Updated Update: This story has been updated to show that Larry Sanger now says that the images in question do not depict real people and to include additional legal clarification. And it was later updated a second time with additional clarification about federal law 18USC 2258A, which requires electronic service providers to notify the NCMEC if they are made aware of child pronography.
Wikipedia co-founder Larry Sanger has reported the site's parent organization to the Federal Bureau of Investigation, saying he believes the Wikimedia Commons "may be knowingly distributing child pornography."
He says, however, that "the images did not contain actual people." And he acknowledges that in publicly explaining his report to the FBI, his use of the term child pornography "may have been misleading."
In his report to the bureau, Sanger says that in his "non-lawyer's opinion," he believes that the images violate a US law against "obscene visual representations of the sexual abuse of children" (18 USC §1466A(2)(A)). This law specifically says: "It is not a required element of any offense under this section that the minor depicted actually exist."
A separate federal law (18 USC 2252) deals with "certain activities relating to material involving the sexual exploitation of minors."
Earlier this week, Sanger disclosed his FBI report with a post to a public mailing list and later an open letter to a member of the Wikimedia Foundation's board of trustees. In the letter, he also says he notified his Senators and Congressional representatives over the images in question.
Sanger - who parted ways with Wikipedia in 2002 over what he calls "disagreements about editorial and management policy" - tells The Reg that he filed his report through the FBI's website.
"I believe Wikimedia Commons (http://commons.wikimedia.org/), owned and hosted by the California-based Wikimedia Foundation, may be knowingly distributing child pornography," reads his letter to the bureau and his Senators and representatives, before providing specific weblinks, one to a "pedophilia" category that includes a limited number of images. "I don't know if there is any more, but I wouldn't be surprised if there is - the content on the various Wikimedia projects, including Wikipedia and Wikimedia Commons and various others, are truly vast."
Wikimedia general counsel Mike Godwin did not respond to a request for comment. But he dismisses Sanger's claims with a public post to the web. "As is commonly the case when non-lawyers attempt to invoke a statute without adequately researching the relevant law and legal categories, Sanger has confused and conflated a number of legal doctrines," Godwin begins, saying that 18 USC 1466A is not a child-pornography statute but an obscenity statute. He points to 18 USC 2252 and 2252A as the statutes covering child pornography.
He also defends the Foundation's position by citing a court case, Miller v California, that he says emphasizes "the importance of community standards in defining what qualifies as obscenity." And yes, he points out that Wikimedia's projects are not built by the Foundation itself but by web users, citing section 230 of the Communications Decency Act. "Federal obscenity and child-pornography statutes make similar distinctions [to Section 230]," he says. "As Sanger seems to have forgotten, the Wikimedia Foundation does not originate or develop Wikipedia content or Wikimedia Commons content. This was true in Sanger's day as well as is in the present day."
Federal law (18 USC 2258A) also says that if an electronic service provider is made aware of child pornography on its servers, it must report it to the CyberTipline operated by the National Center for Missing & Exploited Children (NCMEC).
The law does state that electronic service providers must make a report to the TipLine if they've been notified of an apparent violation of 18 USC1466A, the law that Sanger cites. "Just based on the statute, Congress wants you to pick up the phone if you're made aware of simulated child pornography," says tech law blogger and Santa Clara University law professor Eric Goldman.
"The law [18 USC 2258A] doesn't mandate that they look for it or that they monitor for it, but if they become aware of it, they have to report it," Michelle Collins, the vice president of the organization's exploited children division, tells The Reg.
Justin Fitzsimmons, a senior attorney with the National District Attorneys Association, tells The Reg that his reading of the statute is that it does apply to the Wikimedia Foundation.
This is not the first time the Wikimedia Foundation has been accused of hosting child pornography. In May of 2008, an unfinished story on Wikimedia's own Wikinews project repeated a report that the FBI was investigating Wikipedia for hosting the image of a mid-1970s record album cover from German heavy metal band the Scorpions. But the story was removed and the image remained, and in December of that year, the image turned up on a blacklist maintained by the Internet Watch Foundation UK, which meant that access to the site was filtered by at least six British ISPs.
In bizarre fashion, the filtering also resulted in Wikipedia admins banning large swaths of the United Kingdom from editing the site. The IWF later pulled Wikipedia from its blacklist, and the site continues to host the album cover.
Famously, Larry Sanger founded Wikipedia in tandem with current site figurehead Jimmy "Jimbo" Wales - though, just as famously, Wales prefers to think of himself as the sole founder. While the pair were working on Nupedia, a Wikipedia predecessor, Sanger sent a seminal email to the project's staff. "Let's make a wiki," he wrote. "No, this is not an indecent proposal. It's an idea to add a little feature to Nupedia. Jimmy Wales thinks that many people might find the idea objectionable, but I think not."
He now runs Citizendium.org, an online encyclopedia that does not allow anonymous editing and takes greater pains to avoid conflicts of interest, and WatchKnow.org, a teacher-edited non-profit directory of preK-12 educational videos.
Sanger tells us he reported the Wikimedia Commons images to FBI reluctantly, but believes he ultimately did the right thing. "If I don't report this - and it's been up for years, apparently - who will? As the co-founder of the project, I believe I have a special personal obligation to rein in egregious wrongdoing when I see it. Or at least try," he says. "It bothers me that something I helped start has come to this." ®