Re: [privacy] U.S. House Vote on 'Illegal Images' Sweeps in WiFi,

["Dr. Neal Krawetz" <hf () hackerfactor com>]

On Wed Dec  5 19:25:17 2007, Paul Ferguson wrote:
> Declan McCullagh:
>
> [snip]
>
> The U.S. House of Representatives on Wednesday overwhelmingly approved a
> bill saying that anyone offering an open WiFi connection to the public must
> report illegal images including "obscene" cartoons and drawings -- or face
> fines of up to $300,000.
>
> That broad definition would cover individuals, coffee shops, libraries,
> hotels, and even some government agencies that provide WiFi. It also sweeps
> in social networking sites, domain name registrars, Internet service
> providers, and e-mail service providers such as Hotmail and Gmail, and it
> requires that the complete contents of the user's account be retained for
> subsequent police inspection.
>
> [snip]
>
> More:
> http://www.news.com/8301-13578_3-9829759-38.html
>
> - - ferg

Hi Fergie,

I spoke with my attorney (Mark Rasch).  However, these are my non-legal
interpretations (don't blame Mark if I get it wrong).

Take a look at 42 U.S.C. 13032.
Also look at the real law:
  http://thomas.loc.gov/cgi-bin/query/F?c110:1:./temp/~c110MeZwo3:e915:

My (non-legal) basic comments:

  - The proposed bill (SAFE Act) says that if you know about things like
    child porn, then you must report it.  This is already the case with
    existing law.

  - The SAFE Act does NOT require you to look.  It only says that if you
    happen to see it then you must report it.  This is already existing law.

  - The SAFE Act does not explicitly point out WiFi, but it does say any
    kind of network connection.  (Declan put the emphasis on wifi, not the
    proposed law.)  This is already in existing law.

  - The SAFE Act says that it impacts individuals, coffee shops, etc.
    This is the case under current law.

There are also a few things like word-smithing updates to the old law.
But nothing stands out as earth-shattering.

Here are the new things that the SAFE Act would do:

  + Increase fines for non-compliance from $100K to $300K.

  + Require you to keep copies of the violation for 180 days.
    It used to be that you could not store copies of child porn, even for
    use as evidence against someone else.  (COPPA makes it illegal to be
    in possession of child porn for any reason.)
    The SAFE Act permits you to be in possession if it was found and
    reported under the SAFE Act.
    Also, current law requires you to report violations but not to keep
    copies as "proof".
    If you are someone falsely accused of a crime, you want them to keep
    proof.  Otherwise, it is your word against theirs.
    (But if you are guilty...)

  + Requires you to turn over information (if you have it), like geography,
    name, address, and company contact info.  Normally this would require
    a subpoena.  Currently, they always get a subpoena for stuff like this.
    And even if the SAFE Act does not require a subpoena, they will likely
    get one anyway.
    However, it is this clause that concerns me.  They seem to be
    sidestepping what is normally a legal requirement; they are requiring
    the transfer of information related to privacy without a subpoena.

Finally (responding to Peter Evans), the issue around '"obscene" cartoons
and drawings' has always been an issue.  Under the Supreme Court ASHCROFT
V. FREE SPEECH COALITION (00-795) 535 U.S. 234 (2002), they made a
distinction between "child porn" and "virtual child porn" (VCP).
Basically:
  - Normal porn is free speech (Playboy, PentHouse, etc.)
  - Child porn is illegal (COPPA)
  - Virtual child porn (drawings, computer graphics) are treated as porn
    and not child porn since no child was injured.  Thus, VCP is protected
    free speech.

(Canada's laws are so much better here... If it looks like porn and looks
like a child, then it is illegal child porn.  Freehand drawings are just as
applicable as photos.)

However obscenity laws do vary.  (Porn can be obscene without being
artistic.)  The definition is usually "I know it when I see it."
  - Normal porn makes normal people horny.  (Protected free speech)
  - Obscene porn makes normal people feel sick.  (Illegal)
I'll let you decide where goatse fits...

Finally, I said it before but I will reiterate: I am not a lawyer.  Do not
interpret any of the above as legal advice.

                                        -Neal
--
Neal Krawetz, Ph.D.
Hacker Factor Solutions
http://www.hackerfactor.com/
Author of "Introduction to Network Security" (Charles River Media, 2006)
and "Hacking Ubuntu" (Wiley, 2007)

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