Why Is Andrew Cuomo Pushing ISPs To Use Spyware On Everyone's Internet Traffic?

from the political-ambitions-over-common-sense dept

We've already covered NY AG Andrew Cuomo's ridiculous crusade to get ISPs to censor content in a misguided attempt to stop child porn. Obviously, stopping child porn is a good goal, but Cuomo's approach actually makes the problem worse and sets a dangerous precedent. First, rather than actually tackling the root of the problem, Cuomo simply demanded that ISPs block any site that he and a group he supports consider to be child porn. Of course, they have no legal requirement to block them (section 230 of the CDA was written to make it clear that ISPs are not at all liable here), but Cuomo got around that by promising to shame publicly any ISP that didn't implement his plan. This is the lowest of the low of political tricks, and it would simply be lying. An ISP may be quite committed to stomping out child porn, and could recognize that Cuomo's tactics actually make the problem worse, by not targeting the actual pornographers -- and Cuomo would still publicly splash their names across the news as not wanting to stop child porn.

In fact, a recent look at the details of Cuomo's highly publicized campaign found that Cuomo clearly exaggerated the extent of the problem for political benefit, forcing ISPs to block all of Usenet, despite 99.9997% of the 3.7 billion available Usenet articles being perfectly legitimate content. But that's not stopping Cuomo. In fact, he's going even further.

He's been sending ISPs a presentation from a company called Brilliant Digital that's offering a "deep packet inspection" system that could scan every file sent across an ISP's network and try to determine if it was child porn. Yes, Cuomo is suggesting that ISPs spy on every single file sent over their network now, 4th Amendment be damned. Brilliant Digital even claims that its system can trick users into sending files unencrypted, so even those who send encrypted traffic could be spied upon. Cuomo claims that he's not endorsing the product, but just thought ISPs would be interested in looking into it. Yet, given his heavy handed tactics earlier in this effort, it's pretty clear what message he's sending.

But why Brilliant Digital? If the name sounds familiar, it's because the company has an extremely sketchy past that has been touched on before. It was, effectively, one of the first surreptitious "adware" installs, back in the day, when it tried to secretly distribute a "legit" P2P file sharing system that would sit on top of the popular Kazaa and give you the option of paying for songs rather than just straight file sharing them. The software was downloaded and secretly installed on one million computers, before it was revealed.

This is the company our politicians want spying on every packet sent across the internet?

Not only that, but Brilliant Digital is also (of course) rather aggressive on the patent front, suing Streamcast for daring to make use of a hash system for trying to identify music tracks being shared over a P2P network. So we have an Australian spyware company that wants to scan every bit of traffic and identify it (even if it's encrypted), and it's being pushed by a US politician who has a history of trying to publicly shame companies into doing his bidding, even if it involves lying about them. And, the whole damn thing almost certainly violates the 4th Amendment.

Last week, we wrote about Paul Ohm's suggestion that we should create a stronger privacy law that outlawed deep packet inspection, as that would pretty much stop any attempt to break net neutrality without requiring special net neutrality laws. It's worth noting that such a law would also have the added benefit of making it doubly clear to Cuomo that such a program is quite illegal.

Reader Comments (rss)

(Flattened / Threaded)

    slashdot reader, Oct 17th, 2008 @ 7:25am

    extra info from wikipedia


    According to the Wikipedia entry on Australian copyright law [wikipedia.org] "[...]Brilliant Digital Entertainment in Australia were raided for copyright violations[...]" in 2004.
    It looks like someone switched sides but taking a closer look they only seem to be in charge of the adware that came with Kazzaa, so I guess they were always evil.


    reply to this | link to this | view in thread ]

    Dan, Oct 17th, 2008 @ 7:48am

    Big Media would never allow it

    Big Media would never allow a law that outlaws deep packet inspection, not to mention the goverment.


    reply to this | link to this | view in thread ]

    Justin, Oct 17th, 2008 @ 7:50am

    Deep Packet Inspection?

    I'll admit, I'm not too familiar with this concept. I understand what is done, I just don't know of the different applications it's put to. What I'm wondering is, similar to just blocking usenet, is outlawwing the practice of the inspection altogether another across-the-board solution that could be more wisely implemented?

    Like I said though, I'm not too familiar with what I'm talking about, which is why I'm asking. Are there other, more practical, uses of DPI? Would it make sense for a security firm to use it to track all information leaving their network, so as to be able to see where that information is going in case of any security leaks? I know that basic packets can be seperated into incoming and outgoing, but as far as deep packet inspection, I don't know if that can be seperated.

    Just looking to expand my knowledge!


    reply to this | link to this | view in thread ]

    Rich Kulawiec, Oct 17th, 2008 @ 8:00am

    Mike (or anyone), what were Brilliant Digital's domains?

