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Wednesday, November 25, 1999

ISP moves to block child porn prosecution

by Paul Festa, paulf@cnet.com

A New York Internet service provider has filed suit to block a criminal prosecution by the state's attorney general on child pornography charges.

New York attorney general Dennis Vacco last month seized servers at Dreamscape Online and another New York ISP, accusing the firms of knowingly providing access to newsgroups in which child pornography was exchanged.

Yesterday's move by Dreamscape was an attempt to curb any legal action the attorney general may be considering against it or other targeted ISPs.

"The court action does not seek to defend any persons creating or trafficking in pornography or obscene materials, and does not seek to protect such materials", Dreamscape said in a statement. "The purpose of the suit is to eliminate the obligation of an ISP to be the policeman of what is available over the Internet."

Vacco's office has argued that its action against the ISPs was the result of its failure to respond when notified of the child pornography trafficking. The seizure came as part of a bust of an international child pornography ring known as "Pedo University".

Dreamscape filed the class-action suit with the United States District Court for the Northern District of New York on behalf of Dreamscape and "all similarly situated Internet Service Providers" in New York state.

Dreamscape is asking the court to spell out an ISP's duties with regard to the regulation of pornography. The suit also seeks an injunction against criminal prosecution, as well as damages based on Vacco's alleged violation of the ISP's civil rights in the October 27 seizure.

In a statement, Dreamscape president Scott Brennan said the attorney general was expecting too much of Internet service providers, and was threatening online communications with those expectations.

"The attorney general's action has cast a pall over the entire Internet", Brennan said. "It is physically impossible to monitor the tens of thousands of newsgroups and chat lines available on the Internet, and to review the millions of messages deposited on the Internet from all over the world.

"If Internet Service Providers are charged with the duty of screening that material, and making value judgments as to what is acceptable or legal, under the threat of criminal prosecution, the viability of the Internet as a medium for free and open discussion of legitimate topics will be greatly restricted."

Privacy advocates applauded Dreamscape's action against Vacco.

"In the wake of the seizure, there's a great deal of uncertainty on the part of ISPs", said David Sobel, general counsel with the Electronic Privacy Information Center. "The outcome of this case should provide some needed guidance on the responsibility of access providers."

The privacy concerns of ISPs are not the only ones at stake, according to Sobel.

"The privacy rights of ISP subscribers are also an issue", Sobel said. "If ISPs are held responsible for the content they carry, it will create an incentive for wholesale monitoring of subscriber activity. In fact, it appears likely that the seizure of the Dreamscape server may have violated subscriber rights under the Electronic Communications Privacy Act."

Under a portion of the Communications Decency Act known as the "Good Samaritan" provision, ISPs are widely believed to be not liable for what their users post. But the provision also states that ISPs must take "reasonable" action to remove illegal material upon notification.

The Supreme Court effectively validated that legal point this summer by refusing to hear a challenge to it. While much of the CDA was rejected, the Good Samaritan provision survived.

Copyright © 1999 by CNET, Inc. All Rights Reserved. Reprinted with permission.