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Pennsylvania’s Internet Child Pornography Act is unconstitutional, a federal judge declared on Friday, because it effectively forced Internet service providers, or ISPs, to block access to more than 1.1 million “innocent” Web sites in an effort to target a few hundred sites containing child pornography. In his 113-page decision in Center for Democracy and Technology v. Pappert, Senior U.S. District Judge Jan E. DuBois noted that the law was “the first attempt by a state to impose criminal liability on an ISP which merely provides access to child pornography through its network and has no direct relationship with the source of the content.” DuBois concluded that the law violates the First Amendment rights of ISPs, Internet users and Web site operators because, “with the current state of technology, the act cannot be implemented without excessive blocking of innocent speech.” In practice, DuBois found, the law also amounted to an unconstitutional “prior restraint” due to the Pennsylvania attorney general’s practice of using an “informal notice” to ISPs that contained a “veiled threat” of criminal prosecution. “People do not lightly disregard public officers’ thinly veiled threats to institute criminal proceedings against them if they do not come around,” DuBois wrote. Evidence at an injunction hearing, DuBois said, showed that “ISPs did not view compliance with the informal notices as voluntary. In fact, all but one ISP complied.” And in the one instance when an ISP did not respond to an informal notice, DuBois found that the AG’s office “carried out its ‘thinly veiled threat’ and obtained a court order against WorldCom and subsequently issued a press release describing the legal proceeding.” As a result, DuBois found that “compliance with the informal notices was not voluntary and the … process resulted in a prior restraint on protected expression.” DuBois said he recognized that “elimination of child pornography is an important goal” and that “those responsible for the creation or distribution of child pornography should be prosecuted to the full extent of the law.” But he also noted “all of the ISPs involved in the case have given [the AG's office] their complete cooperation.” He also found there was “little evidence” that the new law has “reduced the production of child pornography or the child sexual abuse associated with its creation.” Instead, he said, “there is an abundance of evidence that implementation of the act has resulted in massive suppression of speech protected by the First Amendment.” The ruling is a victory for plaintiffs’ attorneys Stefan Presser, the former legal director of the ACLU of Pennsylvania; Professor Seth Kreimer of the University of Pennsylvania Law School; and John Morris, staff counsel for the Center for Democracy and Technology. Witold Walczak, the current legal director of the ACLU of Pennsylvania, praised the ruling, saying DuBois had “rightly concluded that such an ineffective law that censors so much protected speech clearly violates the First Amendment.” Larry Frankel, the legislative director for the ACLU of Pennsylvania, said the ruling “shows how important it is for policy makers to take the time to learn how the Internet actually works. This opinion should encourage our legislators to tread very carefully before attempting to regulate the Internet.” John Shellenberger, a senior deputy attorney general who argued the case before DuBois, said Friday that he needed time to study the 113-page opinion before commenting. “My only comment today is that we have to study the opinion and see what it says and decide how to deal with it,” he said. For the ACLU, the ruling marks its third victory this summer in which federal courts have struck down Pennsylvania laws on First Amendment grounds. In July the 3rd U.S. Circuit Court of Appeals held in The Pitt News v. Pappert that a Pennsylvania law that bans alcohol-related advertising in college newspapers is unconstitutional because the state was unable to show that such a law is necessary to discourage underage or abusive drinking. Ruling in favor of the student-run newspaper at the University of Pittsburgh, the unanimous three-judge panel ruled that Act 199, passed in 1996, ran afoul of the First Amendment by prohibiting liquor license holders from advertising in student newspapers with the threat of fines and revocation of liquor licenses for violators. And in August, the 3rd Circuit upheld a lower court’s decision in The Circle School v. Phillips that struck down a law that would have required public and private schools in Pennsylvania to begin each day by having students sing the national anthem or recite the Pledge of Allegiance. The pledge law violated the free speech rights of students, the court said, because it required that schools inform parents whenever a student opted not to participate. In their challenge to the Internet Child Pornography Act, the ACLU and the Center for Democracy and Technology argued that the law forced ISPs to block more than 1.1 million Web sites that had no illegal sexual content. The law, passed in February 2002, required ISPs to remove or disable access to child pornography items “residing on or accessible through its service” after notification by the AG’s office. But plaintiffs’ lawyers argued that, due to the limits of current technology, the methods used by ISPs to comply with the act led to significant “overblocking.” They also complained that the AG’s practice of issuing informal notices to ISPs amounted to a prior restraint on speech and that its effects stretched far beyond Pennsylvania and therefore placed an impermissible burden on interstate commerce. The AG’s office argued that the law, on its face, does not suppress any protected speech, and that any “overblocking” was the result of action taken by ISPs. Deputy AG Shellenberger, also argued the informal notices did not result in any prior restraint of speech because the procedure was developed with ISP input to provide for an informal and noncoercive means of advising ISPs that child pornography was accessible through their service. Shellenberger also insisted that the law does not violate the Commerce Clause because child pornography is not commerce. But DuBois sided with the plaintiffs on every legal point. The law violated the U.S. Constitution’s dormant Commerce Clause, DuBois found, because it “has the practical effect of exporting Pennsylvania’s domestic policies.” As an example, DuBois noted that a WorldCom witness testified that a customer in Minnesota would not be able to access a Web site hosted in Georgia if an Internet address was blocked by a Pennsylvania order. DuBois found that since the law resulted in such a significant amount of overblocking, “a Minnesotan would be prevented from accessing a Georgia Web site that is not even alleged to contain child pornography.” Some courts, DuBois said, have concluded “the Internet should not be subject to state regulation.” DuBois declined to go so far, saying he was “not prepared to rule that states can never regulate the Internet.” But on the basis of the evidence presented during a three-week injunction hearing, DuBois found that the Pennsylvania law’s “extraterritorial effect” violates the dormant Commerce Clause. DuBois found there was also evidence that the law “places a substantial burden on interstate commerce.” The AG’s office insisted that the law burdens only child pornography — which is not a legitimate form of commerce. DuBois disagreed, saying “the evidence demonstrates that implementation of the act has impacted a number of entities involved in the commerce of the Internet — ISPs, Web publishers and users of the Internet.” To comply with the law, DuBois said, ISPs used “filtering” technology that suppressed access to 376 Web sites containing child pornography as well as more than 1.1 million sites that do not. “The overblocking harms Web publishers which seek wide distribution for their Web sites and Internet users who want access to the broadest range of content possible,” DuBois wrote. As an example, DuBois cited evidence presented in the hearing that a self-employed documentary filmmaker was unable to access a Web site selling movie posters as a result of a block implemented by America Online in response to an informal notice. DuBois concluded, “the burden imposed by the act is clearly excessive in relation to the local benefits. Thus, the act must fail under the dormant Commerce Clause as an invalid indirect regulation of interstate commerce.”

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