September 10, 2004 1:23 PM PDT

Court strikes down Pennsylvania porn law

A controversial Pennsylvania law forcing ISPs to block access to Web sites accused of hosting child pornography is unconstitutional, a federal judge ruled Friday, handing a defeat to advocates of stricter online porn regulations.

The law, known as statute 7330, allowed the state to impose criminal charges on Internet service providers for permitting access to Web sites considered inappropriate. Public-interest groups such as the Center for Democracy and Technology (CDT) and the American Civil Liberties Union had challenged the law a year ago, claiming that it was unconstitutional, since many blocked sites contained no child porn.

"There is little evidence that the act has reduced the production of child pornography or the child sexual abuse associated with its creation," U.S. District Judge Jan DuBois wrote in the 102-page decision. "On the other hand, there is an abundance of evidence that implementation of the Act has resulted in massive suppression of speech protected by the First Amendment."

Although the law was a state statute, free-speech advocates argued that it was too wide-reaching and would set a precedent for other states to apply online blocking methods.

In 2002, MCI bowed to pressure from then-Pennsylvania Attorney General Mike Fisher, when a judge ordered the ISP to block five sites deemed in violation of the law. Since ISPs are unable to prevent subscribers in one state from visiting these sites, it blocked access for all North American subscribers.

Fisher sent about 500 letters to various ISPs, asking them to block access to a list of sites. In depositions, America Online and Verizon Communications said Fisher's orders led to hundreds of thousands of innocent sites being blocked.

For its part, Pennsylvania argued that ISPs could block specific sites without violating free speech.

"A URL is neither a person nor a real forum nor a limited commodity," the state argued in a brief earlier this year. "It is a little string of letters and numbers that acts as a superficial label. URLs are infinite in quantity. Even complete retirement of one will not diminish speech. Speech can always find another URL--and probably (one) pretty close to the out-of-commission string."

Advocates for First Amendment rights applauded the decision.

"Rather than blocking swaths of legal Internet content in an effort to hide child pornography, law enforcement should go after child porn at the source--the criminals who create and distribute it," John Morris, director of CDT's Internet Standards, Technology and Policy Project, said in a statement.

The Pennsylvania attorney general's office expressed dismay about the decision and said it will review the court's opinion to determine whether to begin an appeal.

"Obviously, we are disappointed with the court's ruling," said Sean Connolly, a spokesman for Attorney General Jerry Pappert. "This law was designed to block access to child pornography sites on the Internet. We believe it has worked well in Pennsylvania."

The challenge of filtering
Groups challenging the law charged that ISPs had gone far beyond the requirements of state law enforcers, blocking more than a million innocent Web sites, along with 400 alleged child porn sites.

According to the complaint, affected service providers used Internet Protocol (IP) and domain name service (DNS) filtering techniques to comply with the law. IP filtering blocks all Web sites related to a single address. The court found that since many Web sites share IP addresses, the technique resulted in significant overblocking.

DNS filtering is more targeted, blocking Web pages related to a specific domain name. But the court found that DNS filtering could also result in overblocking when used against sites that host communities. For example, the court said Verizon blocked 500,000 innocent sites when it used DNS filtering software in order to prevent access to a single subpage of Terra Networks' Web site.

The Pennsylvania attorney general's office had argued that the fault resided not with the law but rather with the ISPs for implementing it in ways that captured innocent Web sites.

One commercial Internet filtering software maker on Friday said overblocking in DNS filtering can be mitigated by customizing the criteria used for blocking sites. For example, ISPs could have used settings that targeted individual Web pages rather than full domain names, said David Burt, a spokesman for San Jose, Calif.-based Internet-filtering software maker Secure Computing.

"It's much easier to block a domain name, but it's not necessary to do so," he said. "ISPs could target a single page if they wanted to. You can set it up to do it that way."

Friday's ruling is the latest setback to advocates of tougher restructions on Internet porn sites.

In June, a divided U.S. Supreme Court suggested that a federal law designed to restrict Internet pornography violated Americans' rights to freedom of speech, but the court stopped short of a definitive ruling striking down the law as unconstitutional.

The 5-4 ruling upheld an injunction barring prosecutors from filing criminal cases under the Child Online Protection Act, or COPA, until a full trial takes place. COPA restricts the use of sexually explicit material deemed "harmful to minors" on commercial Web sites. Violation of the law can result in civil fines and prison terms.

In that decision, the high court said a full trial in Philadelphia would permit the case to reflect the "current technological reality" regarding the state of porn-filtering applications--which means that questions about the COPA's ultimate fate may remain unresolved for two or three more years, while the law's supporters head back to court.

COPA makes it a crime to publish "any communication for commercial purposes that includes sexual material that is harmful to minors, without restricting access to such material by minors." The maximum penalty is a $50,000 fine, six months in prison and additional civil fines.

COPA represents Congress' second attempt to restrict sexually explicit material on the Internet. The Supreme Court in 1997 rejected the Communications Decency Act, which covered "indecent" or "patently offensive" material, as unconstitutional.

Antiporn advocates claimed a victory in 2003, when the Supreme Court upheld a law requiring libraries and schools that receive federal funds to install on computers filters that block access to porn sites, reversing the ruling of a three-judge panel in Philadelphia. A 6-3 majority noted "the ease with which patrons may have the filtering software disabled," saying a patron who finds a site blocked can simply ask a librarian to unblock it.

CNET News.com's Declan McCullagh and Evan Hansen contributed to this report.

 

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