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September 9, 2003
FOR IMMEDIATE RELEASE - The Center for Democracy and Technology (CDT) Ð together with the ACLU of Pennsylvania and Plantagenet Inc., a Pennsylvania ISP Ð today filed a constitutional challenge to a Pennsylvania child pornography statute that results in the blocking of wholly innocent Web pages.
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 challenge also seeks a temporary restraining order stopping the Pennsylvania Attorney General's practice of imposing secret censorship orders on Internet Service Providers (ISPs).
"In the last year, the Pennsylvania Attorney General has issued more than 300 orders that effectively block innocent websitesÐ in secret, without the knowledge of those blocked, and with no judicial oversight," said CDT Staff Counsel John Morris. "Today we are seeking the help of the courts to end this secret system of censorship, which violates the constitutional rights of Internet users in Pennsylvania and across the country."
Under the Pennsylvania law, 18 Pa. Stat. Ann. ¤¤ 7621-7630, 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 to block the content. The entire court proceeding occurs with no participation by the targeted ISP or the web site owner, violating the due process and free speech protections of the Constitution.
Worse yet, because of the Internet's architecture most ISPs can comply with the orders only by blocking a significant amount of innocent web site content hosted along with the targeted web site. Moreover, many ISPs can only comply by blocking access throughout their network Ð meaning that the Pennsylvania orders affect Internet users across the country.
The Pennsylvania Attorney General has since gone even further, bypassing the law's inadequate court procedures by issuing blocking orders directly to ISPs. 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. By secretly demanding that ISPs block access to hundreds of Internet web sites, with no public notice or hearing whatsoever and no opportunity for judicial review, the Attorney General's actions constitute a classic unconstitutional prior restraint on speech.
While put in place for the laudable purpose of combating child pornography, the Attorney General's secret censorship scheme actually leaves accused web sites intact on the Internet and takes no legal action against those who create them. Prosecuting the creators of the child pornography Web sites identified by the Attorney General would be a far more effective and responsible approach to stopping them.
"Child pornography has no place in a civilized society," said CDT Associate Director Alan Davidson. "Unfortunately, Pennsylvania's web blocking law does little to stop child pornography but does a great deal to violate the protections of the First Amendment. Rather than blocking swaths of legal Internet content in an effort to do nothing more than hide child pornography, law enforcement should go after child porn at the source Ð the criminals who create and distribute it."
The Pennsylvania law is of particular concern because it sets a dangerous precedent of regulating ISPs and other intermediaries without any notice to the publishers who might be affected. Similar laws have been introduced in Maryland, Oklahoma, and other states, threatening to create a patchwork of state laws censoring web sites and wreaking havoc on the Internet.
CDT, a Washington-based non-profit group, 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. Last spring CDT issued a report, "The Pennsylvania ISP Liability Law: An Unconstitutional Prior Restraint and a Threat to the Stability of the Internet," calling for changes in the Pennsylvania statute challenged today.
Copies of the complaint filed by CDT and the ACLU, and other background information, is available online at http://www.cdt.org/speech/pennwebblock/.
For more information please contact Alan Davidson, Paula Bruening, or John Morris at CDT, 202-637-9800, or Stefan Presser at the ACLU of Pennsylvania, 215-592-1513 x116.
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The Center For Democracy & Technology |