Going too far

A few weeks ago Andrew Cuomo, Attorney General of the state of New York, announced that Verizon, Time Warner, and Sprint would “shut down major sources of child pornography.”  California chimed in with a similar plan a week later.  That sounds worthwhile, until you examine how the ISPs are accomplishing the shutdown:  by curbing customer access to part or al of Usenet, the venerable (almost 30 year old) online discussion system.  Time Warner is cutting off Usenet access entirely, Sprint is eliminating access to alt* groups, and Verizon is barring alt* and “tens of thousands” of others.  Cuomo’s office identified only 88 Usenet groups containing child pornography so the ISPs’ announced actions will disable the access of untold numbers of Usenet users to thousands of legitimate news groups.  Were Cuomo compelling the ISPs by force of law to so limit Usenet access then a First Amendment challenge on overbreadth grounds should be a slam dunk, but he is stupid. He is using the power of his office to engage in moral suasion, painting the ISPs as child-porn enablers if they do not go along.  It’s as if Home Depot and Lowe’s agreed no longer to sell lumber because a miniscule percentage contained termites.  This is a breathtaking and insidious display of regulatory over-reaching effected through non-governmental actors.

Focus on the ISPs

Michael Geist has a worthwhile article on The dangers of “locking down” the Internet. Attention is shifting away from locking content through digital rights management and towards imposing filters and other technological controls on ISPs. Geist notes “[t]his movement has been most prominent in Europe, where last summer a Belgian court ordered an ISP to block access to a site alleged to contain copyright infringing materials.” The danger is that as ISPs evolve from conduits to gatekeepers the essence that made the Internet the greatest medium for unfettered speech in history will be destroyed.

The idea of using ISPs to regulate content is not new. The first time I heard someone articulate a sophisticated vision of how to implement such control was in 2001. The speaker was a then-student with an unusually keen understanding of the possibilities of Internet regulation. He was ahead of his time, but maybe not by too many years.