Tuesday, June 10, 2008

Verizon, Sprint and Time Warner work with New York State attorney general to block some illegal content from Usenet, Web

The New York Times today (June 10) ran a front page story by Danny Hakim, link here, reporting on a voluntary agreement by three major telecommunications service providers with the New York State attorney general to block subscriber dissemination of child pornography in certain identifiable situations.

The companies involved are Verizon, Sprint, and Time Warner. It sounds likely that agreements will soon be reached with other providers (such as Comcast). The agreement may not work against third party subscriptions that provide (illegal) content outside of the control of the ISPs.

Access to some websites will be blocked. These would appear to be sites “blacklisted” by credible organizations, especially the Center for Missing and Exploited Children. It is not clear what protection there would be against “false positive” blacklisting, either through automated processing or through consumer complaints, which could be inaccurate or could misinterpret the legal definitions involved. Another complication could come from the fact that other western countries (Canada, Britain, and New Zealand) have stricter definitions regarding written text than does the United States. From news reports, however, it appears that this particular effort by New York involves images only. It would sound possible for Chilling Effects to become involved in tracking false reports. The recent United States Supreme Court definition regarding “pandering” (see my COPA blog in May 2008) is very narrow and limiting in its interpretation, applying only to communications that claim the use of real minors (as "actors") in material that may or may not actually exist.

Although the agreement was negotiated with New York State, the practical effect will be nationwide. This shows that the laws of one state can be imposed on a whole nation in some kinds of censorship situation, even if for this issue most people would agree with the action.

The Washington Post has a story June 11 on the front page by Peter Whoriskey, link here. The story emphasizes the concept that private companies (the ISPs) are being expected to act as "censors" without court supervision. That observation was made by John Morris, attorney for the Center for Democracy and Technology. The "private censorship" and use of a privately owned list (it's not clear if anyone can check it publicly for the list of blacklisted websites) raises the risk of "false positives". There is no account of an appeal process should an image or whole site be mislabeled. The story reports a highly automated technique for classifying and indexing images according to digital fingerprints. It was not clear if it is reliable or accurate.

Generally, because of provisions in telecommunications law and various court opinions, telecommunications providers have very limited liability for what their subscribers do (with some safe harbor provisions), somewhat like the way the law always worked for telephone companies. This agreement with the New York State attorney general sounds like going in a new direction.

Or perhaps not. In early 2003, Wired Magazine reported on a sting run by a Houston federal prosecutor trapping c.p, trafficking through a Yahoo! user group. A former military officer was ensnared in the sting. So ISPs and major media sites have cooperated with authorities in the past. All major ISPs have acceptable use policies or terms of service regarding this issue now, and maintain that they are already required by federal law to report known violations. One main risk could be mislabeling material as illegal when it is not.

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