The Quaker State's year-old law requiring that ISPs disengage designated sites found to contain child pornography is coming of age. And while readers of this publication universally cringe hearing the words "child pornography," this law has very dangerous implications for a variety of reasons you may not have considered.
On Feb. 21, 2002, Pennsylvania House Bill 1333 was signed into law by the governor... who will remain nameless because this column refuses to give free press to yet another grandstanding politician seeking to garner ink and photo ops by pandering anti-kiddie porn legislation to the electorate. Nor will this column identify any of the 52 - count 'em, fifty-two - members of the Pennsylvania House of Representatives who jointly sponsored the bill, all pandering to the same lowest common denominator. One sponsor is required, so 52 of them assures that nobody will challenge the bill for failure to have a sponsor, right?
Unlike many federal laws, House Bill 1333 does not have a catchy name. A federal law like this certainly would have some marketable title, like "The Protection of Children and Families from Dirty Old Men Act," or something to that effect. I would denominate it the "We Can Turn You Off Law," but that gives it too much dignity. So, "HB 1333" it remains.
This all starts with the important definition of "child pornography," because it goes well beyond some of the horrid things that usually come to mind. The definition of "child pornography" almost universally arises from what was approved by the Supreme Court of the United States in its decision in New York v. Ferber, 458 U.S. 747, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982).
Essentially, child pornography must be a visual depiction of a minor engaged in sexual activity. Now, break that down a little. A visual depiction means a photographic image, and might be stretched to include a very realistic drawing, but not a cartoon or just words. A minor is a person under 18 years of age, and it must be a real person. The Supreme Court last term struck down the "looks like a minor" federal law in Ashcroft v. Free Speech Coalition, 535 U.S. 234, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002). Finally, the minor must be engaged in sexual activity of some kind, which includes "lascivious" exhibition of the pubic area or genitals. So, you see, child pornography includes not only the kind of images that the words bring to mind, but also a photograph that focuses on a fully-clothed pubic area. Recall that there was a flap a few years back concerning some underwear commercials, although the company shot everyone the bird when it proved that the young-looking women in the up-skirt underwear advertisements were all over 18 when the photos were taken. Something else worth mentioning is that, during the heat of the Meese administration, there was a move afoot to raise the definition of "child" to below the age of 21, which would have outlawed most of the adult movies ever made.
Child pornography, as defined above, can be (and is under federal law and that of most states) contraband and, like heroin or cocaine, enjoys no First Amendment protection according to the Supreme Court's New York v. Ferber decision, and another later one, Osborne v. Ohio, 495 U.S. 103, 110 S.Ct. 1691, 109 L.Ed.2d 98 (1990). Unlike obscenity, which is also not protected by the First Amendment, child pornography is measured by a fairly bright-line test: Either the person was over 18 at the time that the picture was taken or not. In some areas it gets a little fuzzy, such as when they are trying to figure out whether exhibition of a pubic area is "lascivious." Obscenity, on the other hand, is a function of ever-changing local community standards and whether there is serious literary, artistic, political or scientific value; all very fuzzy concepts.
Measuring whether someone was over 18 at the time a picture was taken is not always easy, either. Prosecutors will bring out something called the "Tanner Scale," a chart-like tool that easily can prove that a 21-year-old is 17.
Now that you are aware of what "child pornography" is and is not, the next step is to examine how Pennsylvania has dealt with it in this HB 1333 animal.
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 with whom he recently dined at a party fund-raising dinner. Nobody else is there, 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 defend the ISP or the Website that the prosecutor is about to attack.
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. In cop parlance - and you won't fully appreciate this unless you've been involved in any element of law enforcement - it will say something like, "at the above identified Internet location, this officer did find a color image of a white female approximately 15 years giving fellatio to a white male, approximately 18 years of age." A more thorough prosecutor would attach to the affidavit a printout of the image, but since nobody is there to complain except his friend the judge, there is no need to bother; close enough for government work. Parenthetically, back in the 1970s, when cops were constantly drafting search warrants to seize adult movies from the then-still-popular adult motion picture theaters, the affidavits that they drafted were absolutely hilarious.
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. So, if the prosecutor convinces his friend the judge that there is child pornography 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 has five business days to take down the site, which probably is the first news that the Webmaster has that anything is going on. If the ISP fails to obey an order, it's a $5,000 fine the first time, $20,000 the second and, $30,000 plus up to seven years in the hoosegow each time after that.
Now this may all seem innocuous enough. It creates an efficient procedure to get kiddie porn off the Internet, which is a good thing. And if the prosecutor makes an honest mistake, the ISP or the Webmaster can mosey down to the court of common pleas and persuade the judge to withdraw the order. Well, maybe.
First, experts are saying that taking down one URL can result in taking down a whole bunch of sites that had nothing to do with the child pornography. What is their remedy?
Worse, the court of common pleas may be a little further than just down the street. All an ISP has to do to be targeted under this law is have its content "residing or accessible through its service in a manner accessible to persons located" in Pennsylvania. What ISP is not accessible in Pennsylvania? The ISP could be in Greece and the URL in Thailand. So how does either the ISP or URL mosey down the street to the court of common pleas to persuade the judge that the girl in the photo was really 19, not 16 - as the prosecutor had convinced his friend the judge was the case? So far, only a single affected ISP, WorldCom, Inc., has fought one of these take-down orders in court. It lost. But what about the many other sites at the same URL that had nothing to do with what was claimed to be child pornography? Using "virtual hosting" technology, many different Websites can be hosted under the same domain name. In one case, it was reported that a single site shared its same numerical address with over 970,000 other sites.
There are legislators in 49 other states and the District of Columbia that want the same ink and photo ops as our 52 heroes and the governor of the Quaker State. So, now ISPs stand to be bombarded with orders from scores of prosecutors from everywhere, each requiring that they take down URLs with one user posting alleged child pornography and many other, unrelated users being innocently taken out of service.
Now, take this principle one step further. Child pornography is not the only speech unprotected by the First Amendment. Other examples include defamation, deceptive advertising, and obscenity. Commercial speech can be regulated within the parameters of the so-called Central Hudson test. The Michigan Attorney General's antics and now this comparable political grandstanding are two of many examples of why states should not be charged with regulating the Internet. Fortunately, the Commerce Clause of the United States Constitution may well prevent such state regulation, but that will require a constitutional challenge by some ISP that has the guts to stand up to the government; see American Civil Liberties Union v. Johnson, 194 F.3d 1149 (10th Cir. 1999); American Libraries Ass'n v. Pataki, 969 F.Supp. 160 (S.D.N.Y. 1997).
The Pennsylvania Attorney General now is beginning to utilize HB 1333 in earnest. Take-down orders from Pennsylvania have been shot out to over 400 Websites around the world. That has happened in light of a credible report that some 85 percent of Web addresses ending in .com, .net, or .org share computer resources behind the scenes with one or more other Websites. The unintended censorship potentially caused by these enforcement procedures is staggering.
It is important that this seemingly well-intentioned law not be used as a mechanism to open the door for a blizzard of wholesale and crippling state regulations of adult erotica on the Internet. It is difficult to deal with regulations of many countries. Fifty-one jurisdictions is too many for just the United States.
