Proposed Utah Law Has ISPs Up in Arms

The bill requiring ISPs to rate and block content deemed harmful to minors constitutes censorship, analysts argue.

A proposed Utah bill that would force Internet service providers to filter and block any material and Web sites deemed "harmful to minors" has ISPs and advocacy groups up in arms, claiming unconstitutionality on several grounds.

In addition to requiring ISPs to prevent access of Internet materials considered harmful to minors, the bill requires ISPs to block material on the adult content registry and to "properly" rate the data.

The bill also directs Utahs Division of Consumer Protection to test the effectiveness of a service providers procedures to block material harmful to minors on an annual basis.

Several groups have weighed in on the proposed bill, voicing a variety of concerns. The CDT (Center for Democracy and Technology), a Washington-based digital advocacy group, argues that Utahs bill raises serious constitutional issues and is likely to withstand legal challenges if signed into law.

The bill is troubling in many ways, said John Morris, staff counsel at the CDT. First and foremost, an attempt by ISPs to comply with the law by blocking access to content would be simply unconstitutional, he said.

Morris likened Utahs bill to a similar bill introduced in Pennsylvania in 2003. In Pennsylvanias case, the statute blocked access to Internet sites accused of carrying child pornography. The result, according to a suit filed by a Pennsylvania ISP along with the CDT and the ACLU of Pennsylvania, would have been the blocking of innocent Web sites.

The court struck down Pennsylvanias statute in September of 2004, noting that it violated the First Amendment and the Commerce Clause of the U.S. Constitution.

/zimages/5/28571.gifClick here to read more about the Web sites blocked by the Pennsylvania law of 2003, and the subsequent challenges to the law.

In some ways, Utahs bill is even more egregious than Pennsylvanias, said Morris, who was lead counsel in the Pennsylvania suit.

"The Pennsylvania law was targeted at a type of content everybody agrees is inappropriate—child pornography. But the Utah law is targeted at much broader content that, by definition, is legal content—material that is lawful for adults but arguably harmful to minors," he said.

First amendment issues certainly will be raised if the Utah bill is signed into law, said Samir Jain, a partner in the telecom and Internet/ecommerce practice of Washington-based Wilmer Cutler Pickering Hale and Dorr LLP.

"Generally, under First Amendment law, the notion of a prior restraint, which is blocking speech beforehand as opposed to awarding a remedy afterwards, is disfavored," he said. "By requiring the blocking of speech, the statute might constitute such a prior restraint."

The bill also would require ISPs to either block certain content or provide filtering software to users. Blocking access to content could lead to blocking innocent and unrelated Web sites or blocking access to Web sites by customers who do not request blocking.

"ISPs see themselves as conduits to information and want to let users decide what information they want to access," Jain noted. "They dont want to be in a position of deciding whats good content and whats bad content."

Another of the bills likely to be found unconstitutional, the CDT said, is a section requiring content providers to label their content—something the organization believes constitutes a government-imposed censorship of speech.

/zimages/5/28571.gifTo read Chris Nolans opinion on Googles decision to edit some searches for users in China, click here.

"People cant be forced to self-label their own speech, because there are different views of what is harmful to minors," Morris said.

A CDT memo on the subject pointed out that if signed into law, the bill will increase the cost of doing business in Utah for ISPs, potentially putting many out of business. In addition, it is likely to cause economic harm to Utah businesses that provide Internet and Web hosting services as well, the memo said.

NetCoalition, a group of ISPs that includes Yahoo Inc. and Google Inc. as well as ISP associations of many states, also opposes the bill. The group sent a letter to the state Senate complaining that the vague wording of the bill could inadvertently impact search engines, e-mail providers and Web hosting companies.

The bill has already received approval from the Utah Senate, and unless industry groups make their case, Utah Governor Jon Huntsman is expected to sign the bill by March 22.

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