Two weeks ago, all the cable operators in the National Cable & Telecommunications Association agreed with the National Association of Attorneys General and the National Center for Missing and Exploited Children (NCMEC) to restrict access to child pornography using information provided by the NCMEC. This not long after Qwest announced plans to use the NCMEC list to block access to child pornography.
But are the cable operators really blocking access? The NCMEC press release suggests not:
Specifically, the cable companies have agreed to use NCMEC’s list of active websites identified as containing child pornography, to ensure that no such site is hosted on servers owned or controlled by those companies. The companies will also report these instances to NCMEC’s CyberTipline and where appropriate revise their policies around other potential sources of child pornography, such as, for example, newsgroups.
The agreement with NCMEC will provide cable broadband service providers with an invaluable source of information to help them enforce their terms of service, all of which forbid the hosting of such illegal materials on their servers.
So maybe this isn’t a new plan for an entire industry to block access to certain websites. It’s more of a takedown mechanism for sites controlled by cable ISPs (most of whom forbid users operating any servers on their cable connections, much less servers with child pornography): the NCMEC tells the cable operators if it sees a child pornography site on the cable network, and the cable operator takes it down.
That’s probably one reason why New York Attorney General Andrew Cuomo threatened Comcast with a lawsuit unless it agreed to block access to web sites and Usenet groups with child pornography.
Cuomo’s threat is troubling for a couple of reasons. First, the New York Attorney General may not have a good basis to threaten a lawsuit. It’s pretty clear that 42 U.S.C. ยง 230 (part of the Communications Decency Act) protects Comcast from any liability for content created by someone else but carried over its network. Second, this is the clearest example yet of a government entity going beyond merely suggesting that an ISP block Internet access based on content, to direct coercion under threat of lawsuit. The government “suggestions” raised state action questions; threat of legal action confirms them.
Comcast’s agreement is clearly the result of government action and should, I think, be subject to First Amendment requirements. We’ll see whether anyone steps up to challenge the agreement.
