Pennsylvania Child Porn Act Overturned

Ghoser777 writes "According to MSNBC, a Pennsylvanian law that required ISPs to filter/block websites containing child porn has been overturned by a federal judge. Child porn is still illegal under U.S. federal law, but the judge found that 'there is an abundance of evidence that implementation of the Act has resulted in massive suppression of speech protected by the First Amendment.'"

Comments

protect yourself

[crazyray]

If you run an ISP, and are worried about some government agency forcing you to sacrifice your subscibers rights, heres a good place to start to learn about the latest battles. http://www.eff.org/minilinks/archives/cat_free_spe ech.php

Re:protect yourself

[polecat_redux]

OK, is there any good reason for an ISP to log the activities of its customers? There should be no need to correlate IP to website A, or FTP B, or even newsgroup A.B.W.. They should just provide the connection and be done with it.

Re:protect yourself

[lxt]

I don't think that's a very insightful comment - by that logic ISPs wouldn't investigate spam activities, phishing, and the like. For the average Joe, it might be a good idea, but in practice it just wouldn't work.

A (probably slightly flawed) analogy would be tracking devices in cars. The vast majority of the public would be heavily oppossed to any form of continous government or police monitoring of their whereabouts whilst driving. People don't want to be penalised for what they see as "small" violations of the law (minor speeding and the like).

The same with the internet - the vast majority of people don't want their usage to be tracked, because they don't wan't to be penalised for what they see as "small" violations of the law (copyright theft via P2P, those under 18 viewing pornography, etc.)

However, once your car's been stolent, you'd probably really want a vehicle tracking device so you could get your car back. The same with the internet - once you've been hit with a large spam attack / DDoS etc. you'd probably want to find out who carried it out, via logs. Home users with little technical experience would expect their ISP to help, certainly with spam.

Re:protect yourself

[ScrewMaster]

Yes, it could easily happen here. And the only reason it hasn't yet is because of laws such as the Telecommunications Act of 1934 that hold so-called "common carriers" harmless from any illegal acts that may be performed using their equipment. The government, at the time, recognized that private investment in a communication system would be impossible to secure if every call made using the system was a potential lawsuit. Furthermore, it was determined that the risks of people using the system for some illegality were vastly outweighed by the benefits of a reliable national phone system.

Traditionally, to achieve common-carrier status you had to subject yourself to the regulatory whims of the government. This included specific items such as level-of-service standards with stiff penalties for non-compliance. Those of you old enough to remember the old AT&T (Ma Bell) will remember that, while Ma Bell owned everything, they did have standards laid down by the Feds and they had to live by them. However, these things cost money, and is why companies like, say, Comcast would like to be considered common carriers (to avoid any liability issues) and yet not be considered common carriers (so as not to be subject to regulation.)

There's also that business about "store and forward". As long as the communication made is immediate (the other guy answers the phone) they can't be held liable, but as soon as you use a voice mail system (i.e., store and forward) things get a bit sticky regarding liability. And all Web sites and email systems do is store and forward information.

So don't assume that it can't happen here just because it hasn't yet. In our anti-terrorist-happy society, ISPs and phone companies (the distinction is becoming somewhat irrelevant ... my ISP offers phone service and my phone company offers broadbad) may very well be held liable for use of the equipment and their content. Heck, the phone system is already an extension of the government's surveillance capabilities (see CALEA) and a logical extension of that would be to force ISPs to be an enforcement arm as well. The simplest way to do that (from the perspective of the legal mind) is to hold them accountable for the information that passes through their systems, which is pretty much what that Pennsylvania law did. Fortunately, it sounds like the judge in that case was rather well-informed about Internet and free-speech issues.

Re:protect yourself

[Tassach]

Why not a .SAFE domain instead?

Exactly. Forcing all adult content providers to go to an .xxx domain would be impossible to implement, let alone being unconstitutional. If you had a .kids TLDs, people who want to provide unobjectional content can sign a contract spelling out exactly what they can and cannot provide; and if they violate the terms of the contract, they lose the domain. This scheme is strictly voluntary and requires no government intervention. It also allows for multiple competing definitions as to what is "kid safe". For example domain .xian could have terms of service say that sex ed materials are verboten but religious prostelyzing is just fine, whereas .teens could have the exact opposite rules. This would give parents the ability to easily block domains that are unrestricted (.com) or that permit content THEY find inappropriate for their children.

