If you make enough predictions, so says conventional wisdom, some of them are bound to eventually prove correct. Well, this month the Legal Commentary soothsayer hit the nail on the head. The United States District Court for the Eastern District of Pennsylvania has struck down an absolutely horrible Internet law from Pennsylvania on two very important grounds – the First Amendment, and what is called the “dormant Commerce Clause.” Center for Democracy & Technology v. Pappert, ___ F.Supp.2d ___, 2004 WL 2005938 (E.D. Pa., September 10, 2004).
If you want to review the prediction and other particulars, check out Legal Commentary in the May 2003 issue. In case you don’t have it handy, here is the situation in a nutshell:
The mechanism that the law has created begins with the Pennsylvania Attorney General or a local district attorney, or a henchman of either, finding something on the Internet that appears to be child pornography. This prosecution functionary then trundles over to the local Court of Common Pleas (Pennsylvania’s general-jurisdiction court) and asks for an audience with the judge there, with whom he perhaps had a beer the preceding Friday evening or recently dined at a party fund-raising dinner. Nobody else is at the hearing, just the prosecutor and the judge, along with perhaps the judge’s clerk or research assistant. The important point here, however, is that nobody is there to represent the ISP or the Website that the prosecutor is targeting.
The prosecutor hands the judge an affidavit, fresh off his word processor, setting forth some formalities and identifying the URL and the hosting ISP where the prosecutor found the alleged child pornography, along with enough of a description of it to convince the judge that there is probable cause to believe that it indeed is child pornography.
According to the statute, the prosecutor also is supposed to bring along an order for the judge to sign, thereby relieving the judge from engaging in any original thinking and relieving the judge’s secretary or clerk from any typing responsibilities. If the prosecutor convinces his friend the judge that there is probable cause to believe that child pornography is somewhere on the Internet, the judge signs the order that the prosecutor brought along, facilitating the shutting down of the site. Again, neither the ISP nor the Webmaster of the alleged child pornography site has yet had the chance to get a word in edgewise.
What the judge signs includes a finding of probable cause that child pornography exists and an order that it be removed or disabled from the ISP’s service. The attorney general then notifies the ISP within three business days, which likely is the first news the ISP gets that any of this is going on. The ISP then has five business days to take down the site, which certainly is the first news that the Webmaster receives that anything is going on. If the ISP fails to obey an order, it is a $5,000 fine for the first failure, $20,000 the second and, $30,000 plus up to seven years in the hoosegow each time after that.
You probably see the problems with this. First, the way technology works, what the ISP will shut down likely will go well beyond the individual site that gave rise to the finding of probable cause. Indeed, the plaintiffs in this case came to court armed with evidence that the efforts of ISPs to disable access to child pornography in response to requests by the attorney general had led to the blocking of more than a million innocent Websites – innocent sites not even targeted by the Attorney General. Second, none of the sites that are blocked, especially the ones not the target of the order, have any opportunity to object to the order before they are summarily shut down. The first time a remedy is even available is after the blocking is in effect, that remedy being to go to the court in Pennsylvania and persuade the judge that there is no child pornography. Pennsylvania, however, may not be a particularly convenient forum if, for example, the completely innocent Website is in Norway or Japan. In essence, the attorney general or district attorney has the power to almost single-handedly shut down innocent sites all over the world, since many do not have the resources to send a lawyer to court to explain to the judge that the site has no pornography at all or, perhaps, to bring to the judge evidence that the model he thought was 17 was, in fact, 18. A third problem – one that may have not occurred to you – is that if Pennsylvania can do this, so can the other 49 states and the District of Columbia. Having an international patchwork of Internet regulations is bad enough; having 51 sets of regulations in the United States is worse.
Well, the good news is that the judge understood all of those problems so well that he wrote a 100-plus-page, well-reasoned opinion, throwing the law out for essentially all of the above reasons. This is all good.
