On September 9, 2003, the Center for Democracy and Technology (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. Almost exactly one year later, on September 10, 2004, the court struck down the statute as violating the First Amendment and the Commerce Clause of the U.S. Constitution.
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. On the day the lawsuit was filed, the Pennsylvania Attorney General agreed to a temporary restraining order prohibiting his practice of imposing secret censorship orders on Internet Service Providers. A 12-day trial on CDT's request for a permanent injunction against the secret orders and the statute ended on March 1, 2004, and oral argument occurred on June 25, 2004, in Philadelphia.
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 country district attorney can unilaterally apply to a local judge for an order declaring 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 Attorney General has issued over three hundred orders requiring that specific web sites on the Internet be blocked.
CDT shares the belief that child pornography has no place in any civilized society, and CDT supports the vigorous prosecution of those responsible for the creation of such material. The Pennsylvania law, however, raises very serious problems - both legal and technical. The law violates 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 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.
Although the law seriously restricts lawful Internet content and harms the technical operation of the Internet itself, 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.
CDT has long been a leader in protecting constitutional values on the Internet and played a leading role in the successful Supreme Court challenge to the Communications Decency Act in 1996. In Spring 2003 CDT issued a report, "The Pennsylvania ISP Liability Law: An Unconstitutional prior Restraint and the Threat to the Stability of the Internet", calling for changes in the Pennsylvania statute.
Pennsylvania Internet Law Struck Down as Unconstitutional - A Pennsylvania federal court today struck down a state Internet censorship law as a violation of the First Amendment. CDT had challenged the law because it had resulted in the blocking of more than a million innocent web sites. September 10, 2004
Share this articleHearing on ISP Blocking Law - On January 6, CDT and the ACLU begin presenting evidence in federal court in Philadelphia in their challenge to a Pennsylvania law that has resulted in the blocking of hundreds of thousands of legitimate websites. The hearing is expected to run for several days. Extensive briefs filed by both sides in December, 2003 are available online. January 05, 2004
Share this articleCDT Challenges Pennsylvania's Net Blocking Law - CDT, together with the ACLU of Pennsylvania and Plantagenet Inc., a Pennsylvania ISP, today filed a constitutional challenge to a Pennsylvania child pornography law that results in the blocking of wholly innocent Web pages. The challenge also seeks a restraining order stopping the Pennsylvania Attorney General 's practice of imposing secret censorship orders on ISPs. CDT's lawsuit argues that by blocking Net content - including innocent websites - without notice to the publishers and without adequate judicial oversight, the Pennsylvania law violates the due process and free speech protections of the Constitution. September 09, 2003
Share this article
Slashdot
del.icio.us
Digg
Technorati
Google
Yahoo!
Windows Live
reddit