On January 26, 2000, the U.S. House of Representatives overwhelming approved the Illegal Pornography Prosecution Act of 2000 (H.R. 4710).  This bill, if enacted into law, will appropriate $5,000,000 for the sole purpose of funding federal prosecutions of pornography. [1]  More importantly, the bill sends a political message to the Department of Justice, which has not brought an Internet obscenity case since 1996, that the Congress wants enforcement actions brought against on-line pornographers.[2]

This legislation, and the pressure on the Department of Justice that it represents, likely will affect providers of Internet access and web hosting services.  Specifically, on-line service providers should be aware of the following:

Subpoenas and Other Requests for Information

In connection with investigations of obscenity, service providers may receive requests from law enforcement agencies for information concerning their subscribers.  If our clients' past experiences are any guide, such requests often will not comply with the requirements of the Electronic Communications Privacy Act, which prohibits disclosure of customer information to governmental agencies except in response to a warrant or other appropriate process.  Because disclosures in response to a defective request may subject the service provider to a lawsuit from its customer, all law enforcement demands for customer information should be referred to legal counsel for evaluation and response.

Possible Prosecution of Internet Access Providers and Web Hosts

On-line pornographers are often based in foreign countries and are, at best, difficult for law enforcement agencies to reach.  For this reason, providers of Internet access, web hosting, Usenet newsgroup posting and other on-line services are an attractive, alternative target for prosecution.

Although prosecution of service providers for carrying pornographic content of others presents difficult constitutional questions (and may be proscribed by the Communications Act),[3] service providers should not assume that such enforcement actions will not be attempted.  In this connection, any letters or other communications that purport to put a service provider on notice of the presence of obscene content on its network should be reviewed by counsel.  Such notification letters may later be used to prove the service provider's actual or constructive knowledge of the presence and nature of pornographic material on its service.[4]

Conclusion

The funds appropriated by the Illegal Pornography Prosecution Act of 2000 are expressly earmarked for prosecutions of obscenity, and the statements of the bill's sponsors make clear that Internet content is the intended target.  Accordingly, if the bill becomes law the Department of Justice will have no choice but to bring such prosecutions, and those criminal investigations inevitably will involve the service providers that facilitate the defendants' access to the Internet.

For more information, contact Charles H. Kennedy in our Washington DC office.

Because of the generality of this memorandum, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.