Ehhh...

[corvair2k1]

A tough issue, of course, but this can be somewhat equated to the situation with p2p. Would we have the networks be responsible for copyright infringment, or the users themselves? Shouldn't we be policing the users instead of the ISPs?

Re:Ehhh...

[Moridineas]

Judging from the outrage many on slashdot express every time the RIAA sends out more subpoenas, I don't know that a lot of people would agree with that statement :-p

Re:Ehhh...

[CosmeticLobotamy]

More would agree with it if the RIAA hadn't blown all its goodwill suing the wrong people and being mean in general. You don't get a second chance when you're a giant bitch on top of being wrong on your first go.

Re:Ehhh...

[trevdak]

While I agree that filtering child porn sites should not be a burden the ISPs should need to filter, one must also understand what the government is (or at least should be) trying to do.
With drugs, arresting pot smokers will do little damage to drug dealers. Half of all college students would be in trouble. Instead, they crack down on the dealers. By intercepting one truckload of marijuana, the government can prevent the distribution of marijuana to thousands of people.
Unfortunately, stoping child porn and digital copyright infringement is not as easy. One can smuggle thousands of dollars of bootleg cds or child pornography without putting them in condoms and swallowing them to get them past the border. It can simply be sent with a filesharing program or a website or one of a thousand other ways of sending a file. As with pot, half of all college kids (more like 80%) could be in trouble for copyright infringement, so stopping them is pointless. They need to work from the top down. They can't stop child pornography or media bootlegging in foreign countries, nor can they prevent the illegal material from entering the united states.
The best they can do is filter ISPs or monitor individuals who visit fake sites. Setting up fake sites wouldn't work well because people probably have a source they trust for their child porn. While the actions taken were ineffective, I feel that they were a step in the right direction. Perhaps if/when there is an overhaul of internet protocols, monitoring illegal activities may be easier for the government.

Re:Ehhh...

[slashcop]

Setting up fake sites would be illegal. The only way to stop child porn is to stop its production and I don't know how you go about doing that with censorship. Censorship only increases demand.

The alternative is to copy japan and let them watch whatever fake porn and arrest the people who own or create real childporn. The whole childporn debate should be about protecting children and not censorship.

The way to protect children is to prevent children from being exploited in the first place, censorship of childporn sites won't make a difference because the site already exists. What makes a difference is shutting the site down and finding out where the owner got their pictures and if they refuse to talk then you put them in prison.

Re:Ehhh...

[CosmeticLobotamy]

While it wasn't your main point and I don't know if you were arguing for it or not, the fact that arresting marijuana users would get 50% of college students arrested and punishing music downloaders would get 80% of college students in trouble should set off an alarm in anyone's head that maybe the law needs to be re-evaluated. (Not necessarily dropped, but definitely re-evaluated.)

Closer to topic, your desire for more government monitoring is scary. But also not the point, and I won't argue it.

(The following is obviously speculation, so if you have facts to refute or support it, I'm all ears.)

Actually on-topic, while the whole child porn thing is disgusting, stopping internet sharing of it is not going to stop the abuse of the children the law aims to protect. The people who do this aren't doing it because they can make money doing it. They're going to be making the porn for themselves whether they can sell it and share it or not. The people consuming it aren't going to stop molesting children if they can't get their dirty pictures.

I'm willing to bet that the number of kids helped by this law is going to be within the margin of butterfly-effects, so let's not waste time and money blocking people from reading melodramatic blogs.

There are better ways to fight child abuse, and they conflict with this one.

Re:Ehhh...

[Motherfucking Shit]

Setting up fake sites would be illegal.

No, it's not illegal, as long as no actual child porn is displayed prior to the "signup page," and this is how a lot of child porn busts are made. The feds set up a fake child porn website, wait for people to sign up, and then take them down. Similar activity takes place on Usenet. Legal porn newsgroups are covered with posts like "MANBOY TRADE," fishing for people who are willing to offer up their address in exchange for illegal pornography.

