Recently, MySpace announced that it was launching a program to monitor its site for child predators. The announcement prompted a discussion on the blogosphere about the potential abuse of active monitoring by social networking operators and law enforcement. In particular, Micah Sifry had a good post on Personal Democracy Forum entitled “Who’s Molesting Whom?” which discusses the dangers of the new policy and describes the potential slippery slope that the announcement portends.

He relates the troubling trend of prosecutors adopting fake identities to register as members of social networking sites in order to investigate low level crimes in the community such as vandalism among high school students and decries the “warrantless tactics” that appear to be proliferating with respect to law enforcement access to information posted on social networking pages.

But the news is even more complicated. Late last week, Sen. McCain introduced a bill: the “Stop the Online Exploitation of our Children Act” that would significantly expand an existing obligation by ISPs to report possible child pornography to the National Center for Missing and Exploited Children (NCMEC). The bill would:

• apply the reporting requirement to a broad range of social networking, blogging, and conversation sites;
• impose very significant fines on any service provider that fails to report possible child pornography; and
• require the service provider to retain any reported information for at least 180 days.

The bill would also require sexual predators to register their email addresses and Instant Messaging ids with law enforcement, and social networking sites, blogs and other chat sites would have an obligation to monitor and prevent predators from becoming members of the site.

Unpacking the bill is complicated. ISPs and the leading social networking sites already monitor their sites for illegal images and report on suspected child pornography to NCMEC) and there is no evidence that they are lax in that effort. So the effect of the law is simply to add the draconian weight of huge financial penalties to the mix. While the law expressly says that nothing in it should be construed to require ISPs and other covered operators to monitor any user, subscriber, or customer of that subscriber, there is little doubt that threat of sanctions could encourage operators including those who manage blogs to engage in the “creepy overkill” that Micah worries about. CDT will have more to say on the bill soon.

Second, I share Micah’s concern about how easy it is for the government to access personally identifiable information posted by subscribers of social networking sites. Unfortunately, the current state of Fourth Amendment law may put few limits on government access.

Under the Justice Department’s view of the Fourth Amendment, based on cases pre-dating the Internet, the information that we all store on third party networks, including our email, the pictures and itineraries that we post for friends to share and the deeply personal information we include on our social network pages, has little or no Fourth Amendment protection. Prosecutors argue that they do not need probable cause or a warrant to access that information. Under current law, a mere subpoena or similar instrument will suffice for the government to access older email and other stored data, and there is no requirement that either the service provider or the government notify you of the government’s demand. For information that you post on the Internet and that is generally accessible to all (even if you have to sign up to be part of a social network), you have no privacy expectation at all.

The fact is that our Fourth Amendment rights have been outstripped by the rapid change in technology. The current framework for privacy protection was laid down in judicial decisions and federal statutes in the 1970s and 1980s. Since then, the law has remained static while new technologies are creating records of our daily lives and our putting those records under the control of third parties. CDT released a report earlier this year on the state of the Digital Fourth Amendment, which everyone who actively participates in online citizen media ought to take a look at and help get the word out. We need to demand law reform sooner rather than later.

This entry was posted on Monday, December 11th, 2006 at 2:52 pm and is filed under Free Expression. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.