Wednesday, October 29, 2008

The New-Old Internet Services Child Explotation Reporting Requirement

Title V is where Sen. McCain's SAFE Act was assimilated into Biden's Protect Act. This language was not part of the Biden bill, and did not go through Congressional hearings. The Center for Democracy and Technology commented on the inclusion of this provision by stating

Among the most problematic provisions in S.519 – which was never publicly debated by any committee–is the outsourcing of significant law enforcement investigative functions to the National Center for Missing & Exploited Children (NCMEC), which as a non-governmental entity operates outside of the core constitutional and legal protections that govern (or should govern) our criminal justice system (such as the 4th Amendment, the Privacy Act, the Freedom of Information Act, etc.). Although NCMEC makes valuable contributions in the child safety arena, the growing trend in Congress to outsource law enforcement functions to a nominally private group—without any serious oversight or procedural protections— takes us down a dangerous path. [CDT]
Before exploring what Title V does, note first that Internet services already have a reporting obligation. In 1998, Congress passed the Child Protection and Sexual Predator Punishment Act which, in part, requires Internet services which become aware of child pornography to report this information to the National Center for Missing and Exploited Children. Note that this does not require Internet services to go out and affirmatively police their systems. It only states that when Internet services gain actual knowledge, then action must be taken. 42 U.S.C. § 13032(e)
Reports can be made to

The Cyber Tip Line
National Center for Missing and Exploited Children
www.cybertipline.com
1-800-843-5678

It's not immediately apparent what is the new McCain SAFE Act Provisions bring to the table, so to elucidate, here is a side-by-side, comparing the new legislation to the old statute (it's a bit of a hack job but the language parallels pretty well. Old language is on the left in Green. New language is on the right; new and different language is highlighted in red) - well it was suppose to be a side-by-side but Glogger is refusing to render it correctly, so let's try a different way - the Cybertelecom website will have this as a side-by-side:

  • Definitions

    • Old Language 42 USC 13032

      • (a) Definitions In this section—

        (1) the term “electronic communication service” has the meaning given the term in section 2510 of title 18 ; and

        (2) the term “remote computing service” has the meaning given the term in section 2711 of title 18 .

    • New Language 18 USC 2258A

      • n/a

  • Who has the Duty

    • Old Language 42 USC 13032

      • (b) Requirements (1) Duty to report.— Whoever, while engaged in providing an electronic communication service or a remote computing service to the public, through a facility or means of interstate or foreign commerce,

    • New Language 18 USC 2258A

      • (a) Duty To Report- (1) IN GENERAL- Whoever, while engaged in providing an electronic communication service or a remote computing service to the public through a facility or means of interstate or foreign commerce,

  • What triggers the Duty

    • Old Language 42 USC 13032

      • obtains knowledge of facts or circumstances

        from which a violation of section 2251 , 2251A , 2252 , 2252A , 2252B , or 2260 of title 18 , involving child pornography (as defined in section 2256 of that title), or a violation of section 1466A of that title, is apparent,

        shall, as soon as reasonably possible, . . . . .


    • New Language 18 USC 2258A

      • obtains actual knowledge of any facts or circumstances

        described in paragraph (2)

        shall, as soon as reasonably possible--

        . . . . .

        `(2) FACTS OR CIRCUMSTANCES- The facts or circumstances described in this paragraph are any facts or circumstances from which there is an apparent violation of--

        `(A) section 2251, 2251A, 2252, 2252A, 2252B, or 2260 that involves child pornography; or

        `(B) section 1466A.

  • Monitoring

    • Old Language 42 USC 13032

      • (e) Monitoring not required Nothing in this section may be construed to require a provider of electronic communication services or remote computing services to engage in the monitoring of any user, subscriber, or customer of that provider, or the content of any communication of any such person.

    • New Language 18 USC 2258A

      • `(f) Protection of Privacy- Nothing in this section shall be construed to require an electronic communication service provider or a remote computing service provider to--

        `(1) monitor any user, subscriber, or customer of that provider;

        `(2) monitor the content of any communication of any person described in paragraph (1); or

        `(3) affirmatively seek facts or circumstances described in sections (a) and (b).

