Last week, California governor Arnold Schwarzenegger and Attorney General Jerry Brown jointly called on California Internet service providers to "follow the lead of Verizon, Time Warner Cable and Sprint by "removing child pornography from existing servers and blocking channels that disseminate the illegal material."
The two California leaders were following in the footsteps of New York Attorney General Andrew Cuomo who a few days earlier announced an agreement with those three companies to remove child pornography housed on servers connected to their networks. Some civil liberties groups, including the Electronic Frontier Foundation and the Center for Democracy and Technology, have expressed free-speech concerns about this agreement. I learned of the agreement shortly after landing in Washington, D.C., on my way to a board meeting of the National Center for Missing & Exploited Children. The NCMEC will play a role by providing the ISPs with a list of Web addresses for sites with sexually explicit images of prepubescent children.
As an (unpaid) member of NCMEC's board of directors, I can't claim objectivity on this story - I strongly support its efforts to rid the world of child pornography. But despite the claims of supporters and critics of the agreement, I don't think it will have much positive impact toward eliminating child porn nor negative impact when it comes to free speech.
Child pornography is not protected under any free-speech guarantees. It has been illegal in the United States for more than a quarter of a century.
In some countries, they don't even call it "child porn"; they call it "child sexual abuse images." In addition to being illegal, it's hideous because real kids are victimized, first by being used to produce the material and again each time an image is circulated and viewed - and that often goes on for decades. Also, sexually explicit images of children are sometimes used by those to prey on children and break down their resistance to sexual contact. But just because child porn is illegal and immoral doesn't mean that it's OK to violate the First Amendment while trying to stamp it out. Some have expressed concern that the agreement Cuomo announced could be a form of "prior restraint" by blocking access to material without a judicial review. But no one is blocking anything. Instead, the ISPs involved are simply enforcing their own longstanding terms of service by agreeing not to host sites and newsgroups known to contain child porn.
NCMEC will supply these companies with lists of offending sites and NCMEC staff will use software to review these sites daily and let the ISPs know if there is any change to their status. If any of these companies finds that a customer is using its network to host these sites, it will disconnect them from the network.
If officials in New York and California think this will stop child pornography, I'm afraid they're misinformed. None of these companies is keeping people from accessing this material as long as it's hosted on other servers.
Frankly, I don't think they're going to find very many illegal child-porn sites hosted by these major ISPs. If the site is hosted elsewhere, the ISPs' representatives told me, they will not block access to the site, even if it is reported to contain child porn.
There have been reports that these companies will block access to child porn on Usenet newsgroups, but that's not exactly true either. They're doing something far more dramatic.
Time Warner will stop hosting all newsgroups, while Verizon and Sprint will eliminate hosting newsgroups under the "Alt" hierarchy. Time Warner Cable spokesman Alex Dudley said that was "partially a business decision" because less than 2 percent of its customers subscribe to newsgroups. Newsgroups were fairly popular in the early days of the Internet - before the World Wide Web was created in 1989 - but in recent years, they've lost users to Web-based forums, chat rooms and social-networking sites.
From a free-speech perspective, I'm more disturbed by Sprint and Verizon's decision to stop serving up Alt groups than I am by Time Warner Cable's plan to cease hosting all newsgroups. Alt, short for "alternative," is the designation for groups that discuss issues that aren't allowed in the more mainstream categories such as comp (computers), soc (social issues), and talk (typically religion and politics). Alt includes groups dedicated to sex and drugs, and is reportedly where Cuomo's staff found 88 newsgroups containing child porn. But the vast majority of the material in the Alt hierarchy has nothing to do with child pornography.
Because not hosting is not the same as blocking, one could argue that it would be like a newspaper making a business decision to stop publishing a comics section or stock quotes. But there is a caveat. These companies didn't make these changes solely of their own volition.
Although the New York agreement was presented as "voluntary," the companies were under pressure from Cuomo, which does raise some troubling issues. However, unlike major ISPs in the United Kingdom, which do block access to reported child-porn sites, this is not a case of blocking but of companies agreeing to enforce their own longstanding rules and federal law by not hosting this material. As for California ISPs: A demand from the Republican "Governator" and the Democratic Attorney General is certainly an example of at least two buff arms of the law trying to change the way they do business.