    I'd like to check my archives for mention of them.



    reply to this | link to this | view in thread ]

    PaulT (profile), Oct 17th, 2008 @ 8:08am

    The real problem here is not simply which procedures are put into place, but rather how they are handled. No automatic procedure is anywhere near as good as a human being for things like child porn, and God knows human beings are very prone to errors in that kind of area.

    ISPs should not need to be inspecting packets in any way. However, if this were to happen and the following were not done, there would be a huge amount of problems: packets get flagged, not blocked; every flagged communication is inspected by a human being; said communications are forwarded to a reputable law enforcement agency who make a full background check of the subject before the user is notified; an airtight case is made against the user before any restrictions or prosecution is sought.

    Failure to do all of this will drastically reduce the effectiveness of any such procedure, give numerous escape routes to actual offenders and place a lot of innocent people in serious legal trouble. This is an obnoxious idea, and should be fought.

    If you think otherwise, cast a thought to the young girl who was recently charged with child pornography offences and faces life on a sex offenders' registry for sending pictures of... herself. Then try to imagine the number of false positives that an ISP could receive. You might not distribute child porn, but how many packets of data to you send and receive that could be mistaken as such?


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    Anonymous Coward, Oct 17th, 2008 @ 8:14am

    Can we sue?

    Why can't someone file a class-action lawsuit against the NY AG? They are certainly trampling on my freedom to access usenet, and they've probably convinced the ISPs to block some sites that have nothing at all to do with child porn (like, for example, sites that say bad things about Andrew Cuomo).

    Don't citizens have some rights here? Or does the NY AG just get to hijack anything he wants, in order to "protect the children?" Isn't this country based on laws, not the whims of some elected asswipe?


    reply to this | link to this | view in thread ]

    Jake Bell, Oct 17th, 2008 @ 8:32am

    So, who wants to wager on when this clown runs for President?


    reply to this | link to this | view in thread ]

    Michael Vilain, Oct 17th, 2008 @ 8:39am

    Re: Deep Packet Inspection?

    Instead of the government just recording all mail that goes into and out of your home, DPI would allow them to OPEN, READ, and RECORD the contents of all mail. They couldn't redact it, like they did during WWII, but they they could watch everything you do.

    With ISPs getting a "GET OUT OF JAIL FREE" card for domestic spying of US citizens, I'd be surprised if they weren't gearing up to implement this.


    reply to this | link to this | view in thread ]

    Anonymous Coward, Oct 17th, 2008 @ 8:46am

    +1 for accounting?

    "forcing ISPs to block all of Usenet, despite 99.9997% of the 3.7 billion available Usenet articles being perfectly legitimate content."

    I find that statistic frighteningly (not even sure that is a word) precise, who actually reviewed the 3'700'000'000 articles and weeded out the 1'110'000 bad ones.


    reply to this | link to this | view in thread ]

    Anonymous Coward, Oct 17th, 2008 @ 9:42am

    Getting ready

    to outlaw criticism of the Dear Leader after the elections. Control of the Internet along with the Fairness Doctrine....

    P.S. That is NY AG Andrew Cuomo (D)


    reply to this | link to this | view in thread ]

    Donald Jessop, Oct 17th, 2008 @ 9:59am

    Not even remotely a solution

    OK, so isn't the real problem the people that creae the child porn? Blocking a child porn site does nothing to stop the problem, just make it harder to stop. If Cuomo knows about these sites then shouldn't he be doing whatever he can to find out who is running the sites and then stop them?

    It looks like he is making site blocking and DPI the issue when it is his own inability to do anything about child porn that is the real problem.

    Just my $0.02


    reply to this | link to this | view in thread ]

    Mike Langford, Oct 17th, 2008 @ 10:12am

    Cheap answer

    With the people having almost NO say anymore in what our representitives do, I think the best solution in these times is also a very cheap one. One bullet would stop a man from hijacking the legal system, and send a message to the rest.


    reply to this | link to this | view in thread ]

    Bruce, Oct 17th, 2008 @ 10:17am

    Have an .xxx Domain

    I don't get the porn issue. It seems so easy to fix. Simply have a .xxx domain and require porn sites to use that domain. End of story. ISP's then could offer to block/filter that domain for anyone who requests it. Those who want porn............they still have unrestricted access.


    reply to this | link to this | view in thread ]

    Rekrul, Oct 17th, 2008 @ 10:27am

    How far does this crap have to go before the authors of net software start incorporating encryption?

    Sure, some web sites are encrypted and some Usenet providers offer SSL connections, but we need every piece of net software to support strong encryption. Everything from chat clients to P2P programs. That would stop all this talk of DPI dead in its tracks.


    reply to this | link to this | view in thread ]

    Tim of Angle, Oct 17th, 2008 @ 10:38am

    Because He's a Democrat

    That's what they do -- poking and prying and trying to control every last bit of your life while also stealing and spending every last penny in your pocket.