There is no entrapment, because the feds aren't encouraging a crime that would not otherwise have taken place. The cops are making a situation available, but they aren't coercing anyone into the deal. It's perfectly legal for a cop to stand on a street corner "looking like" a drug dealer, and he can bust anyone who attempts to buy drugs from him. Likewise, it's perfectly legal for the law to set up a site that "looks like" a child porn site, and bust anyone who attempts to sign up.

It's called a sting operation, and it's totally legal. IMO, this is where the majority of child protection tax dollars should be going. Not to legislation that gives states the right to set up secret "website blacklists" that ISPs are required to obey.

Re:Ehhh...

[Bob Uhl]

Oh, certainly. Having recently started driving at exactly the speed limit (rather than 20-30 over on highways and 5-15 over elsewhere), I have found that the limits are set absurdly low. It takes more than a third again as long to travel somewhere at 55 mph as it does at 75 mph, and on an interstate there is no safety difference (in fact, in this town everyone travels at 75 in the 55 sections anyway).

The speed limits are set lower than the majority of drivers for two reasons: to generate revenue and to give the police reason to make drug & alcohol stops. It's illegal for a cop to point a gun at you and take your money, but it's perfectly legal for him to ticket you for an infraction of a lunatic traffic rule; it's illegal for him to stop your car to search it without a warrant, but perfectly legal for him to search it with a loosely-defined probably cause after having stopped you for an infraction of the above-mentioned lunatic traffic rule.

Fortunately, I neither use nor carry drugs, so the latter doesn't affect me--but it's annoying nonetheless the way traffic rules are manipulated to over-ride little things like freedom from search and seizure.

Truly refreshing.. next up.. DMCA!

[Gentlewhisper]

Wow, this is certainly a step in the positive direction, in view of stuff like Patriot Act, and RIAA's ...

At least someone in that court room still remember that Americans possess this thing called rights. While decisions like this probably won't stand against the corporate giants, at least 1984 has been postponed yet further..

The judge got it right

[Raseri]

Too bad the lawmakers never will. It's only a matter of time before the bill is rewritten in such a way that forces ISPs to use "expensive technology" to block kiddie porn.

It's also unfortunate that the same logic hasn't been applied elsewhere.

Praise God

[xombo]

I wonder if you could legally view child pornography if you classified it as part of the belief of a religion.

I'm not sayin', but I'm sayin'.

Secondly, I wonder if the law had passed if ISPs would have done anything about FreeNet.

Re:Praise God

[Ralph Yarro]

I wonder if you could legally view child pornography if you classified it as part of the belief of a religion.

No you could not.

The relevant legal point here would be that the legislation was not aimed at restricting exercise of religion.

Legislatures have tried to act against religion in this way in the past, for example by banning animal sacrifice on "cruelty" grounds. This has failed because they haven't applied the same standards to other instances of animal killing e.g. for food. In this case, however, the banning of child pornorgraphy is clearly applied across the board, it is not targeted specifically at any religion nor at religions in general. It would be valid in much the same way that laws against murder are valid, even if the murder is a ritual sacrifice.

Re:Freedom is not Cover

[lachlan76]

Because when you put in a filter, there are a lot of false positives, and you block legit sites. Blocking peoples' speech because it looks like child porn to a computer is the problem here.

A Delicate Subject.

[King_of_Prussia]

With a topic as delicate as this one (child pornography) I think it is hard to argue reasonably either way -- one side you seem to be enabling the child pornographists through inaction, on the other you go against this mythical "free speech" business you USoAians have.

My personal stance on the issue is manage it on a regional basis, if your country/state/city feels strongly enough about the issue they can ban the internet completely if it is voted on, and people not in the area are unaffected. As long as no legitimate content (eg "speech") is censored or blocked, there should be no problem with it. Hell, put a switch on every new PC saying "child pornography - ON/OFF" and let the consumers decide for themselves, instead of legislating it to high heaven.

Let's face it, these child pornogrophers are always going to be releasing their stuff, it is up to the people weather they want to watch it or something made by more mature people. Simple as that.

Re:A Delicate Subject.

[jimicus]

No idea why you've been modded Troll.

