A federal judge has thrown out a Pennsylvania law requiring Internet service providers to block subscribers from viewing child porn.
In rendering the verdict, U.S. District Judge Jan DuBois agreed with those who found the law was too sweeping and blocked out sites having nothing to do with child porn content.
"[W]ith the current state of technology, the Act cannot be implemented without excessive blocking of innocent speech in violation of the First Amendment," DuBois wrote in the September 10 decision, in a lawsuit filed against the state by the Center for Democracy and Technology, the American Civil Liberties Union, and an Internet service provider known as Plantagenet.
"In addition, the procedures provided by the Act are insufficient to justify the prior restraint of material protected by the First Amendment and, given the current design of the Internet, the Act is unconstitutional under the dormant Commerce Clause because of its affect on interstate commerce," she wrote.
DuBois also rejected a state argument that suppressing legitimately protected speech wasn't required by the law but was the result of the ISPs' action.
"The elimination of child pornography is an important goal and those responsible for the creation or distribution of child pornography should be prosecuted to the full extent of the law," she wrote. "To that end, all of the ISPs involved in the case have given defendant their complete cooperation. Notwithstanding this effort, there is little evidence that the Act has reduced the production of child pornography or the child sexual abuse associated with its creation. 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."
Even as this lawsuit made its way to court, the Pennsylvania ACLU pressed state lawmakers to rethink several state laws that seemed to impact Internet communications broadly.
"[T]he existing laws in Pennsylvania that criminalize communications over the Internet are susceptible to legal challenge because they appear to be in violation of the Commerce Clause," Pennsylvania ACLU legislative director Larry Frankel told the State Senate Judiciary Committee during a 2003 hearing. "We do not think that Pennsylvania’s current laws in this area are sufficiently narrowly drafted and we believe they suffer from the very defects discussed by the court cases I have described."
The state requirement that ISPs block child porn sites included the power for the state attorney general to fine them up to $30,000 as well as sentence executives to up to seven years behind bars. The state attorney general's office had originally set up a Web page letting residents report child porn and sent a reported five hundred notices to ISPs through whose services child porn was believed to have been sent., and the ISPs, DuBois noted in her opinion, complied.
Adult Sites Against Child Pornography executive director Joan Irvine said her group's experience tended to back the Pennsylvania ISPs in question and DuBois's conclusion.
"[T]he legitimate ISPs voluntarily and quickly terminate sites when they are informed such sites contain child porn," Irvine told AVNOnline.com. "Some are proactive and use technology that spiders for key words and scrubs for images. These companies do not want their service used for such immoral and illegal activities. They are more active in the battle against child pornography than most people know."
The problem, Irvine said, occurs when the government becomes too far involved. "All of a sudden, if it’s not done according to their rules, timing, software, or if the company overlooks some occurrences, the ISP owner can end up facing criminal charges," she said. "One would think the government would thank them for their diligence, effort, and good business practices."
