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

[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.

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...

[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.

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.

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: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.

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.

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.