There are few topics more likely to inspire an emotional reaction than child pornography, and rightly so. It shatters lives and traumatizes the helpless, sometimes beyond the point of recovery. Those who have been so injured often repeat the cycle of abuse on the next generation, unless there is professional intervention. Even then, the percentage of abusers who can be considered “cured” after undergoing treatment, never to molest children again, is mournfully low.
But this is part of the reason that charges leveled against Google by a New York politician have excited so much comment. It is deeply disturbing to think that the wildly popular search engine could be profiting from something as evil as child pornography. If these charges are true, then the filing is one tar-covered brush Google might never recover from. As you will see, however, that is an extremely big “if.” Indeed, Jeffrey Toback, the politician who filed the charges, would be well-advised to not make such serious charges so lightly, lest he turn public opinion against himself – hardly something that someone who works in an elected office would want to do.
Toback, a member of the Nassau County Legislature, filed the 16-page complaint against Google early this month in the state Supreme Court in Mineola. He filed it as a private citizen, using no county funds. The lawsuit accuses Google of making “its money, in part, by facilitating deviant criminals in the procurement, transfer and marketing of illicit and patently illegal material, including child pornography and other obscenity that is banned under federal and state law.” The gist of Toback’s complaint seems to be that, not only can users find child pornography by searching on Google, but that child pornographers can use Google’s AdWords system to pay for sponsored links to their sites when certain keywords are put into the search engine. Hence, by accepting payment for such ads, Google is profiting from child pornography.
The filing continues in the kind of inflated language one is far more likely to see in a public relations document or a press release than in a legal brief. “Simply put, Defendant is the largest and most efficient facilitator and distributor of Child Pornography in the world. Defendant has the technological and operational resources to curtail, if not eradicate, Child Pornography. However, Defendant has no desire to do so not because it is a defender of ‘free speech’ and ‘privacy rights’ on the Internet but, rather, because Child Pornography is a multi-billion dollar industry that has become an obscenely profitable and integral part of Defendant’s business model.”
Those are serious charges indeed. To take it down to brass tacks, the suit charges Google with negligence and intentional infliction of emotional distress. Unfortunately for Toback, however, these charges won’t stand up for a second in a court of law. I’ll explain why in just a moment.
First, let’s start with Google’s reaction to the charges. Google spokesman Steve Langdon said in a statement to the Associated Press that “When we find or are made aware of any child pornography, we remove it from our products, including our search engine. We also report it to the appropriate law enforcement officials and fully cooperate with the law enforcement community to combat child pornography.” Langdon also pointed out that Google’s SafeSearch service for its search engine filters out adult content. And he added that the company’s advertising policy, “which is online, says specifically: advertising is not permitted for the promotion of child pornography or other non-consensual material.”
This is exactly what one would expect a search engine to do, given the laws. They are not required to actively watch to make sure they aren’t providing illegal content; indeed, that would call for a lot more hands and eyes than all of the search engines combined could afford to hire. But they are supposed to respond quickly when that kind of content is pointed out to them, which Google does. So Toback has a problem with Google acting legally?
It’s interesting to note, at this juncture, that Toback didn’t file the lawsuit against any of the other major search engines, such as Yahoo or MSN or even Ask.com. It is fair to ask why not. Google may attract more searches globally than anyone else, but Yahoo and MSN still field their share of search queries, and they also accept search engine advertising and sponsored links; indeed, Yahoo owns the company that pioneered sponsored link advertising!
Let’s also look at how the complaint defines “child pornography.” It’s a pretty standard practice for legal documents to define their most important terms, and I’d expect it to be defined here. The passage that comes closest to defining it is under point five in the complaint: “Rather, Defendant continues to put its economic gains ahead of the interests and well-being of America’s children and their care givers who are being bombarded with child pornography and other repulsive material that is illegal to distribute to children (collectively, ‘Child Pornography’).”
Now hold on there! What exactly is meant by lumping in “and other repulsive material that is illegal to distribute to children” with “child pornography”? By that definition, pornographic material that is perfectly legal to distribute to, and be viewed by, consenting adults, depicting sexual acts performed between consenting adults, would be considered child pornography. While I agree that those sorts of things should NOT be shown to children, they are not “child pornography” by any legal definition of that term. One wonders at the competence of the lawyer who created the filing.
