Intellectual Property Law

Andrew Cuomo's Sorry Threat to Sue Comcast

By Cynthia Brumfield

New York Attorney General Andrew Cuomo probably thinks he'll score political points and votes with his campaign against the dissemination of child pornography on usenet groups, and he's probably right. He also likely believes that he'll look tough by threatening Comcast, a cable operator that everybody seemingly loves to hate. He's probably right on this point too.

Cuomo, you see, has threatened to sue the Comcast if it doesn't agree to go along with his plan to block suspected child porn usenet groups. Few people will openly defend Comcast these days and almost nobody will defend anything related to child pornography. Cuomo, in other words, is shooting fish in a barrel.

There's nothing new about a politician mounting a no-brainer bid for positive publicity, but by threatening to sue Comcast, Cuomo is alienating most people who actually use their brains. For one thing, as Declan McCullagh suggests, Cuomo's effort to "strong-arm" Comcast seems "ham-fisted." Declan quotes one observer who likens Cuomo's effort to a shake-down racket.

For another thing, Cuomo doesn't really have grounds on which to sue Comcast, as Mike Masnick points out. In refusing to sign Cuomo's proposed code of conduct that forces ISPs to screen out newsgroups, what law, exactly, has Comcast broken?

As Mike points out, the real threat to Comcast is not losing a lawsuit -- Comcast would surely prevail against any complaint that Cuomo files -- but getting publicly painted as a company that protects child porn. "That's a rather sickening abuse of power," he writes.

But Cuomo's bullying is a threat to all of us because it is yet another example of a politician attempting to jettison constitutional rights, in this case the First Amendment right to free speech, for his own expedient ends. In a poorly crafted rationale (surprisingly bad, actually, given that we're talking about New York's top attorney here), Cuomo says that Comcast doesn't qualify for First Amendment protection because "the possession or distribution of child pornography is both a federal and state felony."

Um, last I checked, Comcast neither possesses nor distributes child pornography. The law is very clear that ISPs can't be held accountable for what third parties do on their networks. By attempting to hold Comcast liable for what its users do, Cuomo is not only messing around with our free speech rights (a lot of legitimate usenet groups can get disabled under Cuomo's plan) and Comcast's own free speech rights but he's also opening the door to further control of content flows by ISPs, something that runs counter to an open and neutral Internet.

The rising tide of smart voices against Cuomo's clumsy and blunt bid to be seen as a crusader against child pornography may, in fact, transform this dance of demagoguery into a political stumble. In the meantime, Comcast says it will probably sign Cuomo's agreement. That's too bad.

Full post as published by IP Democracy on July 23, 2008 (boomark / email).