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Communications Decency Act Protects AOL in Lawsuit
JasonL writes "Cnet has an article on how the Communications Decency Act has protected AOL is a case of one AOL member selling child pornography to another AOL member. This may set a new standard on how pornography, illegal as it may be, is dealt with by ISPs."
AOL was not developed with the intent to trade in 'illegal goods' (MP3s, child porn, etc); certainly this stuff does go on, but according to law, as long as AOL responds in a timely manner when someone informs them of such material on their server, they gain the "ISP Protection" that is talked about here.
Napster, on the other hand, was designed to facilitate the distribution of copyrighted material, though their defence of late has been that "oh, but there are non-infringing uses!". Sure, they have tried to comply with requests to remove copyrighted material, but the fact that the system started as a way to trade that (and it will take a LOT to prove that otherwise) makes them unable to claim themselves as an ISP.
Besides, I believe these are different judisdictions, and therefore, the same ruling need not apply if all things were equal.
"Pinky, you've left the lens cap of your mind on again." - P&TB
"I can see my house from here!" - ST:
> Somewhere down the line I wonder if it had been
> a mom and pop ISP if the scenario would have
> been the same.
It probably wouldn't have gone to court, there is a lot more money in suing big corporations than small ones. And, yes, big corporations can afford more expensive lawyers. However, they also tend to take a unemotional cost/benefit approach to lawsuits, and it is often cheaper to settle than to win, even ignoring the risk of losing (judges are hard to predict) and the publicity cost. A small company is more likely to take the lawsuit personally, and fight it to the end.
> its sad however to see that judges play the
> robotic role of following "the book" but use
> little to no ethical, or humanlike qualities
> when dealing with any type of criminal case.
AARRRRGGGHHH! That is the entire *point* of the justice system! A good judge should judge according to the law, and to the greatest extent possible avoid letting his personal values influence the outcome. If a law is wrong, it should be changed, not reinterpretated to suit the idosyncracies of an individual judge.
she does have a point here, the problem is it applies to the entire internet. Not just AOL. now Kiddies the next question is. How do we stop this crap?
Does she? Or is she simply using the computer as a baby sitter? The problem I see with a lot of this is that no one takes responsibility for their fucking actions. 'Oh, no, I can't be bothered to be pay attention to what my children do.'
The way that we stop this crap is for people to stop fucking using TV and the Internet as a baby sitter, and raise their own fucking children.
But hey, that's just my opinion, I could be wrong.
"We have the right to believe at our own risk any hypothesis that is live enough to tempt our will."
http://gabrielcain.com/
That will help keep children from being victimized, yes, but, at least in Canada, art that depicts children pornographically, whether they are real or not, is illegal.
Canada's civil rights problems aren't my fault.
The demand for kiddie porn isn't *allowed* to be fulfilled here.
Which doesn't lessen the demand there. It just guarantees that it will be met with victimized children, because hey, it's illegal either way, so why not get the real thing?
You in Canada are starting to learn the same thing that we in the US are starting to learn; having a jillion laws creates a climate where people don't respect the law, and if they don't respect one law, it's a very short stretch for a lot of small minds to stop respecting ALL laws.
It starts with 55 MPH speed limits on roads where everybody (even the cops) drives 70, and it ends with climbing murder and armed robbery rates.
In fact, your murder rate started rising right about the same time ours started dropping, give or take a year.
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Is it really your belief that anyone who engauges in sex play with someone under the age of 18 deserves to have their life terminated?
No, I think it should be more specific:
Anyone who engages in sexual activity with someone under 16 for the purpose of producing pornographic materials should have their life terminated.
The existing penalties will be fine for having sex with someone that young without producing porn out of it.
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In an interesting opinion, the Florida Supreme Court split 4-3, ultimately adopting the earlier Zeran decision. Most interesting was to read the 3-judge dissenters, who made an interesting argument. This shows how truly fragile merely statutory rights and safe harbors can be.
Oh, really?
AOL: (Note: Taken from a copy of the TOS circa 1998. I was unable to find a more recent copy.) AOL, Inc. does not access or disclose the contents of private communications (e.g., e-mail, instant messages, Member-created private rooms, oral online communications), unless it in good faith believes that such action is necessary (1) to comply with applicable law or valid legal process (e.g., search warrant or court order); (2) to protect the rights or property of AOL, Inc.; or (3) in emergencies when AOL, Inc. believes that physical safety is at risk.
