Sunday, September 12, 2004

Internet Child Porn Law Unconstitutional

On Friday a U.S. court has found a law of the State of Pennsylvania, which essentially made local ISPs liable for providing access to websites that alledgedly contained child pornography, unconstitutional. The decision noted that 'there is an abundance of evidence that implementation of the Act has resulted in massive suppression of speech protected by the First Amendment.'

It is an important decision, not in the last place because, as the decision finds:
'The Act is the first attempt by a state to impose liability on an ISP that does not directly contact with the originator of a communication. Thus, Pennsylvania is the first state to impose liability on, for example, the backbone providers or regional ISPs that route the communication [...].'
What the act does, or at least the Attorney-General that executes it, is enforce anti-child pornography policy through the destination ISP. That is, the ISP that is the last in the internet chain between source and destination, the "conduit" or off-ramp to the end-user. It provides probably the most effective point of blockage for information flowing from foreign, out-of-state soil.

One may depict the information flow on the internet as follows:
[Source] - [Source ISP] - [Internet backbone(s)] - [Destination ISP] - [End-User].
Where earlier the (legal) focus was on the Source and Source ISP (e.g. U.S. Communications Decency Act and Child Online Protection Act), or on the End-User (e.g. individual filtering systems like NetNanny), this has shifted to the Destination ISP, or even backbones.

For enforcement purposes these are interesting targets, since they are usually located in the state's jurisdiction. Many internet filtering laws have been ineffective, because either the Source or the Source ISP were located outside the arm of the law. Illegal content posted and hosted out-of-state was hard to prosecute, let alone practically shut down.

The Pennsylvania law was more than effective at shutting down content, and not necessarily child pornography. Massive overblocking resulted from the used filtering techniques by the local ISPs (DNS poisoning and URL routing), which answered to informal Notice and Take Down orders. The Attorney-General issued out of court requests to block certain sites or web pages. This meant no juridical review, nor the knowability of the filtering or possibility to complain by affected parties. A form of prior restraint, and recognised by the court as such.

The Pennsylvanian practice shows how a government may use a private party as a policing tool. How it may avoid constitutional frictions, which come with prescribing filtering techniques to individual users. How it can bypass jurisdictional problems and concentrate on the most vulnerable node in the internet chain. In the chain, outside the sight of the end-user, making use of a technical tool of enforcement deep in the internet layers.

The lengthy decision gives a good insight in the basics of the used techniques and the practical and legal consequences enforcement of law through code brings. Very much recommended, the more because this is one of the first decisions in an area that will likely become ever more important in the future regulation of the internet's information stream.
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Links: decision , court order
More on: Furdlog and Susan Crawford's blog
Background: paper by Jonathan Zittrain

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