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
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.
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.
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.
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/.
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Policy Post 10.14 Copyright 2004 Center for Democracy and Technology
