Web of Secrecy

The Pennsylvania attorney general is ordering ISPs to block online child pornography, but at the expense of legal Web sites

From the Fall 2003 issue of The News Media & The Law, page 14.

By Jeff Lemberg

The names of more than 700 illegal child pornography Web sites blocked by order of the Pennsylvania Attorney General’s office are a secret. So too are the names of countless legal Web sites blocked as a result of those same orders, which were made . . . in secret.

But the veil of secrecy Pennsylvania Attorney General Mike Fisher’s office has operated under for the past two years is about to be lifted.

On Nov. 21, the Center for Democracy and Technology (CDT), a Washington, D.C.-based advocacy group, will square off against the state of Pennsylvania in U.S. District Court in Philadelphia over the constitutionality of an Internet blocking law. At stake, says CDT attorney John Morris, is nothing less than the free flow of information beyond government censorship.

In February 2002, Pennsylvania Gov. Mark Schweiker, a Republican, signed into law an anti-child pornography bill that gave the attorney general authority to instruct Internet Service Providers, through court order, to disable access to a particular Web site that is deemed to be publishing illegal content viewable in the state. The U.S. Supreme Court made the first differentiation between indecency and child pornography in the 1982 case New York v. Ferber, ruling that the First Amendment does not protect content that depicts children — under the age of 18 — engaged in sexual conduct. Publication, distribution and possession of child pornography has since become a federal offense.

The problem, explains Benjamin Edelman, a fellow at The Berkman Center for Internet & Society at Harvard Law School, is that Pennsylvania’s aspirations exceed Internet Service Providers’ technical capabilities. To block state residents from accessing a specific Web site, Internet Service Providers serving Pennsylvania must block an entire server’s worth of addresses, which could number in the hundreds. Edelman likens the action to blocking an entire company’s outgoing phone calls when the true aim is to simply block one extension.

“It’s a rare country that tolerates child pornography,” said Edelman, who has studied Internet filtering and blocking worldwide. “But you get it solved at the source. The Pennsylvania law attempts to stop it at the destination, which doesn’t make much sense.”

Research by Edelman, published by the Berkman Center, shows that more than 87 percent of all Web addresses that end in .com, .net or .org share a server with at least one other site, while 70 percent of all Web addresses share a server with at least 50 other sites.

As a result of Pennsylvania’s law, thousands of completely legal Web sites have been secretly blocked by Internet Service Providers who didn’t want to battle the attorney general’s office over something as explosive, and public relations unfriendly, as child pornography. According to Morris, those attempting to access an unknowingly blocked Web site — legal or otherwise — would simply see an error message that provides “no indication whatsoever that the site was blocked for any reason.”

The CDT, located in Washington, D.C., in conjunction with the ACLU of Pennsylvania, is challenging the secretive manner in which Fisher ordered Internet Service Providers to block content, as well as the overall constitutionality of the law. The attorney general’s office admits it did not obtain court orders, in accordance with the law, before instructing Internet Service Providers to block users from viewing alleged child pornography. As a result, there was no judicial oversight of the more than 300 decisions to block information.

Only MCI, formerly known as Worldcom, stood up to the attorney general’s office. The company, which filed for bankruptcy protections in July 2002 while it reorganized its business, said it would only block a Web site by order of a court — per the law, as written. In September 2002, Montgomery County Judge Lawrence Brown ordered Worldcom to prevent its subscribers from accessing five specific child pornography Web addresses.

MCI attorney Craig Silliman declined to say how many legal Web sites were blocked as a result of Brown’s order, or what steps — if any — the company took to notify the affected Internet publishers. Silliman said it would be improper for him to comment, as he’s likely to be deposed in the CDT’s lawsuit.

Since the CDT got a court injunction in September 2003 to stop the attorney general’s office from secretly ordering Internet Service Providers to block Web addresses, Fisher hasn’t sought to block a single site, according to Sean Connolly, a spokesman for the attorney general.

“Is the delivering ISP the appropriate point for the government to regulate content on the Internet? We don’t think so,” Morris said. “If you want to regulate content on the Internet, you should prosecute the child pornographers.”

This law, Morris added, provides “tremendous potential for future censorship.”