  • Duty

    • Old Language 42 USC 13032

      • make a report of such facts or circumstances

    • New Language 18 USC 2258A

      • `(A) provide. . .

        `(B) make a report of such facts or circumstances

  • To Whom

    • Old Language 42 USC 13032

      • to the Cyber Tip Line at the National Center for Missing and Exploited Children,

    • New Language 18 USC 2258A

      • to the CyberTipline of the National Center for Missing and Exploited Children, or any successor to the CyberTipline operated by such center,

        to the CyberTipline, or any successor to the CyberTipline operated by such center.

  • What must be reported

    • Old Language 42 USC 13032

      • (d) Limitation of information or material required in report A report under subsection (b)(1) of this section may include additional information or material developed by an electronic communication service or remote computing service, except that the Federal Government may not require the production of such information or material in that report.

    • New Language 18 USC 2258A

      • the mailing address, telephone number, facsimile number, electronic mail address of, and individual point of contact for, such electronic communication service provider or remote computing service provider; and

        . . .

        `(b) Contents of Report- To the extent the information is within the custody or control of an electronic communication service provider or a remote computing service provider, the facts and circumstances included in each report under subsection (a)(1) may include the following information:

        `(1) INFORMATION ABOUT THE INVOLVED INDIVIDUAL- Information relating to the identity of any individual who appears to have violated a Federal law described in subsection (a)(2), which may, to the extent reasonably practicable, include the electronic mail address, Internet Protocol address, uniform resource locator, or any other identifying information, including self-reported identifying information.

        `(2) HISTORICAL REFERENCE- Information relating to when and how a customer or subscriber of an electronic communication service or a remote computing service uploaded, transmitted, or received apparent child pornography or when and how apparent child pornography was reported to, or discovered by the electronic communication service provider or remote computing service provider, including a date and time stamp and time zone.

        `(3) GEOGRAPHIC LOCATION INFORMATION-

        `(A) IN GENERAL- Information relating to the geographic location of the involved individual or website, which may include the Internet Protocol address or verified billing address, or, if not reasonably available, at least 1 form of geographic identifying information, including area code or zip code.

        `(B) INCLUSION- The information described in subparagraph (A) may also include any geographic information provided to the electronic communication service or remote computing service by the customer or subscriber.

        `(4) IMAGES OF APPARENT CHILD PORNOGRAPHY- Any image of apparent child pornography relating to the incident such report is regarding.

        `(5) COMPLETE COMMUNICATION- The complete communication containing any image of apparent child pornography, including--

        `(A) any data or information regarding the transmission of the communication; and

        `(B) any images, data, or other digital files contained in, or attached to, the communication.

  • Disclosure to Law Enforcement

    • Old Language 42 USC 13032

      • which shall forward that report to a law enforcement agency or agencies designated by the Attorney General. . . .

        (3) In addition to forwarding such reports to those agencies designated in subsection (b)(2) of this section, the National Center for Missing and Exploited Children is authorized to forward any such report to an appropriate official of a state or subdivision of a state for the purpose of enforcing state criminal law.

        . . . . .

        (f) Conditions of disclosure of information contained within report

        (1) In general No law enforcement agency that receives a report under subsection (b)(1) of this section shall disclose any information contained in that report, except that disclosure of such information may be made—

        (A) to an attorney for the government for use in the performance of the official duties of the attorney;

        (B) to such officers and employees of the law enforcement agency, as may be necessary in the performance of their investigative and recordkeeping functions;

        (C) to such other government personnel (including personnel of a State or subdivision of a State) as are determined to be necessary by an attorney for the government to assist the attorney in the performance of the official duties of the attorney in enforcing Federal criminal law; or

        (D) where the report discloses a violation of State criminal law, to an appropriate official of a State or subdivision of a State for the purpose of enforcing such State law.

