October 13, 1998 3:05 PM PDT

ISPs as child porn watchdogs?

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Though the concept of stiffening penalties for child pornographers who use the Internet is a popular one, many today are concerned that a bill on its way to the president will end up encouraging ISPs to violate their customers' privacy by requiring access providers to report all suspected activities.

Congress yesterday passed the Child Protection and Sexual Predator Punishment Act. If President Clinton signs it into law, the legislation would further stack the deck against those caught using the Net to sexually solicit minors or to knowingly send "obscene" material to a person under 16.

But the act, which is expected to be signed into law, also makes Internet service providers responsible for turning in their customers.

Access providers who fail to report child pornography once they are made aware of it could be fined up to $50,000 the first time they fail to report the activity, and up to $100,000 for each subsequent time they don't contact law enforcement authorities.

Most ISPs have voluntarily fought child pornography and have taken great measures to root it out of their systems, especially because it is illegal under any circumstances in the United States and most other countries.

But if the bill becomes law, ISPs could be forced to report their members--even if they only suspect illegal activity, said David Sobel, general counsel for the Electronic Privacy Information Center. It also provides an exemption that will make ISPs immune to prosecution should they wrongly release information.

The main problem with the bill is that the language directing ISPs to report potential crimes is too vague, said Sobel and ISP organizations.

Specifically, it states that when an ISP or any service that provides access to electronic communication "obtains knowledge of facts or circumstances from which a violation of [child pornography laws]...is apparent shall, as soon as reasonably possible, make a report of such facts or circumstances to [a law enforcement agency]."

The question that ISPs and civil libertarians have raised is how to define "apparent."

Sobel said he envisions cases where a law enforcement agent could force an ISP to give away private information without a warrant. Under the Electronic Communications Privacy Act, police and other law enforcement officials need warrants to get electronic information.

But under this law, a police officer, for instance, could call an ISP and say he suspected a certain member of trafficking in child pornography. Under this provision, ISPs would have to immediately release the information without a warrant or face stiff penalties, he said.

"I think that it creates a glaring hole in [the Electronic Communications Privacy Act]," Sobel said. "Whenever an ISP, for whatever reason, has such a suspicion, they are not only free but required to communicate that to law enforcement.

"Then it goes beyond that," he added. "It's not just calling law enforcement saying, 'We think we have a suspicious subscriber.' The ISP's report may include additional material developed by the ISP. The ISP can voluntarily turn over the contents of email or anything else."

Additionally, if the subscriber is found innocent, he or she has no recourse because the law would give ISPs immunity from lawsuits.

Sobel said his organization is considering a constitutional challenge to the bill once it is signed.

ISPs, for their part, do not like being put in the position of being forced to police their members.

The Association of Online Professionals (AOP) is "500 percent against child pornography," and the law as written "is troubling," said Jim Butler, a board member of the Net organization and an attorney with Arnall, Golden & Gregory.

Although the group "put out an association policy saying its members should turn over child pornographers and contact authorities," he said, "it's one thing to say that and have that policy. It's another thing to make ISPs liable. Not that they shouldn't do it, but it creates a kind of slippery slope. The law is worded very broadly."

However, he added, that ISPs and their organizations are in the uncomfortable political position of not wanting to oppose a bill that comes down against child pornography.

"It's probably something we're going to have to live with because it's politically a hot potato," Butler said.

Brian O'Shaughnessy, director of public policy for the Internet Alliance, said the law is something "we can live with."

 

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