The list of advantages for helping uploaders (producers) to comply with USC
2257 record-keeping guidelines are numerous, and was the core part of my
April 2010 sexual content proposal. To clarify, I did not then and still do
not believe OTRS should be directly handing Personally Identifying
Information (PII) for sexual content, but should have a way of verifying
that it exists by at least keeping on file the name and address of the
individual(s) who are keeping the records. Mr. Sabol (below) thought that
Wikimedia should be setting an example of how educational institutions can
handle this issue responsibly.
In my opinion, the advantages of obtaining this information far outweigh
potential disadvantages. I've listed the advantages in multiple places, so
I'll just give a link to the latest discussion
.
The unfortunate part is that there's no support for this idea from the legal
council, in fact Mike Godwin's statements seem to indicate that we should
not be concerned with these records at all. This is unfortunate, because
there is no clear exemption for non-commercial or educational websites.
On Wed, May 19, 2010 at 7:31 PM, David Goodman <dgoodmanny(a)gmail.com> wrote:
This seems self-contradictory. If we are exempt
we're exempt. If we're
exempt we have no need to keep records. We would of course do well to
advise our users about their own responsibilities.
If we do decide to require some sort of certification--and I do not
oppose our doing so-- it raises the question that if we do it in such
a manner as to match the requirements of US law, even to the extent of
making use of a service set up specifically to meet that law's
detailed requirements, whether we would not be perhaps admitting in
advance that us law applies to us in this respect, and forfeiting our
defense that we are not a producer?
David Goodman, Ph.D, M.L.S.
http://en.wikipedia.org/wiki/User_talk:DGG
On Wed, May 19, 2010 at 4:16 PM, Stillwater Rising
<stillwaterising(a)gmail.com> wrote:
I contacted Drew Sabol; professor, attorney, and
owner of a 2257
record-keeping service called 2257services.net<
http://www.2257services.net/>
.
His opinion is the Wikipedia is something like a social networking site
that
accepts user submission. The Department of
Justice (DOJ) put out an
update
that discusses how child pornography laws apply
to small business here:
http://18usc2257.org/literature/DOJ-2257ComplianceGuide.pdf
On the top of page 4 there's a FAQ section that says:
*Q. How does the rule apply to social networking sites?*
A. Most social networking sites would not be covered by the rule because
its
definition of
“produces” excludes “the transmission, storage, retrieval, hosting,
formatting, or
translation (or any combination thereof) of a communication, without
selection or
alteration of the communication.” Social networking sites would not then
normally need
to comply with the rule’s record-keeping requirements, labeling
requirements, or be
required to maintain information concerning their users, and the rule
would
therefore
have no effect on the operations of the site. However, users of social
networking sites
who post sexually explicit activity on “adult” networking sites may well
be
primary or
secondary producers. Therefore, users of social networking sites may be
subject to the
rule, depending on their conduct.
He considers Wikipedia to be a social networking site therefore should
not
be considered a secondary producer (we do have
"selection or alteration
of
the communication" however). He thinks we
should find a way to make sure
that uploaders (who are primary producers if "own work" or secondary
producers if somebody else's) should be keeping records and there are
several ways to do this. We also need to report any suspected illegal
images
to the proper authorities.
Since Drew runs a contract record keeping service, he said he would be
willing to work out a deal with the Board of Trustees to modify his
website
so individual users can log in and upload records
while OTRS maintains
administrative rights to verify the records exist. His usual cost (after
set
up fees) is $1.00 per record. His email is
admin(a)2257services.net and he
is
willing to discuss the matter with a Board of
staff member who would like
to
know more.
More information:
Generic model affidavit:
https://www.2257services.net/forms/model-affidavit.html
Bloggers Legal Guide:
http://www.eff.org/issues/bloggers/legal/adult
*On Adult Material*: "The regulations imply that the record-keeping
requirement is restricted to commercial operations. This would seem to
exclude noncommercial or educational distribution from the regulation,
and
to limit secondary publishing and reproduction to
material intended for
commercial distribution. However, the DOJ has left wiggle-room, and it is
still unclear if they intend to go after noncommercial websites."