Utah ISP Law Challenged in Court

Under the law, an adult content registry would be created containing the URLs of all Internet sites worldwide that contain “material harmful to minors” and aren’t “access restricted,” officials said. Once contacted by the attorney general’s office, content providers based in Utah must restrict access to their sites through a yet-undefined rating system on pain of 3rd-degree felony charges. ISPs’ blocking access to listed sites would “almost unavoidably lead to the blocking, and thus the censorship, of innocent websites,” said co-counsel John Morris of the Center for Democracy & Technology (CDT). Publishers of these sites may never realize they're being blocked, he added. Plaintiffs in the case include Utah bookstores, ISPs and artistic and informative websites as well as CDT and the American Booksellers Foundation for Free Expression.

The complaint says that because the entire Internet is accessible in Utah, regardless of the publisher’s location, the law threatens Internet users worldwide. The act’s prohibition on distributing material over the Internet that’s “harmful to minors” effectively deprives adults of content they're constitutionally entitled to see, it’s alleged. They argue the law not only violates the First Amendment but goes against the Constitution’s Commerce Clause as well.

Supporters of the Utah bill pushed for the measure as a way to give parents more control of their Internet connections at home. A spokeswoman for Republican Gov. Jon Huntsman’s office said the bill was signed because “he believes that Internet porn has become a scourge in our society.” “He’s reviewed the reports and studies that show that early exposure to pornography is devastating to children and this is a good means to combat the problem,” she said. Countering argument that the matter should be left to parents, she said “Sometimes they aren’t aware that children have access and many people wouldn’t know the proper means to put blocks on their Internet access anyway.” Huntsman hopes a comprehensive list of harmful sites is feasible but his spokeswoman admitted it “sure is a big undertaking.”

“This law has nothing to do with the laudable goal of protecting children,” said Wesley Felix, attorney for the plaintiffs: “Not only does it not accomplish its stated objective, but it casts such a wide net that a lot of valuable and perfectly legal speech will be censored.” The “.xxx” domain name suffix, recently approved by ICANN (WID June 3 p3), “isn’t going to address these problems in any significant way,” Morris said. The correct approach to keeping children away from sites they shouldn’t see combines education campaigns, parental involvement and Web filtering software, he said.

Betsy Burton, owner of The King’s English Bookshop in Salt Lake City and the lead plaintiff in the lawsuit, is concerned about the effect the law will have on her business’s website, which features descriptions and jacket art from a wide variety of books. “Unless I limit the website to children’s books or attempt to exclude children from our website, I risk the danger of a criminal charge. Both of these alternatives are incompatible with the nature of a general community bookstore such as The King’s English,” she said. It’s likely that some Web publishers may try to avoid problems altogether by not posting speech they think might be considered illegal, co-counsel Michael Bamberger said.

When the legislation was introduced, the founder of Utah’s oldest ISP was skeptical. “I felt that it was an attempt to regulate my business and that the market had already responded to the issue. ISPs already were addressing the problem through the demand of their customers,” XMission founder Pete Ashdown told us. XMission has provided its users filtering almost 7 years and the only instance in which customers have responded negatively to the service was when it wrongly blocked sites they wanted to visit, he said. “For the legislature and the attorney general to come in and say ‘we'll do a better job of this than the market is’ is somewhat misjudged.” Despite the govt.’s intentions, he questioned whether lawmakers and regulators “really understand the depth of this problem like ISPs do.”

The ACLU wrote letters of opposition to state lawmakers and Huntsman, saying U.S. Supreme Court cases have held the First Amendment doesn’t allow the govt. to compel speakers to say something they do not want to say. Courts in Ariz., Mich., N.M., N.Y., S.C., Vt., Va. and Wis. have rejected similar measures. The ACLU cites what it regards as further problems with the bill including technical barriers with blocking systems, a vague definition of content provider and the lack of an appeals process for content providers to challenge the attorney general’s designation of harmful material. “Unfortunately, legislators chose to pass a convoluted bill, despite warnings that courts have consistently struck down laws like this because they violate the First Amendment and are unconstitutional,” said ACLU of Utah staff attorney Margaret Plane. Huntsman signed the bill in March.

The statute is broken into segments. The “harmful to minors” portion is in effect; the ISP blocking and filtering mandate are due to take effect the first half of 2006. Plaintiffs will seek voluntary forbearance by all Utah’s prosecutors and, failing that, file for a preliminary injunction with the court. The state has 20 days to respond to the lawsuit, but the deadline could be extended, officials said. A spokesman for Utah Attorney Gen. Mark Shurtleff (R) said officials were reviewing the case and were scheduled to meet with the plaintiff’s attorneys late Thurs.