Earthlink: EarthLink may disclose personal information about Visitors or Members, or information regarding your use of the Services or Web sites accessible through our Services, for any reason if, in our sole discretion, we believe that it is reasonable to do so, including: to satisfy laws, such as the Electronic Communications Privacy Act, regulations, or governmental or legal requests for such information; to disclose information that is necessary to identify, contact, or bring legal action against someone who may be violating our Acceptable Use Policy or other user policies; to operate the Services properly; or to protect EarthLink and our Members.
Galaxy (my ISP): Galaxy treats e-mail messages as private. Exceptions are those permitted by law, including under the Electronic Communications Privacy Act of 1986 (the "ECPA"). The ECPA permits Galaxy limited ability to intercept and/or disclose electronic messages, including, for example (i) as necessary to operate the system or protect Galaxy's rights or property, (ii) upon legal demand (court orders, warrants, subpoenas) or (iii) where Galaxy receives information inadvertently which appears to pertain to the commission of a crime.
Emphasis mine in all.
Anyway, my point is that you'll be hard-pressed to find any ISP that won't snoop on your communications if it feels it needs to. And as the bolded statements prove, they can do so for any reason they want to.
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"I personal[ly] think Unix is "superior" because on LSD it tastes like Blue." -- jbarnett
AOL was not developed with the intent to trade in 'illegal goods
I strongly disagree with that statement, did you read my post?
AOL was one of the primo warez scenes back in the early to mid 90's. If you look at the logistics of it, there is no way AOL could justify their mail system being for legitamate use. Every other ISP had at most a 10MB storage limit on mail. Even in this modern era you are hard pressed to find more than 20MB. Yet in days when hard drives barely came in that size, AOL was allocated gigabytes of mail storage per user.
There is no possible way AOL could not have noticed the warez groups uploading 500+ 15MB ZIP files and then forwarding them to thousands of people. Someone had to buy the hard drives.
I agree the AOL service was not created to facilitate piracy, but there is no way you can explain their completely absure mail system design without piracy. Legitamate users simply do not need that kind of mail capacity.
- JoeShmoe
-- I wonder which will go down in history as the bigger failure: the War on Drugs or the War on Filesharing
Oh, don't be such a jackass. If a bank knows or has reason to suspect that one of their customers is committing fraud, they are required by law to inform the authorities. Used record (CD) stores are required to tell the police if they think that some of their merchandise is stolen. (which is why they don't ask _any_ questions when you bring stuff in--they don't want to have any evidence that 40-70% of their stock is stolen)
It's called responsibility. Responsibilty to the police, and to society.
"People who do stupid things with hazardous materials often die." -- Jim Davidson on alt.folklore.urban
This is an easy one. If AOL had started to take action, was investigating, etc., then that evidence would have come out in court. In fact, it probably would have come out in Russell's trial, as evidence.
The fact that AOL was under some suspicion almost guarantees that they _didn't_ investigate the complaints.
"People who do stupid things with hazardous materials often die." -- Jim Davidson on alt.folklore.urban
Well as an ISP I'm pleased to see AOL protected from the repercussions from the actionsof their users. Here inthe UK we tread a thin line when it comes to porn. When we first provided our Usenet news feed our local police force called and gave us a list of the groups that Scotland Yard suggested we didn't carry. It was groups in which the name was overtly paedophilic, even if the group was dormant. He said if we complied then we'd come under no pressure to remove adult hardcore groups the content of which can be considered illegal to distribute if we sold printed photographs of it.
a rge", or else be some sort of whacky place.
;-)
.oO0Oo.
As a carrier I think that saying "we don't know what's in a group" isn't really a valid defence to some degree. If I called my high street shop "Erotic pictures of large female genitalia" then I would hope that people would expect to find the same things as they do in "alt.binaries.pictures.erotica.female.genitalia.l
As a carrier I don't expect to police the actual content of the groups to make sure it follows the name but at least manage my distribution channels in some way.
I'm the sort of guy that says free speech is a right but I'll still demonstrate my offence at your words and actions. That's what free speech is for.
Children need protecting fro paedophiles and paedophiles need protecting from themselves, after all they are ill, not malicious.
We've seen vigilanti actions here in the UK and it's not pleaseant. (esp. in the case where a paediatrician was mistakenly attacked by an ill educated mob)
My solution? rant about it on Weblogs
There are places where the networks are not touching,and there are places where they are-Boeing's Lori Gunter
No I wouldn't. But if I had a button on my keyboard that actual or future child abusers to have their nuts painfully ripped off and fed to them before dying a slow painful death then yes I would certainly press it.
Of course there may be smart paedos who use encryption to hide their actions but they represent a tiny minority and not even they can erase all evidence of their actions.
