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URLs, IP Numbers, and Speech

There’s a great fight going on right now in Philadelphia. If you haven’t seen the briefs in CDT v. Pappert, go take a look.

The case is about a Pennsylvania statute [PDF] that mandates that Pennsylvania ISPs remove access to sites that the AG believes contain child pornography. Now, child pornography is abhorrent and any ISP will cooperate in taking down such sites that it is hosting. But the problem is that in complying with the statute with respect to sites the ISPs don’t themselves host, ISPs are (rationally) using either IP blocking (“null routing”) or “domain poisoning” techniques, both of which (particularly the IP number blocking) result in rendering inaccessible millions of perfectly legal sites.

From CDT’s/ACLU’s opening brief:

The research reveals that of the almost 30 million web sites analyzed, over 90% share an IP address with at least one other web site, over 75% share with fifty other web sites, and almost 50% share with over five hundred other web sites…

The importance of this case cannot be overstated. [T]his case raises grave First Amendment implications for the viability of the Internet as a “vast democratic for[um],” where anyone can be a publisher and vast libraries of information are available at the touch of a button. . . In this case, the Attorney General in one state directed ISP blocking orders at just a few hundred illegal web sites ? and as a result more than a thousand times more legal sites were blocked. Statistically, for each illegal web site targeted, more than one thousand lawful sites were blocked. If this law were duplicated in fifty states and vigorously enforced by even a few state officials, the Internet ? a precious resource that has become a vital medium for exercising First Amendment rights ? would be severely compromised. The Pennsylvania Statute sets a dangerous precedent, and it is critical to the future of the Internet that it be struck down.

One of my favorite moments in the pleadings comes from this portion of the AG’s brief:

A URL is neither a person, nor a real forum, nor a limited commodity. It is a little string of letters and numbers that acts as a superficial label. URLs are infinite in quantity. Even complete retirement of one will not diminish speech. Speech can always find another URL, and probably pretty close to the out-of-commission string. The new URL will be in the same cyber-space, accessible in the same physical places, as the retired URL. It can relate to the same IP address, which is the true computer address. Disablement of an ISP’s customers’ access to a particular URL for even an indefinite time does not implicate First Amendment rights.

To which CDT replied:

[T]the Attorney General suggests that the state can disable URLs perpetually because they are not speech, and because they are limitless and fungible. But as Plaintiffs explained in their opening brief, under current case law URLs, standing alone, may in fact be protected speech. . . .;

And they are certainly not fungible. Users of the Internet often access web sites by “bookmarking” their URLs or remembering them. The fact that Amazon.com could provide access to its site through the substitute address “www.creamcheese.com” would hardly make the blockage of “www.amazon.com” de minimis for either the site owner or users. URLs often constitute valuable intellectual property that parties fight hard over in rademark litigation. Nor are URLs unlimited. While as a theoretical matter it may seem that way, as a practical matter useful URLs are scarce. Indeed, the lack of useful URLs has directly led to pressure over the past few years to add a new “top level domain” (TLD) such as “.biz” to supplement “.com” and “.net.”

In any event, Plaintiffs’ claim under Near and Vance does not turn on whether URLs are speech, are fungible, or are in short supply. Under those cases, the state simply cannot prevent speech from ever occurring at a particular location on the Internet because at one time it displayed illegal materials. . . . Furthermore, the Attorney General does not even address the fact that some Informal Notices have explicitly directed that access to an IP address be disabled. IP addresses are valuable and are currently in short supply (especially in certain parts of the world).

These overblocked sites are places. Their addresses may look like strings of meaningless text to the AG. But they are places nonetheless, and a prior restraint with respect to their visibility would be wrong. The law just hasn’t caught up with the realities of online life. Yes, child porn is wrong, and that’s what makes this a tough case to make a lot of noise about. But the soccer sites and community areas wrongly blocked by ISPs struggling to comply with this negotiated law (take a look at the history of the law’s creation) deserve to be seen—and we don’t want more laws like this popping up in the US.

It’s a fascinating and (on the CDT side) well-briefed case. Wish I could be there.

By Susan Crawford, Professor, Cardozo Law School in New York City

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