John McCain’s War On Blogs?

Amanda Terkel has a scary post detailing what she terms “John McCain’s War On Blogs.”

— Commercial websites and personal blogs “would be required to report illegal images or videos posted by their users or pay fines of up to $300,000.”

— Internet service providers (ISPs) are already required to issue such reports, but under McCain’s legislation, bloggers with comment sections may face “even stiffer penalties” than ISPs.

— Social networking sites will be forced to take “effective measures” — such as deleting user profiles — to remove any website that is “associated” with a sex offender. Sites may include not only Facebook and MySpace, but also Amazon.com, which permits author profiles and personal lists, and blogs like DailyKos, which allows users to sign up for personal diaries.

That certainly sounds intrusive and unnecessary.

Looking into the matter–using links Amanda provided–I’m a bit puzzled. The legislation is entitled “The Stop the Online Exploitation of Our Children Act of 2006.” I scanned through the legislation to see if McCain had somehow hid an anti-political blogging section in the bill but could find no evidence of that.

The CNet account of the bill confirms it:

Millions of commercial Web sites and personal blogs would be required to report illegal images or videos posted by their users or pay fines of up to $300,000, if a new proposal in the U.S. Senate came into law.

The legislation, drafted by Sen. John McCain and obtained by CNET News.com, would also require Web sites that offer user profiles to delete pages posted by sex offenders.

[…]

After child pornography or some forms of “obscenity” are found and reported, the Web site must retain any “information relating to the facts or circumstances” of the incident for at least six months. Webmasters would be immune from civil and criminal liability if they followed the specified procedures exactly. [emphases mine]

So, the bill is specifically targeted to child pornography. Not political commentary. Not profane language. Nothing that is even remotely “speech” is affected. We’re talking only about images and videos that would be classified as “obscene” and which involve children.

The requirement is hardly an onerous one, let alone a “war on blogs.” Most of us monitor user comments and the like already. In principle, I have no objection to complying with such a law if it passes.

Practically, however, it may be difficult for bloggers, especially those with large communitarian sites like DailyKos or RedState, to police their sites. I’m not sure how Markos Moulitsas would know whether some schmoe with a Diary has posted something objectionable, let alone whether a commenter on said Diary did. Indeed, even on comparatively small group blogs like OTB, the site owner is unlikely to keep up with the comments in posts made by other contributors.

My reading of the proposed law, though–and I am not an attorney–is that punishment is only in cases of “knowing and willful failure” or “negligent failure” to comply with the law and that there is “no affirmative duty” to seek out information. Presumably, then, the duty to report and maintain the records only attaches at such time as someone has made a credible report of illegal content on the site. I can certainly live with that.

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James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. madmatt says:

    So who gets to define obscene…the religious right who thinks an exposed nipple is something to cry about…or the administration that call all dems terrorists….its that slippery slope concept and you should really think again about how this could bite you on the butt…after all a user of your sight could be a deviant(and the number that have shown up on the right side of the political divide lately makes this likely)!

  2. James Joyner says:

    matt: There’s a pretty long history of case law on obscenity. It’s a rather narrow class.

  3. The other side of this is what if I comment, post a link which goes to some child porn? Do you have to report that or get a 300K fine? What if the link goes to a link that has child porn? What if the content on the link changes 6 months after the comment so now child porn is included? How many 300k fines could you absorb and keep blogging? How many times could you even defend yourself against a charge and keep blogging?

    Your site stores some minimal “user profile” information about commenters. How many of your commenters are registered sex offenders. And note, the law talks about sex offenders, not registered sex offenders making it even harder.

    Do you really have that much trouble imagining some of the Kossacks making a concerted effort to shut down the right side of the blogosphere in 2H08 using accusations. When you have a duty to report, then failure to report becomes the criteria for violation. The law is either useless because there is a loophole to drive a truck through with the Sgt. Shultz defense (“I see nothing, nothing.”) or the blogger can get blindsided by a commenter (or maybe even a commenter on a blog on their blog role depending on how far they take the linking).

    I would support making it easier to get search warrants to track down child pornographers using the web ad hefty finds for hindering the search warrants, but turning every web site owner into an informer is not the best way of fighting the problem with minimal potential unintended consequences.

  4. James Joyner says:

    John:

    Again, my understanding of the law is that the duty is limited to acting upon reports to the site admin about child pornography. There is already a similar duty on ISPs but the law makes clear that it is not adding on any duty to search out offensive content.

    If my reading of this is wrong, I’ll obviously come down the other way.

  5. Brian says:

    I posted about this days ago on Iowa Voice (here), and I think there is serious cause for concern.

    It’s shifting the burden on enforcement to bloggers. With the amount of spam that we get, say just one slips through that you miss…you’re in for a heap of trouble.

    As someone already mentioned, can you not imagine someone with a grudge against a certain blog trying to slip a link in on you in this way and then reporting you?

    It’s not our job to keep an eye on sex offenders, it’s law enforcements.

    What it will do, and this was my argument, too, not just Think Progress’, is shut down trackbacks and comments across the blogosphere, effectively killing us off. So we should be very concerned.

  6. rob says:

    Even if it is relatively innocuous, there’s still no justification for it. To think this is going to do anything to “stop the online exploitation of our children” is ridiculous.

  7. libhomo says:

    The purpose of this legislation is to shut down blogs run by individuals with day jobs. Comments on blogs can go back for years. Having to go back and look at every comment to see if some right-wing wacko might call it “obscene” (and this Justice Department is loaded with right-wing wackos) will have the effect of shutting down individual voices in the blogosphere.

    John “Keating Five” McCain is an extremely corrupt politician, and he always has been. This is an attempt to limit blogs to the corporate media.