Politics and Law

New York Attorney General Andrew Cuomo has found a novel way to shake down law-abiding broadband companies: accuse them of harboring child pornography and threaten to prosecute them unless they do what he wants. That might just happen to involve writing Cuomo a hefty check.

The latest company to be honored by Cuomo's personal attention is Comcast, which received a two-page letter on Monday threatening "legal action" on child pornography grounds within five days, if its executives failed to agree to a certain set of rules devised by the attorney general.

In the letter (PDF), the Democratic politico says he wants Comcast and other broadband providers to "volunteer" to take actions "surgically directed" only at child pornography and "not at any protected content." (He's targeting Usenet, the venerable pre-Web home of thousands of discussion groups that go by names like sci.math, rec.motorcycles, and comp.os.linux.admin.)

New York Attorney General Andrew Cuomo, a Democrat, has campaigned against Usenet.

(Credit: Office of the New York Attorney General)

That might be laudable, if it were true. But Cuomo's ham-fisted pressure tactics already have led Time Warner Cable to pull the plug on some 100,000 Usenet discussion groups, including such hotbeds of illicit content as talk.politics and misc.activism.progressive. Verizon Communications deleted such unlawful discussion groups as us.military, ny.politics, alt.society.labor-unions, and alt.politics.democrats. AT&T and Time Warner Cable have taken similar steps.

Cuomo's response: "I commend the companies that have stepped up today to embrace a new standard of responsibility, which should serve as a model for the entire industry." (By that standard of responsibility, an entire library should be burned down if a single obscene book happens to be found on its shelves.)

After that unqualified success in "surgical" targeting, Cuomo took aim at AOL. On July 10, Cuomo lauded AOL for agreeing to "eliminate access to child porn newsgroups." What that press release didn't mention was that the Time Warner unit actually had eliminated all Usenet newsgroups in January 2005.

What makes Cuomo's quixotic campaign doubly inexplicable is that Comcast doesn't actually run its own Usenet servers. It outsources that to a third-party provider based in Austin, Texas, called Giganews.

Ronald Yokubatis, Giganews' chairman and a native Texan, said he couldn't grant a full interview by our deadline today. When we talked to him last month about the earlier stages of Cuomo's campaign, Yokubatis labeled it "fascist crap, ignorant" that came from "Demorats." He added: "We welcome the New York attorney general to the battle against child pornography."

Yokubatis did confirm on Tuesday that he has been contacted by and has had conversations with the New York attorney general's office.

Comcast is no slouch in the child porn fight: it helped organize an industry-wide agreement last week with 45 attorneys general. But what was good enough for the National Association of Attorneys General was not good enough for New York; we're told that Cuomo was one of the handful of officials to withhold his signature.

The odd thing about round three in Cuomo v. Usenet is that Comcast has a minuscule presence in the Empire State, which has been sewn up by rivals Verizon and Time Warner Cable. The company's own figures put its market share at a mere half of a percent of the state's broadband subscribers, and only because Comcast serves communities in Pennsylvania and Connecticut that spill across state borders.

What Cuomo wants the broadband providers to do is sign a so-called code of conduct, which has not been made public. This follows Cuomo's efforts to impose a code of conduct on student loan providers and home lenders (based on the theory that prosecutors, not the New York legislature, should be regulating businesses).

Unfortunately, what Cuomo is doing--sources say the attorney general himself is working the phones--is likely prohibited by the First Amendment. Governmental efforts at censorship must be narrowly focused, and censoring 100,000 newsgroups because 88 may have illegal images fails that test. Courts have ruled that if a government official delivers a credible threat of prosecution, the target may ask a judge to clear things up through what's called a declaratory judgment.

Like its rivals, Comcast seems unwilling to publicly confront a state attorney general, who would surely claim to be trying to protect the children. Spokesman Sena Fitzmaurice said on Tuesday that Comcast's lawyers are evaluating Cuomo's request and that the company may enter into an agreement with New York "substantially similar to the agreements they announced recently with AT&T and AOL."

That might be a good short-term response. But over time, it may encourage more attorneys general to play Net censor, especially if they come to view broadband providers as compliant, off-the-books sources of revenue. This seems to be Cuomo's opinion; his press release said Verizon, Time Warner Cable, and Sprint will pay "$1.125 million to fund additional efforts by the attorney general's office and the National Center for Missing & Exploited Children to remove child pornography from the Internet."

"It's a shakedown racket, pure and simple," says Jim Harper, a lawyer who is director of information policy studies at the Cato Institute. "These companies know that the New York attorney general can cause them millions in legal bills and PR damage, and they're paying for protection. 'Nice ISP you've got here. It'd be a shame if anything happened to it.'"

If a private-sector lawyer tried that, he might be prosecuted on extortion charges. But for New York's top prosecutor, it seems to be business as usual.

