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Re: [PLUG] VoiceNet Rumors?
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On Tuesday 10 February 2004 12:09 pm, Jon Nelson wrote:
> >> In February, 2001, the company pled guilty and a
>>>
>>> judge ordered BuffNet to pay a $5,000.00 fine."
Quoting me as saying:
> > Unfortunately this happens a lot. Law enforcement mechanisms which may
>>
>> themselves be illegal or unconstitutional are allowed to persist because
>> the enforced penalty is cheaper than a defense.
To Which Jon replied:
> Although I agree with this statement I think it is overly broad in the
> context of this discussion. I don't know of too many constitutional
> challenges to the possession of child pornography of known child victims.
> Once again I must emphasize that none of us know all the facts of this
> case.
I enthusiastically agree that we don't know the facts regarding Voicenet.
Moreover, my point was that we don't know enough of the Buffnet/Dreamscape
facts because of the guilty plea.
In my experience, people plead guilty often to charges which are not true as
alleged, but they are none the less guilty under a different scenario which
may come out at trial anyway. (Just today, a client of mine, an admitted
marijuana dealer pled guilty to charges that included conspiracy to sell PCP.
Though innocent of the latter, the plea agreement was a good deal for the
marijuana charge alone. A challenge to the PCP charge on principle would
only have messed up the otherwise favorable plea agreement.)
> As far as Buffnet and Dreamscape go, they were told that they had child
> pornography on their servers and they were being used as a conduit for
> distribution of same. With this knowledge they chose to do nothing and
> allow this practice to continue. This is were they crossed the line.
> None of these ISP's are required to monitor the content on their servers
> nor should they be. They are required to report the presence of child
> pornography when they become aware of it.
I believe the argument is that, being an involuntary, passive conduit, they
had no obligation to take any action, or possibly that the statute was
unconstitutionally vague as to what precise action they were obligated to
take, and how much time they had to take it before they themselves became
criminally liable.
That is if you can envision Judge A in County X allowing, say 30 days while
Judge B in County Y sustains charges when no action is taken within 24 hours,
then the statute is constitutionally flawed in my opinion.
Further, what constitutes a ¨known child victim¨? For example, one of the
more interesting questions in this area involved the noted photographer, Jock
Sturgis who photographed nude families in France, including the minor
children. After a several yearlong nightmare where his archives and the
implements of his livelihood were seized, Sturgis was eventually cleared.
Would a server carrying his photos, prior to the resolution of the charges
against him create liability to the ISP? What if the photos in question are
not clearly purient? Is the ISP responsible for making these assessments at
its peril? Is the ISP bound by the opinion of law enforcement as to the
illegality of the underlying subject material?
I don't know the answers to any of these questions, but I don't think it is
as clear as you have stated it, and it is this very lack of clarity that
troubles me. Clearly the constitution prohibits criminal prosecution when
the prohibited conduct is not clearly defined. We can not be required to
speculate -- at our criminal peril -- whether our conduct may or may not be
judged criminal after the fact.
> Now we get into a legal argument. No where in the Federal statute does it
> say that they have to remove the content, but since they are aware of the
> content on their servers are they now in possession of child pornography?
> I think the vast majority of prosecutors would agree that they are and if
> they fail to remove it they would be held criminally liable.
That's precisely my point. At what point are they out of the safe harbor of
the Federal Statute you cite, and now in actual criminal possession of the
child pornography? To be constitutional, it has to be clear.
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_______________________________________
Art Alexion
Arthur S. Alexion LLC
arthur [at] alexion [dot] com
aim: aalexion
sms: 2679725536 [at] messaging [dot] sprintpcs [dot] com
GnuPG fingerprint
pub 1024D/ACC5BA7A 2004-01-30 Arthur S. Alexion (Art Alexion)
<arthur@alexion.com>
Key fingerprint = 52A4 B10C AA73 096F A661 92D2 3B65 8EAC ACC5 BA7A
sub 1024g/328F84E6 2004-01-30
________________________________________
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