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November 3, 1998

How do "Constitutional Rights" apply to the Internet?

by T.E. Blair

The enforcement of laws regarding child pornography on the Internet has been hotly debated. While there is full agreement that the activity is illegal, there are questions as to whether or not restriction on the Internet is an infringement of Constitutional Rights. At least one New York State Federal Court has determined that any effort by state officials to restrict the operation of the Internet is an unconstitutional violation of federal rights. However, child pornography remains a State and Federal offense in any medium. This raises a serious question of where rights begin and end on the Internet.

In the face of (and possibly because of) upcoming elections, New York State Attorney General Dennis Vacco has drawn a line in the sand regarding this issue. On Oct. 28, 1998 in New York State, two Internet Service Providers were "shut down" and their equipment seized as evidence in an investigation into the trafficking of child pornography on-line. In addition, thirteen suspects were arrested and charged with possession and transmission of child pornography. This action came as part of a crackdown on the self named, "Pedo University," an on-line organization that used Internet News Groups for what the investigation claimed was the free trade of "electronic images of pre-teenagers engaged in graphic sex acts." Charges include possession and promotion of sexual material involving children under sixteen, punishable by up to seven years in prison.

The news groups, (ABPEPT) and (ABPEET), offered tips to members on evading detection by law enforcement. Some excerpts quoted in the report are:

"This news group deals with a subject matter considered illegal in many countries, and improper in others."

"You will be regarded as a criminal if law enforcement agencies trace and apprehend you."

"[W]e want to share pictures of PRE-TEENS, that is, under thirteen."

New York State Police Superintendent James W. McMahon stated that he is "committed to coordinating investigative efforts with agencies across the nation to end the despicable conduct of these criminals."

However, some argue against the culpability of ISPs, which do not create the articles or pictures, but merely serve as a means of transmission. Comparison can be drawn with the U.S. Mail. Persons found sending child pornography through the mail can be charged, with no culpability to the postal carrier or the U.S. Mail service. Federal law recognizes that an Internet Provider is not liable for the content of any messages it transmits.

Yet two ISPs, and were shut down by New York State police, under the orders of Attorney General Dennis Vacco. This seizure is part of what Vacco called "Operation Rip Cord," and included law enforcement officials from twelve states, led by New York, as well as from Canada, Sweden and New Zealand.

Representatives of have posted a statement on-line in regard to the actions of New York authorities. Dreamscape denies any wrongdoing, and says they are "disappointed that the Attorney General has utilized unnecessary and unlawful tactics which significantly interfere with the rights of all Americans to utilize the Internet."

In response, Vacco says, "Most Internet Service Providers choose not to carry news groups that cater to the interests of child porn traffickers for obvious reasons. Those that do are well aware of their nature and purpose, possess the offensive images on their server, and facilitate the transfer and trading of child pornography."

Another question that has been raised is the upcoming elections, and their impact on the actions of those involved. Dreamscape claims to have repeatedly cooperated with law enforcement agencies in tracing the identity of persons who originate pornographic materials. Point must be taken to the timing of the actions which resulted in the seizure of computer equipment. Would Attorney General Vacco have taken these actions if it were not for their political impact?

Neither Dreamscape nor Mr. Vacco have made any comment regarding this question, but it will be on the mind of voters as they cast their ballots in the upcoming elections. Whether these actions will reflect favorably or negatively on Mr. Vacco remains to be seen.

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