CNET News intern Holly Jackson contributed to this report.

It's no secret that politicians tend to churn out press releases touting their accomplishments, no matter how mean or insignificant. But it is still possible to be surprised on occasion, which brings us to today's announcement by New York Attorney General Andrew Cuomo, a Democrat.

In his press release, which was reproduced uncritically, Cuomo claimed that AOL has "agreed to eliminate access to child porn newsgroups, a major supplier of these illegal images" and said that the company will "purge" its "servers of child porn websites." By newsgroups, Cuomo is referring to Usenet, a free-flowing discussion area that predates the Web.

The press release included the obligatory encomiums from the National Center for Missing and Exploited Children's Ernie Allen, who added: "This is another tremendous step forward in ridding the Internet of child pornography. Attorney General Cuomo continues to lead the fight against child pornography and I applaud his efforts to cut this horrific material off at the source."

There's just one problem with the press release. AOL isn't doing anything different today than it did yesterday. "We have not changed any policies or procedures as part of today's announcement," AOL spokeswoman Allie Burns told me via e-mail.

Someone on the New York attorney general's staff probably should have informed his or her boss that AOL actually ceased to offer all Usenet newsgroups more than three years ago--for business reasons, not political reasons. Even in the bizzaro world of politics, an Internet provider can't very well cease to offer what it already has ceased to offer. (AOL will continue to allow its customers to access third-party Usenet providers such as Giganews, and Usenet.com.)

Nor is AOL doing anything different in terms of deleting illegal images on its servers. "We've had an agreement in place with the National Center for Missing and Exploited Children since January 2007 to purge any known URLs and IP addresses that are identified by NCMEC as carrying child pornography," AOL's Burns said.

To be sure, Cuomo's press release also talked about AT&T changing its policies, and it was at least accurate in that respect.

AT&T spokesman Marty Richter told me that the company is going to cease offering the alt.binaries.* hierarchy, which include sex-themed newsgroups but also ones such as alt.binaries.pictures.aviation, alt.binaries.drwho.pictures, and alt.binaries.pictures.vehicles. Customers will continue to be able to access third-party Usenet providers.

AT&T's existing policy has been to investigate all complaints of child porn hosted on its servers--and promptly remove any illegal images--within three business days. That will not change. On Thursday, AT&T said it will enter into an agreement with the National Center for Missing and Exploited Children to consult the group's lists in addition to complaints received from other sources.

All of this might be normal political posturing, except that it points to a troubling trend. Cuomo, like his predecessor Eliot Spitzer, seems to be trying to legislate through threats of selective prosecution or public embarrassment.

That's what happened last month when Cuomo announced that Verizon Communications, Time Warner Cable, and Sprint would curb Usenet (here's exactly what Verizon is doing). It happened today with AOL and AT&T. It's true that child sexual abuse is a horrific crime--but it's also true that, last we checked, setting rules and policies for companies to follow is a job for a duly elected legislature, not the police.

Verizon Communications confirmed on Thursday that it will stop offering its customers access to tens of thousands of Usenet discussion areas, including the alt.* groups that have been a free-flowing area for discussions for over two decades.

Eric Rabe, a Verizon spokesman, said only a subset of discussion groups, or newsgroups, would be offered to customers in the future. In Usenet parlance, those newsgroups are called the big 8; they include complex procedures for newsgroup creation and deletion and even boast a formal management committee.

Rabe had told us earlier in the week that some newsgroups would be restricted, but didn't have the details until we spoke with him on Thursday.

No law requires Verizon to do this. Instead, the company (and, to varying extents, Time Warner Cable and Sprint) agreed to restrictions on Usenet in response to political strong-arming by New York State Attorney General Andrew Cuomo, a Democrat.

Cuomo claimed that his office found child porn on 88 newsgroups--out of roughly 100,000 newsgroups that exist. In a press release, he took credit for the companies' blunderbuss-style newsgroup removal by saying: "We are attacking this problem by working with Internet service providers...I commend the companies that have stepped up today to embrace a new standard of responsibility, which should serve as a model for the entire industry."

Usenet is a pre-Web technology that, for most of its history, relied on companies, Internet service providers, and universities to operate servers that would exchange messages posted by their users. Each server operator can choose what newsgroups they wish to offer. Today, some companies like Supernews, Giganews, and Usenet.com offer newsgroup access for a fee. (Unlike, say, mailing lists, Usenet has no central repository.)

What this means in practice is that, thanks to the New York state attorney general, Verizon customers will lose out on innocent discussions. Verizon is retaining only eight newsgroup hierarchies, even though over 1,000 hierarchies exist.

That means not carrying perfectly innocuous--and, in fact, very useful--newsgroups like symantec.customerservice.general, us.military, microsoft.public.excel, and fr.soc.economie.

