ISPs are pressed to become child porn cops

‘Enormous First Amendment problems’
Even then, no government agency — even a law enforcement agency or state attorney general's office — could impose a requirement to stop all files on a blacklist, or otherwise create a list of forbidden content, Morris said. Such a list would not pass constitutional muster.

"You can't declare speech, or images, illegal without judicial proceedings," Morris said. "... That creates enormous First Amendment problems. You can't have an agency or outside firm acting as judge and jury on these images."

Also, blocking images before they were delivered would constitute a prior restraint of communication, Morris said, violating the First Amendment right of free speech.

Other methods used to combat child porn — logging IP addresses of frequent senders and investigating them, by using a subpoena to force ISPs to reveal the name, and then knocking on the user's door — raise no such constitutional issues, Morris said. He compared that to a law enforcement official overhearing illegal speech in a public place and prosecuting a speaker. Brilliant Digital's scheme, he said, is more like picking up a telephone and listening in on private conversations.

"As horrible as child pornography is, and it is horrible, you still have to follow the Constitution," Morris said.

At NCMEC, Allen said the privacy interests are being heard. "We have been very sensitive to legitimate free speech and privacy-related concerns. That is one of the reasons we are focusing exclusively on pre-pubescent children and the most egregious images. That does not suggest that child pornography images involving 13-year-old children are acceptable or less serious, however, traditional law enforcement investigation and prosecution efforts are being used for those situations."

A different approach
Another child protection group has a different approach. The National Association to Protect Children, which advised Sen. Biden on his bill, said that blocking of files by Internet service providers could easily be seen by the public as "overreaching," making it harder to get public support for efforts of law enforcement. What's needed, said the group's executive director, Grier Weeks, is for cops to investigate the leads they already have.

"The Department of Justice and all 50 attorneys general are sitting on a mountain of evidence leading straight to the doors of child pornography traffickers," Weeks said. "We could rescue hundreds of thousands of child sexual assault victims tomorrow in America, without raising any constitutional issues whatsoever. But government simply won't spend the money to protect these children. Instead of arrests by the Federal Bureau of Investigation, the child exploitation industry now faces Internet pop-ups from the Friendly Bus Investigators. That was always the fundamental difference between the Biden bill and the McCain bill. Biden wanted to fund cops to rescue children. McCain wanted to outsource the job."

Sen. McCain's general counsel, Lee C. Dunn, said that he's happy that both the law enforcement and technology approaches became law, that his focus was on protecting children. She said the new law does not require any Internet provider to monitor traffic.

"They have the responsibility and their right to manage the network as they wish," Dunn said. "If AOL wants to monitor their network for child porn, some customers may go to them, because they'll keep them from getting this stuff showing up in their e-mail. Other companies may choose not to, and other people may prefer that. We're not dictating to them that they monitor their network."

Brilliant Digital Entertainment is betting that most internet companies will choose to monitor their customers. Michael Speck said his company's product pitches have been well received by law enforcement agencies, government officials and Internet service providers.

"I don't think there's anyone in the Internet space," Speck said, "who doesn't think fighting child sexual exploitation is good business."

Click for related content Live vote: Do you want the Net watched for child porn? Red Tape Chronicles: The trouble with 'deep packet inspection' Discuss this article on Newsvine Feedback: Send an e-mail to Bill Dedman and Bob Sullivan

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