I think you make some excellent points. Indeed, a similar system exists in many countries if you only think about it for a minute - I'll use the UK as an example here.

Child porn is illegal, but nobody has yet (to my knowledge) tried to enforce blocking at an ISP level. However, there is nothing to stop you buying Internet provision from a company which offers a "filtered" service, or installing software to filter it yourself.

How effective this all is is another issue altogether, but at least in the above example the decision is made by the individual rather than the government. Indeed, I can think of a few uses, both personal and organisational:

• Schools/Prisons/Workplaces.
  
• People in the public eye who are concerned having seen others' careers disappear following child porn allegations.
  
• Michael Jackson.
  

Now, watch this get merrily modded down because I've said that people may voluntarily choose to have their internet access "censored".

Re:A Delicate Subject.

[Sircus]

(aside: BT have tried blocking at an ISP level)

The difficulty here is not that people want to choose whether to watch child porn or not, or that people want to allow others that choice. No mentally healthy person wants to watch child porn and nobody wants to give people the option.

The problem is that by compulsorily filtering against child porn, all current technical solutions also catch a whole bunch of other stuff. It's like the Tuna fishermen - they go out to fish out tuna, but they end up catching dolphins too. Nobody cares about the tuna, but lots of people don't want the dolphins killed.

If the child porn filters actually only filtered child porn, I'm sure they'd find very widespread acceptance. Since they don't, they have a chilling effect on other sorts of free speech, by blocking those sites in the mistaken belief that they're child porn.

(This same argument applies to normal porn filters, with the difference that quite a lot of people want their porn filter set to "on")

Re:Freedom is not Cover

[Anonymous Coward]

Oh, for poot's sake. Calm down, read again, get the point.

In case you don't, the judge's objection was that THINGS OTHER THAN PORN WERE BEING SUPPRESSED DUE TO IMPLEMENTATION PROBLEMS.

And freedom can be unlimited freedom as long as it is matched by unlimited responsibility and accountability. But that's another story...

Wrong Target

[dangerz]

Perhaps we should target those responsible. Surely some of these child pornographers are in the States and we have jurisdiction over them.

Ignoring the problem and pretending it's not there is not going to fix it. Banning access to these sites does not remove the porn and help the kids; it simply blocks our access to it and let's the sick bastards keep doing what they do. I'd think most countries would have no problem arresting someone that did this kind of shit.

Re:Wrong Target

[Zemran]

No one is ignoring the problem. The issue here is the method used rather than the objective. If the method had stopped child porn there would not be a problem and the method would continue but the method did not do what it was meant to do. It block hundreds more sites than those it could legitemately target and therefore was blatently not working.

If it had effectively blocked just the child porn I would be screaming how wrong this was, if it had only affected a couple of other sites I would still support it but it took down hundreds (probably thousands) of legitimate sites and was therefore not legitimate.

Blocking does not tackle the problem

[wg0350]

First and foremost, I do not advocate kiddie porn in any way shape or form. But a law requiring ISPs to block such information is not the solution. It is all to typical of society today that we find a quick solution to a problem and ignore the underlying issue.

Blocking kiddie porn, will only result in people doing their best to bypass the blocking software. It becomes an ongoing battle.

Stopping people looking at kiddie porn will not stop their desires to get hold of it. Who knows how far people like this are prepared to go to get what they want.

We need to give these people help and education, not just drive them to other sources for their material.

If the software can identify the porn/sites to block the stuff, then surely people who look at it could be offered help. Tackle the problem at the source. Remove the kiddie porn and the problem doesn't go away, remove the desire for kiddie porn and you have solved the problem.

Yes I know this is advocating monitoring of what we look at but ultimately the ISPs know that already. But I believe it is a step towards a better solution than simply blocking.

Re:technical kiddieporn

[Motherfucking Shit]

What does freedom of speech have to do with child porn apart from technical implementation of filtering?

As I recall, the Pennsylvania law required ISPs operating in PA to block access to a "master list" of sites which were deemed to be providing child pornography, but the list of sites was kept secret (ostensibly to prevent the public from getting a list of kiddie porn websites). It's a good idea in theory: the gummint finds kiddy porn, tells ISPs to block it, and doesn't give the goods away to the public by revealing the list of sites.

