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Senator to propose surveillance
of illegal images
Declan McCullagh
CNet
Wednesday, February 7, 2007
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 so-called Safe Act 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 Safe Act (click
for PDF) says 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.
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 Safe Act is revised from an earlier version (click
for 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's not necessary "that the minor depicted actually exist.")
ISPs are already required under federal
law to report child pornography sightings. But current law only
includes fines of up to $300,000 and no criminal liability.
Another section of the draft bill says that anyone committing
certain child exploitation-related offenses who used "the Internet
to commit the violation" will be imprisoned for an additional 10
years.
That would
dramatically raise sentences for a whole swath of crimes that do
not involve adults having sex with minors. The U.S. 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 claimed.
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 full name of the Safe Act is "Securing Adolescents From Exploitation
Online." It 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.
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