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[FYI] (Fwd) Pa. Law to Block Child Porn Online




------- Forwarded message follows -------
Date sent:      	Fri, 15 Mar 2002 10:37:07 -0500
Send reply to:  	Law & Policy of Computer Communications
             	<CYBERIA-L@LISTSERV.AOL.COM>
From:           	Frederic Wilf <fwilf@MORGANLEWIS.COM>
Subject:        	Pa. Law to Block Child Porn Online
To:             	CYBERIA-L@LISTSERV.AOL.COM

Folks--

Prof. Michael Geist in his Internet Law News reported that
Pennsylvania has enacted a law by which the Pa. Attorney General or a
county district attorney may obtain a court order that requires ISPs
to (1) remove any child porn on their systems, and (2) block access to
particular URLs containing child porn.

The law is at
http://www2.legis.state.pa.us/WU01/LI/BI/BT/2001/0/HB1333P3184.pdf

The bill history, such as it is, is at
http://www.legis.state.pa.us/WU01/LI/BI/BH/2001/0/HB1333.HTM

The bill was signed Feb. 21, 2002, so by its terms it should take
effect 60 days later (April 22, 2002).

The take-down portion of the bill seems straightforward enough.  The
ISP upon receipt of notice of the court must take down (or otherwise
disable access to) the alleged child porn within 5 business days. 
Thus, the ISP could leave the material on its servers, but disconnect
access from the Internet.

The blocking provision states that the ISP must "disable access" to a
given URL "accessible through its service".  I understand from a few
people I have spoken to that it's relatively easy for an ISP to
install and use filtering/blocking software to block access to a given
URL, but that the software may not necessary block *all* access
through the ISP to the material.  Is that right or wrong from a
technical standpoint?  How difficult a technical problem is it for a
user to circumvent a block on a URL placed by the ISP?  (Seth F., your
comments would be welcome.)

>From the legal standpoint, I don't know that the AG/DA will accept
>"best
efforts" on the part of the ISP if users of an ISP can still reach a
URL, since the law reads that the ISP "shall ... disable access". 
However, by focusing on the URL, the ISP is not responsible if the
content is then moved to a different URL, at which point presumably
the AG/DA goes back to the court for an amended order, which is then
served on the ISP for the next iteration.

It's not clear to me whether the application made by the AG/DA to the
court must specify each ISP that will eventually get a letter.  The
law states that the AG/DA must submit certain information to the
court, including the identity of the ISP used by a law enforcement
officer to see the alleged child porn.  Then, the AG sends the letter
to the ISP.  If a county DA obtains the court order, the DA must
forward the order to the AG, who then notifies the ISP.

The law applies to any ISP who makes the bad content "accessible to
persons within" Pennsylvania.  Apparently, Pa. has developed a
variation on Minnesota's approach to gambling online.  If I read this
correctly, ISPs throughout the U.S. and around the world may start
receiving notices from the Pa. AG on behalf of itself and on behalf of
numerous county DAs.

Note that the federal Communications Decency Act provision that
shields ISPs and other online service providers at 47 USC 230 has
express carve-outs for federal criminal law (including federal child
porn statutes) and for any state statute that is not inconsistent. 
So, as I read it, the CDA shield may not conflict with or pre-empt the
Pa. law.  Indeed, the CDA may nevertheless shield the ISP for any
civil suit by the owner of the alleged child porn arising out of the
ISP's taking down or blocking the content.

There are a number of provisions in the law designed to soften the
blow to ISPs.  The law states that it does not require that ISPs
monitor their systems or the traffic passing through them.  The ISP
has 5 business days from receipt of the notice to comply.  ISPs may
designate agents to receive the notices.  The first two offenses are
misdemeanors punished only by fines ($5000 for the first offense,
$10,000 for the second offense), but the third and subsequent offenses
are felonies punishable by $30,000 fines and prison terms up to seven
years.

Child porn seems to be the obvious first choice for a law that may
keep some sellers of blocking software afloat.  It certainly provides
a model (or provides an interesting variation on Minnesota's model)
for imposing local standards across the Internet.

It will be interesting to see whether this law is actually used by the
Pa. AG or county DAs.  The Pa. AG is an elected position, as are most
(all?) Pa. county DAs, and these offices are often used as a stepping
stone to higher offices.  So, a county DA can campaign on the number
of child porn URLs blocked and ISPs notified by the AG at the DA's
request.  If this approach turns out to be effective, I would expect
to see *many* more blocking statutes of this sort.

Your comments are welcome.

Best regards,

--Fred Wilf
________________________________________________
Frederic M. Wilf
Morgan Lewis, Philadelphia
fwilf@morganlewis.com     215.963.5453 (voice)
www.morganlewis.com       877.432.9652 (fax)
________________________________________________



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