Freedom on the Net 2014 (Video)

Freedom on the Net is Freedom House’s annual assessment of internet access, censorship, and internet user rights in 65 countries around the world. This year’s event will highlight the advances and setbacks in internet freedom over the past year, emerging threats to digital media, and the challenges these trends pose to U.S. foreign policy.

Virtual Banishment and the First Amendment: Estavillo v. Sony Computer Entertainment of America

I saw this case in the excellent National Association of Attorneys General publication Cyber Crime e-newsletter .

Many of us host or sponsor online communities of one form or another. On occasion, this means we must engage in moderation of the discourse in that community, and, as chance may arise, on occasion, we must give some chap the boot from the community for violating the AUP or the TOS. Inevitable, the booted chap screams “First Amendment Violation,” to which we must respond, “The First Amendment restrains government actors – we are not government actors.”

Apparently, we are correct.

In the case Estavillo v. Sony Computer Entertainment of America, No. C-09-03007 (NDCA Sept. 22, 2009), Plaintiff claimed that Defendant violated Plaintiff’s First Amendment rights when Defendant excused Plaintiff from the Sony Playstation 3 Network (a gaming social network). Defendant filed a Motion to Dismiss for Failure to State a Cause of Action. Defendant is not a government and not, therefore, retrained by the First Amendment. Simple case, right?

But if remember back to 2^nd year law school (I do my best not to), there were in fact times when non-government actors might be retrained by the First Amendment. The big case in this space involved “company towns.” These are instances where a company - a mining company for instance - owns all the land, all the buildings, all the stores, and essentially has taken on all day-to-day life functions of a municipality. See Marsh v. Alabama, 326 U.S. 501 (1945). In that case the Supremes held that the company could not arrest a fellow for walking down the company town’s public side walk and handing out religious literature, even though it was against company regulations.

The Court in today’s case rejects the notion that Defendant might be considered a company town.

Sony's Network is not similar to a company town. The Network does not serve a substantial portion of a municipality's functions, but rather serves solely as a forum for people to interact subject to specific contractual terms. Every regulation Sony applies in the Network is confined in scope only to those entertainment services that Sony provides. Although the Network does include "virtual spaces" such as virtual "homes" and a virtual "mall" that are used by a substantial number of users (Pl.'s Reply in Supp. of Opp'n. to Dismiss 1), these "spaces" serve solely to enrich the entertainment services on Sony's private network. In providing this electronic space that users can voluntarily choose to entertain themselves with, Sony is merely providing a robust commercial product, and is not "performing the full spectrum of municipal powers and [standing] in the shoes of the State." Hudgens, 424 U.S. at 519 (quoting Lloyd Corp. v. Tanner, 407 U.S. 551, 568-69 (1972)).

Defendant’s service is an entertainment service. Defendant does not provide roads or sidewalks. Defendant is not coming to put out any fires or arresting any jay walkers. Defendant does not plow the roads when it snows (of course, recently, failure to plow a road during a snow storm by no means disqualifies you from being a municipality).

Amazingly, not everyone is convinced. Prof. Jack Balkin writes (as Rob Heverly summarizes)

Rather, those where the space is created "to form communities or create channels for general public communication" could be subject to the First Amendment's requirements.

Really! Wow, that’s a bad idea. There are lots of communities created all the time. Churches. Youth clubs. Sports clubs. Communities for playing games. In the offline world, the question is quite clear that creating a space to form a community does not turn one into a government; indeed this activity is recognized under the Freedom of Association. And the Freedom of Association includes the freedom not to associate, to say, for example, “I don’t like your speech and I don’t want to associate with you.” It is at the core of the distinction between a restraint on government action and a restraint on private action. Private actors are allow to not-associate based on speech issues; government actors, not so much.

Online communities, much like offline communities, form as tribes around common interests. In order to maintain and pursue the objectives of that community of interest, moderators impose TOS and AUP. Some communities are successful; some are not. The makings of a good community frequently involves the hand of a moderator who can guide discourse without deterioration to Godwin’s Law (as an online discussion becomes protracted and entrenched, it becomes ever more likely that someone implement the rhetoric skill of comparing their opponent to Nazis or Hitler). (See another good article on Speech in Virtual Worlds by Eric Goldman)

This is in praise to good moderators and good discourse. “A single conversation across the table with a wise person is worth a month's study of books” - Chinese Proverb

No wait, this was about that case. The Court dismissed it for failure to state a cause of action; Sony, host of an online community, aint a government actor.

PS: You can learn about Cybertelecom's discussion group here.

[Disclaimer]

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.

Congress Thinks of the Children: S.1738 PROTECT Our Children Act of 2008

In the middle of the country’s ClusterF#@k to the Poor House, Congress took some time out to Think of the Children.

John McCain said on September 24 that he was canceling his appearance on Letterman suspending his campaign in order to respond to the national crisis and that he would not reinstate his campaign until the crisis was properly resolved. Sen. McCain reinstated his campaign on Friday the 26th.


So what National crisis was resolved that let his campaign continue? It couldn’t have been the financial crisis, since I am now using my AIG stock as toilet paper.

