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McCain's Plan to Fight Child Pornography

August 29, 2008 - by Donny Shaw

(This is part of a series on legislation being sponsored in the Senate by presidential candidates Barack Obama (D-IL) and John McCain (R-AZ). Subscribe to our rss feed to get the rest.)

John McCain’s Securing Adolescents From Exploitation-Online Act of 2007 is the most prominent attempt at the national level to crack down on child pornography. The bill, known for short as the “SAFE Act,” seeks to reduce child pornography on the internet by increasing the penalties against internet service providers that fail to report any violations of child pornography laws that they come across. It would also give the service providers a reward if they comply with the reporting requirements: immunity from civil lawsuits and criminal prosecutions.

“The fight to protect our children from exploitation has moved from the playground to the Internet, and we must update our laws to reflect this reality. The Internet is likely the greatest invention of the 21st century; however, it has allowed these children to be victimized again and again as these images are widely distributed via the Internet,” McCain said as he introduced the bill to the Senate in February 2007.

Specifically, the bill states that anyone who, “while engaged in providing an electronic communication service or a remote computing service to the public through a facility or means of interstate or foreign commerce, obtains actual knowledge of any facts or circumstances” of child pornography law violations to “make a report of such facts or circumstances to the CyberTipline of the National Center for Missing and Exploited Children.” The report would have to contain information about the offender’s online identity, the date that the illegal content was uploaded, geographical information, and an image of the child pornography. Failing to comply with the reporting requirements would be a federal crime, punishable by a fine of up to $300,000.

Just about everyone can agree that combating child pornography is a good thing, but serious questions about the bill’s implications for privacy and the availability of broadband have been raised.

The House of Representatives passed their version of the bill by a vote of 409-2 in December 2007. Despite its broad bi-partisan support in the House, the bill’s passage wasn’t popular with tech-savvy citizens of the world.

Immediately, claims echoed across the internet that the bill would require anyone who offers an open network to basically become a child pornography detective. On c|net news, for example, Declan McCullagh wrote that the bill requires "anyone offering an open Wi-Fi connection to the public [to] report illegal images including “obscene” cartoons and drawings." He goes on to say that the bill would cover “individuals, coffee shops, libraries, hotels, and even some government agencies that provide WiFi.”

That’s a broader interpretation than what McCain alludes to in his press release, for example, but it seems accurate. The bill’s language, which is quoted three paragraphs up, is parsed on the wiki as applying to “anyone who provides a telecommunications service over a system capable of conducting interstate or foreign business,” which would certainly apply to home WiFi networks, coffee shops and libraries, but also to social networking sites, email services and blogs with comment sections. Even if John McCain intended the bill to be targeted at big internet service providers like Comcast and Verizon, its vague wording leaves in place the potential for the $300,000 fine to be levied against your local coffee shop or favorite small-time blogger.

Regardless of who it applies to, the bill doesn’t require anyone to actively monitor their networks for child pornography. It is explicit on this, stating in its “protection of privacy” section that nothing in the bill should be construed to require the monitoring of anyone’s web surfing or emailing, or any investigation to seek information about suspected child pornographers. The bill is focused on those who “knowingly and willfully fail” to report information that they happen to come across. Still, the bill’s promise of legal immunity for companies or individuals that fully comply with its reporting requirements could be an incentive to monitor or investigate the internet activity of anyone they suspect to be involved in child pornography.

The other big question that is wrapped into the bill is how “child pornography” is defined. According to the wiki, the violations of law that must be reported under the bill include “sexual exploitation of children, selling or buying children, shipping, sending, receiving, distributing, or reproducing any depiction of a minor engaged in sexually explicit conduct or any child pornography, or using a misleading domain name to trick people into viewing pornography online.” A 2006 court case, in which the Department of Justice charged a man who photographed clothed, underage children with the consent of their parents as a child pornographer, set a precedent that seems to greatly expand the definition of pornography. In the case, the prosecutors argued successfully that the images of the children were overly provocative, thus illegal.

With such a broad definition, it’s easy to see that coffee shops and open home networks could shut down their WiFi services rather than risking a $300,000 fine for failing to report noticing the kinds of images that are widespread on, for example, MySpace and Facebook.

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