Pennsylvania’s first argument was that this law does not block protected speech because child pornography, as defined in the statute, is not protected by the First Amendment. The court correctly found that the First Amendment does not protect child pornography – defined as a visual depiction of a minor engaged in sexual activity. The Supreme Court has so held, at least twice. However, what about the other speech that was victimized by so-called “overblocking?” The court found that over 1,190,000 sites not targeted by the attorney general had been blocked as a result of notices issued under the law. Pennsylvania begged that those sites were blocked by the ISPs, not by any act of the state. Not quite!
“The two filtering methods used by the ISPs to comply with the Informal Notices and the court order – IP filtering and DNS filtering – both resulted in overblocking. IP filtering blocks all Websites at an IP address and, given the prevalence of shared IP addresses, the implementation of this method results in blocking of a significant number of sites not related to the alleged child pornography. As an example, access to [one of the plaintiff’s] Websites and over 15,000 other sites was blocked to Epix users as a result of the IP Filtering Epix implemented to comply with Informal Notice [Number] 2545. DNS filtering also results in overblocking when the method is used to block a Website on an online community or a Web Hosting Service, or a web host that hosts Websites as sub-pages under a single domain name. Specifically, Verizon blocked hundreds of thousands of Websites unrelated to the targeted child pornography when it used DNS filtering to block access to a sub-page of [a plaintiff’s] Website, a large online community, in response to Informal Notice [Number] 5924. One of the Websites blocked was for a Spanish geological survey, and [Pennsylvania] acknowledged that this Website did not contain child pornography. Although a small subset of web hosts, Web Hosting Services host a large number of Websites and the OAG [Office of the Attorney General] admitted that they are not always identifiable based on the URL. In fact, the OAG continued to issue notices to Web Hosting Services after it was aware of the overblocking problem and had implemented a new procedure to deal with these services.”
It was Pennsylvania’s fault that those innocent sites were blocked, not the fault of the private ISPs that feared being unceremoniously tossed into jail and were unwilling – for valid business reasons – to go to court and stand up for anyone.
Next is the procedural problem. When the attorney general tells the ISP to turn off the offending site (not to mention the hundreds of non-offending ones that might get turned off along with it), it is stopping speech, which we all know is presumptively protected by the First Amendment. The court correctly found that turning off speech cannot occur until after an adversarial hearing resulting in a finding that the speech is unprotected. Much Supreme Court precedent supports that. What Pennsylvania allowed was a hearing with only the prosecutor present and an order based upon a finding of only probable cause that the speech is unprotected. Not good enough, the court properly found. Government cannot be permitted to summarily “turn off” speech without first giving the speaker an opportunity to fight back and without a judicial finding that the speech is not protected.
Finally, there is this obscure but important constitutional principle called the “dormant Commerce Clause.” Recall from Civics 101 that the Constitution gives Congress the power to regulate interstate commerce. Derived from that provision is the rule that prohibits the states from imposing restrictions “that benefit in-state economic interests at out-of-state interests’ expense.” For the Internet, this is a very important principle. Without it, Webmasters could face a patchwork of different state regulations that stand to be inconsistent and perhaps contradictory. Many attempts by states to regulate the Internet have been struck down based upon the dormant Commerce Clause, and Pennsylvania’s Internet Child Pornography Act now joins their ranks.
Notwithstanding, count on politicians to continue to enact supposed “child pornography” laws that, in reality, stifle much protected speech along with them.
Clyde DeWitt is a partner in the Los Angeles, Calif.-based, national law firm of Weston, Garrou & DeWitt. He can be reached through AVN Online’s offices, at his office at 12121 Wilshire Boulevard, Suite 900, Los Angeles, CA 90025, or at [email protected]. This column does not constitute legal advice but, rather, serves to inform readers of legal news, developments in cases, and editorial comment about legal developments and trends. Readers who believe anything reported in this column might impact them should contact their personal attorneys.
