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Killing ants with a bazooka

This column originally ran in ComputorEdge on March 21, 2003
(Issue 2112, How Stuff Works)

Do any of our public officials even care about how the Internet works, or is it all really about grabbing as many headlines as possible?

The latest bit of "public service" to leave the rest of us scratching our heads comes from Pennsylvania.

The state legislature in Pennsylvania – showing the level of technical savvy we unfortunately have come to expect from our elected officials – last year passed a law requiring any Internet service provider with servers physically located in Pennsylvania to block access to any sites deemed to be hosting child pornography by the state attorney general.

Now, this law has the benefit of at least sounding reasonable on its surface. I mean, who isn't against kiddie porn?

The problem is that there is no judicial oversight or review – simply an elected attorney general making a phone call to an ISP, and, voila, the ability of that ISP's subscribers to visit that site is gone.

Common carrier status at risk

While civil libertarians are – rightly – upset with the law for putting the burden of proof on the accused, as well as placing the burden of enforcement on private businesses, what strikes me as fundamentally more dangerous is the concept that the phone company can be ordered to block your access to other parties.

Such a power grab has never been allowed before – although it ought to be pointed out that this law has yet to be challenged in court.

The legal underpinning of the phone system – including the Internet – is that phone companies are protected under the concept of "common carrier" status. This designation means that the phone company merely provides you a connection to the rest of the phone system – you are responsible for your conduct over that connection.

So, for instance, if you were to use your phone to call an overseas number where you could order child pornography, the party in violation of the law would be – well, you. And the idiot selling you that filth, too.

From the very earliest opening of the 'Net to the general public in the late 1980s, that common carrier principle has been applied uniformly, no matter whether you were transmitting data over your phone lines by voice or digitally.

By putting the burden of proof that a site does not contain child pornography on legitimate businesses selling Internet access, this law undermines the very concept of common carrier status. If ISPs can be fined for not blocking access to designated sites, can they also be sued in civil court? And if so, do they have any protection from this loss of common carrier status?

A double standard

Since the Pennsylvania government doesn't require the telecom companies to block voice access to phone numbers selling child porn, it could well be argued that there is a double standard here. The courts tend to frown on such double standards – the law is supposed to apply equally to all.

Clearly, it shouldn't matter if the information flow over the phone lines is voice or digital data – holding one type to a higher standard of liability would seem to violate the First Amendment's free speech clause. You can't ban speech in one arena while allowing it in another.

Besides, such a differentiation clearly makes no sense – except to politicians looking for cheap votes.

There's also the fact that since computers see the world as numbers, when ISPs go to block access to a Web site, they typically don't – can't – block access to the URL, but must block access to the Internet Protocol, or IP, number behind it. But since so many sites share physical servers, with only a port number to differentiate them, many innocent sites are also being blocked for the crime of sharing a server with a site accused of hosting kiddie porn.

Too much at risk

If this law stands, it won't be long before ISPs completely lose their common carrier status – and if an ISP has to assume liability for every possible illegal use of its connections, how many will be willing to shoulder that risk and stay in business?

Can they be fined for letting their customers go to online gambling halls? Or order an escort service?

The Recording Industry Association of America is already trying to hold ISPs responsible for their customers' trading of online music.

All of these efforts share one trait in common: It's infinitely easier to go after a handful of ISPs than it is to try to locate and shut down the offending Web sites themselves.

And that doesn't grab cheap headlines, either.