House Subcommittee Holds Hearing on P2P Smut

May 6, 2004. The House Commerce Committee's Subcommittee on Commerce Trade and Consumer Protection held a hearing titled "Online Pormography: Closing the Doors on Pervasive Smut".

Several members of Congress and child advocates condemned P2P child porm, and called for passage of HR 2885, the "Protecting Children from Peer to Peer Pormography Act". Representatives of the P2P industry argued that the attack on P2P porm is being promoted by the entertainment industries to destroy the nascent P2P industry in order to protect copyrighted works.

Rep. Joe Pitts (R-PA), Rep. Chris John (D-LA), and others, introduced HR 2885 on July 24, 2003. See, stories titled "Representatives Introduce Bill to Protect Children from P2P Smut" and "Commentary: Spyware and P2P Smut Bills Would Also Restrict P2P Infringement" in TLJ Daily E-Mail Alert No. 706, July 29, 2003.

The bill provides that "It is unlawful for any person to distribute peer-to-peer file trading software, or to authorize or cause peer-to-peer file trading software to be distributed by another person, in interstate commerce in a manner that violates the regulations prescribed under subsection (b)(2)." Subsection (b)(2), in turn, requires the FTC to write regulations that impose eleven requirements.

For example, it requires the Federal Trade Commission (FTC) to "require any person who distributes, or authorizes or causes another person to distribute, peer-to-peer file trading software in interstate commerce to ... obtain verification of majority, or if a recipient is a juvenile obtain verifiable parental consent, before the peer-to-peer file trading software is provided to the recipient ..."

It also requires that P2P software that is capable of circumventing security measures, such as firewalls, not activate that capability unless the user first receives notice of that capability.

It also requires the FTC to "ensure that the peer-to-peer file trading software has the capability to be readily disabled or uninstalled by a user thereof, and prominent means to access clear information concerning the availability and use of that capability".

It would require the FTC to define "peer to peer file trading software" to encompass "computer software that enables the transmission of computer files or data over the Internet or any other public network of computers and that has as its primary function the capability to do all of the following -- (A) enable a computer on which such software is used to transmit files or data to another such computer; (B) enable the user of one such computer to request the transmission of files or data from another such computer; and (C) enable the user of one such computer to designate files or data available for transmission to another such computer, but which definition excludes, to the extent otherwise included, software products legitimately marketed and distributed primarily for the operation of business and home networks, the networks of Internet access providers, or the Internet itself".

Charles Catlett, of the University of Chicago, stated in his prepared testimony that this definition "covers nearly all Internet software that I am aware of, including Web software, instant messaging software, and file transfer programs."

He added that "the exclusion of software that is ``marketed and distributed primarily for the operation´´ of networks implies that functionality built into computer operating systems (such as Windows and MacOS) would be excluded from these requirements." (Parentheses in original.)

He said that "This would put small software companies at a distinct disadvantage relative to their larger competitors."

Michael Lafferty of the Distributed Computing Industry Association (DCIA) had harsh words for the entertainment industry. He wrote in his prepared testimony that "The entertainment industries' continuing emphasis on peer-to-peer pormography is unreflective of the much greater relative presence of pormography on the Web, and of the much greater ease of transmitting pormography via e-mail and instant messaging attachments, not to mention the far greater risks of criminally obscene content available on websites, and of predatory dangers in chat-rooms. And it is so dismissive of peer-to-peer providers' efforts to work with law enforcement and to incorporate parental control software into their products that is starts to take on the character of a red herring. The inaccurate pornography charge too, is one of the pillars of the entertainment companies' platform for destroying the nascent distributed computing industry, oblivious to the damage wrought by their own intentional and shameful role."

He added that "Both copyright infringement and exposure of children to pornography are real problems, and we condemn them. However, we also encourage the Congress to consider that the possibility that the entertainment industries' ceaseless chant of piracy, and their unbalanced and diversionary claim of pormography, are not such issues as demand an inexorable tightening of the legislative screws on millions of Americans".

Adam Eisgrau of P2P United was not a witness, but submitted testimony for the record, and attended the hearing. He wrote that "Unlike the entertainment industries that have sought to demonize peer-to-peer technology and its developers while apparently taking no affirmative steps themselves, the member companies of P2P United have taken concrete action to help protect our children." He outlined two initiatives of P2P United.

Rep. Pitts (at right), the lead sponsor of HR 2885, stated at the hearing that "This is not about the recording industry. It's about the peer-to-peer industry. They don't get special treatment. Their product is used to hurt children."

He said that "Peer-to-peer distributors should be held accountable for the smut they actively put into the hands of our children. They should be expected to allow parents to protect their children, not ridicule their efforts to do so."

He also said that smut filters, that are based upon keywords, do not work against P2P smut. He continued that pedophiles mislabel child porm files with names that children will enter in searches, such as "Cinderella, Pokemon, Snow White". He suggested that unless this is "pedophile code talk", then "children are the only possible target of this false labeling".

Rep. Cliff Stearns (R-FL), the Chairman of the Subcommittee, praised the beneficial applications of P2P technology generally, but added that P2P applications are now being used to target children with pormography with mislabeled file names.

Rep. Janice Schakowsky (D-IL), the ranking Democrat on the Subcommittee, pointed out that there is far more web based smut than P2P based smut. She also said that P2P is a legitimate way for artists to distribute their work when they cannot get play time on radio stations.

Rep. Joe Barton (R-TX), the Chairman of the full Committee, did not participate, but submitted a statement for the record. He wrote that P2P pormography "is a problem of illegal behavior related to content, not technology. Distributed computing is more than just peer-to-peer file sharing of music and other pop culture type files -- it is an exciting area with scientific benefits that will accrue to industry and to the public."

Linda Koontz of the Congress's General Accounting Office (GAO) testified that the GAO has found that child pormography is placed on P2P networks with file names that children are likely to enter in searches.

Keith Lourdeau of the FBI testified that "In 2001, the FBI received 156 complaints about child pormography in Peer-to-Peer networks. By 2002, the number of complaints had risen to 757." He added that FBI agents "have determined Peer-to-Peer networks are one of many Internet havens of the open distribution of child pormography."

"To combat this, the FBI has created an investigative protocol for Peer-to-Peer investigations to begin aggressively apprehending offenders." He did not explain this protocol. Nor did he discuss any cases. He said that "discussion of these cases could possibly jeopardize ongoing investigations". Also, when asked about which companies are cooperating, he declined to provide information in public session.