ALBANY, NY — New York Attorney General Andrew Cuomo — the man who singlehandedly removed “alt.sex” newsgroups from the Web by threatening to file lawsuits against major internet service providers — has embarked upon another crusade. This time Cuomo’s fear-mongering may put him at odds with the Federal Communications Commission and the U.S. Congress.In his ongoing quest to eradicate online child pornography even if he has to trample adults’ constitutional rights to do it, Cuomo has begun suggesting to ISPs that they engage the services of an Australian firm that offers deep-packet inspection of Web traffic.
Deep-packet inspection allows those who employ it to examine the minutest details of every electronic impulse sent by surfers’ computers: email, instant messages, interactions with Web pages, even voice-over-internet-protocol telephone. Web traffic travels in “packets,” or small collections of data, that usually are sacrosanct, at least without the presence of terrorist suspicion. The U.S. Congress and the FTC have been investigating the practice as it relates to permission-less profiling of consumers on behalf of advertisers. The last rumblings from Washington, DC, indicated both entities are willing to mandate constraints on deep-packet inspection in order to protect consumer privacy.
Cuomo appears unconcerned about that. The Australian company, Brilliant Digital, offers a service it claims can spot evidence of child porn within the electronic impulses, thereby allowing ISPs to catch child abusers in the act of transmitting illegal content. Cuomo forwarded to an ISP industry task force established (at his insistence) to combat child porn a Brilliant Digital proposal to examine all ISPs’ packets — for a fee, of course — and help them determine which ones may be suspicious.
Privacy advocates are outraged, as one might expect. Aside from the fact that image-hashing is more art than science — leading conspiracy theorists to expect an enormous number of false positives paving the way for unwarranted intrusions into innocent people’s lives — deep-packet inspection is not a tool to be used frivolously. At least that appears to be the position Congress and the FTC have taken. Even when the goal is as noble as protecting children, monitoring all internet traffic cannot be considered anything but an Orwellian invasion of privacy, free-speech advocates say.
“Child porn is kind of the ‘gateway drug’ to broader filtering of the internet, given that once ISPs take on the mantle of being kiddie porn cops, it’s a short jump to engaging in policing for the entertainment industry and others,” Karl Bode posted at the techie site DSLReports.com. “As Colorado law professor Paul Ohm recently noted, thanks to deep packet inspection, we’re entering a brave new world where the ISP plays the starring role in a potential privacy nightmare.”
Legitimate concerns aside, a new U.S. law signed October 13th by President George W. Bush may give Cuomo the loophole he needs to force ISPs to employ the practice anyway. Under the law, written by Republican presidential candidate Sen. John McCain, ISPs now have access to child-porn files maintained by the National Center for Missing and Exploited Children and previously unavailable to anyone outside law enforcement. The law doesn’t mandate ISPs use the files to match consumer transmissions against known child porn images, but it doesn’t forbid the practice, either. What the law does do is make felonious any ISPs failure to report “actual knowledge” of child porn.
So much for the Fourth and First Amendments.
Cuomo claims he is not endorsing Brilliant Digital’s service, and that may be true. That he is suggesting ISPs spy on their customers seems blatantly obvious, however. Given the AG’s previous behavior, it’s not far-fetched to believe he may employ threats to ensure they do so.
Cuomo’s forwarding of Brilliant Digital’s proposal is especially troubling in light of the company’s history. Before peer-to-peer file-sharing networks became anathema to people who value the health and wellbeing of their PCs, Brilliant Digital created spyware that sat on top of Kazaa’s network and gave users the option of paying for illegally downloaded music instead of just stealing it. The program, disguised as a music file itself, was installed on more than one million end-users’ computers before the ruse was discovered.
