Critics Question NCMEC Role in Policing Web for Child Porn
Internet service providers’ voluntary agreements with state attorneys general to cooperate more closely on child porn highlight the role of the National Center for Missing and Exploited Children. The federally-funded nonprofit center seems to taking on duties usually handled by police agencies and its activities raised serious due-process questions, critics told us.
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Federal law requires the center to create a “blacklist” of URLs tagged as “known child pornography sites” -- in the words of NCMEC President Ernie Allen, the “worst of the worst.” A memorandum of understanding with NCMEC requires many major ISPs to enforce the list.
Web sites aren’t told they're on the blacklist and can’t appeal their listings beyond having NCMEC “verify” that a site no longer hosts illegal content, Allen said. The center checks the sites on its own “every day” to see if material is taken down, he said.
The list is off-limits to outsiders. When we asked to see part of it, Allen said the center refuses to release the list, including to the media. Access to the list could lead someone to view an outlaw image, a federal crime, he said. NCMEC provides the list only “law enforcement and to Electronic Service Providers that enter into an MOU with us… We are working very hard to ensure that the list is current and that URLs that no longer contain illegal content are removed from the list immediately,” through “active, daily communication” with ISP signers. News media could report wrongly that a site is on the list after it has been removed, Allen said.
And telling site owners they're “blacklisted” could jeopardize enforcement, Allen said. ISPs are required by law to take down offending material, he said, but not to notify the content owner.
Who Gets the Power?
NCMEC’s expanding role raises significant questions, said the Progress & Freedom Foundation’s Adam Thierer. He’s a member of the Internet Safety Technical Task Force organized by Harvard’s Berkman Center to work on Internet safety tools. Several ISPs and Web companies take part, along with NCMEC. The task force, born of MySpace’s tangles with states over child safety, reports quarterly to attorneys general. It was to make formal recommendations by year-end, but they have been put off to the first quarter of 2009 (WID July 25 p4).
The task force hasn’t focused on child porn, Thierer said. Instead, it has concentrated on age verification methods and ways to keep youngsters from accessing content. He expressed concern that stressing the center’s “blacklist” means “turning a blind eye” to those creating the porn, a process scarcely affected by pressuring ISPs.
A private body, NCMEC doesn’t come under the Freedom of Information Act, and isn’t accountable for its methods in creating its “blacklist,” Thierer said. Without independent review, Thierer said, he’s concerned by the center’s ability to create a list that the law requires ISPs to enforce. “Is that a power for a private institution?” he said.
The center works with liaison officers from the FBI, Secret Service, Immigration and Customs Enforcement and other agencies, Allen said. But by law NCMEC alone makes the list. Allen and Thierer both said there is no “due process” for someone whose site is on the list to have it removed. Allen said he doesn’t see this as a problem, since the center’s procedures ensure that sites stripped of illegal content come off the list, he told us. But NCMEC wouldn’t say how often or how thoroughly the list’s accuracy is verified.
NCMEC checks blacklisted sites “every day” and procedures in place are sufficient, Allen said. He repeatedly reminded us that listed sites carry the “worst of the worst” content, voicing confidence that if such content disappears from a URL, it comes off the list. NCMEC can maintain an up-to-date list, he said, repeatedly discounting the chances of a URL landing on the list by mistake.
NCMEC isn’t operating as a law enforcement agency, Allen said. The center’s liaison agencies exercise their individual powers, he added.
Mark Esser, chairman of the California ISP Association, endorsed the center’s activities but said he sees “a lack of legal due process for anyone who is wrongfully added to the list.” The center’s goals are admirable, but the NCMEC system is fatally flawed, Thierer agreed. Thierer expressed deep concern over the precedent set by the NCMEC process: “This is the beginning of the making of a body of secret law.” - Andrew Feinberg