Whack-a-Mole in New York

New York State Attorney General Andrew Cuomo announced on June 10th an “unprecedented deal” with Verizon, Time Warner Cable and Sprint to “block major sources of child pornography.” The political logic of this action is abundantly clear, though it will have little impact on the spread of child pornography on the Internet.

The New York Times reports that the approach taken by Cuomo’s investigators was to pose as subscribers and file complaints with the ISPs regarding child pornography on their networks, despite user agreements that do not permit such activity. “After the companies ignored the investigators’ complaints, the attorney general’s office surfaced, threatening charges of fraud and deceptive business practices. The companies agreed to cooperate and began weeks of negotiations.”

The background to this story is that previous attempts to legislate mandatory Internet filtering in the U.S. have been overturned by the courts. The legal and practical obstacles to controlling online speech in a country that values free speech as highly as the U.S. have proven to be too great so far. (See here)

Therefore it is not surprising to see the emergence of creative approaches that coerce ISPs into taking action. Unfortunately, the chosen approach doesn’t seem to pass a reasonable benefit-cost test.

There are a few dimensions to the announcement, none of which involve filtering web sites. The agreement stipulates that these three ISPs will “purge their servers of child porn websites.” This makes sense, though it is not new or surprising. Child pornography is a crime and hence is not protected speech. The aspect that is new and somewhat troubling is that the organization which maintains a list of web sites that include child pornography, the National Center for Missing & Exploited Children (NCMEC), is a non-governmental organization and would carry out its role with no judiciary oversight, no transparency and no accountability to the public. The announcement states that the NCMEC “regularly reviews and updates its registry of these illegal sites to ensure the list reflects the current presence of such websites on the Internet.” However, there is no way to be sure the list is not over-inclusive, including sites that do not contain illegal content. These same problems of targeting, effectiveness, transparency and accountability plague similar initiatives designed to reduce illegal content in other western countries, including Finland, Canada,
and the

The NCMEC obviously has no authority to decide what is illegal. What they can provide is opinions regarding what they believe are web sites that contain illegal material. This allows others, such as ISPs, to act upon this information if they so choose, or in this case, if they are threatened with unwanted legal attention, blurring the line between a legal mandate and voluntary industry action in a process guided by the determinations of a group with no legal authority.

Another component of the agreement stipulates that these three companies will “eliminate access to child porn Newsgroups, a major supplier of these illegal images.” The target here is Usenet, the newsgroup service that has played a central role in the evolution of the Internet, predating the World Wide Web by more than a decade. For almost thirty years, Usenet has hosted discussions that cover a wide range of topics from science, technology and current events to arts and culture. The architecture of Usenet is designed such that many servers around the world host material that is posted. ISPs that host Usenet will be therefore unwitting hosts to any illegal material that is uploaded onto the Usenet network. Cuomo’s investigation team found 88 Usenet groups (out of the more than 100,000 newsgroups) that contain child pornography. The New York State investigators found illegal material to be contained on one of the nine Usenet hierarchies, the alt.* section, which includes over 10,000 newsgroups. Declan McCullagh reports that the ISPs will deal with this in different ways. Sprint plans to block the alt.* newsgroups. Time Warner Cable will drop all Usenet services. Verizon hadn’t decided how to implement the agreement, though would probably block the alt.* groups. This approach would thereby suppress more legitimate speech than illegal content, reminiscent of the baby-bathwater combination that U.S. courts have overturned in the past.

This deal is another example of a major recurring theme in Internet filtering seen around the world—unless targeting a very small number of sites where individual legal review is possible, blocking attempts will fail to eradicate the targeted content while inappropriately removing unrelated material, in this case thousands of newsgroups. The real impact of this agreement on the spread of child pornography is minimal at best. Although still open to interpretation, the impact on free expression will be greater. Some users that subscribe to legitimate Usenet services might be deterred by this, while determined Internet users will be able to access Usenet via a number of web-based services.

At issue is the precedent and mechanisms. The sad fact of the matter is that there are no technical means that will effectively block child pornography on the Internet without stomping on the right to free speech. Nor can it be said that there is no harm in trying. No one should be declaring victory over this agreement.