FITUG e.V. Förderverein Informationstechnik und Gesellschaft

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

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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