    He comes by it honestly, though -- his father was just as bad.


    reply to this | link to this | view in thread ]

    Benjie, Oct 17th, 2008 @ 10:49am

    Comcast anyone?

    "[...]. Brilliant Digital even claims that its system can trick users into sending files unencrypted[...]"

    And any ISP to be found using these products would be issued massive fines.. yay


    reply to this | link to this | view in thread ]

    Anonymous Coward, Oct 17th, 2008 @ 1:59pm

    . . . despite 99.9997% of the 3.7 billion available Usenet articles being perfectly legitimate content.

    So what's next, jail 100% of the population because of the .0003% who are into kiddie porn? Mr. Cuomo needs a lesson in democracy, and I don't mean the kind of democracy where you can circumvent the law and the Constitution, by simply declaring that the ISPs are doing something illegal, even when they aren't. That's not how this country works, and I'm going to do all I can to put a stop to this. The big problem I see here is courts declaring that citizens have no standing to bring a suit, because we can't prove we've been harmed.


    reply to this | link to this | view in thread ]

    Griper, Oct 17th, 2008 @ 7:57pm

    Re: Because He's a Democrat

    And Republicans never spy on US citizens, When did Bush and his friends change parties?


    reply to this | link to this | view in thread ]

    BTR1701, Oct 17th, 2008 @ 10:35pm

    Re: Have an .xxx Domain

    > I don't get the porn issue. It seems so easy to fix. Simply
    > have a .xxx domain and require porn sites to use that
    > domain. End of story.

    Not end of story. How do you force them to use that domain? Pass a law, right? Okay, what about all the rest of the world that doesn't have to follow U.S. law? They're going to keep using .COM because with all the other porn sites in the USA being forced into the red light district, there's now less competition for them out in the open. And not being in the USA, there's nothing that could be done to them to make them comply.

    And who decides what the standards are for the XXX domain? Hard core porn? Okay. What about Playboy-- all they have are nudes, no sex. Should that have to be segregated too? If yes, then is every depiction of nudity required to use XXX? How about the nudes in the paintings and sculptures by Rembrandt and Michelangelo? And then what about Maxim and FHM? No nudes but the models sure are posed suggestively. Do they have to go to XXX also? How about the Sports Illustrated swimsuit issue?

    Whatever you segregate behind the XXX wall, there will always be someone who says it doesn't go far enough-- that there is still stuff out in .COM land that is too racy for their precious children to see. Before you know it, the latest episode of The Office will be forced behind the porn domain because some ultra-religious family values moron with no life thinks that the innuendo on the show is going to warp their precious brood.


    reply to this | link to this | view in thread ]

    Dan, Oct 18th, 2008 @ 12:32am

    Re: Can we sue?

    Yes, the state of NY and the governor , for libel and slander after he "publicly shames" an ISP.


    reply to this | link to this | view in thread ]

    Aliasalpha, Oct 18th, 2008 @ 1:15am

    Re: Re: Have an .xxx Domain

    I actually liked the idea of the xxx domain with the exception of the use of the word "force". Encouraging them to use it would be a far better solution, if the US government were genuinely conerned about porn exposure and paid the fee to transfer the domain name to .xxx, it'd allow the freedom of choice that they always claim to support.

    Those who wanted to block porn so their kids grow up as perfect happy people who are never interested in filthy filthy sex can repress their family but we grownups can see boobies if we want.


    reply to this | link to this | view in thread ]

    Tuttles, Oct 18th, 2008 @ 7:40pm

    Re: Because He's a Democrat

    You idiots out there need to stop with the Republican vs. Democrat prattle and understand that the real battle is the ruling class (Republican and Democratic politicians) and all of us. Censoring the internet is something that benefits a certain group of people. Give some thought about whom it is that benefits.


    reply to this | link to this | view in thread ]

    Tuttles, Oct 18th, 2008 @ 7:42pm

    Re: Not even remotely a solution

    I have the same question. Why the hell isn't Cuomo going after the sources of this crap? That's what he should be doing.


    reply to this | link to this | view in thread ]

    kaiserthesage, Jun 25th, 2009 @ 3:30pm


    I've read a lot about brilliant digital and I do think that they've planned to get rich through scummy ways from the beginning. I've made my own research and written an article about the product and some history of it's company (been practicing a lot).



    reply to this | link to this | view in thread ]

    daniel, Jun 27th, 2009 @ 9:23pm

    send the trhe thugs a strong message their bully tactics
    and usurping of the the US Constituition will not be tolerated
    these new order pieces of trash need to be stopped and quick definitely outlaw DPI duh that is not needed and a severe
    threat to liberty


    reply to this | link to this | view in thread ]

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