Thursday, September 04, 2008

Implicit content: is attracting "illegal" comments and emails a problem?

I wanted to take a moment to note again a potential vulnerability in the legal system with regard to “implicit content,” an issue that got mentioned at least in passing during the COPA trial in Philadelphia in 2006.

It’s common for blogs and websites that deal with sexual subject matter (or with subject matter that seems “adult” to a casual observer or to a robot) to attract spammy comments and emails back to the sender. Practically all ISP’s offer the ability to trap and moderate comments, and some trap some spam in advance. Even so, there could exist cases where the federal government, or particularly prosecutors in some states, might try to claim that a website or blog had been set up “for the purpose of” attracting illegal materials.

Generally, if a user clicks on a link in an email or comment that downloads an illegal image (c.p.) onto his computer, that user has broken the law, in terms of the way “strict liability offenses” work. (There may be no offense if the user does not click; there could sometimes be a problem with embedded images if HTML email options are turned on, depending on the options of the email program viewer.) It’s getting easier for law enforcement to detect these events, and there is more political pressure on prosecutors to act “wherever they can get a conviction” than ever before. While generally prosecutors are conservative and cautious in the way they apply existing laws, in a few cases (like the “Myspace case”, or in another case about a blogger who made enticing posts as to where to go for “illegal” purposes in the LA area) they have reacted with “creative prosecutions.” The problem is that it can be very tempting to pursue a conviction based on images on a person’s computer (even if placed there by another party without that person’s knowledge) if they law makes the technical aspect of proving the offense easy. Conceivably, the attraction of a large amount of emails or comments of an illegal nature could, in the minds of politically ambitious prosecutors in some situations, set up an “easy to prove” case.

Countering these fears is that Section 230 of the 1996 Telecommunications Act appears to protect ISPs, “free service providers”, and individual bloggers from “downstream liability,” either criminal or civil, for wrongful postings made on their spaces by others. Some people think that “brother’s keeper” provisions should be re-introduced into the telecommunications world, however.

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