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.
The federal district court hearing the ACLU’s overbreadth challenge to the Child Online Protection Act (AFC posts here, here, and here) ruled yesterday that less restrictive measures such as software filters could effectively control minors’ access to “harmful” material and that COPA violates the First Amendment. The judge’s 84-page decision is here. Infothought, which has followed the trial more closely, posted a COPA links roundup after the decision’s release.