With his heavy-handed crusade against online child pornography, New York attorney general Andrew Cuomo has already crushed more than a little free speech, all but destroying America's connection to Usenet newsgroups. And now he's eying ISP-level porn-blocking hardware that would run roughshod over the country's wiretapping laws.
As reported by msnbc, Cuomo's office recently sent AOL an anti-porn business proposal from Bright Digital Networking, an Australian company once accused of distributing spyware. According to the PowerPoint proposal (PDF warning), Bright Digital offers deep packet inspection hardware - dubbed CopyRouter - that would identify and block known porn images by sniffing every single file passing over an ISP's network.
Cuomo's office did not respond to a request for comment. But the office told msnbc it was not promoting Bright Digital's technology, saying it was merely sharing Bright Digital proposal with a committee of ISP representatives "brainstorming" new ways to combat child pornography on the net.
A coalition of seven big-name tech outfits - including AOL, Microsoft, Yahoo!, Google, Earthlink, United Online, and Verizon - works closely with the National Center for Missing and Exploited Children (NCMEC), a private organization that maintains a child porn black list on behalf of ISPs across the country.
AOL also received the Bright Digital proposal directly from NCMEC - whose efforts dovetailed with Cuomo's grandstanding anti-porn crusade early this year. NCMEC CEO and president Ernie Allen said he can't speak for Cuomo offices, but in a conversation with The Reg, he said he forwarded the CopyRouter proposal to AOL merely to get an opinion.
"What [Bright Digital] was doing came to our attention and the PowerPoint was sent to me," he told us. "I sent it to the guy who coordinates our technology coalition and is an associate general counsel AOL. I said 'I just got this. Don't know anything about it. Let me know what you think.'
"There is no plan or intent on our part to proceed with anything like [Bright Digital's technology] at all. We have not even met the people involved with the company. We were just trying to evaluate a technology that appeared to have some potential interest."
According to John Morris, general counsel at the Center for Democracy and Technology, a well-known net watchdog, CopyRouter would run afoul US anti-wiretapping laws. "It would be plainly illegal for an ISP to use this technology," he said during a phone interview. "The ISP would be violating the Electronic Communications Privacy Act, which prevents private wiretapping of electronic communications.
"For an ISP to be scanning all this communication between private individuals that the ISP is not a party, that is unquestionably a wiretap."
Even if an ISP were to obtain consent from its users, Morris says, the technology would violate various state laws. "[Some state laws] require 'two-party consent' - in other words, consent from both the sender and recipient of the communication."
Over the summer, attorney general Cuomo pressured six of the country's largest ISPs - AOL, AT&T, Comcast, Time Warner, Sprint, and Verizon - into signing his very own anti-child porn "code of conduct." In doing so, the ISPs agreed to rid their servers of images blacklisted by NCMEC and shutdown certain Usenet newsgroups housing such images.
Cuomo even went so far as to threaten Comcast with legal action if it didn't sign the pact. And many of these ISPs felt compelled to nix access to all newsgroups.
"We're very concerned about what Cuomo did in the newsgroup area with ISPs. Were a government official to require an ISP to take down newsgroups, that would clearly be a violation of the First Amendment," Morris told us, referring to the Constitutional amendment that protects free speech. "The notion that what the ISPs did was voluntary was dubious. He has made it clear that he is willing to directly threaten service providers."
Because of Cuomo's actions over the summer, Morris questions whether the New York AG is pushing ISPs toward technologies like CopyRouter. "Is it appropriate for a government official to be coercing companies into doing things that would violate the law? The answer, quite clearly, is that it is not."
For what it's worth, Bright Digital Networks owns Altnet, one of the companies that famously piggybacked ad software atop the free P2P file-sharer Kazaa early in the decade. The adware - which nabbed unused bandwidth and processing power from user PCs in an effort to grab ad dollars - was often identified as spyware by anti-spyware tools. ®