SubscribeBut the reporting rules could prove problematic for individuals and smaller Web sites because the definitions of child pornography have become relatively broad.So now anyone with a blog would have to check every profile against an ever-changing list of e-mail addresses, etc. This is brilliant. I should also point out that this apparently makes it a criminal offense to create a blog if you are a convicted sex offender. Wowee. I think this bill is DOA, and so is McCain's presidential candidacy.
The U.S. Justice Department, for instance, indicted an Alabama man named Jeff Pierson last week on child pornography charges because he took modeling photographs of clothed minors with their parents' consent. The images were overly "provocative," a prosecutor claimed.
Deleting sex offenders' posts
The other section of McCain's legislation targets convicted sex offenders. It would create a federal registry of "any e-mail address, instant-message address, or other similar Internet identifier" they use, and punish sex offenders with up to 10 years in prison if they don't supply it.
Then, any social-networking site must take "effective measures" to remove any Web page that's "associated" with a sex offender.
"The Stop the Online Exploitation of Our Children Act, which I introduced earlier this month, aims to clarify and strengthen a child pornography reporting requirement that has been a federal law for almost a decade. The legislation sends one very simple and very important message: If you’re aware of child pornography online, you should be obligated to report it to the appropriate authorities.
"Contrary to what has been reported by some news outlets, the reporting requirements in the legislation would apply only to child pornography. In addition, the bill is in no way targeted at the free speech rights of bloggers or anyone else communicating their views on the Internet.
"For example, the speech rights of bloggers and others online would not be impacted because the legislation does not require the monitoring of users or the content of any communication. Nor does it require online service providers to seek out child pornography on their sites. Rather, it requires online service providers to report child pornography when they become aware of it, either through a report from a subscriber or user, or through a discovery of the material by an employee. As a result, the reporting requirement would protect children while not imposing a financial or administrative burden on online service providers.
"I cherish the rights of individuals to speak freely on the Internet. That right and the ability to exercise it is what makes the Internet the critical innovation that it is. This bill doesn’t interfere with that, but is intended only to ensure that online service providers that find child pornography on their networks report those images to the appropriate authorities."
(b) Duty To Report-The important part of that section is the "actual knowledge" requirement. A constant theme throughout the law is "actual knowledge" vs "constructive knowledge" vs the negligence standard of "should have known." Here, the statute requires actual knowledge of facts which indicate a violation of (various provisions having to do with child pornography, solicitation, exploitation, selling). The actual knowledge requirement creates a significant hurdle with respect to enforcement as it requires proof of that actual knowledge. But the bill says you have to know completely that this is occurring before the duty to report is triggered. (And to answer the point that is always made about 'actual knowledge' requirements: yes, it encourages blinders.)
`(1) IN GENERAL- Whoever, while engaged in providing an online service to the public through a facility or means of interstate or foreign commerce, obtains actual knowledge of any facts or circumstances described in paragraph (2) shall, as soon as reasonably possible, make a report of such facts or circumstances to the CyberTipline of the National Center for Missing and Exploited Children, or any successor to the CyberTipline operated by such center.
`(2) FACTS OR CIRCUMSTANCES- The facts or circumstances described in this paragraph are any facts or circumstances that appear to indicate a violation of--
`(A) section 2251, 2251A, 2252, 2252A, 2252B, or 2260 that involves child pornography or;
`(B) section 1466A.
`(g) Protection of Privacy- Nothing in this section shall be construed to require an online service provider to--This is a safe harbor provision of sorts. (g)(3) states that you have no duty to monitor your comments or whatever. This reinforces the fact that the obligation exists only if you know about it. That is, if you know that someone is dealing in kiddie porn, solicitation, etc., then you must report it. But you have no duty to go find out if that is what is occurring.
`(1) monitor any user, subscriber, or customer of that provider;
`(2) the content of any communication of any person described in paragraph (1); or
`(3) affirmatively seek facts or circumstances described in subsection (b)(2).
Why does John McCain hate freedom?
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posted by nofundy at 7:44 AM on December 14, 2006