Statement of the Center for Democracy & Technology:

On May 22, 2003, Pennsylvania Attorney General Mike Fisher rejected a Right to Know law appeal seeking the disclosure of Internet web sites that the Attorney General has blocked without any public or judicial oversight. Because of the censorship scheme created by Pennsylvania's Internet Web Blocking Law, Pa. Stat. Title 18, § 7330, and the Attorney General's secret and unreviewed blocking orders, Internet users both in Pennsylvania and across the United States are unable to access wholly innocent and lawful Internet web sites.

The Attorney General's secret orders to block Internet content are violate the First Amendment under the United States Supreme Court's decision in Bantam Books v. Sullivan, 372 U.S. 58 (1963). In that case, a Rhode Island state commission advised distributors that certain books and materials were deemed objectionable by the commission without judicial review. The commission asked for the distributors' cooperation in removing the material, and advised them of the commission's duty to recommend prosecution. The Supreme Court held that this form of informal censorship was in violation of the First and Fourteenth Amendments.

The facts of Bantam Books are directly analogous to the actions of the Pennsylvania Attorney General. The parallels with Bantam Books are striking, said CDT Staff Counsel John Morris. Under Bantam Books and its progeny, the actions of the Attorney General directly violate the constitutional right of free speech under the First Amendment.

In February 2003, CDT issued an extensive report that details the constitutional and technical problems with the Attorney General's actions and the underlying Pennsylvania Web Blocking Law. CDT also assisted in the filing of a Pennsylvania Right to Know request to permit the public an opportunity to review and evaluate the impact of the Attorney General's actions. The Attorney General denied the request for information, and then yesterday denied CDT's appeal of that request.

The appeal specifically focused in part on the identity of Internet web sites that no longer exist today. In his denial yesterday, the Attorney General effectively acknowledged that none of his prior arguments to defend the secrecy would apply to web sites that no longer exist, but he nevertheless refused to disclose even those censorship orders based on the theory that particular URLs might in the future be used to distribute illegal sexual content.

The reach of the Attorney General's theory is breathtaking, noted Morris. His argument that a particular Internet address might sometime be used to carry illegal content – even though it is not today being used at all – would justify his censorship of any web site on the Internet with no possibility of public or judicial review.

"Child pornography is abhorrent and cannot be tolerated in a civilized society," said CDT Associate Director Alan Davidson, "but the Attorney General's actions, and Pennsylvania's Web Blocking Law, attempt to fight child pornography through means that are unconstitutional and technically flawed. By blocking sites that are not pornographic, and by interfering with the technical operations of the Internet, the Pennsylvania law has serious ramifications for free expression and the stability of the Internet."

CDT's report is available at http://www.cdt.org/speech/pennwebblock/030200pennreport.pdf.

CDT's Right to Know Law appeal is available at http://www.cdt.org/speech/pennwebblock/030422appeal.pdf

The Attorney General's Denial of the Appeal is available at http://www.cdt.org/speech/pennwebblock/030522pennresponse.pdf

The Supreme Court's Bantam Books decision is available at http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=372&invol=58.

For more information, please contact:
Alan Davidson, CDT Associate Director, 202-637-9800 x110
John Morris, CDT Staff Counsel, 202-637-9800 x116
Paula Bruening, CDT Staff Counsel, 202-637-9800 x114