The problem is that you have a government-created list of websites which all ISPs in the state must, by law, block access to... But the list itself is a secret. In other words, state regulators could add just about any website to the list, force all ISPs operating in Pennsylvania to block access to that site, without any sort of publicly accountable procedure to determine whether or not that website was actually distributing anything illegal. Because the list of banned sites was secret, who knows what they're banning?

Just to burn some karma, I'll toss in the fact that Tom Ridge, head of the Department of Homeland Security, was formerly the governor of Pennsylvania.

The sad source

[Anonymous Coward]

"What makes a difference is shutting the site down and finding out where the owner got their pictures"

Ah, but here's the rub:

Adults aren't really involved in creating the child porn now.

The VAST, VAST majority of child porn is now created by children, for children. Webcams are ubiquitous. Every twelve year old sending her boyfriend nudie pics or videochatting with him is creating child porn.

When you consider that the age lmit for "child" in the case of pornography is 18, that body of work is *staggering.*

Those pictures get out. Kids break up, they send them out as revenge, they forget to delete them when their parents sell the computer... whatever.

The whole question of how to stop child porn production is now *completely irrelevant.* There's no guy at the photo-developing booth catching it before it's made anymore.

Moreover, the "kids" who are taking naked picutres of themselves and sex partners probably keep those pictures. When you're 18 you're going to delete the photos of your first lay? I don't THINK SO.

The law and the mindset we currently have regarding this material is outdated. There's no way to stop the supply when the supply is the children themselves. We need new laws that make it illegal to pay a child to be in pornography, to force a child, whatever... but that recognize there are just too many pictures of 16-year old girls and too much demand to control it.

The most important thing to remember here is that it's not unreasonable for a man to be aroused by pictures of a 17-year old woman. A woman's breasts and hips are fully developed at that age... there's no magic switch that goes off at 18.

As long as 17-year old girls take pictures of themselves, 30-year old men will traffic in those pictures. That's not a reasonable definition of pedophilia.

traci lords

[Anonymous Coward]

Read the comments with Traci Lords in mind and most of the comments become nonsense.

"Child Porn" is NOT legally what most of you think it is. Some think its any nude of a child. It is not. Some think the child's genitals must be nude/visible to be legally porn - NOPE (not in the USA). Some think the child must look like a child - no again, look at a Traci Lords photo at age 17 (illegal in USA, I THINK legal in Germany).

Re:Great

[Motherfucking Shit]

And really, who's freedom of speech is the judge trying to uphold here? The people hosting such content or the people trying to access?

Neither. RTFA:

Over two years, the groups said, ISPs trying to obey blocking orders were forced to cut access to at least 1.5 million legal Web sites that had nothing to do with child pornography or even legal pornography, but shared Internet addresses with the offending sites.

So, apparently, during the course of "blocking kiddie porn," ISPs operating in Pennsylvania were also forced to block more than 1.5 million websites that were totally legal. Sounds to me like the PA authorities were issuing bans by IP address. In this day and age of virtual hosting accounts, tens or even hundreds of websites can be hosted on a single IP address, so long as the browsers are using HTTP/1.1.

Imagine if your website was hosted on a server that happened to be also serving a customer who, according to Pennsylvania lawmakers, was hosting a child porn site. All of a sudden, you're dead in the water, and potential customers in Pennsylvania can't reach you. Meanwhile, neither you nor your web hosting provider have any idea that this is happening, because the law made the "dirty list" a secret.

This was a bad law. Striking it down was the right thing to do.

Re:Great

[Motherfucking Shit]

I never claimed to be a "child porn expert." I have had a number of encounters with child porn, and if you're so curious about the history, I will explain.

I was AOL remote staff for a number of years, beginning when I was only 14 myself. I started in the Mac Help forum, and was there throughout my AOL tenure. Eventually I wound up working in the Youth Tech forum, and later, I instructed other remote staff as a member of KARES (Kids Area Resource for Education and Safety), part of the CLC (Community Leaders College). As a KARES instructor I taught Terms of Service enforcement to other remote staff who worked in areas like Nickelodeon.

