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The Center for Democracy and Technology (CDT) welcomes this opportunity to testify before the Judiciary Committee regarding House Bill 661. CDT is a non-profit, public interest organization dedicated to promoting civil liberties and democratic values online.
First I want to commend Delegate Christopher Shank and the other sponsors of House Bill 661, for their desire to take action against the problem of child pornography. We share the belief that child pornography has no place in a civilized society. Powerful laws are in place to combat child pornography, and the Center for Democracy & Technology endorses their full enforcement. Indeed, the President of CDT, Jerry Berman, was a member of the non-partisan Commission on Online Child Protection, created by the United States Congress. That Commission recommended that governments at all levels dedicate new resources to the vigorous enforcement of existing child pornography laws.
But however laudable are the goals of House Bill 661, the proposal is neither a constitutional nor effective way to address the difficult problem of child pornography.
In explaining why, let me start by noting that House Bill 661 was directly modeled on a law enacted last year by the Pennsylvania legislature, Section 7330 of Title 18 of the Pennsylvania Statutes. Although some of the wording in House Bill 661 is different, the legal and technical analysis of House Bill 661 is identical to the analysis of the Pennsylvania statute.
Ten days ago, the Center for Democracy & Technology released a 19-page report extensively detailing the constitutional, legal, and technical problems with the Pennsylvania law. A copy of that report is attached to my testimony today at Tab 1. Almost every point made in that report is directly relevant to, and directly applicable to, House Bill 661. I encourage you to review the full report before taking action on this proposed law.
I group the constitutional and technical problems with H.B. 661 into four categories:
I will briefly summarize these four groups of problems.
House Bill 661 would violate constitutional principles of due process under the Fourteenth Amendment for at least two reasons:
House Bill 661 would also violate the First Amendment, for at least three reasons:
Let me explain this last point more fully, because it is at the heart of the most serious constitutional problem posed by House Bill 661. This requires a brief explanation of how sites on the Internet are accessed.
Every site on the World Wide Web has what is called a "Uniform Resource Locator," or "URL," such as www.cdt.org. But every URL can in turn be translated into a numeric "Internet Protocol" address, or "IP address." For example, the IP address of www.cdt.org is 206.112.85.61. If you were to surf the World Wide Web and type in www.cdt.org, your web browser would look the URL up in a database to determine the IP address. The browser would then send a request directly to that IP address, and CDT's web server would respond with the requested web page.
There are two critical facts to understand. First, the only effective way that an Internet Service Provider can block access to a specific web site is to block access to the IP address. If you order an ISP to block access to www.cdt.org, the ISP would carry out that order by blocking access to IP address 206.112.85.61. Thus, to comply with a court order under House Bill 661, an ISP would have to block web sites by their IP address.
The second critical fact is that it is very common for multiple web sites -- web sites that are wholly unrelated to each other -- to share a single IP address. In other words, many web sites with many different URLs can all translate to the same numeric IP address. A study released two weeks ago by Ben Edelman of the Berkman Center for Internet and Society at Harvard Law School shows that more than two-thirds of all .COM, .NET, and .ORG web sites share their IP addresses with more than 50 other web sites.
What this means is that if an ISP were to receive an order to block a web site under House Bill 661, dozens or even hundreds of completely innocent web sites would also be blocked. To give an analogy, assume that one resident in an apartment building in Washington, D.C., used the U.S. Postal Service to mail child pornography into Maryland. What House Bill 661 would effectively require is an order that the Postal Service should destroy all mail that has a return address of that apartment building, even mail sent by completely innocent residents of the building.
Let me give you two concrete, real world examples. If you would please turn to Tab 2 of my written testimony, you will see a list of nine web sites, out of the 353 different web sites that all share IP address 67.98.96.21. You can see that the web site www.annapolismaritimemuseum.org shares its IP address with at least 352 other web sites, including, for example, 2001dirtyjokes.com. The Annapolis Maritime Museum of course is not responsible for the content on the dirty joke site, but if an ISP had to block the joke site, the museum site would also be blocked.
To see the problem even more clearly, please turn to Tab 3 of my written testimony, which lists many of the 437 web sites that share IP address 206.168.98.228. As you can see, there are 10 web sites with hard core sexual content, and those sexual sites share their IP address with, for example, a Lutheran Church in Wisconsin, a day camp in New York, a Rotary Club in New Jersey, and a veterans organization in Florida. Yet if any one of the ten sexual sites crosses the line set in House Bill 661, all of these hundreds and hundreds of perfectly innocent sites would be blocked.
These two exhibits are not isolated examples -- the vast majority of web sites on the Internet share their IP address with other web sites. To comply with orders under House Bill 661, ISPs would unavoidably block innocent web sites, and that blocking would be a plain violation of the First Amendment of the U.S. Constitution.
Let me wrap up my testimony by briefly discussing two very important non-legal problems with House Bill 661.
The potential harmful impact of Bill 661 on the stability of the Internet is significant. Compliance with the proposed law would carry serious technical risks for the ISPs' networks, and the Internet in general. Simply stated, the routers and routing tables that direct the flow of content on the Internet were not designed to handle the kind of IP address blocking that would be required under House Bill 661. If the use of government mandated blocking orders continue, the stability of the ISP's routers and routing table will be threatened, risking broad service failures across the Internet.
Finally, House Bill 661 would do virtually nothing to protect children victimized in the making of child pornography, or to help to prosecute those responsible for making or distributing the material. Indeed, under the approach proposed in the bill, the child pornography and the victimization of innocent children would be allowed to continue. The proposed law would merely shield Maryland from the objectionable material, while the abuse of children is allowed to go on elsewhere. A far better use of resources would be for Maryland law enforcement officials to work with the FBI and the United States Customs Service to pursue and prosecute the producers and distributors of child pornography.
And not only would the proposed law not address the underlying crimes, but the law could directly and materially harm the investigation and prosecution of child pornography nationwide. As you may know, the FBI's entire nationwide effort against child pornography is headquartered in Calverton, Maryland, outside of Washington. There is a significant risk that orders under this proposed law would effectively blind the FBI's child pornography investigators to the very content they are investigating.
Child pornography is, without question, abhorrent, and those who engage in its creation or distribution should be vigorously prosecuted. Although House Bill 661 is clearly well intended, it is not a constitutional or appropriate way to address the problem.
I would be happy to take any questions you might have. Let me also say that the Center for Democracy & Technology would be willing to arrange for members of the Committee to receive a more in-depth briefing about the technical realities of the Internet, and the impact of those realities on this draft legislation. Thank you very much for this opportunity to present our concerns about House Bill 661.
Contact Information: John B. Morris, Jr.
Center for Democracy & Technology
1634 I Street, NW, Suite 1100
Washington, DC 20006
(202) 637-9800
[email protected]