Foes of site-blocking law win a round

A legal challenge to a controversial Pennsylvania law that forces network providers to block possibly illegal Web sites wins an unexpected early victory.

Declan McCullagh
Declan McCullagh Former Senior Writer
Declan McCullagh is the chief political correspondent for CNET. You can e-mail him or follow him on Twitter as declanm. Declan previously was a reporter for Time and the Washington bureau chief for Wired and wrote the Taking Liberties section and Other People's Money column for CBS News' Web site.
3 min read
A legal challenge to a controversial Pennsylvania law that forces network providers to block possibly illegal Web sites won an unexpected early victory Tuesday.

Hours after filing a federal lawsuit against the law's "secret censorship orders," aimed at Internet and backbone providers, two civil liberties groups won a dramatic concession from the Pennsylvania attorney general, who agreed to cease using the orders until the case is heard in November. The lawsuit claims the orders--more than 300 have been sent out so far--violate the First Amendment, which broadly protects freedom of expression.

Although the law is only a Pennsylvania state statute, it has had the unusual result of cordoning off Web sites for the entire continent. When the law was used to force WorldCom (now known as MCI) to ban access to some sites with suspected child pornography, the company said it had to block the sites for all of its North American subscribers.

The Center for Democracy and Technology (CDT) spent a year in a stiff exchange of letters with Mike Fisher, the Pennsylvania attorney general, in an attempt to learn the contents of the secret list of off-limits sites. The CDT, along with American Civil Liberties Union, filed the lawsuit at 9:15 a.m. local time Tuesday. By 1:30 p.m., Fisher had volunteered to halt the practice.

"We're very pleased with the results," said John Morris, an attorney at CDT. "We believe the attorney general's secret system of censorship orders is completely unsupportable. Frankly, we're surprised that the attorney general persisted until today in defending that system."

Fisher's office could not be immediately reached for comment. Sean Connolly, a spokesman for Fisher, said in an earlier interview with CNET News.com that the law "has been very successful" and has led to few complaints. "We've worked with Web hosting companies and (Internet service providers) to ensure that the illegal and offensive material is taken down--and not any legal sites that may share that space," Connolly said.

A preliminary injunction hearing before U.S. District Judge Jan DuBois has been scheduled for Nov. 21. DuBois held a brief hearing Tuesday, during which the state made the concession, which he is expected to formalize in a written order.

The ACLU and CDT lawsuit acknowledges that police action against child pornography is necessary, but it says the Pennsylvania state law goes too far in establishing an Internet censorship scheme and is therefore unconstitutional. In addition, the suit claims, Fisher has gone beyond what the statute allows by sending confidential orders to Internet companies that require them to ban access to certain sites--or else.

"Defendant Fisher has maintained his system of secret prior restraint orders through intimidation of ISPs," the complaint reads. "After one ISP, WorldCom, wrote to Defendant Fisher to suggest that Fisher should use the statutory procedures instead of the secret prior restraint orders, Defendant Fisher issued a press release accusing the ISP of refusing to block child pornography. Since the issuance of the press release attacking WorldCom, no ISP has refused to follow any of the secret prior restraint orders."

The Pennsylvania state law in question, which took effect last year, permits the attorney general to order ISPs to block access to the Internet Protocol address of sites that are suspected of featuring child pornography. No other state appears to have enacted such a sweeping law, and this is the first time it is being tested in court. The list of ISPs Pennsylvania targets includes EarthLink, Microsoft's MSN, Terra Lycos, Verizon Communications and Comcast.

A study, released in February by Harvard University's Berkman Center, concluded that because modern Web standards permit thousands of domain names to share one Internet address, Pennsylvania's practice of blocking illegal sites tends to lead to innocuous ones that are being outlawed as well. It said the practice of Web sites sharing IP addresses is so commonplace that Yahoo hosts 74,000 Web sites at one address and Tucows, a Toronto-based registrar of Web domain names, uses one address for 68,000 domains.