FC: Internet trade association responds to anti-Usenet porn post

[Declan McCullagh <declan () well com>]

It seems to me that a crucial point is absent from this discussion: Not all 
posts in even an alt.binaries.pictures.erotica.* newsgroup are going to be 
what you might expect. Some will be discussion of photos, some will be 
"please post," some will be irate anti-pornsters complaining, some will be 
the newsgroup regulars fighting back, some will be trolls, some will be 
spam, etc.

Certainly some of the above discussion is protected by the First Amendment, 
so conceding that an entire newsgroup is filled with illegal material 
concedes too much. The Scientologists, for instance, would surely claim 
that all discussion in alt.religion.scientology is illicit, when only a 
minority of messages (arguably) violate copyright law.

If ISPs are going to be in the business of deleting stuff from Usenet -- a 
hopeless task anyway -- they may as well demand specific message IDs of 
allegedly unlawful material.

-Declan

**********

From: "Dave McClure" <dmcclure () usiia org>
To: <declan () well com>
Subject: RE: Anti-porn group's take on ISP Usenet prosecution in New York
Date: Sat, 17 Feb 2001 16:05:50 -0500
Message-ID: <001101c09925$68f8cf30$0ace94cd@dave>
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Declan:

USIIA has, since 1995, warned our member ISPs of the dangers posed by
the child-porn-oriented newsgroups, particularly from prosecutors who
do not know the law and are looking for a quick, cheap victory.

This case appears to follow the precedent set by the LA Vice Squad in
1996.  LAVS began to arrest online service providers on charges of
child porn (in those days, it was for carrying on a BBS photos of porn
star Tracy Lords when she was 15. . .as if you could tell her age from
the photo or something).

The procedure was to pull the guy into a room and threaten to hold a
news conference if he did not plead guilty to a misdemeanor.  In the news
conference, he would be labeled a pedophile and his career/life ruined.
The same press confeerence would be held if the guy got an attorney and
attempted to fight the charge.  After all, they said, it was just a
misdemeanor. . .kind of like a traffic ticket.  The poor guy didn't
realize until afterward that he'd be a Know Sexual Offender for the
rest of his life. . .

To our knowledge, three such plea bargains were made before we were able
to intercept the process with the LAPD.

Knowing that ISPs make easy targets -- you don't have to spend any
time or money looking for the real culprits -- we supported the passage
of Section 509 of the Telecommunications Act of 1996, which states:


     (1) TREATMENT OF PUBLISHER OR SPEAKER- No provider or user
         of an interactive computer service shall be treated as the
         publisher or speaker of any information provided by another
         information content provider.

The clause was specifically passed by the Congress in an effort to curb
the abuse of ISPs by overly-zealous prosecutors and judges.

On the other hand, we're no fans of kiddie porn, and have encouraged ISPs to
also use the "Good Samartican" clause of Section 509 to remove access to
such
newsgroups.  We have also frequently warned that an ISP that wished to
carry the offending newsgroups -- particularly after they have been notified
of the content of the newsgroup by the authorities -- could be held liable
under 47 USC Section 233 (a)(2).  Remember, the Supreme Court only struck
down a narrow definitional clause of the Communications Decency Act, not the
whole law.  We don't tell our member ISPs that they can't carry any
particular newsgroups (that is a decision each ISP needs to make in
consultation
with legal counsel), but we do tell them to be prepared if they do so to
defend that
decision in court.

We're pleased to note that the vast majority of our ISP members have elected
to remove access to newsgroups that carry or promote child pornography.

We are sorry to see that the new york case will set a precedent that could
launch another wave of anti-ISP legal actions.

Regards,
Dave McClure
US Internet Industry Association




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