Will McCain Ban Sex Offenders from the Net?

Senator McCain has decided to stir up new Internet legislation aimed at protecting children from molesters and other devious elements of society with nefarious intentions. On Wednesday, McCain introduced the “Stop the Online Exploitation of Our Children Act” (alas, no snappy acronym, but it was suggested that SOEOCA is Navaho for “beware of a warrior from the desert”), which will require most websites to delete any material posted by sex offenders or face substantial fines. On Thursday, McCain and Senator Schumer announced that they will introduce legislation in January requiring sex offenders to submit active email addresses to law enforcement, just like they are required to register their physical addresses with the police now. These two announcements are slightly confusing since McCain’s bill includes a requirement for sex offenders to submit their email addresses, so I’m not sure if McCain and Schumer are concocting another bill or if they are referencing the bill submitted on Wednesday. Either way, not only will these policies affect Google and all its holdings, but it’s regulation with an alarming scope that should raise some eyebrows. By all means children should be protected online, but there’s a lot more going on online that these kinds of knee-jerk legislation don’t even bother thinking about.

In McCain’s remarks on the bill, its stated goal is to “reduce the sexual exploitation of our children, and punish those who cause them physical and emotional harm through sex crimes.” He further said, “technology has contributed to the greater distribution and availability, and, some believe, desire for child pornography.” That he references “some,” rather than attribute this belief to specific people, only fuels speculation that these kinds of laws are supported by fear and politics rather than facts or real problems.

To accomplish its goals, the bill (read here) strengthens the system for reporting child pornography and sex offenders by expanding the current rules to more businesses, imposing higher penalties for companies that do not report child pornography, and lays out clearer rules by which to report such activity. All of this sounds good on its face, but a closer look exposes serious flaws, especially in the expansive scope this legislation takes.

In parsing the bill, one sees that it covers: content hosting services; domain name registration services; search engines; social networking sites, chat rooms, message boards (and any other similar services); email, instant messaging, or any other similar service using the Internet; electronic communication services; any service provider (including any wireless carrier that provides Internet access); Internet image or video sharing services; and remote computing service (meaning “the provision to the public of computer storage or processing services by means of an electronic communications system”). I am at a loss in trying to think of something a person could do on the Internet that doesn’t fall under one of these kinds of activities.

Using the Internet is not a crime (yet), so the bill outlines a series of federal laws that trigger its provisions. Among those are laws on: involving/selling/buying children to be used in visual depictions of sexually explicit conduct; sending/possessing material involving the sexual exploitation of minors; “misleading domain name with the intent to deceive a [either] person into viewing material constituting obscenity… [or] minor into viewing material that is harmful to minors”; and obscene visual representations of the sexual abuse of children. For the detail-orientated, that’s 18 USC 2251, 2251A, 2252, 2252A. 2252B, 2260, and 1466A.

My focus here is not on these specific laws against child pornography, but I must note that each of these laws are quite broad and can rope up those that don’t fit the “child predator” label. For instance, 18 USC 1466A prohibits the “depict[ion] [of] an image that… appears to be of a minor engaging in… sexual intercourse” that also “lacks serious literary, artistic, political, or scientific value.” That little bit about “appears to be” is troublesome, potentially roping in people who simply look young. Also, Japanese anime depicting underage sex was said to satisfy this standard in US v. Whorley, 386 F.Supp.2d 693 [EDVA 2005]. The more general point is that lots of activity that doesn’t quite fit with what people think of when they hear “child pornographer” or “sex offender” is illegal and is covered by McCain’s bill.

Once anyone “providing an online service… obtains actual knowledge of any facts or circumstances” describing any of the federal laws above, that provider is obligated to make a report of those facts to the CyberTipline of the National Center for Missing and Exploited Children. Such a report needs to include identifying information about the user in question, including screen name, user identification name, email address, website address, and [url], as well as when the material was uploaded and subsequently transmitted, geographic information of the individual, hosting website, or [url] (ie. street address, telephone number, area code, zip code, and any [IP] address), any images related to the activity, and contact information for the provider filing the report. A knowing and willful failure to file a report (like when Google refused to handover identifying information when asked by the NSA) results in up to a $150,000 for a first offense, and up to $300,000 for each subsequent offense. A negligent failure to report results in up to a $50,000 fine for a first offense and up to $100,000 for each subsequent offense. Additionally, service providers are required to retain all information relating to the report for 180 days, or longer if asked to do so by the NCMEC or another government agency.

It’s not clear how an online service provider is supposed to “obtain” knowledge of violations of federal law, especially since the bill itself says that there’s no obligation to “affirmatively seek facts and circumstances of violations of Federal Law under this act.” Plus, there’s no requirement for an online service provider to monitor users or the content of their communications. These two provisions should soothe privacy advocates to some extent. However, the information that must be included in a report is probably enough to get a warrant to seize someone’s computer, and given the importance of this issue to some groups, it must be expected that a number of interest groups and government agencies will be surfing the web, looking for material to send to service providers to force them to issue reports.

