[NetBehaviour] A BRIEFING ON PUBLIC POLICY ISSUES AFFECTING CIVIL LIBERTIES ONLINE

[marc]

*CDT POLICY POST Volume 11, Number 15, June 9, 2005

A BRIEFING ON PUBLIC POLICY ISSUES AFFECTING CIVIL LIBERTIES ONLINE
from
THE CENTER FOR DEMOCRACY AND TECHNOLOGY*

CONTENTS:

(1)  Broad Group Challenges Utah Internet Censorship Law
(2)  Utah Law Suffers from Constitutional Defects and Fails to 
Protect Children Online
(3)  Law Will Lead to Blocking of Access to Broad Range of Lawful
Content
___________________________________________

(1) Broad Group Challenges Utah Internet Censorship Law

Citing free speech violations, a broad group of Utah bookstores, 
artistic and informational websites, Internet service providers and 
national trade associations filed a federal lawsuit in Salt Lake City 
today, challenging as unconstitutional a Utah law that was meant to 
restrict children's access to material on the Internet but that will 
in fact restrict adults' access to a wide range of lawful material.

In a complaint filed by attorneys from the Center for Democracy & 
Technology and the ACLU of Utah,  the plaintiffs challenged House 
Bill 260, which contains numerous provisions that infringe on the 
right of Internet users to publish and receive wholly lawful content 
.  Prior to the law's passage and signing, CDT had warned leaders of 
the Utah legislature and the Utah Governor that the bill had serious 
problems and would likely face a constitutional challenge if enacted.

The lead plaintiff in the lawsuit is an independent bookstore in Salt 
Lake City, The King's English Bookshop, which sells books through its 
website in competition with national online book retailers.  If the 
Utah law is allowed to stand, the bookstore would face criminal 
charges for advertising and selling a range of lawful books.

The June 9, 2005 complaint against H.B. 260 is available at 
http://www.cdt.org/speech/utahwebblock/20050609hb260complaint.pdf

For a March 2005 analysis of the Utah law, see 
http://www.cdt.org/speech/20050307cdtanalysis.pdf.
_____________________________________________

(2) Utah Law Suffers from Constitutional Defects and Fails to Protect 
Children Online

One of the challenged sections of House Bill 260 makes it a crime to 
make content that is "harmful to minors" available to minors over the 
Internet.  Because web sites have no practical way to prevent access 
to web content by minors, the Utah law means that anyone who posts 
adult-oriented content -- including educational materials on how to 
avoid sexually-transmitted diseases and other highly valuable speech 
-- could face criminal charges in Utah.

This part of the bill is very similar to the federal Communications 
Decency Act (CDA), which struck down by the U.S. Supreme Court in 
1997. In that case, the Court declared that speech on the Internet 
deserves the highest level of constitutional protection, and that the 
government could not adopt rules for Internet web sites that would 
reduce all content on the Internet to a level suitable for children.

The Supreme Court also concluded that the availability of filtering 
software that parents could install was a "less restrictive" 
alternative way to protect children online.   As CDT has long argued, 
such user-based filtering software is a far more effective way to 
protect children online, and does so without interfering with adults' 
right to access lawful content.

For more information on filtering software: http://www.GetNetWise.org
____________________________________________

(3) Law Will Lead to Blocking of Access to Broad Range of Lawful Content

Other parts of the challenged Utah law are very similar to a 
Pennsylvania statute that CDT successfully challenged in 2004.  Like 
the Pennsylvania law, the Utah law requires ISPs to block access to 
content designated by the state Attorney General.  The Utah law 
specifically indicates that ISPs can use "IP Address blocking" to 
comply with the law.

As shown in the Pennsylvania litigation, however, blocking the IP 
(Internet Protocol) address of an undesirable website can block 
access to a massive number of lawful web sites that innocently share 
the same address.  In the Pennsylvania case, CDT showed that, in an 
effort to block access to fewer than 400 objectionable web sites, the 
ISPs ended up blocking access to more than 1 million other unrelated 
-- and perfectly legal -- sites.

The Utah law is in fact more problematic than the Pennsylvania law, 
because the Utah law does not even require that a judge be involved 
in the decision to block access to a web site.  Under the challenged 
Utah law, the state Attorney General can designate web sites for 
blocking, with no oversight by any court.

The plaintiffs in the case have asked the U.S. District Court to 
declare the Utah law unconstitutional and to enjoin its enforcement.

For information about the Pennsylvania case, see 
http://www.cdt.org/speech/pennwebblock/.
____________________________________________

Detailed information about online civil liberties issues may be found 
at http://www.cdt.org/.

This document may be redistributed freely in full or linked to 
http://www.cdt.org/publications/policyposts/11/15 .

Excerpts may be re-posted with prior permission of ari at cdt.org

Policy Post 11.15 Copyright 2005 Center for Democracy and Technology

_______________________________________________
http://www.cdt.org/mailman/listinfo/policy-posts

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