        (2) Definitions In this subsection, the terms “attorney for the government” and “State” have the meanings given those terms in Rule 54 of the Federal Rules of Criminal Procedure.

    • New Language 18 USC 2258A

      • `(c) Forwarding of Report to Law Enforcement-

        `(1) IN GENERAL- The National Center for Missing and Exploited Children shall forward each report made under subsection (a)(1) to any appropriate law enforcement agency designated by the Attorney General under subsection (d)(2).

        `(2) STATE AND LOCAL LAW ENFORCEMENT- The National Center for Missing and Exploited Children may forward any report made under subsection (a)(1) to an appropriate law enforcement official of a State or political subdivision of a State for the purpose of enforcing State criminal law.

        `(3) FOREIGN LAW ENFORCEMENT-

        `(A) IN GENERAL- The National Center for Missing and Exploited Children may forward any report made under subsection (a)(1) to any appropriate foreign law enforcement agency designated by the Attorney General under subsection (d)(3), subject to the conditions established by the Attorney General under subsection (d)(3).

        `(B) TRANSMITTAL TO DESIGNATED FEDERAL AGENCIES- If the National Center for Missing and Exploited Children forwards a report to a foreign law enforcement agency under subparagraph (A), the National Center for Missing and Exploited Children shall concurrently provide a copy of the report and the identity of the foreign law enforcement agency to--

        `(i) the Attorney General; or

        `(ii) the Federal law enforcement agency or agencies designated by the Attorney General under subsection (d)(2).

        . . . . .

        `(g) Conditions of Disclosure Information Contained Within Report-

        `(1) IN GENERAL- Except as provided in paragraph (2), a law enforcement agency that receives a report under subsection (c) shall not disclose any information contained in that report.

        `(2) PERMITTED DISCLOSURES BY LAW ENFORCEMENT-

        `(A) IN GENERAL- A law enforcement agency may disclose information in a report received under subsection (c)--

        `(i) to an attorney for the government for use in the performance of the official duties of that attorney;

        `(ii) to such officers and employees of that law enforcement agency, as may be necessary in the performance of their investigative and recordkeeping functions;

        `(iii) to such other government personnel (including personnel of a State or subdivision of a State) as are determined to be necessary by an attorney for the government to assist the attorney in the performance of the official duties of the attorney in enforcing Federal criminal law;

        `(iv) if the report discloses a violation of State criminal law, to an appropriate official of a State or subdivision of a State for the purpose of enforcing such State law;

        `(v) to a defendant in a criminal case or the attorney for that defendant, subject to the terms and limitations under section 3509(m) or a similar State law, to the extent the information relates to a criminal charge pending against that defendant;

        `(vi) subject to subparagraph (B), to an electronic communication service provider or remote computing provider if necessary to facilitate response to legal process issued in connection to a criminal investigation, prosecution, or post-conviction remedy relating to that report; and

        `(vii) as ordered by a court upon a showing of good cause and pursuant to any protective orders or other conditions that the court may impose.

        . . . . .

        `(B) LIMITATIONS-

        `(i) LIMITATIONS ON FURTHER DISCLOSURE- The electronic communication service provider or remote computing service provider shall be prohibited from disclosing the contents of a report provided under subparagraph (A)(vi) to any person, except as necessary to respond to the legal process.

        `(ii) EFFECT- Nothing in subparagraph (A)(vi) authorizes a law enforcement agency to provide child pornography images to an electronic communications service provider or a remote computing service.

        `(3) PERMITTED DISCLOSURES BY THE NATIONAL CENTER FOR MISSING AND EXPLOITED CHILDREN- The National Center for Missing and Exploited Children may disclose information received in a report under subsection (a) only--

        `(A) to any Federal law enforcement agency designated by the Attorney General under subsection (d)(2);

        `(B) to any State, local, or tribal law enforcement agency involved in the investigation of child pornography, child exploitation, kidnapping, or enticement crimes;

        `(C) to any foreign law enforcement agency designated by the Attorney General under subsection (d)(3); and

        `(D) to an electronic communication service provider or remote computing service provider as described in section 2258C.

