BuffNET, a large regional ISP in Buffalo, New York, has pleaded
guilty before the State Supreme Court to knowingly providing access
to child pornography. The ISP failed to remove offending web pages
after being alerted to their presence.
BuffNET will be sentenced later this week although, because
charged with a Class A misdemeanour, it faces a fine up to a
maximum of only $5,000.
Beginning in 1998, the New York Attorney General’s Office and
the State Police began an investigation of an internet newsgroup
that called itself "Pedo University," whose members used the group
to exchange child pornography. After a series of successful
prosecutions that helped to dismantle "Pedo U," the investigation
turned its focus from the users of the newsgroup to the ISPs that
provided access to the newsgroup. One of these was BuffNET. When
BuffNET was made aware of the content of the newsgroup, it took no
action.
"When BuffNet, or any ISP, is informed of
this kind of heinous criminal activity, it has a duty to act. Here,
Buffnet chose to look the other way," Attorney General Eliot
Spitzer said. "This response is not defensible by any standard of
law or conscience."
Until now, prosecutions in this area focused primarily on
individuals who subscribed to an ISP like BuffNET, and who logged
on to a newsgroup and downloaded and traded in child pornography.
The Attorney General’s investigation widened its focus to include
the ISP that knowingly provided the means and the opportunity for
this criminal conduct to occur.
"This case establishes a common sense
standard for the internet," Spitzer added. "When an ISP becomes
aware of illegal child pornography available in its system, the ISP
cannot put its head in the sand."
"Clearly the failure of the Internet Service
Provider to identify and terminate the access to child pornographic
sites is gravely unfortunate. Because the internet knows no
geographic boundaries, it is incumbent upon the ISPs, legally and
morally, to be ever vigilant in protecting the public from this
criminal activity," said State Police Superintendent James W.
McMahon.
BuffNET admitted that it failed to take action when it was
notified by a customer as well as by law enforcement that one of
the newsgroups it carried was being used to distribute graphic
child pornography.
In a statement, the company said:
“BuffNET has consistently maintained that it
played no role in actively promoting the possession or distribution
of illegal material on its server. The investigation by the New
York State Attorney General's Office has not disclosed otherwise.
At worst, the product of the earlier input by corporate counsel
(that no illicit material had been detected on our server), and the
inadequacy of the company's internal communications regarding the
law enforcement visit was a failure on BuffNET's part to conduct an
appropriate follow up after that visit. That arguably helped the
individuals - who have no connection whatsoever to BuffNET, its
customers or subscribers - who were responsible for posting illicit
images on the newsgroup in question to perpetuate the availability
of the images to users of the internet.”
In the US, as in the UK, ISPs are under a duty to remove illegal
material when its presence is brought to their attention although
they are not required to police the content of their servers.