If its fair use, then its a legitimate noninfringing use
Actually, no. If it's fair use, then it's a sanctioned infringing use. That's a significant distinction.
A legitimate non-infringing use requires that the copyright holder's monopoly is not violated. "Time-shifting" is non-infringing, because only one copy of the original material is retained in the viewer's possession. The viewer has merely chosen to view the program at a different time, not to make multiple copies of the program and redistribute them. Since the material was broadcast, it was obviously intended to be viewed; the viewer has merely exerted a degree of control over the terms under which he or she viewed the broadcast.
A fair-use defense starts with the presupposition that a copy has been made of a copyrighted work; that is, it starts from the presumption that copyright has been violated. The burden of proof then lies upon the violator to show that this prima facie violation is, in fact, so small and so minor that no real damage was done; the text was propelry attributed, etc. But don't lie to yourself: fair use is infringement, merely tolerated infringement.
Warning: His Kiddie Porn link is a reporting system!
m l">
I already clicked on it after reading his post. It made me really angry. This could easily be abused. I could just make the text of the link "come to Jesus" or "Fight child pornography" and dupe innocents into clicking on it. Perhaps I could just do something like:
<img src="http://www.antioffline.com/old/kiddieporn.ht
and send this in an html formatted mail to people I don't like. If they were clueless, they'd only see a broken picture link. This is a really bad idea and encourages a witch hunt.
*you've got Kiddy Pr0n!*
Yes with new AOL 6.0 you get all the hottest 12 year olds, so sign up to day!
*Goodbye pedophile!*
but more to the point
But the boy's mother accused AOL of enforcing its rules so poorly that it became a "home shopping network for pedophiles and child pornographers," she said.
she does have a point here, the problem is it applies to the entire internet. Not just AOL. now Kiddies the next question is. How do we stop this crap?
________
Does anyone actually have a Java program designed to control air traffic, or for the operation of a nuclear facility?
And this is legally different from (Slashdot sacred cow)Napster *HOW*?
Oh.. I mean other than Napster not necessarily being a "home shopping network for pedophiles and child pornographers,"
Here we have 'safe harbour' in action..
air and light and time and space
I guess that clears *THAT* up.. Obviously you can't chat on Napster or swap files other than MP3's.. unless of course you were to use wrapster or some such insidous software. After all, everyone knows that napster could *never* be used to distribute underage porn
air and light and time and space
One of them would have effectively outlawed transmission of any "indecent" material over the internet. Problem is that "indecent" was undefined, although it was clearly broader than "obscenity" which does not receive first amendment protection.
It was this part of the CDA which was struck down by the supreme court in Reno v. ACLU
The SC didn't strike down the entire CDA, which is a good thing, because another part of the CDA, which is at issue here, holds that ISPs are not responsible for materials transmitted via the ISP.
So part of the CDA is good and part of it is bad, which (as you note) is too much for the hivemind to comprehend.
Never take moderation advice from sigs, including this one.
While I'm no big fan of AOL, and the crims disgusts me, there is one key fact that shoots out at me:
Was the data that went through AOL's network illegal?
The video delivered through snail-mail is illegal - no question about that.. But... the 'order information' (in the form of name, address, credit card, phone number) sent via e-mail is surely not illegal, is it? I openly admit I may not understand the legal implications of this, but if this person had made the video order through the telephone, would she then sue the phone company for "allowing an illegal transaction to take place on their networks."??
This is another case where the internet is getting the "special treatment"... If two men met in a bar and exchange child porn (or drugs, guns), is the bar responsible? Maybe they should search their customers before they enter? Sounds crazy? Now we replace our setting from a bar to a chat room or newsgroup. Yes, ISPs has been sued (successfully?) for that.
Just because it is possible to electronically monitor someone activities, and without them knowing, should we do? This time, some judges said no. But what about the next time?
I am not completely on AOL's side either:
It seems to me that companies only become self-policing (or censoring or regulating, etc) when there is a possibility of law suits, government regulations and such. How can a business justify spending $$$ on something that they don't have to do? They may do it out of "social responsibilities", but will that be enough? And how far can (should) they go?
Who is to blame (in addition to that two offenders)? This is really a legal gray area, and IANAL.
====
Codeala - Just another mindless drone
An ISP should be given 24 hours of protection by the CDA. If the material remains there more than 24 hours after it is reported, the ISP should lose their protected status. Think about how you would feel if you found lewd pictures of a child from your family, reported it, and the pictures remained online for all to see for days, weeks, or months.