  • Penalty for Failure to Report

    • Old Language 42 USC 13032

      • (4) Failure to report.— A provider of electronic communication services or remote computing services described in paragraph (1) who knowingly and willfully fails to make a report under that paragraph shall be fined—

        (A) in the case of an initial failure to make a report, not more than $50,000; and

        (B) in the case of any second or subsequent failure to make a report, not more than $100,000.

    • New Language 18 USC 2258A

      • `(e) Failure To Report- An electronic communication service provider or remote computing service provider that knowingly and willfully fails to make a report required under subsection (a)(1) shall be fined--

        `(1) in the case of an initial knowing and willful failure to make a report, not more than $150,000; and

        `(2) in the case of any second or subsequent knowing and willful failure to make a report, not more than $300,000.

  • Designation of Agent

    • Old Language 42 USC 13032

      • (2) Designation of agencies.— Not later than 180 days after October 30, 1998, the Attorney General shall designate the law enforcement agency or agencies to which a report shall be forwarded under paragraph (1).

    • New Language 18 USC 2258A


      • `(d) Attorney General Responsibilities-

        `(1) IN GENERAL- The Attorney General shall enforce this section.

        `(2) DESIGNATION OF FEDERAL AGENCIES- The Attorney General shall designate promptly the Federal law enforcement agency or agencies to which a report shall be forwarded under subsection (c)(1).

        `(3) DESIGNATION OF FOREIGN AGENCIES- The Attorney General shall promptly--

        `(A) in consultation with the Secretary of State, designate the foreign law enforcement agencies to which a report may be forwarded under subsection (c)(3);

        `(B) establish the conditions under which such a report may be forwarded to such agencies; and

        `(C) develop a process for foreign law enforcement agencies to request assistance from Federal law enforcement agencies in obtaining evidence related to a report referred under subsection (c)(3).

        `(4) REPORTING DESIGNATED FOREIGN AGENCIES- The Attorney General shall maintain and make available to the Department of State, the National Center for Missing and Exploited Children, electronic communication service providers, remote computing service providers, the Committee on the Judiciary of the Senate, and the Committee on the Judiciary of the House of Representatives a list of the foreign law enforcement agencies designated under paragraph (3).

        `(5) SENSE OF CONGRESS REGARDING DESIGNATION OF FOREIGN AGENCIES- It is the sense of Congress that--

        `(A) combating the international manufacturing, possession, and trade in online child pornography requires cooperation with competent, qualified, and appropriately trained foreign law enforcement agencies; and

        `(B) the Attorney General, in cooperation with the Secretary of State, should make a substantial effort to expand the list of foreign agencies designated under paragraph (3).

  • Notification to Internet Service

    • Old Language 42 USC 13032

      • n/a

    • New Language 18 USC 2258A

      • `(6) NOTIFICATION TO PROVIDERS- If an electronic communication service provider or remote computing service provider notifies the National Center for Missing and Exploited Children that the electronic communication service provider or remote computing service provider is making a report under this section as the result of a request by a foreign law enforcement agency, the National Center for Missing and Exploited Children shall--

        `(A) if the Center forwards the report to the requesting foreign law enforcement agency or another agency in the same country designated by the Attorney General under paragraph (3), notify the electronic communication service provider or remote computing service provider of--

        `(i) the identity of the foreign law enforcement agency to which the report was forwarded; and

        `(ii) the date on which the report was forwarded; or

        `(B) notify the electronic communication service provider or remote computing service provider if the Center declines to forward the report because the Center, in consultation with the Attorney General, determines that no law enforcement agency in the foreign country has been designated by the Attorney General under paragraph (3).

  • Preservation of Records

    • Old Language 42 USC 13032

      • n/a

    • New Language 18 USC 2258A

      • `(h) Preservation-

        `(1) IN GENERAL- For the purposes of this section, the notification to an electronic communication service provider or a remote computing service provider by the CyberTipline of receipt of a report under subsection (a)(1) shall be treated as a request to preserve, as if such request was made pursuant to section 2703(f).

