Recently, I attended a meeting of an Internet service provider (ISP) trade association. The proliferation of child pornography on the Internet was a hot topic for discussion. The speaker list included the Florida Department of Law Enforcement and the FBI. The big question was what can ISPs do to help?
This is a sensitive subject with ISPs. (ISPs are companies that give you an on-ramp to the Internet. Your computer calls their computer and they hook you up to the Internet.) The problem is that they all have computers that hold illegal child pornography and this worries them. They have it not because they like child porn or want to distribute it. Without going into the technical details, it's because it's not technically feasible to remove all the child porn from the information flowing through their computers from the Internet.
Remember, nobody owns or controls the Internet. It's a worldwide network which anybody can use. (For a well-written history of the Internet, I recommend http://www.isoc.org/internet-history/.) ISPs merely provide access. For the most part, their users choose the content that flows through an ISP's computer and from there into the user's computer.
Internet bulletin boards
The one area where ISPs have more control is with newsgroups. For the uninitiated, newsgroups are like computerized bulletin boards. Basically, you send an e-mail to a newsgroup and anybody in the world with newsgroup access can see your post. A post can include attached files, which can include child pornography.
Certain newsgroups are notorious for their child porn. You don't need to be a computer geek to figure out what you might find in newsgroups with names like "alt.binaries.pictures.erotica.pre-teen," "alt.binaries.pictures.erotica.lolita," or "alt.sex.young." Technically, it's easy for an ISP to block access to certain notorious newsgroups, but few do. Unfortunately, the law has put ISPs in a no-win situation here.
Publisher or distributor?
Blocking puts ISPs in a legal position they don't like for reasons unrelated to child porn. Conceptually, ISPs want to be in the same legal position as the telephone company. At some point, the telephone company's equipment carried this very same illegal content, but nobody suggested that the telephone company ban this content. The phone company's argument is that it only provides the "pipe" for the information and cannot possibly be held responsible for the kiddie porn that flows through it.
By analogy, the law has to deal with similar issues with defamation. (A "defamatory" statement is a statement that tends to harm a person's reputation. Related concepts are "slander," which generally involves an oral statement, "libel" which generally involves a written statement, and "injurious falsehood" which involves the reputation of property such as a business.) Even if you use your phone to defame somebody, the telephone company won't cut off your service. Again, they provide the "pipe," but aren't responsible for what flows through it. ISPs want that same legal position, but the law for them isn't as clear yet.
Traditionally, when it comes to defamation, the law holds "publishers" to a higher legal standard than "distributors." This is because the law posits that publishers review material before publishing it while a company that merely distributes it doesn't.
ISPs are legitimately concerned that if they start blocking newsgroups, they start looking more like publishers and less like distributors and that this could haunt them in contexts like defamation. This is a problem because an ISP may host thousands of web sites for individuals and businesses. It would be an incalculable burden if the law required ISPs to review the content of web sites they passively host or risk liability for defamation.
Every ISP has known that if they started censoring content, even child porn, they risked having that fact rammed down their throat in a future defamation action filed by some third party against the ISP for the actions of one their customers.
Congress attempted to deal with this Catch-22 by enacting Section 230 of the Communications Decency Act, which generally provides that an ISP won't be treated as a publisher of any information provided by somebody else. Until Nov. 12 of this year, this statute, while on the books, had arguable loopholes that worried ISPs. On Nov. 12, a federal appellate court took a big step in closing those loopholes.
Finally, there is an appellate decision, Zeran v. America Online, which takes an expansive view of this protective provision. In this case, Zeran sued AOL arguing that AOL unreasonably delayed in removing defamatory messages posted by an unidentified third party, refused to post retractions of those messages, and failed to screen for similar postings after the first one. The court rejected Zeran's technical legal arguments and refused to hold AOL liable holding that "[s]ection 230 ... plainly immunizes computer service providers like AOL from liability for information that originates with third parties."
Although this is only one decision by one appellate court, which doesn't necessarily serve as a binding precedent for other appellate courts, it's a big first step. The significance is that now ISPs can begin to get more aggressive about eliminating clearly illegal child porn without fear of it backfiring in other contexts like a future defamation lawsuit.
In a meeting that I had with Douglas Rehman, a special agent with the Florida Department of Law Enforcement and Thomas Sadaka, an assistant statewide prosecutor, they made it clear that they want to work closely and in a non-adversarial fashion with ISPs to eliminate clearly illegal child porn from the Internet. The Zeran decision puts ISPs in a better position to do this.
Now, having said all this about blocking, another issue is whether blocking will help the problem anyway. Blocking sounds noble, but some argue that it won't help. They contend that it would be easy for the purveyors of child porn to move their pictures to another, more innocuously named newsgroup. ISPs would then be in the position of always chasing the child porn.
More hideously, what if the child pornographers started using legitimate newsgroups like alt.books.reviews or sci.med.physics. Trust me when I say that it wouldn't take long for the interested to learn where the child porn has moved. Where would the blocking end? How much screening will ISPs be forced to do? These are questions without any reasonably certain answers.
Computer-Generated Child Porn
Computers have created a devious new type of child porn; child porn without the child. With imagery generated by commonly available software, people can create images of child porn without taking a picture of a child.
Congress attempted to close this loophole in 1996 by passing a law, which according to a U.S. District Court, "was enacted specifically to combat the use of computer technology to produce pornography which conveys the impression that children were used in the photographs or images."
This District Court heard numerous arguments about the law being overbroad, vague and otherwise unconstitutional. The court rejected all these arguments and held this statute to be constitutional. This case was an early and successful test of this 1996 statute.
Law Slowly Catching Up
The recent advent of home computers and the on-line availability of child pornography has left law enforcement way behind as it has tried to cope with the problem of kiddie porn. New laws, like the computer-generated porn law, have been passed and law enforcement personnel are slowly learning about the problem. These are good steps, but small ones.
The problem is real and rampant. The solutions are neither obvious nor easy unless we want to trample over the First Amendment. Solutions need to be narrowly aimed at clearly illegal and morally reprehensible, obscene material. This isn't easy because of the sheer volume of the information that's available over the Net. Also remember that much of the illegal kiddie porn originates from outside this country. This makes enforcement that much more difficult.
This is a tough one for those of us who want the Net to be absolutely free of government intrusion and a place where free expression reigns. Still, kiddie porn is just something that we can't tolerate.
The First Amendment says that "Congress shall make no law . . . abridging the freedom of speech, or of the press." As distasteful as it is for those who take the First Amendment literally, they're going to have to bite the bullet on this one and acknowledge that there are limits. The kiddie porn on the Net is over that limit and we need to develop ways to eliminate it. ISPs need to be part of the team along with law enforcement. From what I can gather, they're ready and willing.