The alt.hierarchy is even more extensive. In the discussion thread attached to our earlier story, one of our readers said: "This is ridiculous. I actually met my wife on alt.personals, 14 years ago... I still use usenet - there are a lot good discussions and a person can get answers to questions on specific topics pretty quickly. It's nice to have a decentralized place to hold discussions, one that is not beholden to a sysadmin to correctly run a forum, one that's free of blinking gifs and flash ads."

The only Usenet newsgroups that Verizon will continue to offer customers are the comp.*, misc.*, news.*, rec.*, sci.*, soc.*, and talk.* hierarchies. Customers will continue to be able to connect to other non-Verizon Usenet servers; no blocking is taking place.

An announcement this week by New York State Attorney General Andrew Cuomo that three Internet service providers would "block" sources of child porn has caused a surprising amount of confusion.

First, some news reports assumed that meant blocking, say, overseas Web sites that are deemed illegal. But Cuomo's press release talked only of broadband providers agreeing to "purge their servers of child porn websites"--which they've done for years, making this point mere public relations puffery.

Second, some readers thought that the three companies involved in the deal--Verizon Communications, Time Warner Cable, and Sprint--would block access to Usenet newsgroups hosted elsewhere. That would include blocking pay-per-Usenet services like Supernews, Giganews, and Usenet.com.

As far as I know, that's not the case, and it's worth setting the record straight. What's happening, as we reported on Tuesday, is that the three companies are changing policies about what newsgroups they offer to their customers through their own Usenet servers:

Time Warner Cable will cease to offer Usenet. Sprint is cutting off the alt.* hierarchy, Usenet's largest, which will primarily affect its business customers. A Verizon spokesman said he didn't know details, saying "newsgroups that deal with scientific endeavors" will stick around but admitted that all of the alt.* hierarchy could be toast.

In the future, perhaps, a constitutionally impaired, censor-happy New York attorney general could try to force these companies to block access to Usenet completely (ports 433 and 119, for instance). Or only connections to attorney-general-certified-free-of-alt-groups Usenet servers might be permitted.

But that's not the case today. Let's hope this puts to rest misunderstandings like this reddit.com thread that talked about broadband providers blocking access to Usenet servers elsewhere. For now, at least, that's not happening.

[Update 6/12 11:40 a.m. Verizon has offered more details on what newsgroups will be removed.]

[Update 6/12 11:40 a.m. Verizon has offered more details on what newsgroups will be removed. And here's background on whether or not Usenet is being blocked.]

New York Attorney General Andrew Cuomo announced on Tuesday that Verizon Communications, Time Warner Cable, and Sprint would "shut down major sources of online child pornography."

What Cuomo didn't say is that his agreement with broadband providers means that they will broadly curb customers' access to Usenet--the venerable pre-Web home of some 100,000 discussion groups, only a handful of which contain illegal material.

Time Warner Cable said it will cease to offer customers access to any Usenet newsgroups, a decision that will affect customers nationwide. Sprint said it would no longer offer any of the tens of thousands of alt.* Usenet newsgroups. Verizon's plan is to eliminate some "fairly broad newsgroup areas."

It's not quite the death of Usenet (which has been predicted, incorrectly, countless times). But if a politician can pressure three of the largest Internet providers into censorial acquiescence, it may only be a matter of time before smaller ones like Supernews, Giganews, and Usenet.com feel the squeeze.

Cuomo's office said it had "reviewed millions of pictures over several months" and found only "88 different newsgroups" containing child pornography.

"We are attacking this problem by working with Internet service providers to ensure they do not play host to this immoral business," Cuomo said in a statement released after a press conference in New York. "I call on all Internet service providers to follow their example and help deter the spread of online child porn."

That amounts to an odd claim: stopping the spread of child porn on a total of 88 newsgroups necessarily means coercing broadband providers to pull the plug on thousands of innocuous ones. Usenet's sprawling set of hierarchically arranged discussion areas include ones that go by names like sci.math, rec.motorcycles, and comp.os.linux.admin. It has been partially succeeded by mailing lists, message boards, and blogs; AOL stopped carrying Usenet in 2005, but AT&T still does.

Many of Usenet's discussion groups are scarcely different from discussions you might find on the Web at, say, Yahoo Groups. Because there's no central authority, however--Usenet servers exchange messages in a cooperative, peer-to-peer manner--politicians are more likely to look askance at the concept. (For that matter, so is the Recording Industry Association of America.)

It's true that of the three broadband providers Cuomo singled out, only Time Warner Cable will cease to offer Usenet. Sprint is cutting off the alt.* hierarchy, Usenet's largest, which will primarily affect its business customers. A Verizon spokesman said he didn't know details, saying "newsgroups that deal with scientific endeavors" will stick around but admitted that all of the alt.* hierarchy could be toast.