For our purposes here, Google, upon learning that a user is engaging in any of the specified violations of federal law, needs to send one of these reports to the NCMEC for each report received. Whether it be something posted on Blogger, a video uploaded to Google Video (I’d assume that YouTube would handle its own reports), a profile on Orkut, or a post on Google Groups, Google needs to be prepared to send reports for conduct on any of its services. That’s not so much a problem for Google because of its size and resources, but this blog is also an internet service provider and I would be equally compelled to submit similar reports of anyone leaving comments on my site. My failure to do so would cost me $150,000. That seems a little harsh on me, an innocent citizen who would prefer not to censor any comments submitted here.

To be fair, the reporting requirement isn’t all that terrible since it does target specific violations of federal law. For the most part these violations would be pretty clear to an average service provider, and the only added requirement would be to have to submit any information the service provider has on that user.

However, tucked into the end of the bill are two more provisions that are much more problematic. First, it amends section 114(a) of the Sex Offender Registration and Notification Act (42 USC 16914(a)) such that: Sex offenders must also provide for inclusion in the sex offender registry… “Any email address, instant message address, or other similar Internet identifier used by the sex offender to communicate over the Internet.” This alone doesn’t seem too bad, I mean, if we are to require sex offenders to register their physical addresses, why not their Internet addresses too? One thing to consider would be whether we require sex offenders to register their addresses so we know where they are. If so, then requiring them to register email addresses and the like has less to do with tracking where they are, as it tracks who they are talking to and where. A subtly difference, but a difference that invades more into their lives than a simple address registry, as the rest of the bill shows is the case.

Second, the bill requires that “any OSP… that is a social networking site shall implement effective measures to remove any web page hosted by that provider that is associated with any identifier listed [the Sex Offender Registry].” This means that anyone who falls under the SORNA and has to register their addresses (and now email addresses etc. too) with local officials will have any web page associated with their email address removed from the Internet. This is right out. The bill provides no definition for “social networking site” and a broad interpretation could say that any website is by definition involved in social networking. This may be unlikely as most think of MySpace, Facebook, Friendster, and the like, but then again, would anyone trust a judge who may or may not know how to work their email to properly distinguish between MySpace and a discussion forum on something like Slashdot or Slate’s Fray? But essentially, this provision banishes sex offenders from the Internet. We can quibble over what a social networking site is, but no doubt this vague provision will be interpreted to mean more than MySpace. This has the potential to cause more problems than it will solve because it only further degrades sex offenders as unfit to be productive parts of society, doesn’t take into account that one doesn’t actually need their own page on a social networking site to prey on children, and, depending on what other sites fall under the definition of social networking site, will cause all sorts of speech to be erased from history by no longer being online. As if a sex offender has nothing good to say! I would think that Mark Foley had lots of good things to say, but had he been labeled an actual sex offender under the law, one might be unable to find anything associated with his name, email, screen name, etc. online since it would all have to be deleted.

This last bit is so extreme and unsound that I will bring up an example to show the problems it will cause. A while ago an Alabama man was convicted as a child pornographer for taking pictures of fully clothed teens in “lascivious poses.” There was an Abercrombie and Fitch catalog a few years ago that was only given to those 18 and over. So, given the precedent and McCain’s new law, not only does the photographer get convicted as a child pornographer, but then he has to register all his Internet identifiers and all social networking sites he has ever associated with have to remove anything relating to his identifiers. The photographer could try and sue, saying that such removal is unfair and infringes on his constitutional rights, but McCain’s bill also grants both the NCMEC and the service provider immunity from such lawsuits. This immunity will create a “shoot first” mentality for service providers since they won’t be liable for aggressively following the bill’s removal requirements, it being better for them to be aggressive financially, better for their public image, and creates less risk.

Another example might be this photography book on nude girls and women. The added kick of being excluded from social networking sites for publishing such a work strikes me as ridiculous. Imagine that “social networking site” included eBay. Imagine telling someone they couldn’t use eBay because they were a sex offender. Further, any “social networking” sites might be obligate to take down any ads, comments, or other mentions of such a work. If anything, we tell sex offenders that they can’t play with children or that they can’t hang around schools. Telling them they can’t shop or sell goods or talk to other people is not only a drastic step, but totally unnecessary.

This fear of “protecting the children” really needs to be tamed. I coach a bunch of 10 and 11 year olds whose social lives revolve around IM and texting. When they go to dances, they don’t dance or really talk with girls: they amass tons of screen names and talk with these girls from the comforts of home. So much less horrifying, so they tell me. It seems to me that someone in McCain’s age bracket would need more protection online than the average 10 year old because they have no idea what’s going on, while the kids are much more savvy and aware of what’s going on online. For the most part, kids simply take their real world social life online, rather than socialize with random potential molesters posing as other kids. To make much of the Internet unusable for sex offenders seems to go to far in punishing them, especially since the it doesn’t seem to solve much, and it certainly doesn’t do anything in reintegrating these people into society and making them feel like they haven’t been completely rejected by the rest of us.

And of course, there’s the obligatory complaint about such a bill that it will generate such an immense amount of reports so as to make them all but useless. But hey, we already know that when the government goes around fear-mongering (ie. with the NSA and other phone/online data collection programs) most don’t really care how effective such a plan will be or whether it’s a good idea, since it’s nearly impossible for anyone to vote against these plans without being labeled a sympathizer.