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FCC Closes One Child Porn Loophole

WASHINGTON- In late August closed a gap between telecommunications carriers’ child porn reporting rules and rules that protect telecommunication customers’ network information, but another loophole remains.

The gap closed by the FCC left wireless and other telecommunications carriers potentially exposed to fines when they disclosed calling information of possible child porn offenders to the National Center for Missing and Exploited Children (NCMEC), the government-appointed clearinghouse that helps track child pornography for local and federal law enforcement agencies. Carriers are required by law to report child pornography activity, but in making such reports to NCMEC without customer approval, wireless and other carriers were technically violating customer information disclosure rules.

The FCC’s ruling addresses specific customer proprietary network information (CPNI) rules. Under its CPNI rules, carriers have to protect information about a customer’s call frequency, call duration and call timing, as well as any telecommunications services the customer purchases. However, another federal law requires them to report such information to the NCMEC. The FCC’s ruling effectively reconciles the two laws by saying that reporting such information in reports to the NCMEC doesn’t violate the CPNI protection rules if the carrier is compelled to report it.

However, the ruling doesn’t address another nagging problem in the reporting requirements. Wireless carriers still are in violation of federal criminal codes that prohibit the electronic transmission of child pornography, according to a wireless industry attorney familiar with the reporting procedures.

Specifically, wireless carriers would violate U.S. Code 18 U.S.C 2252 if they sent actual images in their NCMEC reports about child pornography images stored on their network facilities, says the official, who asked not to be identified. The Justice Department has yet to provide clarification or extend protection to wireless carriers from the code. The FCC can’t change the rule, he says. To report child porn images stored on their servers or other equipment to NCMEC, wireless carriers don’t send actual images to NCMEC; they send descriptions and where the images can be found on their facilities, along with a suggestion that NCMEC help law enforcement get a subpoena to obtain those images from the carrier. Sending actual images without fear of prosecution would greatly facilitate the reporting process, the official says.

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