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Netizens-Digest Volume 1 Number 263
Netizens-Digest Thursday, January 28 1999 Volume 01 : Number 263
Netizens Association Discussion List Digest
In this issue:
[netz] ISPs ORDERED TO "PROTECT THE CHILDREN" (AND COPYRIGHTS)
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Date: Wed, 27 Jan 1999 23:59:58
From: John Walker <jwalker@networx.on.ca>
Subject: [netz] ISPs ORDERED TO "PROTECT THE CHILDREN" (AND COPYRIGHTS)
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Using Microsoft Outlook Express Level 1
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Effective Use of E-Mail
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The following is an excerpt from the CSS Internet News. If you are
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- --------------------
ISPs ORDERED TO "PROTECT THE CHILDREN" (AND COPYRIGHTS)
by Dana Blankenhorn
http://boardwatch.internet.com/mag/99/jan/bwm51.html
It may be time to take a second look at your attitude concerning the
content on your servers. New laws and aggressive law enforcement
make it clear the hands-off attitude youve traditionally taken,
could lead to big legal bills going forward, even (believe it) jail.
Four new federal laws, all passed in 1998, are putting new pressure
on ISPs, and their lawyers:
1.The Sexual Predators Act requires ISPs to assist in policing their
news servers for child pornography, possession of which is a major
felony.
2.(The Digital Millenium Copyright Act (DMCA) requires that you get
serious about copyright violations on your Web pages, and deal with
properly-delivered complaints from copyright holders.
3.The Child Online Protection Act (COPA), sometimes called
Communications Decency Act (CDA) II, uses a harmful to minors
standard to judge indecent content that must be hidden from minors
through registration and credit card numbers.
4.The Childrens Online Privacy Protection Act (COPPA) requires that
Web sites that collect personally-identifiable data from children
under 13 get parental consent and disclose how theyll use the
information.
THE SEXUAL PREDATORS ACT
Its the Sexual Predators Act, and the whole issue of child
pornography, that is causing many ISPs to question the traditional
dont ask, dont tell attitude toward content collected, and
passed around, among servers.
The issue came to a head October 28 when New York law enforcement
officers, acting under the orders of Attorney General Dennis Vacco,
seized the Usenet servers of two New York ISPs, Dreamscape ISP of
Syracuse, New York, and Buffnet.net, of West Seneca, New York.
Vaccos press statement on the seizures, headlined Vacco Zaps
Worldwide Child Pornography E-Network, charged the ISPs had
Internet newsgroup servers that were used to facilitate the child
porn transmissions, specifically
alt.binaries.pictures.erotica.pre-teen and
alt.binaries.pictures.erotica.early-teen.
Vaccos statement said, Most Internet service providers choose not
to carry news groups that cater to the interests of child porn
traffickers for obvious reasons. He added, Those that do are well
aware of their nature and purpose, possess the offensive images on
their servers, and facilitate the transfer and trading of child
pornography.
Buffnet attorney Steven Fox insists his client was eager to
cooperate with law enforcement. The headline could have been that
Vacco, with Buffnets help, nabbed an Internet ring, but he didnt
ask for help, he said. Fox said a user identified only as John sent
Buffnet an e-mail, alleging illegal images were in a newsgroup. I
looked at the newsgroup he mentioned, twice, and I didnt see any
illegal pictures.
Keith Roland, an attorney for Roland & Fogel LLP, Albany, New York,
represents Dreamscape. His client didnt look at the newsgroup, as
Fox did, because he said the notice came in the form of an anonymous
e-mail. If the mere filing of a complaint by anyone puts you on
notice of a criminal violation, he charged, merely complying with
the law will put many ISPs out of business, no matter how strongly
they oppose child porn themselves.
If you establish liability for certain types of material, and say
the information provider is under a legal duty to review material, it
can be extended to other areas, like copyright, or libel. There were
cases a few years ago where someone wrote in and said someone was a
crook, and suits were brought against the Internet company. That
caused Internet companies to say they do not edit or screen youre
on your own.
That case, Stratton Oakmont vs. Prodigy, generated the legal
principle that youre better off if you dont monitor and police.
For that reason, Dreamscape adopted the position it would not screen
or edit anything. Taking one affirmative step requires others.
A CLEAN NEWS OPTION
Karl Denninger, a founder of MCS Net in Chicago and now an
independent consultant, has proposed a solution to this problem.
Clean News, a free service to be launched this spring, can
eliminate all binary files from the Usenet feed, except for those
sent with a valid digital ID proving the identity of the person
sending the file. ISPs can also choose to take the feed while
stripping-out binaries only in specific groups, or they can decline
to take any specific newsgroup, Denninger said.
