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There must be something in the fiber-optic cable in Philadelphia. Why else would the 3rd U.S. Circuit Court of Appeals be such a hotbed for Internet policy making? For Stefan Presser, the longtime legal director of the American Civil Liberties Union of Pennsylvania, it’s a hotbed blooming with work. Presser is a member of the legal team that filed a lawsuit against Pennsylvania attorney general Mike Fisher in September. The suit challenges a statute that allows the AG to force Internet service providers to block particular Web sites that his office alleges contain child pornography so they cannot be viewed by Pennsylvania residents. The case, brought on behalf of PlantageNet Internet Ltd., a small Doylestown, Pennsylvania-based Internet service provider, has national implications. It affects Internet users outside of Pennsylvania, says Presser, and other states may be looking to Pennsylvania’s law — the first of its kind in the country — as a model. The ACLU is cocounsel with the Center for Democracy and Technology in Washington, D.C. This suit will likely land in the 3rd Circuit. And it wouldn’t be the first time that Presser, 50, has fought cyber battles there. For the ACLU it’s somewhat of a happy coincidence that if any state had to pass this law, it was Pennsylvania. The organization has filed three of the most significant Internet free speech cases there, all of which received favorable 3rd Circuit rulings. Presser, the ACLU of Pennsylvania’s sole lawyer for 18 years, has been involved in all of them. First, there was the legal challenge to the Communications Decency Act in 1996, a federal statute that tried to prohibit the transmission of indecent materials over the Internet. The 3rd Circuit threw out the law. Next, in October 1998, the ACLU and other organizations challenged the Child Online Protection Act, also in Pennsylvania. The 3rd Circuit overturned the law in June 2000, was reversed by the U.S. Supreme Court last year, and ruled against the law for the second time in March 2003. (In October, the Supreme Court agreed to hear the case.) Finally, the ACLU challenged the federal Children’s Internet Protection Act, requiring libraries to install filters on computers. Again, the 3rd Circuit overturned the law. (The Supreme Court upheld the law in June.) Since the Web site blocking statute was passed in Pennsylvania in April 2002, the AG’s office has tried to block more than 300 sites. Typically, the AG’s office sends a letter to an ISP, stating that it has found pornographic material on one of the Web sites the ISP houses, and if the ISP doesn’t block the site from Pennsylvania residents, the AG will get a court order forcing it to do so. Sean Connolly, a spokesman for Attorney General Fisher, says the purpose of the law is to “protect children from predators, and to halt child pornography in Pennsylvania. And the law has worked very well.” (How well Fisher melds with the 3rd Circuit may take on new meaning soon. He is nominated to a seat on the court.) Among the many issues that the Web blocking case raises are the jurisdictional problems involved in Internet regulation, says David Post, a professor at Temple University James E. Beasley School of Law. “Pennsylvania undoubtedly has jurisdiction over ISPs serving Pennsylvania residents, and the statute makes them, in effect, the subject of the regulation rather than the actual perpetrators of the illegal acts themselves,” Post says. But, he adds, there are troubling questions to be addressed, namely how residents outside of Pennsylvania are affected. Opponents of the law say the ISPs should not have to bear the responsibility to block Web sites. “The network is dumb,” explains John Morris, Jr., an attorney with the Center for Democracy and Technology. “It doesn’t go and scrutinize; it doesn’t facilitate censoring. To force ISPs to become the bottleneck,” he says, could trigger “an enormous number of potential abuses of power.” Morris also says that ISPs are not always technically equipped to block out a single Web address, since hundreds of sites can share the same Internet Protocol address. The result: thousands of innocent sites may be blocked. In September, after the ACLU and CDT filed suit, U.S. court judge Jan DuBois approved a temporary restraining order that forced the AG’s office to stop sending notices to ISPs threatening to get court orders to block certain sites. But Connolly says that won’t stop Fisher. “From now on we’re willing to take every case to court,” says Connolly. A hearing is set for November 21 on the merits of the suit. Presser, whose cyber law adventures have been taxing enough that he’s now looking to hire a second lawyer for his office this fall, stresses that nobody is saying child pornography is protected speech. “We’re not trying to do anything radical here,” he says. But the “by-product” of going after ISPs “is to trample on an enormous amount of protected speech. Even good goals cannot be effectuated by producing terribly unconstitutional side effects. That’s hornbook law,” he says. “There are less problematic ways to accomplish what the commonwealth wants to do.” Presser is first on line to make that happen. Pearlman is a freelance writer in Philadelphia.

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