My duties in Youth Tech were fairly mundane, I did content publishing through RAINMAN and also had file library and message board tools. On at least one occasion, child porn was uploaded into the Youth Tech file library. As a file library tool holder, I was one of the people whose responsibility it was to download files that people uploaded into our file library, in order to determine whether or not the files were suitable for the public. Someone uploads something, well, one of the staff have to download it to see whether or not it's worth keeping in the library. And yes, I encountered files which I would classify as child porn. There was no procedure at that point, and (being a kid myself) I just deleted the weird shit out of the file library.

Chat hosting was another story. By the time I was instructing in CLC/KARES, I was 17 or 18, and had also taken over some chat hosting slots in Youth Tech. While the forum was called "Youth Tech," the chat rooms were what you might expect, more like "youth flirt." A bunch of "A/S/L" and "13/f/nj" type stuff. As a chat host I was empowered to gag and/or remove offensive participants. What I was not prepared to deal with was the pervs who would come in and mass-email everyone in the chat room with child porn.

Again, as it was my duty, when we would get a mass-email to the room, if there was a file attachment I would check it out and see what it was, to determine whether or not action needed to be taken, whether or not to warn the room about a virus, etc. On multiple occasions, some pervert would enter the chat room, and send an email to everyone in the room containing an attachment of child porn. At this point it was up to "TOS Kids" to deal with it, and I have no idea what they did, and I do not speak on behalf of AOL as to what took place. All I know is the procedure I followed in terms of alerting the TOSA/AOBaseball/ActionFast/DeadVolvo/etc as to what was going on.

I am not a "child porn expert," nor do I want to be. I'm just someone who has spent many years online, a lot of them dealing with kids (much of that time I was a "kid" myself) and encountering child porn in those situations.

here's some refutation

[poptones]

While I'm certain there is scads of child porn circulating in private p2p circles and chat servers, there is alspo SCADS of child porn being created in russia by people who have no direct interest in pedophilia save the money it brings them. hit google and type "lolita" then spend an hour or two following the trail of thumbnail galleries and you'll find plenty of stuff made by people who do it just for the money simply because they can. When you have streets filled with Millions (literally) of homeless children life tends to be pretty cheap. Instead of wasting money tracking down people who want to look at pictures we need to be spending money finding - or creating - foster homes for those kids sucking dicks in train stations and freezing to death in doorways.

And the people "consuming" this porn are NOT necessarily the people molesting children. The people actually molesting children are going to be trading their trophy shots in the underground, not visiting "mainstream" websites. My cousin ended up in jail for trying to fuck his daughter and he doesn't even know how to use a pc. Another cousin had her second husband imprisoned after she found out he had been repeatedly molesting her daughter (his stepdaughter). The jails are full of people who have molested children who aren't even pedophiles - they simply had the opportunity to fuck a little kid and got caught at it. Don't confuse child molestors with pedophiles.

True.

[Grendel Drago]

Adults aren't really involved in creating the child porn now.

So, so true. Also, insightful. Child porn laws are supposed to protect kids by creating penalties for those who abuse them, or would abuse them, or think about abusing them, or something like that. I'm not sure. But things have changed since the seventies. Image and video replication is infinitely easier (digital); production is trivial---fifteen-dollar webcam at Wal-Mart instead of a basement photo lab.

These 'wonderland' creeps that they found last year (was it last year?) that were involved with white slavery and such, that's what these laws are meant to prosecute. Not some guy searching for 'lolita' on eMule.

There needs to be some division, some distinction, between porn created by evil, abusive adults, and porn created by bored teenagers under no compulsion by anyone. Because there really, really is a difference. But how do you put it into law?

And also, in Australia, the age of Porn is sixteen, not eighteen as it is here in the US. Striking, that data which is perfectly legal, no cause for concern, in Australia, will cause one to be sent to the Being Raped to Death Big House here in America. We're both supposedly civilized nations here. Sheesh. If this isn't a moral absolute (like, say, killing someone---that's pretty much a moral absolute), it's kinda scary that we have such harsh penalties. Like drugs. Maybe weed will be legal in ten years. Nice consolation prize for someone who spent five of those years in jail on some stupid possession charge.

--grendel drago