        `(2) PRESERVATION OF REPORT- Pursuant to paragraph (1), an electronic communication service provider or a remote computing service shall preserve the contents of the report provided pursuant to subsection (b) for 90 days after such notification by the CyberTipline.

        `(3) PRESERVATION OF COMMINGLED IMAGES- Pursuant to paragraph (1), an electronic communication service provider or a remote computing service shall preserve any images, data, or other digital files that are commingled or interspersed among the images of apparent child pornography within a particular communication or user-created folder or directory.

        `(4) PROTECTION OF PRESERVED MATERIALS- An electronic communications service or remote computing service preserving materials under this section shall maintain the materials in a secure location and take appropriate steps to limit access by agents or employees of the service to the materials to that access necessary to comply with the requirements of this subsection.

        `(5) AUTHORITIES AND DUTIES NOT AFFECTED- Nothing in this section shall be construed as replacing, amending, or otherwise interfering with the authorities and duties under section 2703.


  • Liability Limitation

    • Old Language 42 USC 13032

      • (c) Civil liability No provider or user of an electronic communication service or a remote computing service to the public shall be held liable on account of any action taken in good faith to comply with or pursuant to this section.

    • New Language 18 USC 2258A

      • `SEC. 2258B. LIMITED LIABILITY FOR ELECTRONIC COMMUNICATION SERVICE PROVIDERS, REMOTE COMPUTING SERVICE PROVIDERS, OR DOMAIN NAME REGISTRAR.

        `(a) In General- Except as provided in subsection (b), a civil claim or criminal charge against an electronic communication service provider, a remote computing service provider, or domain name registrar, including any director, officer, employee, or agent of such electronic communication service provider, remote computing service provider, or domain name registrar arising from the performance of the reporting or preservation responsibilities of such electronic communication service provider, remote computing service provider, or domain name registrar under this section, section 2258A, or section 2258C may not be brought in any Federal or State court.

        `(b) Intentional, Reckless, or Other Misconduct- Subsection (a) shall not apply to a claim if the electronic communication service provider, remote computing service provider, or domain name registrar, or a director, officer, employee, or agent of that electronic communication service provider, remote computing service provider, or domain name registrar--

        `(1) engaged in intentional misconduct; or

        `(2) acted, or failed to act--

        `(A) with actual malice;

        `(B) with reckless disregard to a substantial risk of causing physical injury without legal justification; or

        `(C) for a purpose unrelated to the performance of any responsibility or function under this section, sections 2258A, 2258C, 2702, or 2703.

        `(c) Minimizing Access- An electronic communication service provider, a remote computing service provider, and domain name registrar shall--

        `(1) minimize the number of employees that are provided access to any image provided under section 2258A or 2258C; and

        `(2) ensure that any such image is permanently destroyed, upon a request from a law enforcement agency to destroy the image.

This comparison was necessary because it was not immediately clear what McCain's SAFE Act brings to the table - and after creating the side-by-side, its still not clear (Congress did impose a long desired record retention requirement - See Record Retention).

Why did Congress felt it necessary to create an entirely new law to address this issue? Understand, the new law does not replace the old. BOTH the new law and the old law now are on the books - and one could in theory be found to have violated both statutes and suffer both penalties. And as far as I can tell from the side-by-side, the new SAFE Act is merely an elaboration and tweaking of the old law - at times the language in the two different statutes is all but plagiarized. I really would be interested to hear from those that might have insight on this legislative maneuver.

Second, I know that CDT complains about the new outsourced role of the National Center for Missing & Exploited Children - but as can be seen, the role is not new. The role of the National Center for Missing & Exploited Children is all but identical under both the old and new statutes - receive, aggregate, and forward information to law enforcement. There may or may not be an objection to this outsourcing, but the role of the National Center for Missing & Exploited Children is not new.

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