But the boy's mother accused AOL of enforcing its rules so poorly that it became a "home shopping network for pedophiles and child pornographers,"
home shopping network is probably a good analogy... both for losers too lazy and stupid to do anything other than buy what is being sold to them...
seriously though, aren't ISPs considered "common carriers" and therefore not responsible for the content of communication carried out over their "lines"???
One Bourbon
One Scotch
and One Beer
Now I agree that child pornography is wrong, but I still don't agree with the CDA. The CDA isn't about stamping out child pornography, its about stamping out everything that the "moral majority", or whatever they call themselves now, think is wrong.
There are already laws against child pornography, they come with stiff penalities. I'd be happy if they were even harsher, castrate the offenders, lobotomize them, I don't care. These laws obviously don't stop 100% of the abuse or this article wouldn't have been posted. There are not enough police officials assigned to this to really make a dent. Increasing the amount of stuff that they're supposed to contend with, which is what the CDA effectively does, is assinine.
Sticking to the real problems, such as child pornography, allows a more effective job to be done. If they really want to pretend they're serious on child pornography, dump the war on drugs. I'm not a drug user. I've never used them, I never will. But I think its assinine to spend the billions that are spent on preventing people from harming themselves when it can be spent preventing people from harming others. It obviously isn't all that effective since a cocaine user is in the highest office in the United States anyway.
Chris Kuivenhoven is a thief, beware
This is a well written, insightful post for the most part, worthy of a +5, insightful. However, even if you wrote that last link in as a measure hoping to catch some real pedophiles, you're likely to get many more innocent people, who wonder if your link is as informative about the troubling issue of kiddie porn as your EHAP link.
Furthermore, looking at your user info, you have been trolling, that is, so long as it is false that CmdrTaco and friends are anally obsessed. If they in fact are anally obsessed, you have been unfairly modded down, and someone should give you back that karma.
But I really don't think that is the case...
Just one request for the future. Please don't mix trolling/entrapment with your informative, interesting posts. I got suckered in by that link, and insofar as I'm a decent, kiddie-porn hating, god-fearing person, I feel upset that I'm even now being reported to Customs. This is even more upsetting once you realize that I'm playing with the idea of a future career in politics, trying to be one of the world's most honest, intelligent, caring politicians. If this goes on any govt. record/file being kept about me, it could be a dirty piece of allusion that some muck-raking, negative-ad-using political opponent could use against me. So please. Think about your actions before doing something impulsive like this in the future...
Offtopic: is your wife Swedish? Does she run the website "speedygrrl"? I think I stumbled on her webpage last night, either that or the webpage of one of her female colleagues (sp?)... How's that for weird co-incidences?
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IANASRP- I am not a self-referential phrase
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IANASRP- I am not a self-referential phrase
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email: proprietary becomes free, org to com
This is exactly what I expect. I'm glad. You should not hold a 3rd party ISP responsible for individual's actions. Holding the communication provider responsible causes ISPs to try to implement their own form of protections that erode my personal privacy and hinder my rights.
Often wrong but never in doubt.
I am Jack9.
Everyone knows me.
Napster wasn't just turning a blind eye to piracy. As their own internal documents stated, "[W]e are not just making pirated music available but also pushing demand."
The companies having their IP pirated made a big deal about Napster's involvement. I sure don't remember any similar hue and cry over warez d00ds at AOL. I don't remember anyone showing any proof that AOL's business model rested upon encouraging illegal activities.
This is an apple, and that is an orange. Case dismissed, and I'm holding anyone who modded that up in contempt of court.
Cheers,
Maybe this may seem counter intuitive, but the more paedophiles that get online the better. They're much easier to catch than in the real world.
I can just imagine what all those people who refuse to read the article are going to do with this one, so I think someone should point out the real issue: The plaintiff told AOL about the child pornography, identified the criminal, and provided evidence, yet AOL (which has policies against child pornography) refused to take action. This is a case of a willfully irresponsible ISP, NOT trying to force the ISP to monitor everything that goes on.
Napster:
Built a service that now has millions of customers by turning a blind eye to music piracy even though it was "possible" to prevent the exchange of illegal materials by blocking access to the file names.
Result: Found guilty, guilty, guilty.
AOL:
Built a service that now has millions of customers by turning a blind eye to software piracy and child pornograpy trading even though it was possible to prevent the exchange of illegal materials by blocking access to private chat room names.
Result: Innocent?
