A Briefing On Public Policy Issues Affecting Civil Liberties Online
from
The Center For Democracy and Technology
(1) Pennsylvania Attorney General Halts Secret Censorship Scheme
(2) AG's Action Comes in Response to Legal Challenge Filed by CDT, ACLU
(3) The Statute and Censorship Orders Raise Legal and Technical Problems
(4) Child Pornography Deserves Focused and Effective Law Enforcement Efforts
(5) Next Steps in the Litigation
In the face of a legal challenge brought by CDT, the Pennsylvania Attorney General agreed on September 9, 2003, to stop issuing secret censorship orders to Internet Service Providers (ISPs). The AG's concession was immediately embodied in a restraining order issued by the federal district court in Philadelphia.
During 2002 and 2003, the Attorney General had issued, without any court review or opportunity for appeal, more than 300 blocking orders directed at more than 700 Internet web sites that the AG asserted contained child pornography. Although the fight against child pornography is very important, the blocking orders also had the effect of blocking access to innocent web pages that have no relationship with child pornography. Because of the technical design of the Internet (as discussed below), a far more effective way to combat child pornography would be to go after those who create and post the material, rather than the ISPs who have no knowledge of, or relationship with, those individuals.
On September 9, 2003, CDT together with the ACLU of Pennsylvania and Plantagenet, Inc., a Pennsylvania ISP, filed a constitutional challenge to a Pennsylvania statute that blocks access to Internet sites accused of carrying child pornography and that results in the blocking of wholly innocent websites.
The challenge, filed in the U.S. District Court of the Eastern District of Pennsylvania, argues that the Pennsylvania law is a prior restraint on speech that violates the First and Fourteenth Amendments and the Commerce Clause of the Constitution. The Pennsylvania law, passed by the state legislature in early 2002, imposes potential liability on Internet Service Providers 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 law provides 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 occurs with only government participation and no prior notice to the ISP or the Web site owner, violating the due process and prior restraint protections of the Constitution. 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 has gone further, bypassing the law's inadequate court procedures by simply issuing orders to ISPs to block content. These orders are totally secret, and the Attorney General has refused to comply with "Right to Know" law requests for the content of the secret orders.
The Pennsylvania law raises very serious problems - legal and technical. The law and the AG's secret blocking both violate constitutional principles of free speech and due process. Compliance with the law also requires that 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.
The magnitude of over-blocking under the Pennsylvania law is demonstrated in a report issued 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.
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.
Copies of the complaint filed by CDT and the ACLU, as well as the Memorandum in Support of a Motion for a Temporary Restraining Order and other background information, is available online at http://www.cdt.org/speech/pennwebblock/.
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 challenged by the lawsuit seriously restricts lawful Internet content and harms the technical operation of the Internet itself. But the law does nothing to remove the child pornography at its source or to prosecute the creators and posters of the content. It does, however, set a dangerous precedent of regulating ISPs and other intermediaries without notice to the publishers who might be affected.
There are a wide range of less constitutionally damaging but more effective alternatives available to government to combat child pornography, including directly contacting the Web Host (or hosting ISP) about the alleged child pornography, to seek to have the content removed at the source, and 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. 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.
In addition to entering the agreed Temporary Restraining Order halting the secret censorship scheme of the Attorney General, the Court also ordered that the litigation proceed on an expedited schedule. The parties have started a period of discovery, and in early November CDT and the ACLU will file a motion to have the statute itself declared to be unconstitutional. The Court has set a hearing on that motion for November 21, 2003.
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_9.19.shtml.
Excerpts may be re-posted with prior permission of ari@cdt.org
Policy Post 9.19 Copyright 2003 Center for Democracy and Technology
