Netizens-Digest Volume 1 Number 263

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Netizens Digest

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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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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 you’ve 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 they’ll use the 
information.  

THE SEXUAL PREDATORS ACT 

It’s the Sexual Predators Act, and the whole issue of child 
pornography, that is causing many ISPs to question the traditional 
“don’t ask, don’t 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.  

Vacco’s 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.  

Vacco’s 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 Buffnet’s help, nabbed an Internet ring, but he didn’t 
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 didn’t see any 
illegal pictures.” 

Keith Roland, an attorney for Roland & Fogel LLP, Albany, New York, 
represents Dreamscape. His client didn’t 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 — you’re 
on your own.”  

That case, Stratton Oakmont vs. Prodigy, “generated the legal 
principle that you’re better off if you don’t 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 don’t care if it’s 
illegal, and they’re willing to pay for it. Aren’t we then selling 
them access to illegal material? Is this the right thing to do? I 
don’t know why attention hasn’t been focused on this until now.”  

The Association of Online Professionals (AOP) in Arlington, 
Virginia, hasn’t formally endorsed Clean News, but executive director 
Dave McClure said of Denninger, “Personally I think he’s right. 
Anyone who thinks they have to carry illegal newsgroups or they lose 
customers is saying they’re pretty much a purveyor of porn, and not 
just healthy discussion.”  

“The other thing I like about Denninger is he’s not really censoring 
communication. He’s just eliminating posting of binaries to the 
Usenet. The Usenet wasn’t intended as a repository for binary files. 
Denninger’s approach is you can still post anonymously, just not 
binaries. You can discuss pedophilia all day long but you don’t post 
a picture.”  

There’s 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 that’s open, 
that’s 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 doesn’t impinge on the First Amendment, we think it’s 
marvelous. It took a lot of courage for him to take this step — it’s 
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 group’s 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 you’re hosting Usenet, you’re 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 didn’t know what was going 
on, but all I can tell them is make every effort to comply.”  

The theory behind Denninger’s 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 you’re dealing with.”  

As with all matters involving the law, of course, there’s 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. “That’s 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 wouldn’t 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 wouldn’t stop many 
Web distributions or e-mail. It wouldn’t 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. “You’re saying that binary files have less 
legal protection than text, and that’s simply unsupportable under the 
Constitution. As free speech advocates, we’re going to challenge 
this.”  

Even Banisar, however, said it will be difficult to challenge Clean 
News in court. “If there’s a government coercion angle, and Mr. 
Denninger has offered it as an incentive, then the issues can be 
litigated. If they’re 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 — it’s happened too 
fast to assimilate.  

As with the Sexual Predators Act, however, the new law’s intent 
seems honorable, and it seems that ISPs can find “safe harbor” from 
liability for violations. “It shouldn’t 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 aren’t limited to Internet access. It’s 
anyone providing Internet services. Certainly GeoCities would be 
subject to it. . .if you’re 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 it’s pretty 
easy.”  

Registration provides a procedure under which copyright holders can 
make an effective complaint against any Web site you host, one 
they’ll be certain you’ll 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 didn’t realize 
the only way to get a subpoena is to sue, so they sue the ISPs.  

“What they ran into in several cases was they’d take these guys to 
court and say they didn’t get notice, they’d 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 don’t 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. “That’s 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. “It’s ridiculous to think a normal, functioning ISP 
can’t 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. There’s 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 you’re 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 I’m not 
involved in the selection of the material, I’m 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.  

That’s 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 don’t 
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. It’s going to be a tough thing 
to police.”  

So the instincts of most ISPs will be to err on the side of caution. 
That’s 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 Buffnet’s servers were still seized. “It’s 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 don’t have any kind of Net left at all, which is why we’re 
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. “It’s common for parties to lawsuits that, 
if they can’t get what they want from the original plaintiff, they’ll 
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 Internet’s nature brings with it issues current law simply isn’t 
designed to deal with, added McClure, guaranteeing conflict will 
continue. For instance, if you don’t want topless dancers, or dirty 
bookstores, you can close them in your community. “It’s a 
fundamental part of our government. The Web throws that out. It’s not 
the same as flying from Tennessee to California. We haven’t 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 state’s 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.  

- ------------ 

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 you’ve 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 

 

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End of Netizens-Digest V1 #263 
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