SAFE Act Passes House; NCMEC Defends Role as Limited
Higher penalties for ISPs and Web sites found not to have notified the government immediately of child porn on their servers are a step closer to law. The House passed the Securing Adolescents From Exploitation-Online (SAFE) Act (HR- 3791) under suspension of the rules. Another bill sponsored by Rep. Nick Lampson, D-Tex., passed late Wednesday, would double funding for the National Center for Missing and Exploited Children. At a news conference before the votes, Lampson, other sponsors, NCMEC and John Walsh of America’s Most Wanted criticized service providers that aren’t reporting to NCMEC. They also chided Congress for lagging in funding another Internet child safety law, enacted in 2006.
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Internet safety bills are vying for lawmakers’ attention before the holiday break. Regulatory skeptics least dislike the Protecting Children in the 21st Century Act (S-1965) by Senate Commerce Committee leaders, which includes the same penalty hike for noncompliant service providers but emphasizes Internet education in schools (WID Aug 6 p1). The House Judiciary Committee reviewed a slew of bills (WID Oct 18 p1) that would give the Justice Department more resources to investigate child protection online, beef up penalties for possession and failure to report, and set a reporting standard for child porn. Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., is sponsoring a NCMEC reauthorization bill similar to Lampson’s.
Lampson introduced the SAFE Act in October. It would raise to $150,000 from $50,000 the first-offense penalty for “electronic communication service providers and remote computing service providers,” such as Verizon and Yahoo, that don’t immediately report child porn to NCMEC. Fines would jump to $300,000 from $150,000 for “any second or subsequent knowing and willful failure” to report. The Protecting Our Children Comes First Act (HR-2517), introduced in July, was referred to the House Education Healthy Families Subcommittee. It would give NCMEC $40 million yearly through 2013, up from $20 million each year through 2008, the largest rise in the nonprofit’s 23-year history.
Child porn is a $5 billion global industry, Lampson told the press event. Rep. Judy Biggert, R-Ill., cosponsor of the reauthorization bill, said that since 2003, 30 cases of online sex solicitation of children have been reported in her district. Rep. Steve Chabot, R-Ohio, said 184 nations didn’t even criminalize child porn. He blamed the “feckless” United Nations for not acting.
The Internet’s rise vastly expanded NCMEC’s work and it has had trouble keeping up with reports to its CyberTipline, Walsh said. The reauthorization bill provides “long-needed dollars.” Originally known as “the milk-carton people,” NCMEC has handled 543,000 reports of child porn since 1998, 100,000 in 2007 alone, CEO Ernie Allen said. Its analysts have reviewed 10 million images and videos and identified about 1,200 children.
There are 372 ISPs now reporting to NCMEC, as federal law mandates, and they accurately identify child porn “close to 100 percent” of the time, Allen said. Yahoo recently turned over thousands of images in connection with an abused girl in a case that ended with a suspect’s arrest in Canada, he said. But there are thousands of ISPs, and “sooner or later these guys figure out ‘We just don’t use MSN or Yahoo'” to swap child porn, Allen said. Some service providers fear they could break the law by transmitting child porn to NCMEC, a baseless concern, Allen said. With tougher penalties for noncompliance, “the hearts and minds of the attorneys for these companies will follow.”
Congress came in for similar criticism. For the cost of “one half of a tile on the space shuttle,” Congress could adequately fund child protection efforts, Walsh said. U.S. Marshals recently complained to him that they lack the money to track known sex offenders, he said. Lampson faulted Congress for authorizing but not appropriating funds to implement the Adam Walsh Child Protection and Safety Act, signed in July 2006 and named for Walsh’s murdered son. Several parts of the bill don’t give a dollar figure for funding, a NCMEC spokesman told us. The law aimed to create an online national sex offender registry accessible to the public and expand Internet Crimes Against Children task forces. “Think how much more they could do if they were properly funded,” Lampson said. Allen cited “extraordinary” progress by Congress on child protection measures but said the Walsh law also must adequately fund state efforts.
Distracted from Its Core Mission?
Answering criticism that NCMEC will get government-style powers in current legislation (WID Aug 6 p1), Allen later told us: “Our role is carefully prescribed.” The nonprofit serves only as an “information clearinghouse” and has no “criminal intelligence” duties. He said reporting to NCMEC relieves ISPs of the burden of doing “proactive searching” for child porn, and the SAFE Act is supported by the U.S. Internet Service Provider Association (USISPA). NCMEC has tried, largely in vain, to reach nonreporting ISPs, Allen said. They probably won’t report “unless they absolutely feel that they have to.” The Justice Department hasn’t prosecuted an ISP for noncompliance, he added.
The USISPA supports the bill’s “added clarity” for “robust” and “harmonized” reporting by its members, Executive Director Kate Dean said. But it fears a provision requiring ISPs to hold suspected child porn for 6 months after reporting. They shouldn’t have to retain “contraband,” and should be able to delete it after sending to the authorities, Dean told us.
The Lampson bills are deeply flawed, John Morris, general counsel for the Center for Democracy and Technology, told us. The reauthorization bill puts NCMEC in “areas that it has no expertise in whatsoever,” such as judging “obscene” material, a matter largely up to local communities and juries. The SAFE Act requires service providers to report personal information, such as name and addresses of child porn suspects, that law enforcement usually can’t get without a subpoena, Morris said. A private group not bound by the Privacy Act and other limits, NCMEC can’t be stopped from creating a tracking database on suspects, he said.
The 180-day retention provision avoids the real problem, which is the months law enforcement sometimes takes to act on NCMEC reports, Morris said. NCMEC can’t store the information because that could allow defendants to challenge the “chain of evidence,” he added. Finally, the bill would codify a voluntary program in which NCMEC gives service providers hash files to identify known child porn and prevent its future upload. That would turn a “perfectly good idea” into a “federal blacklist of content that has never been assessed by a court of law,” he said. Since the Justice Department hasn’t issued regulations for what constitutes compliance with the federal reporting statute, tougher penalties for noncompliance are irrelevant, he added. The bills “create a great risk that NCMEC’s focus will get distracted from its core missions.”