Give me a break. According to their own internal audits, AOL had fewer than 400,000 paying member back when it overtook Compuserve as America's number one ISP. The renaming TWO THIRDS of their so-called million plus member were warez users who generated fake credit card info and used the account for several months until it was finally cancelled.
AOL knew about people gathering in private rooms with names like "warez" and "kiddie porn" but refused to block them for several years, stating they had no grounds to police private rooms. Trading flourished unhindered until AOL had around 10 million members at which time AOL simply blocked access to private rooms with "warez" or "kiddie" or "child" in them. Which of course means the traders just started using w4r3z speak instead. Not to mention the fact that AOL allow members to have five accounts with 550 e-mails each with a 15MB attachment. That's over 2GB of storage that legitamate members were supposed to use for what? And the To: and CC: field capacities were increased three times from 200 people to 500 people then over a thousand people. Who forwards to thousands of people by warez traders? That's what listservs are for. Only after becoming so far out in front of other ISPs did AOL throw a switch and suddenly prevent people from mass-downloading forwarded warez files.
The hypocracy is incredible. Obviously AOL pays more for their lawyers.
- JoeShmoe
-- I wonder which will go down in history as the bigger failure: the War on Drugs or the War on Filesharing
To save people having to muck around on the thomas.loc.gov site too much (their search interface is horrid IMHO), here's a link to what I think (c.f. horrid interface again) is the final text of the CDA as passed. Of particular interest to this discussion would be Title II (common carrier crud) and Title V (things that excite senators,er, pr0n and stuff).
This is a big, complicated piece of legislation in which the laws of unintended consequences are in full force. That's why if you want to argue on it, you have to read the thing becuase there are so many little codiciles and amendments and stuff that what you think it says based on a soundbite level of knowledge and what it actually says may well be quite different (well, this is true of any legal discussion, but with complicated bills like this doubly so).
--
News for geeks in Austin: www.geekaustin.org
News for Geeks in Austin, TX
..This just *AINT* a pretty subject, no matter how you paint it. Is CDA 'good' or 'bad'? Could we just have a simple, straight-forward direction from Slashdot on the proper way to think?.. I just don't know what to say about this one.. Gonna have to check the archives to establish my POV..
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Starsucks
Just goes to show the lack of understanding the justice system has when assessing technology based crimes. Somewhere down the line I wonder if it had been a mom and pop ISP if the scenario would have been the same.
Well not knowing the full details surrounding this occurance, I can say that it does take a while for something like this to be investigated, and I know this because my wife is on the board of Ethical Hackers Against Pedophilia, if AOL did acknowledge the complaint and partaken in an investigation of some sort they should be held liable, and an appeal with proof of their investigation would prove the complaintants case.
Indeed the laws regarding most computer based crimes are very broad and can easily be misconstrued, its sad however to see that judges play the robotic role of following "the book" but use little to no ethical, or humanlike qualities when dealing with any type of criminal case.
Many people don't often understand the implications of reporting child porn and its importance, and many will often turn a blind eye on a notion someone else will report it. It can also be assessed that some may be embarrassed to report something as pedophilia out of fear they themselves may be considered pedophiles.
I've seen plenty of times people attempt to do what they feel it "the right thing" and totally screw things up for law enforcement. For example I won't name any particulars, but there is a group right now with anti child pornography intentions but their methods are wrong. Surely we would love to see child porn go by any means, and the attitudes these guys have taken is to break into a pedophile based server and delete them.
Bad move acts like these can compromise an investigation, and what some of these groups don't realize is, as quick as you can delete it, the pedophiles can quickly throw up ten mirrors. Not only did they themselves commit a crime by breaking in, the also committed the crime of evidence tampering, and the list goes on.
Personally I think some of these laws need a definite 2 year revision before things became a bit more chaotic than they are now.
Kiddie Porn
360 degrees of Karma
>The plaintiff told AOL about the child pornography,
>identified the criminal, and provided evidence, yet AOL
>(which has policies against child pornography) refused to
>take action.
You don't know this. AOL may well have notified the authorities that very day. But terminating a pervert's AOL account doesn't give the authorities much of a chance to catch said pervert in the act, now does it? If you notify your landlord that there's a crackhouse in your apartment complex, and the property management calls the police, the police aren't going to say "evict that guy right now." The police are going to want to set up surveillance, etc etc.
Investigations take time. The fact that AOL didn't immediately shut down the freak's account doesn't mean they're irresponsible. In fact it's quite possible that law enforcement officials wanted the account to remain *open* so that they could track that account's activities.
Just something to think about.
Shaun
Thanks to the War on Drugs, it's easier to buy meth than it is to buy cold medicine!