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 blocked access to Internet sites accused of carrying child pornography and that resulted 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, argued that the Pennsylvania law was a prior restraint on speech that violated 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, imposed potential liability on Internet Service Providers for child pornography available on the Internet, even if the ISPs were not hosting the offending content and had no relationship whatsoever with the publishers of the content. The law made any ISP doing business in Pennsylvania potentially liable for content anywhere on the Internet.
The law provided that the state Attorney General or any country district attorney could 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 would occur 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 could only comply with the blocking orders by also blocking a significant amount of wholly innocent web site content as well.
The Pennsylvania Attorney General had gone further, bypassing the law’s inadequate court procedures by simply issuing orders to ISPs to block content. These orders were totally secret, and the Attorney General refused to comply with “Right to Know” law requests for the content of the secret orders.
The Attorney General had 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, raised very serious problems – both legal and technical. The law violated constitutional principles of free speech and due process. Compliance with the law also required 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 forced 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 restricted lawful Internet content and harmed the technical operation of the Internet itself, the law did nothing to remove the child pornography at its source or to prosecute the creators and posters of the content. It would have, 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.
Key Litigation Documents
- District Court Decision (102 pages) [pdf]
- Summary and Highlights of Decision [pdf]
- Other Key Litigation Documents