According to Denninger, Usenet has become a haven for piracy and
pornography, but ISPs can solve the problem while saving money in
the process. People want this content, they dont care if its
illegal, and theyre willing to pay for it. Arent we then selling
them access to illegal material? Is this the right thing to do? I
dont know why attention hasnt been focused on this until now.
The Association of Online Professionals (AOP) in Arlington,
Virginia, hasnt formally endorsed Clean News, but executive director
Dave McClure said of Denninger, Personally I think hes right.
Anyone who thinks they have to carry illegal newsgroups or they lose
customers is saying theyre pretty much a purveyor of porn, and not
just healthy discussion.
The other thing I like about Denninger is hes not really censoring
communication. Hes just eliminating posting of binaries to the
Usenet. The Usenet wasnt intended as a repository for binary files.
Denningers approach is you can still post anonymously, just not
binaries. You can discuss pedophilia all day long but you dont post
a picture.
Theres a second benefit, he added. When you strip out the binaries
you get rid of spam. The people spamming for adult sites invariably
send binary files with them. An enormous spam flood is tied to
binary files. What we have here is an industry approach thats open,
thats honest, and the next time a clown on the Hill wants to get
righteous about content, we can walk right up to them with the
solution. It doesnt impinge on the First Amendment, we think its
marvelous. It took a lot of courage for him to take this step its
a step in the right direction.
AOP secretary James Butler, a partner at the law firm of Arnall,
Golden, & Gregory in Atlanta, was starting production of a white
paper on all the new laws for the groups Web site when we reached
him in November. He called the Sexual Predator Act problematic for
ISPs, because the language is very broad and safe harbor, or
immunity from suits, is hard to come by.
If youre hosting Usenet, youre going to have to make sure you
take out all sex pedophilia groups, and keep an eye on any new ones
that pop up, he said. There will probably be an overzealous
prosecutor who will go after an ISP who didnt know what was going
on, but all I can tell them is make every effort to comply.
The theory behind Denningers Clean News effort seems sound, he
added, and Internet anonymity itself may, in fact, be a thing of the
past. When the courts went into Finland and got into an anonymous
group on behalf of the Scientologists, that was the end of it. I
tell ISPs to make sure you know who youre dealing with.
As with all matters involving the law, of course, theres nothing
like universal agreement on Clean News. Jonathan Band, a partner for
Morrison & Foerster LLP, Washington, D.C., which represents many
ISPs, called Clean News an interesting idea, and sees no problem if
its use is voluntary. Thats the kind of self-regulation that will
keep the Feds away, he said.
But if you require it, that might be a problem. Band, however,
also defends the idea of anonymous posts. I think there are people
out there concerned about privacy who wouldnt send out anything
illegal and still want to remain anonymous.
Carl Oppedahl, a partner in the intellectual property law firm of
Oppedahl & Larson LLP, in Frisco, Colorado, doubts whether Clean
News will give ISPs the safe harbor Denninger and McClure seek for
them. Putting complicated restrictions on Usenet wouldnt stop many
Web distributions or e-mail. It wouldnt put an ISP in a position of
not having anything to worry about.
There are also active opponents of the Clean News approach. David
Banisar, policy director of the Electronic Privacy Information
Center (EPIC), in Washington, D.C., sees all sorts of free speech
problems with Clean News. Youre saying that binary files have less
legal protection than text, and thats simply unsupportable under the
Constitution. As free speech advocates, were going to challenge
this.
Even Banisar, however, said it will be difficult to challenge Clean
News in court. If theres a government coercion angle, and Mr.
Denninger has offered it as an incentive, then the issues can be
litigated. If theyre doing it purely voluntarily it will be
difficult.
THE DIGITAL MILLENIUM COPYRIGHT ACT
When it comes to laws requiring action, however, the Digital
Millenium Copyright Act (DMCA) may put more of a burden on ISPs than
the Sexual Predator Act.
The DMCA is designed to protect holders of copyrights on books,
music, TV shows, movies, and other works against digital
infringements by giving them a clear way to get potentially
infringing material off the Web.
Unlike most laws, the DMCA, which implements an international treaty
on copyrights and trademarks, took effect as soon as it was signed,
said Oppedahl. No one knows how to implement it its happened too
fast to assimilate.
As with the Sexual Predators Act, however, the new laws intent
seems honorable, and it seems that ISPs can find safe harbor from
liability for violations. It shouldnt be that burdensome, said
Band, who wrote an analysis of the DMCA, with recommendations for
ISP action, on behalf of the Digital Future Coalition, which opposed
the law until its passage.
