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January 19, 1999

Constitutional Rights on the Internet

by T.E. Blair

On November 24, 1998, Dreamscape Online, LLC, an Internet Service Provider (ISP) filed a Federal Court action against then New York State Attorney General Dennis Vacco. This action came after the Attorney General's confiscation of server equipment used to carry newsgroups that were found to be involved with child pornography.

The New York Attorney General's office was responsible for several successful convictions against persons involved in child pornography. Vacco, in conjunction with law enforcement officials in twelve states and four countries, had formed "Operation Rip Cord" in 1996. The part of that operation involving two New York State ISPs was called "Operation Sabbatical."

Officials at Dreamscape have gone on record saying that they do not condone child pornography, and support laws that limit and/or seek to eradicate it. However, Dreamscape does not feel that an ISP can be held responsible for the messages of its users.

To understand the current situation and its potential impact on the Internet in general, it is necessary to go back to the events surrounding the confiscation. On October 26, 1998, Michael G. McCartney, a police officer with the New York State Attorney General's Office, obtained a search warrant for a room located in the offices of Dreamscape, and that search warrant was executed October 28. Dreamscape had previously cooperated with the efforts of Vacco's investigation. As stated in the class action lawsuit, "On October 26th, Dreamscape was contacted by State Police Officer John Reedy, who had previously talked with and visited Dreamscape on several occasions. Officer Reedy asked that Dreamscape provide another tour of its facilities," which Dreamscape agreed to do.

Based on Dreamscape's prior and current cooperation, there was some question as to possible political motivation behind the seizure. With elections just a few days away, a public display against child pornography could have been viewed in a very positive light. Also, at least one New York State Federal Court had previously determined that any effort by state officials to restrict the operation of the Internet is "an unconstitutional violation of Federal Rights."

The attorney for Dreamscape, Mr. Keith J. Roland, states "It is important to understand that Dreamscape does not condone child pornography. The suit addresses the issue of whether an ISP is liable for 30,000 newsgroups. Compare it to voice mail. A message may violate the law in some way, but the Phone Company is not liable for not screening each call. They can't do that."

A similar comparison has been drawn to pornography sent through the mail. The Post Office and/or mail carrier cannot be liable for what is sent through the mail. In fact, strict laws keep them from any sort of screening or interception of private mail. Confiscation of equipment would seem ludicrous in such an instance. Yet the Internet and ISPs do not seem to be provided the same constitutional protections. In the quickly growing world of the Internet, it is essential that these legal issues be addressed. While the American public is deeply concerned with child pornography, and in fact must applaud Mr. Vacco's efforts to eradicate it, there must also be a concern as to where liability is placed.

With the question of political motivation as to the timing of this act, one must also look at the timing between the press release of the above mentioned lawsuit and Mr. Vacco's announcement that he had admitted defeat in the election for Attorney General. In a race that had been close enough to necessitate counting of the absentee ballots, Mr. Vacco finally conceded to his opponent by a margin of approximately 25,000 votes.

Dreamscape, which filed its lawsuit against Dennis Vacco individually and as Attorney General of New York State, is waiting for a response from the new Attorney General's office. The company had been given a thirty-day extension based on the delay in election results, and is now looking to see what stance the office will take regarding this issue. Other ISPs are also following these events closely, as the outcome will undoubtedly affect how they proceed in the future.

"We are waiting to see if the new Attorney General will make a policy that goes after child pornography originators and not the ISPs," says Dreamscape attorney Keith Roland. The Attorney General's office has not commented.

In addition to Dreamscape and other ISPs, the eye of America should focus on these events. It is certain that they will set a precedent for future proceedings, and will affect anyone who uses the Internet.

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