The SAFE Act - Lemming Politics At Its Worse

On Wednesday the US House of Representatives passed the SAFE Act by a vote of 409 to 2. SAFE stands for Securing Adolescents from Exploitation-Online.

When first written about, it caused a bit of an uproar as many sites reported that this bill would force not just ISPs but also anyone who offers free Wi-Fi Internet access to enter into the kiddie porn policing business or else they face stiff penalties.

But cooler heads are beginning to prevail, as evidenced by this Ars Technica article that explores what this bill really means: namely that it increases penalties that already exist to punish ISPs who see kiddie porn on their network and don't report it.

The bill explicitly states that ISPs don't need to actively monitor for kiddie porn. And when this article's author contacted Rep. Nick Lampson (D-TX), who introduced the bill, he received clarification that the bill is not intended to apply to small businesses who offer Wi-Fi.

But unfortunately these findings do not resolve these issues.

We can start by simply perusing the comments to this article. The very first one is from someone who claims to be an attorney (despite his profession being listed in his profile as "Smack-Fu Master, in training"). His point being: once language becomes law, it's up to the courts to determined what the words mean. So even if local Wi-Fi networks weren't intended to be included, the fact the bill applies to anyone "engaged in providing an electronic communication service...to the public..." suggests that Wi-Fi networks could fall under the bill's purview once it's in the field.

Another angle to this debate I have yet to read is what impact the increasingly common practice of deep packet inspection may have on this. ISPs are either already or have plans to start analyzing the data going over their networks in much greater detail. Even though this bill doesn't require active monitoring for kiddie porn, my guess is that the more a network operator analyzes traffic on their network, the more kiddie porn that might pop up. What's perhaps even more problematic is that most of these systems are automated, so there's a chance that a computer may identify kiddie porn but not have it confirmed by a human. Does that count as a violation? In order to avoid these situations, ISPs may be forced into actively monitoring for kiddie porn to make sure they're not accidently liable.

Another problem I have with this legislation is the enforcement side of things. If no one's required to look for kiddie porn, how is the government supposed to know when someone saw it and didn't report it? Additionally, even if someone's trying to stay within the law, how are they supposed to know if what they're seeing is actually kiddie porn? I know there are new rules in place requiring purveyors of porn to cite openly the fact that they've confirmed the age of all porno participants, but even still this isn't necessarily an easy thing to figure out.

While I have other issues with this legislation, the biggest one is why we're writing legislation of this sort in the first place. I mean, is there really any point to raising penalties against ISPs other than being a symbolic attempt to look tough on kiddie porn? Has there been a rash of ISPs who've flaunted the original rules and shielded kiddie porn users and producers I haven't heard about? Don't we have more pressing issues for Congress to be resolving, like, oh, I don't know, the Iraq War, healthcare, the environment, the economy, the deployment and use of broadband, etc., etc., etc.?!

I truly hate bills like this that are nothing more than pandering for votes.

A bill like this has nothing to do with good policy, and everything to do with grandstanding. Even worse, it's a lemming bill, one that everyone wants to be for because they're obviously against kiddie porn, despite no one having any idea of what they're actually supporting.

If this is the direction Internet legislation is going to continue to take, then the bubble of enthusiasm I had for us to have a real dialogue about what's best for the country in terms of telecom just got deflated a bit.

Thank goodness the holidays are coming up as I need some good Christmas cheer to reignite my hopefulness that we'll be able to get real work done in '08 and not just more of the same when it comes to bills geared towards getting votes rather than making our country great.