WHAT SERVICE PROVIDERS NEED TO DO
According to the Act, ISPs need to adopt a written policy providing
for termination of subscribers and account holders who are repeat
offenders of copyright, and the policy should be posted on ISP Web
site.
ISPs must designate, and register with the U.S. Copyright Office, an
agent to receive notification of claimed infringement from the
copyright owner. That agent could be an employee, your lawyer, or
an outsider. They should, however, be in a position to respond
quickly to claims. The name, address, phone number and e-mail address
of that agent should then be posted on your site, said Bond.
ISPs are not the only people who need to file under the new Act, he
added. The requirements arent limited to Internet access. Its
anyone providing Internet services. Certainly GeoCities would be
subject to it. . .if youre a conduit, hosting, or linking, you
should probably register.
In addition, I would say any large company that provides Internet
access to its employees, or has a chat room, has to register. There
are many people who can take advantage of safe harbors. Anyone who
fears someone might post and circulate infringing material. Any
large organization should consider registering, and its pretty
easy.
Registration provides a procedure under which copyright holders can
make an effective complaint against any Web site you host, one
theyll be certain youll act on, Band concluded.
McClure of the AOP argued against the new law, but understands why
he lost. One of the things that really crippled us was some clown
ISPs would, when someone came to them and said they were hosting Web
sites with copyright violations, say to go away. They didnt realize
the only way to get a subpoena is to sue, so they sue the ISPs.
What they ran into in several cases was theyd take these guys to
court and say they didnt get notice, theyd deny the certified
letter went to the right guy, McClure continued. So copyright
holders demanded that someone be responsible at every ISP, in an
accessible database, so they dont have to spend weeks looking them
up.
So if ISPs want protection from liability for copyright violations,
they have to tell copyright holders whom to talk to regarding
violations. Thats what the database is.
Again, not everyone agrees you must register. On first reading, it
appears the ISP would want to consider registering, since it appears
this would provide safety against certain damage awards in the event
of a later copyright claim, said Oppedahl.
But, If you do a registration and list a phone number, then change
it, does this leave you worse off than if you had not registered?
Besides, all a copyright holder really needs to do is look up the
ISP in whois. Its ridiculous to think a normal, functioning ISP
cant be reached through whois.
So Oppedahl is unable to make a hard-and-fast recommendation that
ISPs register with the Copyright Office. Generally they should
consult their own copyright lawyer. Theres no other answer I can
give.
THE CHILD ONLINE PROTECTION ACT
Of all the new laws, only COPA (or CDA II) is being directly
challenged in court. The American Civil Liberties Union, EPIC, and
the Electronic Frontier Foundation filed suit to keep the law from
going into effect in October, and a hearing on a temporary injunction
was held in federal court on November 19 in Philadelphia.
According to the EPIC Web site, the federal court ruled to restrain
enforcement of COPA, and that the order applies to all Net sites.
Under the law, a site with material deemed harmful to minors must
check the identity of a visitor to make sure he or she is not under
18. Failure to do so makes the site operator liable to $50,000 in
fines and six months in prison each time an underage surfer accesses
the content in question.
Still, COPA may be the easiest of the new laws for ISPs to comply
with. The requirements under CDA II are really extremely mild,
said McClure of the AOP. What the Congress did was follow precisely
the road map the Supreme Court gave them in striking down the earlier
law. More important, the law provides clear cut protections for
operators of online services, and spells out fairly clearly what
they must do to be in compliance.
As long as youre not actually providing material for use on a Web
site, said Band, service providers have little to fear from COPA.
If I just sell space to adult entertainment sites, and Im not
involved in the selection of the material, Im pretty insulated, he
said.
STATE LAWS MAY PROVIDE BIGGEST OBSTACLE
The biggest problem may be that COPA is a federal law, that state
laws may differ, and that the definitions of what is harmful to
minors may differ from place to place, and prosecutor to prosecutor.
The child pornography case involving Dreamscape and Buffnet, after
all, was made under New York law, not U.S. law.
Thats what frightens Roland, the Dreamscape attorney. The cost of
litigating is massive, and it may be part of the strategy to go
after a small company without the resources to fight the battle, and
use those results to go after big guys, he said.
The difference between files involving adult sex, where ISPs dont
have legal liability, and files involving teenagers, which may hold
ISPs up to felony prosecution, is also so narrow as to disturb
Butler, the AOP secretary. Anyone can tell when a picture is of a
toddler, but a 17 year old is harder. Its going to be a tough thing
to police.
So the instincts of most ISPs will be to err on the side of caution.