As Eric Goldman points out in his blog, the complaint “takes numerous gratuitous shots at Google, including swipes for doing business in China and using user data to target ads.” It does this by pointing out that Google apparently has the technical expertise to filter out searches for words like “democracy” for searchers in China, in accordance with the Chinese government’s demands, so it is presumably capable of filtering out and perhaps even eradicating child pornography. Unfortunately for Toback, it isn’t just a matter of filtering out a few simple terms, or child pornography would have been wiped out a long time ago.
This reminds me very much of the old “They can put a man on the moon, why can’t they (insert your favorite complaint here)?” kinds of arguments. That particular issue was solved by throwing lots of money and brains at the problem; that doesn’t always work. And usually the problem cited in comparison is of a different nature, as in this case. Not meaning to sound catty, but it might be too much to expect Toback to understand this, given that he only recently learned that Google has a SafeSearch feature. That’s something any responsible parent that allows his children to search on the Internet really ought to know about.
Now let’s move from the tone of the complaint to its actual arguments. Looking at point 18 of the complaint, it describes Google’s business model as being the same as a mall owner, and compares the searchers to “shoppers” and advertisers to “tenants.” Say what? Stay with me on this; it appears that this description is being used in order to permit the argument that Google is supposed to police its advertisers in the same way that a mall owner is supposed to police the businesses that are its tenants. But Google is not a mall owner, not even for purposes of analogy. To quote Goldman again, whoever drafted the complaint doesn’t “understand the difference between merchants and the media that distribute advertising for them.”
So, any laws applicable to a mall owner don’t apply here. Which ones do? There’s a code called 47 USC 230, of the Telecommunications Act of 1996. Under the section labeled “Protection for ‘Good Samaritan’ Blocking and Screening of Offensive Material,” we find that “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” Translation: Google cannot be treated as a child pornographer itself, even if child pornography crosses its network – at least, not so long as Google doesn’t know about it.
More important is the section on civil liability. Here we learn that “No provider or user of an interactive computer service shall be held liable on account of any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected…” Translation: Google’s SafeSearch and its diligence in removing child pornography from its index, as well as reporting it to the appropriate authorities, means that Google cannot be held liable, because it’s doing everything it can reasonably be expected to do to remove child pornography from its index and keep people from seeing it.
There are other reasons this complaint won’t stand up in a court of law, but 47 USC 230 seems the clearest. So why did this complaint even come up in the first place? What exactly is Toback after? Well, according to the complaint, he wants to compel Google to stop:
- advertising, promoting, or distributing any child pornography through its website;
- displaying any links to websites that display, market or provide any access to child pornography;
- providing access on its website to any website that distributes, displays or markets child pornography;
- violating state and federal statutes relating to child pornography;
- permitting illegal and criminal activities from persisting, unabated, on and through its website property;
- permitting users to access the Google website without Google first posting conspicuous warnings that users who attempt to search for, access, distribute, or market child pornography are subject to monitoring and reporting to law enforcement agencies; and
- operating the Google website without offering users effective technological tools that will restrict access to child pornography.
I’m not convinced that’s what Toback really wants, though. He calls himself a “Quality of Life Guy” in the bio he gives on the NassauCountyNY.gov website. He’s helped to preserve open and recreational spaces, and pushed legislation banning smoking in all restaurants, bars, and workplaces in the county. He’s proposed a law to raise the legal age to purchase tobacco to 19. He co-sponsored a law that requires anyone under the age of 18 who wants to use a tanning booth to get signed, written consent from his or her parent. He’s working on a law that bans the sale of toy guns in the county.
In short, this is a man who seems to be making his career on cries of “We must protect our children!” Protecting our children is all well and good, but if you’re going to do that, you’d better understand the technology you’re dealing with, and what you’re trying to protect them from. With this complaint, Toback has shown that he understands neither, let alone all the issues involved. Let’s hope he gets exactly the kind of day in court – and at the polls – that he deserves.