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December 5, 2007

House Bill Requires Even Personal Hotspots to Report Certain Activities or Face Massive Fine

The House overwhelmingly passed a bill that puts a huge onus on individuals and ISPs to report a broad range of images or face $150,000 or $300,000 fines: The bill, if passed, would require anyone offering network access (under a broad definition) to report any images they come across that covers a broad range of potential depictions of abuse of minors or their exploitation. Declan McCullagh notes in his post at Cnet that it's so broad as to include photographs, drawings, and cartoons that require interpretation as to whether they would meet the test. Sounds like viewing an Abercrombie and Fitch catalog could qualify.

From McCullagh's report, it's clear that if you operate, for instance, an open Wi-Fi network from your home, you're not obliged to monitor other people's uses of it. However, if you were in any fashion to become aware of behavior circumscribed in this law, you could be fined $150,000 on a first offense and $300,000 on a subsequent one--unless you preemptively report, in which case you're immune to lawsuits and prosecution. Which means people are going to report a lot more or shut down otherwise free hotspots.

Reporting requires that you provide the images that you saw, which obviously opens people up to charges themselves unless everything is handled extremely carefully as possession of child pornography is a de facto crime that allows for no explanation in much of the U.S.

The most typical scenario as I can see it is a single-location coffeeshop that provides free Wi-Fi. A barista is walking through the shop and catches a glimpse of an image they think is problematic before the user shuts their laptop or navigates to another page. They aren't sure, so they tell the manager. The manager then, if he or she doesn't immediately report and attempt to ascertain as much information as possible, could face the fine (or perhaps the store's owner), if I suppose the FBI or a local crime unit tracks back a person's usage to the store. But how to track that usage back and prove someone saw something and didn't report it?

This is all sort of a pisser, to be frank, because there's practically nothing more appalling than child abuse and child pornography. And, thus, I hate to be in a position to explain why a law to protect children erodes individuals' sense of security in not facing massive fines or arrest when they may not be in a position to act precisely how a law demands. Surely, people who see bad stuff should report it, and many do.

The bill, as written, was rushed into session using an expedited procedure that avoided the usual review. Declan McCullagh writes at Cnet that the legislation also changed substantially before being brought to a vote. So reasonable opposition didn't form before its passage. The Senate could approve a similar view, but it's hard to know how enforceable it will be.


So, the logical preventative measure to ensure compliance is for EVERY wi-fi provider to file a preemptive report EVERY day. To wit:

"As a wi-fi service provider and in compliance with [insert silly-*ssed law reference here] we preemptively report that customers, visitors, employees and passersby as well as law enforcement officials, elected officials and staffers who may utilize our wi-fi capabilities may at some time obtain, or view while having the potential for access, material or materials that someone somewhere based on some nebulous standard may find offensive, pornographic, gratuitously violent, solicitous of terrorist activities, suggestive, blasphemous, communistic, nihilistic, anarchistic, socialistic or otherwise not in full and total agreement with the policies, beliefs, protocols and desires of the regime currently in power in the United States. Please promptly use your Federal powers of arrest and detainment and your ability to disregard Habeas Corpus to promptly incarcerate such persons immediately. We're not sure but they looked like congressmen and congressional staffers, so you might bust them first. We're pretty sure you'll find nasty stuff on their computers.

Yours in full compliance,
Local Wi-Fi provider"

The law would require no monitoring or surveillance by providers; it merely requires them to report illegal use of their network if it comes to their attention. It's a silly law, with some overly broad definitions as to what constitutes behavior that should be reported, but I'm not sure it's bad enough to have everyone acting like hysterical little girls. Personally, I think reporting people who are sexually exploiting children is a good thing.

[Editor's note: You didn't really read what I or others wrote about this, then. I didn't say it required monitoring or surveillance, nor did the Cnet writer; others, less informed, may have written so. What it does is require vigilance by casual network operators--people with open Wi-Fi networks--to prevent massive penalties using vague definitions. Very little of this has to do with "reporting people who are sexually exploiting children," Mr. Sharpmoney Strawman.--gf]