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The SAFE Act and Sensationalism

On December 5th, the House of Representatives approved the Securing Adolescents from Exploitation-Online (SAFE) Act by a vote of 409 to two.

In “House vote on illegal images sweeps in Wi-Fi, Web sites”, CNet News’s coverage of the SAFE Act that made the internet rounds today, Declan McCullough opens with quite a hook:

The U.S. House of Representatives on Wednesday overwhelmingly approved a bill saying that anyone offering an open Wi-Fi connection to the public must report illegal images including “obscene” cartoons and drawings– [sic] or face fines of up to $300,000.

McCullough’s opener, while successfully generating a comment thread fueled by anti-Federalists who didn’t bother to read the remainder of the article or the act itself, severely misrepresents the SAFE Act with an egregious omission.

The SAFE Act specifies punishment for “an electronic communication service provider or remote computing service provider that knowingly and willfully fails to make a report” of illegal traffic on its network. The operative words here are “knowingly” and “willfully,” and McCullough knowingly and willfully chose to ignore them.

It is not until the 356th word of his article, “learn,” that McCullough even alludes to the SAFE Act’s limitations—so I’ll clear things up for him.

The Securing Adolescents from Exploitation-Online Act absolutely does not apply to network traffic service providers are unaware of, nor does it require or even encourage service providers to become aware of illegal activity they would be required to report:

Nothing in this section shall be construed to require an electronic communication service provider or a remote computing service provider to:

1. monitor any user, subscriber, or customer of that provider;
2. monitor the content of any communication of any person described in paragraph (1); or
3. affirmatively seek facts or circumstances described in subsection (a)(2).

The most amusing quality of the SAFE Act is that it’s not even anything new (a fact it cost me five minutes of poking around in the United States Code to discover). Before December 5th, anyone knowingly distributing child pornography was already a criminal under a number of laws, including Title 42’s Section 13032 and Title 18’s Section 2252A:

Any person who…knowingly mails, or transports or ships in interstate or foreign commerce by any means, including by computer, any child pornography…shall be punished as provided in subsection (b).

All in all, I’d say McCullough must be pretty satisfied with himself for creating a good amount of ruckus over an essentially redundant law.

Congress must intend the SAFE Act as a clarification on reporting illegal traffic, but service providers will see it as another disincentive to monitor their network traffic. By further regulating responsible network monitoring, the government is encouraging an “ignorance is bliss” philosophy when it comes to illegal activity over the internet—a service provider assumes risk proportional to its knowledge about user activity.

The lesson for America’s average e-citizen is this: it’s best not to leave your WiFi network open, but if you must, be sure not to check up on it.