ISPs may face charges over child porn
As many as five ISPs may face serious charges for providing access to child pornography in cases that critics are calling election-eve politics.
New York Attorney General Dennis Vacco won praise this week for his role in an international crackdown on an online child pornography ring. But critics have accused Vacco, up for reelection Tuesday, of breaking the law and playing politics in probing two New York state ISPs as part of the crackdown and seizing their newsgroup servers.
Three more ISPs--two on the West Coast and one in the Midwest--are likely to receive search warrants in coming weeks, the attorney general's office told CNET News.com today.
The crackdown resulted in the arrest of 13 individuals associated with a group calling itself Pedo University, according to Vacco's office. The group operated newsgroups called "alt.binaries.pictures.erotica.pre-teen" and "alt.binaries.pictures.erotica.early-teen." Vacco's office said more arrests are on the way.
Law enforcement officials have not arrested or charged anyone affiliated with the ISPs. But the businesses, which provided access to the newsgroups, are under investigation for what Vacco's office describes as the knowing possession of criminal images.
"The servers were confiscated as part of ongoing investigation," said Marc Wurzel, spokesman for the attorney general. "The ISPs were in possession of illegal images of children engaged in sex acts. In both cases, they were forewarned that they were in possession of illegal images."
The notification came in the form of an email inquiry sent by an undercover agent. The agent posed as a student wanting to know whether he would run afoul of the law by downloading child pornography he had found through the newsgroups.
A third New York ISP, located in Albany, responded to the undercover inquiries by suspending the newsgroups. As a result, that ISP is not under investigation, Wurzel said.
In announcing the bust, the attorney general's office said law enforcement agencies had shut down New York state ISPs Dreamscape in Syracuse and Buffnet.net in Erie.
In reality, Dreamscape was only brought down temporarily while the officials confiscated the ISP's newsgroup server. BuffNet was never down, the ISP said today, but its server was seized as well.
Under a portion of the Communications Decency Act known as the "Good Samaritan" provision, ISPs are widely believed to be not liable for what their users say or post. The Supreme Court effectively validated that legal point this summer by refusing to hear a challenge to it.
Much of the CDA was rejected, but the Good Samaritan provision survived.
"It looks like this is the kind of legal action that was supposed to be clearly precluded by that CDA provision," said David Sobel, general counsel for the Electronic Privacy Information Center. "There's a federal law that says an ISP is a passive conduit and can never be held responsible for material that it has on its system."
But Werzel said the CDA will not exonerate an ISP in possession of child pornography because of explicit exceptions in the law.
Coincidentally, Congress recently passed the Child Protection and Sexual Predator Punishment Act, which would make ISPs responsible for turning in their customers. Under that legislation, access providers who fail to report child pornography once they are made aware of it could be fined up to $50,000 for the first violation and up to $100,000 for each subsequent time they fail to contact law enforcement authorities.
That legislation, even if signed into law, is still months away.
Both the attorney general's office and its critics called Tuesday's confiscation unprecedented. EPIC's Sobel said his organization had never heard of a similar seizure of a news server, a move that Wurzel called "groundbreaking."
The ISPs' best defense may be to claim that they didn't know that copies of the images existed on their servers, a position taken by BuffNet today. BuffNet denied it had been warned of the pornography, the email inquiry from the undercover agent notwithstanding.
"The agent stated that he had found this picture through the newsgroup and implied that he did so through a BuffNet account," BuffNet attorney Steve Fox acknowledged. "He did not say that the image was still available on the newsgroup, and I, as an attorney, looked at the pictures in there and did not see anything illegal."
Fox noted that both newsgroup feeds and newsgroup servers periodically purge their old messages, which could explain why the undercover officer saw images that he did not find.
BuffNet posted a statement in response to the seizure. Both in the statement and in comments to News.com, BuffNet suggested that the attorney general's actions were politically motivated.
"The attorney general has a legitimate concern about child pornography on the Internet," BuffNet vice president and co-owner Mike Hassett acknowledged. "But his ultimate motivation is the election we're having on Tuesday. He won last election with upstate New York votes, and for this raid he chose ISPs in upstate areas to make his point."
Vacco has pulled ahead in what only a few weeks ago was a tight race for reelection. In a New York Times-CBS poll taken in the first week of October, Republican Vacco and Democratic opponent Eliot Spitzer were statistically tied in their race for the state's top law enforcement spot. According to a Times-CBS poll released this week, Vacco is now ahead, 48 percent to 36 percent, with 14 percent of the voters undecided.
Dreamscape posted its own statement, in which it accused the attorney general of employing "unnecessary and unlawful tactics which significantly interfere with the rights of all Americans to utilize the Internet."
Dreamscape attorney Steve Roland expressed optimism that the attorney general would not bring charges against his client. But if he does?
"If he did, that would change the discussion dramatically," Roland said. "That would send chilling shivers down the backbone of every ISP in the country."