That was Washington-based e-commerce and copyright lawyer David Snead’s advice to Internet Service Providers on Tuesday, during a panel discussion held at ISPCON focusing on ISPs, adult content and privacy.
Concern has risen, as Attorney General Alberto Gonzales continues his crackdown on adult obscenity and the number of subpoenas, warrants and individual lawsuits involving ISPs increases.
The rapid growth of Internet pornography has become a major concern for the Bush administration’s powerful Christian conservative supporters, who are intent on stamping out "obscene" material. Suddenly, ISPs are beginning to fear they may be caught in the middle, despite the protection they should receive under due process.
The panel discussion was prompted by the need to discuss the role of ISPs in monitoring not only child pornography, but adult content as well, as the suit filed by the Free Speech Coalition against Gonzales continues and a preliminary injunction is sought to prevent the Justice Department from enforcing the newly revised 18 U.S. Code~2257. The law mandates that producers of sexually explicit materials verify the ages of actors, models and others in the content through the use of detailed records, including their addresses, a photo identification card and their legal names.
Now, despite the understanding that ISPs are not responsible for policing users, the new law may allow ISPs to be held accountable for age verification as well, as Gonzales continues to demand that anyone touching a pornographic image must know the model's age.
The FSC believes 2257’s guidelines are unconstitutional, violate privacy laws and would place an undue burden on "secondary producers" named in the new revisions, such as owners of personals websites with sexually explicit photos, including Gay.com, BigMuscle.com, Men4Now.com, and Adam4Adam.com.
Attorney Lawrence Walters told XBiz that ISPs are not protected from federal criminal prosecution for child pornography or obscenity offenses, including negligence or infliction of emotional distress.
“How likely is it that an ISP would be prosecuted under 2257?” Walters queried. “In our experience, that would be highly unlikely. But with current administration, I wouldn’t be surprised if one of them had to defend themselves in court to establish their rights.”
However, Walters said the newly revised 2257 also includes three exemptions for various types of electronics, under which some ISPs would be protected from federal prosecution. Walters added it would be “a stretch” to hold ISPs responsible for adult content sites, as well as create “an unreasonable burden on them.”
Still, ISPs are beginning to worry about the umbrella effect 2257 may have. For example, under the new rules, a man posting a picture on a website fondling himself might have to prove to site owners that he is 18 or older. This would require that websites have documents on file proving his age, including government-issued identification cards, Social Security number, name and address. This documentation would then be subject to random government searches. If the site came under federal scrutiny, its ISP may be required to release identity information for the site’s owner.
Consequently, privacy is becoming an important and thorny problem for ISPs. Snead advised ISP officials to have a privacy policy in place during the ISPCON seminar, adding it is especially important for ISPs in California, Oregon and Utah to maintain a privacy policy that has been written by lawyers, not marketers. Previous privacy policies written by marketers have been involved with FTC actions.
However, a privacy policy won’t protect ISPs from being required to provide user identification is so requested — or subpoenaed — by the federal government.
“If any of these ISPs were subpoenaed, I think they’d be very quick to release that information,” Walters said.
