Copyright 2005 Warren Publishing, Inc.  

JUNE 10, 2005

SECTION: Vol.6, No.112

LENGTH: 1043 words

HEADLINE: Utah ISP Law Challenged in Court


   Civil liberties advocates are suing Utah over a law that makes ISPs offer to
block websites the state attorney general's office considers pornographic.  The
American Civil Liberties Union (ACLU) of Utah is seeking an injunction in U.S.
Dist. Court, Salt Lake City, in its complaint charging that the law violates
residents' rights to free expression and unlawfully interferes with interstate
commerce, the group said Thurs.  The complaint argues that the law seeks to give
the govt. a responsibility that belongs to parents.

   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

   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. -- Andrew Noyes