No, in the middle of our National Economy going flush with executives squirreling vast sums into executive golden parachutes, the crisis which was resolved was who could take credit for Thinking of the Children.

In 2007, both VP wannabe Joe Biden and Prez wannabe John McCain introduced legislation attempting to combat the ever growing problem of child abuse and child pornography. Joe Biden’s PROTECT Our Children Act had been considered by the Senate Committee on the Judiciary in April 2008, reported out favorably and placed on the Senate calendar in July 2008. It had 60 cosponsors.

S.1738 PROTECT Our Children Act of 2008
Title: A bill to require the Department of Justice to develop and implement a National Strategy Child Exploitation Prevention and Interdiction, to improve the Internet Crimes Against Children Task Force, to increase resources for regional computer forensic labs, and to make other improvements to increase the ability of law enforcement agencies to investigate and prosecute child predators.
Sponsor: Sen Biden, Joseph R., Jr. [DE] (introduced 6/28/2007) Cosponsors (60)
Related Bills: H.R.3845, S.519
Latest Major Action: 10/2/2008 Presented to President.

Sen. McCain’s Securing Adolescents From Exploitation-Online Act (SAFE Act) had never been considered by a committee, had not seen legislative action, and had only 10 cosponsors.

S.519 Safe Act of 2007
Title: A bill to modernize and expand the reporting requirements relating to child pornography, to expand cooperation in combating child pornography, and for other purposes.
Sponsor: Sen McCain, John [AZ] (introduced 2/7/2007) Cosponsors (10)
Related Bills: H.R.876, H.R.3791, S.1738
Latest Major Action: 2/7/2007 Referred to Senate committee. Status: Read twice and referred to the Committee on the Judiciary.

Now all that is nice and most Washington fat-cats know that once the calendar closes in on the elections, nothing gets done – the legislative process comes to a standstill. The candidates get brownie points for showing they care by introducing legislation, even if the legislation is bound for nowhere – you can always blame those unamericans-in-the-other-party for it going nowhere, and get a few more brownie points.

But on September 15th, an event occurred which the candidates could not ignore: Obama-supporter-Oprah came out in favor of VP wannabe Joe Biden’s PROTECT Our Children Act! The Oprah Nation took to the streets in support of Biden’s bill – and within a week McCain had suspended his campaign and scuttled back to Washington D.C.

Upon McCain’s return to Washington, the PROTECT Our Children Act was passed – on the 25th by the Senate, and on the 27th by the House - but this was quite a different PROTECT Our Children Act than the one thrashed about in the Senate Judiciary Hearing many months ago. As the Center for Democracy and Technology notes, “Some in Congress insisted that the core parts of [John McCain’s] S. 519 – the “SAFE Act” – be added to [Biden's] S. 1738 before passage.” Sec. 2 of John McCain’s act, “Reporting Requirements of Electronic Communication Providers and Remote Computing Service Providers,” became Title V of Joe Biden’s Act, “Securing Adolescents from Online Exploitation” (which had as its first section, Sec. 501 Reporting Requirements of Electronic Communication Providers and Remote Computing Service Providers). One day after the Senate voted on the Biden-McCain SAFE PROTECT Act, with the danger averted, McCain reinstated his campaign.

Upon passage:

• Sen. Joe Biden stated: “At the same time when the Internet has given children access to the world – it has also given a dangerous world access to our kids,” said Sen. Biden, Chairman of the Senate Judiciary Subcommittee on Crime and Drugs. “Protecting them requires constant vigilance – in our neighborhoods, in our homes and on-line. Finally we have a bill that will give law enforcement the funds and the tools to pull the plug on Internet predators. I urge the President to quickly sign the Protect Our Children Act into law.”

• Oprah stated: "Thank you to the 60 senators—Republican and Democrat—who co-sponsored the bill. … All of you proved that the people can really make a difference."

• John McCain stated: [a review of the John McCain Senatorial website reviewed no press release or statement]

Meanwhile, back on the Clusterf@#k, the Center of Democracy and Technology all but lamented, "These provisions should – if the bailout leaves any money to actually spend on law enforcement – really help in the fight against child pornography."

Wheel of Morality, turn turn turn, Tell Us the Lesson We Should Learn: Oprah can get legislation passed even in the midst of a fierce political campaign and the worst economic crisis since the Long Depression of 1873 – now that’s political power! That and, even for the noblest cause, the legislative process is nothing short of a sausage factory – be pleased with your bratwurst but don’t look too close at how it was made.

Note One: I aint hereby supporting no candidate – I am sure someone will be offended – but if you read closely (you will bump the screen with your forehead har har) you will see I am making fun of everyone (including you).

Note Two: I aint dissing the noble cause sought after (didn’t I just say that) – but you gotta admit, that’s some sausage factory.

Note Three: Oh yeah, next post we will dig into this fun “We Don’t Regulate the Internet” new law and see what it means for Internet interests.

UPDATE: President Bush reportedly signed the Biden PROTECT Act into law on Monday October 14 . . . without comment or press release.