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Senator to propose surveillance of illegal images

Proposal from Sen. John McCain would force Internet providers to report illegal images, even "cartoons."

Declan McCullagh Former Senior Writer
Declan McCullagh is the chief political correspondent for CNET. You can e-mail him or follow him on Twitter as declanm. Declan previously was a reporter for Time and the Washington bureau chief for Wired and wrote the Taking Liberties section and Other People's Money column for CBS News' Web site.
Declan McCullagh
4 min read
Senator to propose surveillance of illegal images A forthcoming bill in the U.S. Senate lays the groundwork for a national database of illegal images that Internet service providers would use to automatically flag and report suspicious content to police.

The proposal, which Sen. John McCain is planning to introduce on Wednesday, also would require ISPs and perhaps some Web sites to alert the government of any illegal images of real or "cartoon" minors. Failure to do would be punished by criminal penalties including fines of up to $300,000.

The Arizona Republican claims that his proposal, a draft of which was obtained by CNET News.com, will aid in investigations of child pornographers. It will "enhance the current system for Internet service providers to report online child pornography on their systems, making the failure to report child pornography a federal crime," a statement from his office said.

To announce his proposal, McCain has scheduled an afternoon press conference on Capitol Hill with Sen. Chuck Schumer, a New York Democrat; John Walsh, host of America's Most Wanted; and Lauren Nelson, who holds the title of Miss America 2007.

Civil libertarians worry that the proposed legislation goes too far and could impose unreasonable burdens on anyone subject to the new regulations. And Internet companies worry about the compliance costs and argue that an existing law that requires reporting of illicit images is sufficient.

The Securing Adolescents from Exploitation-Online Act (PDF) states ISPs that obtain "actual knowledge" of illegal images must make an exhaustive report including the date, time, offending content, any personal information about the user, and his Internet Protocol address. That report is sent to local or federal police by way of the National Center for Missing and Exploited Children. The center received $32.6 million in tax dollars in 2005, according to its financial disclosure documents.


Who must comply? "Any service which provides to users thereof the ability to send or receive wire or electronic communications." (18 USC 2510)

Who must be alerted? Federal and state police through the National Center for Missing and Exploited Children.

What images must be reported? Illegal images of minors, which includes clothed teens in "lascivious" poses, according to the Justice Department. Obscene "cartoons" and "drawings" also qualify. (18 USC 1466A)

What information must be included? Basically everything the reporting person knows about the image and who posted it.

Penalties for not reporting? Criminal penalties including fines of up to $300,000.

Afterward, the center is authorized to compile that information into a form that can be sent back to ISPs and used to assemble a database of "unique identification numbers generated from the data contained in the image file." That could be a unique ID created by a hash function, which yields something akin to a digital fingerprint of a file.

Details on how the system would work are missing from McCain's legislation and are left to the center and ISPs. But one method would include ISPs automatically scanning e-mail and instant messaging attachments and flagging any matches.

The so-called SAFE Act is revised from an earlier version (PDF) that McCain introduced in December.

Instead of specifying that all commercial Web sites and personal blogs must report illegal images, the requirement has been narrowed. Now, anyone offering a "service which provides to users thereof the ability to send or receive wire or electronic communications" must comply.

Most courts have interpreted that language to apply only to ISPs. But it could be interpreted as sweeping in instant messaging providers and Web-based e-mail systems like Microsoft's Hotmail and Yahoo Mail. A 9th U.S. Circuit Court of Appeals opinion that dealt with an airline reservation system, for instance, concluded that "American, through Sabre, is a provider of wire or electronic communication service."

The list of offenses that must be reported includes child exploitation, selling a minor for sexual purposes and using "misleading" domain names to trick someone into viewing illegal material. It also covers obscene images of minors including ones in a "drawing, cartoon, sculpture, or painting." (The language warns that it is not necessary "that the minor depicted actually exist.")

ISPs are already required under federal law to report child pornography sightings. Current law includes fines of up to $300,000 but no criminal liability.

Another section of the draft bill says that anyone convicted of certain child exploitation-related offenses who also used the "Internet to commit the violation" will get an extra 10 years in prison.

That would dramatically raise sentences for a whole swath of crimes that do not involve adults having sex with minors. The Justice Department, for instance, indicted an Alabama man in November on child pornography charges because he took modeling photographs of clothed minors with their parents' consent and posted them online. The images were overly "provocative" and therefore illegal, a federal prosecutor asserted.

Marv Johnson, a legislative counsel with the American Civil Liberties Union, said the extra 10 years in prison was an odd requirement because the Internet is not inherently dangerous like a firearm. Rather, he said, the bill proposes to punish someone for using a perfectly legal item or service in an illegal way.

"It would be like punishing someone additionally for driving a car in the commission of an offense," Johnson said.

The proposed SAFE Act is not related to the 2003 SAFE Act, which stood for Security and Freedom Ensured Act, the 1997 SAFE Act, which stood for Security and Freedom Through Encryption, or the 1998 SAFE Act, which stood for Safety Advancement for Employees.