Thats what Steve Fox, the attorney for Buffnet.net, said he did.
When we know of illegal material we remove it, and if we have
control over who put it there we remove them too, he said.
Yet Buffnets servers were still seized. Its certainly a scary
situation, concluded Oppedahl. All ISPs are worried about what
happened in New York. Critics like Banisar of EPIC fear prosecutors
will use such ambiguity to eliminate free speech online. Pretty
soon we dont have any kind of Net left at all, which is why were
fighting COPA.
THE LAW MUST KEEP UP WITH THE TECHNOLOGY
As the Internet becomes more important and more profitable, the
number of legal issues involving content will continue to grow, and
the number of lawsuits arising from content on your servers will also
grow, along with your legal bills.
While COPPA, for instance, applies to Web sites and not ISPs,
Oppedahl remains concerned that ISPs can be caught in the crossfire,
on this and other issues. Its common for parties to lawsuits that,
if they cant get what they want from the original plaintiff, theyll
go after others who participated. ISPs need to make sure customers
are obligated to indemnify them from any legal claims arising from
the activities of the customer. Not all do that.
The Internets nature brings with it issues current law simply isnt
designed to deal with, added McClure, guaranteeing conflict will
continue. For instance, if you dont want topless dancers, or dirty
bookstores, you can close them in your community. Its a
fundamental part of our government. The Web throws that out. Its not
the same as flying from Tennessee to California. We havent come to
terms with that yet.
What that means is that ISPs legal bills, both as individual
companies and as an industry, will only continue to grow. So will
their obligation to be involved in political debates and public
policy.
The best marker toward the future may have come from The Atlanta
Journal-Constitution of November 18, 1998. MindSpring Enterprises,
Inc., an Atlanta-based national ISP, hired Dave Baker as its new
vice president for legal and regulatory affairs. At the time of his
appointment Mr. Baker was a politician, an elected member of the
Georgia Public Service Commission, the states utility regulator.
WEB RESOURCES FOR ISPs AND THE LAW
www.ipmag.com IP, the online magazine of law and policy for high
technology.
www.patents.com The patents.com Intellectual Property Law Web
Server. This is the site maintained by Oppedahl & Larson LLP,
covering intellectual property issues.
www.aop.org The Association for Online Professionals Web site.
www.epic.org The Electronic Privacy Information Center Web site.
www.dfc.org The Digital Future Coalition Web site.
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Also in this issue:
- - Playing the (Domain) Name Game
When Reno Marioni decided to start an online adventure travel
business, he encountered a problem that plagues many Internet
startups. He had trouble finding a cool-sounding domain name, or
Internet address, that suited his business and wasn't already taken.
- - An Open Letter To Web Designers,
I originally began this week's missive as a response to B.L.
Ochman's latest article "When Design is Not Design." But I never
quite managed to stretch my fingers towards the keyboard to bang out
my kudos.
- - Browse Without Leaving a Cookie Trail
ATLANTA -- Surfing the Web is getting to be a little like
living in a glass house - much of what you do goes noticed.
- - FTC Will Use Survey to Examine Privacy Issue
WASHINGTON - The Federal Trade Commission will rely on an upcoming
industry-funded survey of commercial Web sites to determine whether
to recommend privacy protections to Congress, FTC Chairman Robert
Pitofsky said Tuesday.
- - ALTAVISTA'S NEW VIEW
Compaq will spin off AltaVista, the search engine the computer maker
inherited last summer after its $8.4 billion purchase of Digital
Equipment.
- - ISPs ORDERED TO "PROTECT THE CHILDREN" (AND COPYRIGHTS)
It may be time to take a second look at your attitude concerning the
content on your servers. New laws and aggressive law enforcement
make it clear the hands-off attitude youve traditionally taken,
could lead to big legal bills going forward, even (believe it) jail.
- - Students getting wired
Online learning part of technologically advanced program at Acadia
University
- - How hackers cover their tracks
(IDG) -- Ever wonder how hackers can spend so much time online and
rarely get caught? After all, everything they do on the Internet
should be logged, right? Web hits, FTP sessions, Telnet connections,
newsgroup postings, burps, and coughs should all be traceable,
right? Then how do they pillage and plunder with such ease?
- - New Lists and Journals
* NEW: Pferdezeitung - Pleasure with Horses
* NEW: The Safe Place
* NEW: simple-pleasures - Simple Pleasures Newsletter
On-line Learning Series of Courses
http://www.bestnet.org/~jwalker/course.htm
Member: Association for International Business
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http://www.bestnet.org/~jwalker
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End of Netizens-Digest V1 #263
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