Gonzales Wants ISP Data Retention To Curb Child Porn

$RANDOMLUSER writes, "The AP is reporting that Attorney General Alberto Gonzales testified before the Senate Banking Committee today and called for Congress to require ISPs to preserve customer records, asserting that prosecutors need them to fight child pornography. 'This is a problem that requires federal legislation,' Gonzales said. He called the government's lack of access to customer data the biggest obstacle to deterring child porn. 'We respect civil liberties but we have to harmonize this so we can get more information,' he said." Gonzales added that he agrees with a letter sent to Congress in June by 49 state attorneys general, requesting federal legislation to require ISPs to hold onto customer data longer.

Comments

Re:Who was the holdout state AG?

[Jim Logajan]

Here's the link to that letter: http://www.atg.wa.gov/releases/2006/Documents/DRLe tter.pdf Oregon and Minnesota appear to be missing (but I have only done a quick scan). They got to 49 by including several territories.

Re:Who was the holdout state AG?

[Jim Logajan]

Oops - the AG of Oregon did sign. I missed it because I thought all the states were listed alphabetically - not the case on the first signature page.

Re:Who was the holdout state AG?

[Jim Logajan]

If I got this right, it appears the attorney generals who didn't sign were in Guam, Indiana, Marshall Islands, Micronesia, Minnesota, Missouri, Nebraska, Northern Marianas, Palua, and Virginia. Okay - you say some of those aren't states? Well, neither are American Samoa, the District of Columbia, Puerto Rico, or the Virgin Islands, yet those were included in the list of alleged "49 state attorney generals" who signed the letter. Source: http://www.atg.wa.gov/releases/2006/Documents/DRLe tter.pdf

Nothing New

[homer_ca]

Abu Gonzales has been pushing ISP data retention since at least early this year, and he's invoked all the usual boogeymen to get it passed: terrorism and kiddie porn.

He's tried:
-meeting privately with the major ISPs to ask them for voluntary compliance
-getting Republican Congressman James Sensenbrenner to introduce a bill that went nowhere.
-somehow persuading Qwest to endorse legislation

I don't mean to pimp Cnet. Search any tech news site for "ISP data retention" and you'll see the history of this.

You're missing the point

[Jeff Molby]

I'm completely against legislation like this, but in the interest of having a full discussion, I'll explain why they want this legislation.

They don't intend to use this against people that they already suspect. Instead, they will identify sites containing illegal images/information and then subpoena the major ISPs for lists of users that have accessed any of those sites. This becomes their probable cause and then they resume normal investigation techniques to solidify their cases.

Re:You're missing the point

[Anonymous Coward]

The parent is exactly right. This is the same reason that Bush didn't submit the wiretapping to the FISA court. It wasn't that the administration had suspect(s) whose data they wanted to see -- FISA would have OKed that in a heartbeat. It's that they want to look at everyone's data to figure out who to suspect. It simply isn't possible to square data mining the entire population with "no warrants shall issue, but upon probable cause". (Amendment IV)

So, the administration asserted "inherent presidential authority" and "wartime powers." That was a hard sell. It cost them political capital. It caused a breach with the legislators, even in their own party. Submitting to FISA would have been much easier and cheaper politically. But, if they submit, the wide scale data mining will be revealed as illegal.

Re:Privacy for the Incidental

[Anonymous Coward]

Or, more generally: can you get punished for possessing child pornography if the child in question is yourself

http://www.theregister.co.uk/2004/04/05/girl_charg ed_with_child_porn/

Why, yes. Yes you can. Pretty insane, no?

Re:Privacy for the Incidental

[AndersOSU]

FYI, here is how the law handles accidental aquisition of child porn:

(e) Affirmative Defense.-- It shall be an affirmative defense to a charge of violating subsection (b) that the defendant--
(1) possessed less than 3 such visual depictions; and
(2) promptly and in good faith, and without retaining or allowing any person, other than a law enforcement agency, to access any such visual depiction--
(A) took reasonable steps to destroy each such visual depiction; or
(B) reported the matter to a law enforcement agency and afforded that agency access to each such visual depiction.

source

"Prima Facie" possession

[Kadin2048]

You would think so, but I bet that in a lot of cases, they'd just treat your possession of the contraband as prima facie evidence of a crime.

It's like drug possession -- if the cops toss your car and find a kilo of China White or a handgun with the serial number scratched off in the glove compartment, your insistence that it's not yours may not keep you out of trouble. Just having it, in a place that was under your control, is the crime. A demonstration of intent is not necessary. In effect, it means that the burden of proof is shifted to the defendant to explain themselves, and if they cannot provide a justification for the evidence, they're guilty.

Frankly I think "prima facie" laws in general are a travesty of justice; we ought to abolish the whole philosophy and get back to a more intent-focused jurisprudence. But of course if you tried to do that, you'd be keelhauled for being supportive of crime and criminals, because in the short term it would make the work of the police harder.

In general, a lot of "possession" laws (drug possession, weapon possession, pornography, "burglar's tools") are intentionally written this way so that a demonstration of intent is unnecessary, and many laws include the phrase "prima facie" verbatim. (See this Montana weapon law, for example.)

More information you might want to read:
http://www.lectlaw.com/def2/p078.htm (deals with torts, specifically in employment law, but discussed the general concept)
http://dictionary.law.com/default2.asp?selected=15 98&bold=

Re:Privacy for the Incidental

[AndersOSU]

Obscene:

2. The basic guidelines for the trier of fact must be: (a) whether "the average person, applying contemporary community standards" would find that the work, taken as a whole, appeals to the prurient interest, Roth, supra, at 489, (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. If a state obscenity law is thus limited, First Amendment values are adequately protected by ultimate independent appellate review of constitutional claims when necessary.

source

lascivious:

1. inclined to lustfulness; wanton; lewd: a lascivious, girl-chasing old man.
2. arousing sexual desire: lascivious photographs.
3. indicating sexual interest or expressive of lust or lewdness: a lascivious gesture.

here

SCOTUS has defined obscene, though apperently not lascivious. True this might not stop you from being arrested, or tried, but ulimately the question of obscenity is one for a jury. That is the way the legal system works in the US, and is not unique to obscenity.

As for the picture with the 15yr old and the tree, there is something very different about a posing naked 15yr old, and a naked 3 yr old in a bath. I'd rather you not go into more detail, but I'd bet one of two things happened, either that wasn't the only picture and/or the picture is more sexually themed than you let on. The relevent portion here is "whether "the average person, applying contemporary community standards" would find that the work, taken as a whole, appeals to the prurient interest" - I'm guessing it did if a conviction followed.

I wonder how would you change things to make it better?