CDT Report Criticizes Pennsylvania Site Blocking Law

[Dave Farber <dave () farber net>]

------ Forwarded Message
From: Alan Davidson <abd () cdt org>
Date: Thu, 20 Feb 2003 15:46:43 -0500
To: dave () farber net

Hi, Dave,

Today CDT is releasing a report on Pennsylvania's 2002 web site
blocking law. The statute has been used hundreds of times in recent
months to force Pennsylvania ISPs to block access to web sites deemed
child pornography, but without any notice to the users who are
blocked or any meaningful chance to challenge the determinations.

The law raises very interesting constitutional and technical
problems. Because ISPs respond to the PA orders by blocking access to
an IP address, they inevitably block any innocent domains with the
same address - in the case of one order to block terra.es, the result
could be hundreds or thousands of blocked domains that have nothing
to do with the accused domain. We are also worried that this
approach, now being considered by other states, scales very poorly
technically (~400 notices from Pennsylvania in six months, multiply
that by a couple of years and 50 states and you're looking at a lot
of routing table exceptions to maintain.)

Our report is particularly interesting when coupled with a new study
by Ben Edelman at Harvard's Berkman Center. Ben has found that
two-thirds of all .com, .net, and .org sites are hosted on web
servers with 50 or more domain names - meaning that many sites might
be vulnerable to this form IP address blocking.

CDT's release is below;  our full report "The Pennsylvania ISP
Liability Law:  An Unconstitutional Prior Restraint and a Threat to
the Stability of the Internet" is available at
http://www.cdt.org/speech/030200pennreport.pdf

Ben Edelman's report, entitled "Web Sites Sharing IP Addresses:
Prevalence and Significance" is available at
http://cyber.law.harvard.edu/people/edelman/ip-sharing/

Best regards,

Alan

Alan Davidson, Associate Director                    202.637.9800 (v)
Center for Democracy and Technology              202.637.0968 (f)
1634 Eye St. NW, Suite 1100                          <abd () cdt org>
Washington, DC 20006                                 http://www.cdt.org
Adjunct Professor, Georgetown University         http://cct.georgetown.edu/
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CDT Reports Calls Pennsylvania ISP Law Unconstitutional and Unsound

Request Filed for Records of Undisclosed Web Site Blocking

FOR IMMEDIATE RELEASE -- February 20, 2003

The Center for Democracy and Technology today released a major report
calling unconstitutional a recent Pennsylvania law that forces
Internet Service Providers (ISPs) to block access to numerous web
sites without adequate court oversight. The report's release
coincides with a request under Pennsylvania's right-to-know law
seeking records of the Attorney General's previously undisclosed
demands to block web sites pursuant to the law.

The CDT report - entitled "The Pennsylvania ISP Liability Law:  An
Unconstitutional Prior Restraint and a Threat to the Stability of the
Internet" - analyzes a 2002 Pennsylvania law that forces ISPs to
block access to any web site deemed “child pornography” without
notice to the site’s publisher and without any opportunity to
challenge the determination. ISPs are required to block the sites
even if they do not host the content and have no relationship
whatsoever with the publishers of the content. The Pennsylvania
Attorney General has since gone even further, bypassing the law’s
inadequate court procedures to simply demand by letter that sites be
blocked. The report argues that the statute, which blocks access to
sites that are wholly innocent, is an unconstitutional restriction on
speech, blocks access to sites that are wholly innocent.

While acknowledging the grave nature of the problem of child
pornography, CDT's report details the serious problems - both legal
and technical - inherent in the law and the Attorney General's
actions:

· CDT concludes that the law violates constitutional principles
of free speech and due process, and is unconstitutional under both
the First and Fourteenth Amendments of the U.S. Constitution.
  · Because ISPs must block web sites based on their numeric
"Internet Protocol" (IP) address, the law also blocks web sites that
are completely unrelated to any child pornography sites, simply
because most Internet web sites today share their IP addresses with
many other wholly unrelated web sites.
  · Because of how the Internet is structured, Pennsylvania's blocking
orders reach far outside of the state and prevent people across the
country from accessing lawful Internet content.
  · The Pennsylvania law forces ISPs to manipulate the sensitive
"routing tables" used to send communications around the Internet,
increasing the risk of major Internet service outages.
  · The law does nothing to remove the child pornography at its
source or to prosecute the creators and posters of the content. The
law merely attempts to shield Pennsylvania citizens from the content
while allowing children to continue to be victimized in the
production of the child pornography.

"Child pornography is abhorrent and cannot be tolerated in a
civilized society," said CDT Associate Director Alan Davidson, "but
the Pennsylvania ISP law attempts to fight child pornography through
means that are unconstitutional and technically flawed.  This law
does little to punish the producers of child pornography, but by
blocking sites that are not pornographic will have serious
ramifications for free expression and the stability of the Internet."

The magnitude of over-blocking under the Pennsylvania law is
demonstrated in a separate report - also released this week - by
Benjamin Edelman of the Berkman Center for Internet & Society at the
Harvard Law School.  In that report, Edelman finds that more than
two-thirds of all .COM, .NET, and .ORG web sites share their IP
addresses with at least fifty other web sites.  Any blocking order
aimed at one of those web sites under the Pennsylvania law would
block all fifty (or more) sites, even if those sites are wholly
unrelated to the targeted web site.

"It would be as if mail delivery for an entire apartment building
were stopped because one tenant was accused of wrongdoing," said John
Morris, CDT Staff Counsel and a primary author of the report. "This
law will prevent many Internet users around the country from
accessing hundreds or perhaps thousands of innocent web sites, with
no notice or explanation whatsoever."

In conjunction with the release of its report, CDT has also assisted
in the filing today of a Pennsylvania "Right to Know" Request to the
Attorney General, demanding that he disclose the hundreds of web
sites that he has blocked since the law went into effect.  Professor
Seth Kreimer of the University of Pennsylvania Law School, with CDT
as counsel, submitted the "open records" request seeking all orders
and notices served pursuant to the law on ISPs by the Attorney
General's office.  Under Pennsylvania's open records system, the
Attorney General must produce the requested documents within ten
days.  In addition to Professor Kreimer, CDT has consulted with
Professors David Post (Temple University Law School), Polk Wagner
(University of Pennsylvania Law School), Dan Hunter (the Wharton
School of the University of Pennsylvania), and Jonathan Zittrain
(Harvard Law School) on this matter.

CDT's report is available at http://www.cdt.org/speech/030200pennreport.pdf

Benjamin Edelman's report, entitled "Web Sites Sharing IP Addresses:
Prevalence and Significance," was released by Mr. Edelman this week,
and is available at
http://cyber.law.harvard.edu/people/edelman/ip-sharing/

For more information, please contact:
Alan Davidson, CDT Associate Director, 202-637-9800 x110
John Morris, CDT Staff Counsel, 202-637-9800 x116
Paula Bruening, CDT Staff Counsel, 202-637-9800 x114


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