Internet Server Provider Requirements to Report Child Pornography
Internet service providers (ISPs) occupy a unique place in modern society. They provide internet access to millions of people across the United States, which allows instantaneous communication, exchange of ideas, and, unfortunately, a new haven for criminal activity.
Because of their unique role in facilitating online communication and commerce, ISPs are subject to certain federal laws regarding child pornography and child sex trafficking.
Revision Legal’s internet and privacy attorneys have experience drafting website and software privacy policies, advising on privacy law compliance, and enforcing state law privacy torts. Our privacy law attorneys can advise you or your business on compliance with:
- State privacy law
- The Children’s Online Privacy Protection Act
- California’s Shine the Light law
- The European Union’s General Data Protection Regulation (GDPR), which replaced the EU Data Protection Directive on May 25, 2018
Child Pornography
Under Federal law, it is illegal to produce, distribute, import, receive, or possess any image of child pornography. Images do not need to depict sexual activity. Instead, a picture of a naked child can be considered child pornography if it is sexually explicit. Minors under the age of 18 can not consent to be in these images.
While adult pornography that is not “obscene” is protected by the First Amendment free speech protections, child pornography is not protected. Individuals violating federal child pornography laws are subject to strict criminal punishments, including harsh jail sentences.
Child Sex Trafficking
Child sex trafficking is the recruitment, harboring, transportation, provision, obtaining, or advertising of a minor child for the purpose of a commercial sex transaction. Being convicted of this crime can result in serious criminal penalties. Federal laws also provide for civil asset forfeiture of property owners who ignore human smuggling on their land.
The internet is the major hub for facilitating human sex trafficking. A recent study of child sex trafficking survivors reported that 75% were advertised online. Additionally, the FBI estimates that at any given moment, 750,000 child predators are online.
ISP Requirements For Reporting Child Pornography
ISPs are required by 18 USC §2258A to issue a report to the National Center of Missing or Exploited Children (NCMEC) when they obtain knowledge of facts or circumstances involving:
- Sexual exploitation of children;
- Selling or buying of children;
- Production or distribution of child pornography; and
- Websites designed to trick minors into viewing pornography or other obscene material.
This report must contain information regarding:
- The individual user, including his or her email address or IP address
- The history of the transmission, including when and how it occurred
- The geographic area of the involved individual, including the IP address, or the verified billing address
ISPs must also provide any images of apparent child pornography, as well as the complete communication regarding any images of apparent child pornography, including any digital files contained in or attached to the communication.
ISPs are not required to actively search their systems for information regarding sex trafficking or child pornography, nor are they required to monitor individuals for these types of communications.
A provider that knowingly and willfully fails to make a required report can be fined. Under the REPORT Act of 2024, the maximum fine for a first failure is $600,000, or $850,000 for a provider with at least 100 million monthly active users, and the maximum for a second or later failure is $850,000, or $1,000,000 for the largest providers (18 U.S.C. § 2258A(e)). The REPORT Act also added apparent child sex trafficking and enticement of a minor to the violations that must be reported, and requires providers to preserve the contents of a report for one year.
The NCMEC will forward these reports to appropriate local, state, federal, or international law enforcement agencies and relevant attorney general for investigation. This collaboration across domestic and international jurisdictional lines is important because a significant amount of child pornography and sex trafficking is done between jurisdictions.
Contacting the NCMEC
The NCMEC’s website is http://www.missingkids.com/home, and its CyberTipline can be contacted at 1-800-THE-LOST (1-800-843-5678) or online at https://report.cybertip.org/.
Other Efforts to Stop Child Pornography and Child Sex Trafficking
Due to the widespread, international nature of child pornography and child sex trafficking, it must be tackled on a number of different fronts.
Because of the serious nature of these crimes, both the US government and private ISPs have undertaken efforts to curb the distribution and production of child pornography and end child sex trafficking.
Private Internet Provider Efforts to Block Child Pornography
In addition to the federal government’s efforts to curb these practices, private internet service providers have reformed their services to block child pornography.
In 2008, Comcast and NetZero joined Verizon and Sprint in taking steps to block child pornography. These companies block bulletin boards where images are disseminated, as well as child porn news and web sites. These efforts to remove old images from circulation will allow law enforcement to focus on more recent images of children who are more likely to still be victimized.
Search engines, such as Google and Bing, are also blocking searches for restricted material, and are working to tackle peer-to-peer sharing of these images. A study analyzing data between 2011 and 2014 showed that these efforts reduced this type of search traffic by 70%.
Senate Fact Finding Into Online Criminal Activity
Finally, the federal government has many investigative tools that can be utilized to expose criminal activity online.
Before federal authorities seized it in April 2018, the largest online marketplace for commercial sex was Backpage.com. According to a 2017 Senate Subcommittee Report, the website was involved in 73% of all child trafficking reports received by the NCMEC.
This investigation looked into whether Backpage.com was merely a conduit for criminal activity, or if the site was actually involved in promoting the criminal activity. If, as Backpage.com claimed, it was merely a conduit, it would be immune from liability under the Communications Decency Act (CDA), which provides certain levels of immunity for ISPs and websites that make content available online and have good-faith screening processes to block offensive material. However, if Backpage.com was an active participant in criminal activity, the site could face criminal and civil liability.
Over the course of a nearly two-year investigation, the Senate discovered that not only was Backpage.com editing customer ads for child trafficking or pornography in order to remove words suggesting criminal activity, but also that it was coaching customers how to post “sanitized” versions of the ads to avoid detection.
Backpage.com had previously avoided liability for criminal activity under the CDA because the extent of its involvement with the criminal activity had not been known. The Senate subcommittee’s fact finding helped exposed Backpage.com’s practices, paving the way for lawsuits from victims of sexual exploitation. One such lawsuit was filed in June 2017 (1:17-cv-11069).
The Senate investigation was followed by federal action. In April 2018, Congress enacted FOSTA-SESTA, which removed Section 230 immunity for certain sex trafficking claims, and federal authorities seized Backpage.com and shut it down. The episode shows that the government is willing to use every tool available to pursue this kind of criminal activity online.
For more information on ISP disclosures or compliance requirements with federal and state laws, contact Revision Legal’s team of experienced internet attorneys through the form on this page or call 855-473-8474.
