Tornado Alley (PROG)

[F6]

Federal judge tosses Pa. child porn-blocking law

JOANN LOVIGLIO, Associated Press Writer

Friday, September 10, 2004
(09-10) 13:57 PDT PHILADELPHIA (AP) --

A federal judge threw out on Friday a Pennsylvania law requiring Internet service providers to block Web sites containing child pornography, saying the tools to do so also cause "massive suppression" of constitutionally protected speech.

Enacted in 2002, the law gave Pennsylvania's attorney general the power to require that companies like America Online Inc. block customers from viewing Web sites the state had identified as containing illegal content.

No one challenged the state's right to stop the distribution of child porn, which is already illegal under federal law, but lawyers for the Center for Democracy and Technology and the American Civil Liberties Union had argued that the technology used to block those Web sites was clumsy.

Much as the phone company can't control what people fax over phone lines, ISPs can't control content on the Web, and efforts to use sophisticated filters to stop people from seeing illicit sites have proven problematic.

Over two years, the groups said, ISPs trying to obey blocking orders were forced to cut access to at least 1.5 million legal Web sites that had nothing to do with child pornography or even legal pornography, but shared Internet addresses with the offending sites. When a service provider blocked the address for a child-porn site, it wiped out the entire cluster.

U.S. District Judge Jan E. DuBois agreed the law could not be enforced without also blocking protected speech.

"There is little evidence that the Act has reduced the production of child pornography or the child sexual abuse associated with its creation," DuBois wrote. "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."

Lawyers for the state had argued the technology exists for ISPs to block selectively and blamed Internet companies for not wanting to upgrade their systems. The state said ISPs were making business decisions by choosing to go the cheaper, easier route of blocking thousands of sites sharing the same Internet addresses.

Equipment is indeed available to shut down individual sites, but experts say such costly technology would force smaller ISPs out of business and larger ones to spend tens of millions of dollars on a weapon effective only until the peddlers of online kiddie porn change tactics.

The law had called for maximum fines of $30,000 and seven years in prison. Pennsylvania is so far the only state to pass such a law, though Maryland, New Jersey and Oklahoma have considered similar legislation, said Alan Davidson, associate director of the Center for Democracy and Technology.

"This should send a strong signal (to other states) that this entire approach to regulating the Internet is flawed," Davidson said.

Larry Frankel of the ACLU's Pennsylvania chapter said the ruling shows that legislators need a clearer understanding of how the Internet works -- and the inherent pitfalls in trying to restrict certain chunks of it without violating free-speech rights.

Sean Connolly, spokesman for Attorney General Jerry Pappert, said officials would review the 110-page ruling before deciding whether to appeal.

"This law was designed to block access to child pornography sites," Connolly said. "We believe it has worked well in Pennsylvania."

At the federal level, the Supreme Court has rebuffed Congress' attempts to ban or restrict adult-oriented Web sites, though it endorsed a law requiring schools and libraries receiving federal funds to use filtering software to block pornography, not just child porn.

Arkansas, South Dakota and South Carolina require ISPs or computer technicians to report any child pornography they discover, according to the National Conference of State Legislatures.

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On the Net:
Center for Democracy & Technology: www.cdt.org

©2004 Associated Press

http://www.sfgate.com/cgi-bin/article.cgi?file=/news/archive/2004/09/10/financial1136EDT0095.DTL

[F6 comment -- no doubt winger politicians and the winger media and will get worked into a froth over this one -- but this is an absolutely correct decision, and not any sort of 'judicial activism' -- the judge did exactly what the well-established law required -- a contrary decision would have represented 'judicial activism' (yes, that's right, conservative judges can be, and recently frequently have been, 'judicial activists' -- that is not a 'liberals only' issue)]