Center for Democracy & Technology v. Pappert
2004 WL 2005938, 2004 U.S. Dist. LEXIS 18295, 337 F. Supp. 2d 606 (2004)
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Rule of Law:
A state statute requiring Internet Service Providers (ISPs) to remove or disable access to child pornography upon notification by the Attorney General is unconstitutional if, as implemented, it leads to excessive blocking of protected speech, lacks adequate procedural safeguards for free expression, and places an impermissible burden on interstate commerce.
Facts:
- In February 2002, Pennsylvania enacted the Internet Child Pornography Act (the Act), requiring ISPs to remove or disable access to child pornography upon notification by the Pennsylvania Attorney General (OAG).
- In April 2002, ISPs contacted the OAG to express concerns about the Act's enforcement and their technical inability to block only in-state content, suggesting an 'informal notice' procedure to avoid statutory court orders.
- From late April 2002 to September 2003, the OAG issued approximately 470 'Informal Notices of Child Pornography' to various ISPs, identifying URLs of suspected child pornography and instructing them to disable access.
- In July 2003, Epix, an ISP, blocked an IP address in response to an Informal Notice, inadvertently blocking Laura Blain's community center and school websites, along with over 15,000 other innocent sites that shared the same IP address.
- In September 2002, after WorldCom expressed technical feasibility concerns regarding informal notices, the OAG obtained a single ex parte court order under the Act, requiring WorldCom to block five URLs; WorldCom complied by contacting hosts for three sites and using IP filtering for two, which also resulted in overblocking.
- ISPs (e.g., AOL, Comcast, Epix, Verizon, Pennsylvania Online, WorldCom) generally complied with Informal Notices or the court order by using either IP filtering or DNS filtering methods.
- The implementation of IP and DNS filtering by ISPs resulted in the blocking of over 1,190,000 innocent websites that were not targeted by the OAG for child pornography.
- The OAG did not routinely investigate or prosecute individuals creating or distributing child pornography, nor did it review blocked URLs to determine if content had changed or if the blocks were still necessary.
Procedural Posture:
- On September 9, 2003, plaintiffs (Center for Democracy and Technology, American Civil Liberties Union of Pennsylvania, and PlantageNet, Inc.) filed a Complaint for Declaratory and Injunctive Relief and a Motion for a Temporary Restraining Order and Expedited Discovery in the United States District Court for the Eastern District of Pennsylvania, alleging the Pennsylvania Internet Child Pornography Act and related Informal Notices violated the First Amendment and Commerce Clause.
- On September 9, 2003, by agreement of the parties, the District Court entered an Order enjoining the further issuance of Informal Notices and placing limitations on the implementation of the Act by the Attorney General.
- On December 12, 2003, plaintiffs filed a Motion for Declaratory Relief and for Preliminary and Permanent Injunctive Relief.
- On January 6, 2004, a hearing on plaintiffs' motion commenced.
- On March 1, 2004, the District Court ordered the hearing on the Motion for Declaratory Relief and Preliminary Injunctive Relief consolidated with a trial on the merits.
- The trial proceeded over twelve non-consecutive days, concluding with oral argument on June 23, 2004.
- Following the trial, the parties submitted supplemental memoranda and post-trial proposed findings of fact.
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Issue:
Is the Pennsylvania Internet Child Pornography Act, as implemented through court orders and informal notices, constitutional under the First Amendment and the dormant Commerce Clause, given that its compliance methods result in substantial overblocking of protected speech, provide insufficient procedural safeguards, and create an extraterritorial burden on interstate commerce?
Opinions:
Majority - DuBOIS, District Judge
No, the Pennsylvania Internet Child Pornography Act is unconstitutional under the First Amendment and the dormant Commerce Clause, both on its face and as implemented through the Informal Notice process. The Court found that the Act burdens speech because, given the current state of technology, ISPs reasonably chose IP filtering and DNS filtering methods that resulted in massive overblocking, affecting over 1.19 million innocent sites for fewer than 400 targeted child pornography sites. The alternative, URL filtering, was not economically or technically feasible for ISPs to implement. Applying intermediate scrutiny, the government failed to prove the Act directly and materially alleviated child abuse, and the incidental restriction on protected speech was greater than essential. Furthermore, the Act and Informal Notice process constitute unconstitutional prior restraints. They allow content removal based on an ex parte probable cause determination, without prior notice or an adversary hearing for the web site owner, and without a prompt final judicial determination that the material is child pornography. Maintaining blocks on URLs even after content changes or new innocent owners acquire them also amounts to censorship of future speech based on past content. The Informal Notices were coercive, not voluntary, mirroring the unconstitutional scheme in Bantam Books. Finally, the Act imposes a burden on interstate commerce clearly excessive in relation to local benefits. The Act lacked evidence of reducing child exploitation, its blocking efforts were easily evaded, and it forced nationwide or global blocking due to the internet's interconnected nature, impermissibly exporting Pennsylvania's policies extraterritorially. This extraterritorial effect violates the dormant Commerce Clause, aligning with other federal court decisions on state Internet regulations.
Analysis:
This case highlights the profound difficulties states face in regulating internet content without violating federal constitutional principles. It underscores that even laws targeting unprotected speech, like child pornography, must still be implemented in a manner that narrowly tailors their impact to avoid substantially suppressing protected expression. The decision reinforces the necessity of robust First Amendment procedural safeguards, such as notice and adversary hearings, before speech can be restrained. Crucially, it re-emphasizes the dormant Commerce Clause's role in preventing state laws from having extraterritorial effects that burden interstate commerce, especially in the context of the Internet's global architecture. The ruling implies that comprehensive internet content regulation often requires national or even international cooperation rather than fragmented state-by-state approaches that lead to chaos and conflicting obligations.
