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Cuomo strong-arms Comcast over Usenet
Posted by Declan McCullagh 13 comments
New York Attorney General Andrew Cuomo has found a novel way to shake down law-abiding broadband companies: accuse them of harboring child pornography and threaten to prosecute them unless they do what he wants. That might just happen to involve writing Cuomo a hefty check.
The latest company to be honored by Cuomo's personal attention is Comcast, which received a two-page letter on Monday threatening "legal action" on child pornography grounds within five days, if its executives failed to agree to a certain set of rules devised by the attorney general.
In the letter (PDF), the Democratic politico says he wants Comcast and other broadband providers to "volunteer" to take actions "surgically directed" only at child pornography and "not at any protected content." He's targeting Usenet, the venerable pre-Web home of thousands of discussion groups that go by names like sci.math, rec.motorcycles, and comp.os.linux.admin.
That might be laudable, if it were true. But Cuomo's ham-fisted pressure tactics already have led Time Warner Cable to pull the plug on some 100,000 Usenet discussion groups, including such hotbeds of illicit content as talk.politics and misc.activism.progressive.
Verizon Communications deleted such unlawful discussion groups as us.military, ny.politics, alt.society.labor-unions, and alt.politics.democrats. AT&T and Time Warner Cable have taken similar steps.
Cuomo's response: "I commend the companies that have stepped up today to embrace a new standard of responsibility, which should serve as a model for the entire industry." (By that standard of responsibility, an entire library should be burned down, if a single obscene book happens to be found on its shelves.)
After that unqualified success in "surgical" targeting, Cuomo took aim at AOL. On July 10, Cuomo lauded AOL for agreeing to "eliminate access to child porn newsgroups." What that press release didn't mention was that the Time Warner unit actually had eliminated all Usenet newsgroups in January 2005.
What makes Cuomo's quixotic campaign doubly inexplicable is that Comcast doesn't actually run its own Usenet servers. It outsources that to a third-party provider based in Austin, Texas, called Giganews.
Ronald Yokubatis, Giganews' chairman and a native Texan, said he couldn't grant a full interview by our deadline today. When we talked to him last month about the earlier stages of Cuomo's campaign, Yokubatis labeled it "fascist crap, ignorant" that came from "Demorats." He added: "We welcome the New York attorney general to the battle against child pornography."
Yokubatis did confirm on Tuesday that he has been contacted by and has had conversations with the New York attorney general's office.
Comcast is no slouch in the child porn fight: it helped organize an industry-wide agreement last week with 45 attorneys general. But what was good enough for the National Association of Attorneys General was not good enough for New York; we're told that Cuomo was one of the handful of officials to withhold his signature.
The odd thing about round three in Cuomo v. Usenet is that Comcast has a minuscule presence in the Empire State, which has been sewn up by rivals Verizon and Time Warner Cable. The company's own figures put its market share at a mere half of a percent of the state's broadband subscribers, and only because Comcast serves communities in Pennsylvania and Connecticut that spill across state borders.
What Cuomo wants the broadband providers to do is sign a so-called code of conduct, which has not been made public. This follows Cuomo's efforts to impose a code of conduct on student loan providers and home lenders (based on the theory that prosecutors, not the New York legislature, should be regulating businesses).
Unfortunately, what Cuomo is doing--sources say the attorney general himself is working the phones--is likely prohibited by the First Amendment. Governmental efforts at censorship must be narrowly focused, and censoring 100,000 newsgroups because 88 may have illegal images fails that test. Courts have ruled that if a government official delivers a credible threat of prosecution, the target may ask a judge to clear things up through what's called a declaratory judgment.
Like its rivals, Comcast seems unwilling to publicly confront a state attorney general, who would surely claim to be trying to protect the children. Spokesman Sena Fitzmaurice said on Tuesday that Comcast's lawyers are evaluating Cuomo's request and that the company may enter into an agreement with New York "substantially similar to the agreements they announced recently with AT&T and AOL."
That might be a good short-term response. But over time, it may encourage more attorneys general to play Net censor, especially if they come to view broadband providers as compliant, off-the-books sources of revenue. This seems to be Cuomo's opinion; his press release said Verizon, Time Warner Cable, and Sprint will pay "$1.125 million to fund additional efforts by the attorney general's office and the National Center for Missing & Exploited Children to remove child pornography from the Internet."
"It's a shakedown racket, pure and simple," says Jim Harper, a lawyer who is director of information policy studies at the Cato Institute. "These companies know that the New York attorney general can cause them millions in legal bills and PR damage, and they're paying for protection. 'Nice ISP you've got here. It'd be a shame if anything happened to it.'"
If a private-sector lawyer tried that, he might be prosecuted on extortion charges. But for New York's top prosecutor, it seems to be business as usual.
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