Yet Usenet's sprawling alt.* hierarchy contains tens of thousands of discussion groups--one count says there are 18,408 of them--including alt.adoption, alt.atheism, alt.gothic, and alt.tv.simpsons. Ditching all of those means eliminating perfectly legitimate conversations.

"The Internet service providers should not be blocking whole sections of the Internet, all Usenet groups, because there may be some illegal material buried somewhere," said Barry Steinhardt, director of the ACLU's technology and liberty program. "That's taking a sledgehammer to an ant."

For their part, the three broadband providers that Cuomo singled out on Tuesday said that it makes sense for them to curb Usenet.

"We're going to stop offering our subscribers newsgroups," said Alex Dudley, a spokesman for Time Warner Cable. "Some of the early press on this indicated we were going to block certain Web sites. We're not going to do that."

That was a reference to a New York Times article with the headline: "Net Providers to Block Sites With Child Sex." It said "the providers will also cut off access to Web sites that traffic in child pornography."

That is common practice in some countries. The French government and broadband providers have reportedly inked a deal to block Web sites with child porn, terrorist, and hate speech, for instance.

What Time Warner Cable will do, Dudley said, is remove illegal content on its network when alerted by the National Center for Missing and Exploited Children. (This is already required by law, has been standard business practice for many years, and is not a change in policy.)

Verizon spokesman Eric Rabe said much the same thing: "We're not blocking any access to Web sites."

In the United States, the idea of blocking Web sites is not new. The state of Pennsylvania came up with that idea five years ago, and Internet providers took issue with it through a lawsuit filed by the American Civil Liberties Union and the Center for Democracy and Technology.

The Pennsylvania statute said "an Internet service provider shall remove or disable access to child pornography...accessible through its service" within five business days after the attorney general notified them of its existence.

A federal judge in Philadelphia overturned that law on First Amendment grounds, ruling that it constituted a "prior restraint on protected expression" and that its "extraterritorial effect violates the dormant Commerce Clause" of the U.S. Constitution.

New York's attorney general surely knows about that precedent. That is probably why he settled for strong-arming broadband providers into curbing Usenet--perhaps with the threat of a press conference that would all but accuse the providers of trafficking in child porn--instead of the far more difficult process of defending a law requiring them to curb Usenet.

The Recording Industry Association of America has found a new legal target for a copyright lawsuit: Usenet.

In a lawsuit filed on October 12, the RIAA says that Usenet newsgroups contain "millions of copyrighted sound recordings" in violation of federal law.

Only Usenet.com is named as a defendant for now, but the same logic would let the RIAA sue hundreds of universities, Internet service providers, and other newsgroup archives. AT&T offers Usenet, as does Verizon, Stanford University and other companies including Giganews.

That's what makes this lawsuit important. If the RIAA can win against Usenet.com, other Usenet providers are at legal risk, too.

For those of you who are relative newcomers to the Internet, Usenet was a wildly popular way to distribute conversations and binary files long before the Web or peer-to-peer networks existed. It's divided up into tens of thousands of "newsgroups"--discussion areas arranged hierarchically and sporting names like sci.med.aids, rec.motorcycles, and comp.os.linux.admin. A handful are moderated; most are not. For efficiency's sake, recent posts to newsgroups are stored on the Usenet provider's server (as opposed to saved on a subscriber's computer as mailing lists are).

Some newsgroups, like alt.binaries.pictures, are devoted to the distribution of binary files. Of particular relevance to the RIAA lawsuit is that there are around 652 newsgroups with the phrase "MP3" in their names. (For storage space reasons, not all Usenet providers offer binary newsgroups. Google's Web-based interface to Usenet doesn't, for instance.)

The RIAA sued Usenet.com, which is based in Fargo, N.D., in the southern district of New York. The lawsuit claims Usenet.com encourages its customers to pay up to $19 a month by enticing them with copyrighted music, and asks for a permanent injunction barring the company from "aiding, encouraging, enabling, inducing, causing, materially contributing to, or otherwise facilitating" copyright infringement.

There are some differences between Usenet.com and some of the other newsgroup providers that will help the RIAA. Usenet.com boasts that signing up for an account "gives you access to millions of MP3 files and also enables you to post your own files the same way and share them with the whole world."

Clearly they didn't run that language by their lawyers first.

So will the RIAA win? Thanks to improvident boasts like that, they stand a good chance. One reason the U.S. Supreme Court ruled against Grokster is that the justices believed that StreamCast's executives had tried to lure pirates into using the Morpheus application. The justices also said that neither company filtered copyrighted material and "the business models employed by Grokster and StreamCast confirm that their principal object was use of their software to download copyrighted works."

What the RIAA's doing here is a classic litigation strategy: sue someone who a judge is likely to say is a clear offender, and then invoke that decision when targeting someone who's a more marginal case. Usenet.com may be first, in other words, but newsgroup providers like AT&T, Verizon, and Stanford may well be next.