Undermining the Data Mining

Limiting factors on the enforceability of copyright claims have always included the legitimate uses of works as envisioned by the Copyright Act, including for archival purposes as mentioned in cases like Vault v. Quaid Software. In light of recent proposals for extensive archiving for the sake of "fighting child pornography," perhaps we can take a cue from Sweden's experience with the subject. Sweden’s National Library has a legal obligation to collect everything printed in Sweden or in Swedish, including pornographic magazines, even those with child pornography, which got it into a bit of a scandal that is still developing. Because U.S. law criminalizes production, distribution and possession of child pornography, perhaps surveillance could be undermined by requiring ISPs to not only retain logs but the actual content of the transmissions, which could potentially subject them to liability for possessing such illicit content. In all likelihood, ISPs would gain some kind of further immunity in any legislative deal that was struck, but maybe the ISPs are already storing transmissions somewhere, and could be prosecuted for possessing some child pornography even without any knowledge.

I haven't yet investigated whether or not ISPs would already receive protection for this sort of violation under Section 230 of the Communications Decency Act. From memory, I believe that section only immunizes the ISPs from being treated as speakers or publishers of the transmitted speech, which might receive different legal treatment if the legal standard of the substantive offense only required possession. I will update this with my findings soon.

Please note that I am not sure whether or not this will actually develop into a fully-fledged second paper, but would like to explore the idea a little bit and invite others to comment freely without worrying about trampling on the idea as it is being developed.

-- RickSchwartz - 09 Apr 2009

The crime as laid out in 18 USC 2252(a)(4) is to "knowingly [possess]." The .se National Library case is an interesting wrinkle where you might actually find knowledge (although I know nothing about child pornography laws in Sweden), but I'd think that "dumb" archival by ISPs wouldn't be enough.

47 USC 230(e)(1) specifically disclaims any impact of § 230 on the criminal law.

-- DanielHarris - 10 Apr 2009