitutional and unwise because it would likely reduce the Internet access choices available to Utah citizens. CDT predicted that the law was likely to be overturned in a court challenge.
Among numerous problem provisions in the new law is a requirement that Internet Service Providers in Utah block access to lawful web sites that the Utah Attorney General deems to be "harmful to minors." This would essentially try to turn citizens' ISPs into traffic cops regulating Internet content. The technical architecture of the Internet, however, was not designed to create such bottlenecks, and this type of approach would cause substantial problems for Internet traffic.
This aspect of the Utah law is similar to a Pennsylvania law that was ruled unconstitutional in 2004 (in a lawsuit brought by CDT) because it interfered with lawful Internet speech and blocked access to legitimate content far outside of the state of Pennsylvania.
The Utah law is intended to protect children from content that is "harmful to minors," but a wide range of studies and court cases have concluded that the most effective way to protect kids online is with the voluntary use of filtering software, not with criminal statutes.
The text of Utah H.B. 260 is available at http://www.cdt.org/speech/20050302hb260.pdf.
CDT's Analysis of H.B. 260 is available at http://www.cdt.org/speech/20050307cdtanalysis.pdf.
Information about the Pennsylvania case is available at http://www.cdt.org/speech/pennwebblock/
In September 2004, a federal district court in Philadelphia invalidated Pennsylvania's "Internet Child Pornography" law, finding that the law had 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. For example, access to the web site of a rural Pennsylvania community recreation center was blocked as a result of a order issued under the law by the Pennsylvania Attorney General. The order targeted a single child pornography site, but resulted in the blocking of thousands of innocent web sites that shared the same "Internet Protocol" address. Because the Pennsylvania law had such an overbroad effect, the court declared that it violated the First Amendment and the Commerce Clause of the United States Constitution.
The Utah law similarly requires that ISPs block access to web sites identified as "harmful to minors." The law specifies two methods for compliance -- ISPs can either block access to a web sites Internet Protocol address or a web site's "domain name." Both methods were shown in the Pennsylvania litigation to lead to the blocking of massive amounts of unrelated, wholly innocent content. Moreover, because the Utah law targets "harmful to minors" content (which by definition is legal for adults to access), the impact of the law is likely to be far broader than in Pennsylvania where the law targeted a more narrow category of web site.
Information about the Pennsylvania case is available at http://www.cdt.org/speech/pennwebblock/.
Although parts of the Utah law do not go onto effect until 2006, some parts go into effect immediately. CDT and a number of other groups are considering a legal challenge to the Utah law.