Re: House vote on illegal images sweeps in Wi-Fi, Web sites

[David Farber <dave () farber net>]

Begin forwarded message:

From: Seth Finkelstein <sethf () sethf com>
Date: December 7, 2007 7:17:14 AM EST
To: David Farber <dave () farber net>
Cc: ip <ip () v2 listbox com>, lauren () vortex com
Subject: Re: [IP] House vote on illegal images sweeps in Wi-Fi, Web  
sites

        More debunking:

http://arstechnica.com/news.ars/post/20071206-safe-act-wont-turn-mom-and-pop-shops-into-wifi-cops.html

SAFE Act won't turn mom-and-pop shops into WiFi cops
By Nate Anderson | Published: December 06, 2007 - 09:34PM CT

ISPs could face tougher penalties for failing to report child
pornography under a bill passed yesterday by the House, but don't
start searching the skies for the black helicopters yet: the bill
doesn't require any active surveillance of user behavior, and it won't
affect your local coffee shop's WiFi, despite what you may have read.

The Securing Adolescents from Exploitation-Online Act of 2007 (SAFE
Act; where the "O" went is anyone's guess) cleared the House yesterday
on a lopsided vote of 409-2. Congressmen Ron Paul (R-TX) and Paul Broun
(R-GA) were the only voices of opposition.

ISPs already have a duty to notify authorities if they stumble across
anything that appears to be child pornography or molestation
evidence. The new bill ups the penalties for not reporting this
information; ISPs now face up to $150,000 for a first violation and up
to $300,000 for subsequent violations. The bill also requires ISPs to
retain copies of all information filed in these reports, and to do so
for 180 days in case they are needed for use as evidence in court.

Now, what does the bill not do? It explicitly tells ISPs that they do
not need to "monitor any user, subscriber, or customer," they do not
need to "monitor the content of any indication," or even
"affirmatively seek facts or circumstances." In other words, if you
see it, you are legally obligated to report it, but ISPs do not need
to become child porn detectives.

The National Center for Missing and Exploited Children praised the
bill, calling it a step toward "better reporting, investigation, and
prosecution of those who use the Internet to distribute images of
illegal child pornography."

The bill was relatively noncontroversial, as evidenced by its huge
bipartisan support. That's not evidence it's a good law, but it
suggests at least that the legislation is not a harbinger of the
coming Apocalypse. Yet some news reports already question the motives
of the House leaders who held the vote and claim that the bill would
"slap new restrictions on hundreds of thousands of Americans and small
businesses who offer public wireless connections." The bill will
allegedly cover "individuals, coffee shops, libraries, hotels, and
even some government agencies that provide Wi-Fi."

Wow, that's bad. But is that really what's happening here?

WiFi isn't mentioned in the bill. Neither are coffee shops, libraries,
or individuals running access points in their basements. The bill's
provisions apply to anyone "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." Parse
that as you will.

I contacted the office of Rep. Nick Lampson (D-TX), who introduced the
bill, to see whether he understood it to cover hundreds of thousands
of Americans and small businesses who offer WiFi. A spokesperson told
me that, in his view, that broad interpretation was incorrect, but he
had to check in with policy staffers before confirming it. We did not
hear back by press time.

Whatever the bill applies to, though, the law is quite clear that
those who offer Internet access don't have to do any additional
monitoring. There are no "restrictions" on their services. The bill
updates an already-existing notifcation requirement and stiffens the
penalties, but only for those presented with clear evidence of child
porn who make a "knowing and willful failure" to report it.


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