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Conservatives Hit Back with New Internet Safety Act

"Law will have great difficulty surviving constitutional scrutiny"

Conservatives Hit Back with New Internet Safety Act

WASHINGTON, D.C. - Two Republican congressmen from Texas have filed new versions of an Internet Safety Act that experts call a potential threat to online privacy and commerce.

Sen. Jon Cornyn and Rep. Lamar Smith each filed similar bills Feb. 19 in the House and Senate, both entitled Internet Stopping Adults Facilitating the Exploitation of Today's Youth (SAFETY) Act.

The bills require anyone providing Internet access, from ISPs to a local coffee house, to retain all records for two years, according to the Christian Science Monitor. One piece of legalese calls for the criminal prosecution of anyone who "knowingly engages in any conduct the provider knows or has reason to believe facilitates access to, or the possession of, child pornography".

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Both pieces of legislation have been denounced as overly broad, restrictive and dangerous. What about e-mail providers? Are they liable? What if the everyday person's Internet or WiFi is hijacked? Though the legislation includes the word "knowingly," law enforcement may not be so strict in applying that language to criminal cases.

Writing in the Dallas Morning News editorial section, Smith claimed his goal is to protect children. He said his bill and its two-year record-keeping provision will help police nail pedophiles.

Addressing his opponents, Smith dismissed invasion-of-privacy claims.

"The government can only access subscriber information as part of a criminal investigation," the Congressman wrote. "If we require phone companies to retain this same type of information, there is no reason why the law should not be updated to include ISPs."

Computerworld suggested the bills really are anti-child porn legislation, commenting that seven of the eight sections address numerous forms of aiding and abetting, while three sections ask for increased penalties for offenders.

PCWorld columnist David Coursey called the legislation "misguided" and a threat to business. Other opponents include the Electronic Privacy Information Center, whose director, Marc Rotenberg, told CNET the legislation is "a terrible idea" that would put Web surfers, P2P groups and others at risk, leading to expensive lawsuits.

AVN Online spoke with Detroit-based adult industry attorney Corey D. Silverstein in Bingham Farms, Mich., who said, "I would suspect that this law in its current form will have great difficulty surviving constitutional scrutiny."

"With regard to the portion of the bill that would require almost everyone who provides Internet access to retain all records for two years, depending on the final specific language of the statute, such a law could run into substantial difficulties in the federal courts with regard to its constitutionality," Silverstein said.

"Although I have not read the detailed language of the statute, it's clearly overbroad because it would not simply cover ISPs but could be interpreted to include every single individual with a router. The effects of such a regulation could be disastrous," he said. "Just think if the average Internet user with a wireless router had to keep detailed records, how could every such person familiarize themselves with both the regulations and the technical knowledge to perform such a task?"

Silverstein was more alarmed by language referencing "all records."

"What does that mean?  If the legislators intend on creating a law that will surpass constitutional scrutiny, then they must be more specific in the records that are necessary to help law enforcement," he told AVN Online.

"Simply, forcing ISPs to hold 'all records' crosses the line of being overbroad. Legislation needs to be tailored to a specific purpose." 

With regard to the section that reads "knowingly engages in any conduct the provider knows or has reason to believe facilitates, access to, or the possession of, child pornography" Silverstein said the word "knowingly" adds some protection, but there are other problems with the way the legislation is written.

"Forget about the ISP's concern about providing e-mail services, what about the provision of the Internet services themselves?," he asked. "This portion of the statute could easily be found both constitutionally overbroad and vague. The statute could be interpreted to mean that by simply providing an Internet connection to somebody in possession of child pornography, that the ISP has somehow violated the statute."

"Representative Smith, as a politician, is obviously concerned with providing law enforcement with all of the technical tools available to help catch pedophiles, but at what cost?," Silverstein asked. "Obviously, catching pedophiles is a significant public interest, but there are surely more efficient ways to utilize new technology that does not violate individuals' privacy rights."

"In essence, the bill as written guarantees that for every Internet search, e-mail, video or download you make, Big Brother will be watching for two years from every keystroke you make," Silverstein told AVN Online. "If they want to catch pedophiles, then regulation needs to be created that is tailored to that purpose; simply forcing everyone's Internet activities to be constantly monitored is not a solution. What's next? Having every individual wear a tape recorder around their necks that gets live-streamed to law enforcement to ensure that they aren't having conversations or engaging in inappropriate conversations?"






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