Blown To Bits

The “agreement” between New York and the ISPs

Thursday, June 12th, 2008 by Harry Lewis

Both the New York Times and the Washington Post have reported on the agreement reached between the Attorney General of New York (Andrew Cuomo) and several Internet Service Providers (Verizon, Sprint, and Times Warner Cable) to limit the dissemination of child pornography. I had planned to blog this as soon as I read the story in the Times, because it seemed to me an important development. Then I hesitated, because after reading that story, I couldn’t figure out what was really going on. The Post’s story is clearer, but you need to dig deeper, for example into Susan Crawford’s blog, to get the details.

As a step toward controlling child pornography, the agreement appears to accomplish very little. The ISPs have already been taking down child pornography when it is reported to them, and have been sharing information and cooperating with law enforcement. (Child pornography is illegal. First Amendment protections don’t apply, because of the harm done to children while producing it.) The ISPs will be checking for duplicates of known child-pornography images, using a “hash value” of the photos (a digital fingerprint that can be easily checked). This is an attempt to block the same images from turning up in new places. It’s not likely to be very effective for very long; it’s easy to disguise the images so they have different hash values. The mice always win such cat and mouse games. If the tests for what constitutes a “match” are made looser, legal material is going to be blocked at the same time.

The agreement does give the Attorney General a political victory, at no apparent cost. How many state AGs get front page coverage of their actions in the nation’s two major dailies, with barely a word of criticism? And what’s the downside? No one defends child pornography. No one. It’s hard to think of another law for which there is such unequivocal support as there is for the anti-child-pornography statutes.

My guess is that it took two seconds for the Recording Industry Association of America (RIAA) and the Motion Picture Association of America (MPAA) to get on the phone to Cuomo asking for equal protection. Unauthorized downloads of copyrighted music and movies are also illegal. Most of us don’t feel quite the same revulsion about Madonna downloads as we do about child rapes, but the recording and movie industries have tried in the past to create just such analogies. The MPAA president once told Congress that video recording was to his industry “as¬†the Boston strangler is to the woman home alone.‚Äù

If ISP’s can be coerced into “agreeing” to make sure you don’t get illegal photos, they can be coerced into “agreeing” to watch for you illegally downloading songs. The New York AG’s announcement is precedent-setting. Watch closely for what happens next. There will be much “if you’re not doing anything illegal, you have nothing to worry about,” and when it turns out that legal material is being blocked and innocent parties are being prosecuted, a good dose of “we’re never going to accomplish anything about this terrible problem if we don’t at least try.”

(P.S. Today’s TImes story on the First Amendment in the context of the global Internet is much better than its coverage of the child pornography agreement. This issue is¬†also¬†discussed in “Blown to Bits.”)

Postscript added at 5pm. The easiest and surest way for ISPs to comply with this agreement is to drop some or all of the Usenet newsgroups, even though less than 1% have ever been found to have any child pornography on them. It seems that some of the ISPs are planning to do exactly that. Thus does voluntary self-censorship again, carving out huge areas of legally protected material as the cheapest way to satisfy agreements with the state to screen out a tiny amount of illegal material. 

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