BuffNET will be sentenced later this week although, because charged with a Class A misdemeanour, it faces a fine up to a maximum of only $5,000.
Beginning in 1998, the New York Attorney General’s Office and the State Police began an investigation of an internet newsgroup that called itself "Pedo University," whose members used the group to exchange child pornography. After a series of successful prosecutions that helped to dismantle "Pedo U," the investigation turned its focus from the users of the newsgroup to the ISPs that provided access to the newsgroup. One of these was BuffNET. When BuffNET was made aware of the content of the newsgroup, it took no action.
"When BuffNet, or any ISP, is informed of this kind of heinous criminal activity, it has a duty to act. Here, Buffnet chose to look the other way," Attorney General Eliot Spitzer said. "This response is not defensible by any standard of law or conscience."
Until now, prosecutions in this area focused primarily on individuals who subscribed to an ISP like BuffNET, and who logged on to a newsgroup and downloaded and traded in child pornography. The Attorney General’s investigation widened its focus to include the ISP that knowingly provided the means and the opportunity for this criminal conduct to occur.
"This case establishes a common sense standard for the internet," Spitzer added. "When an ISP becomes aware of illegal child pornography available in its system, the ISP cannot put its head in the sand."
"Clearly the failure of the Internet Service Provider to identify and terminate the access to child pornographic sites is gravely unfortunate. Because the internet knows no geographic boundaries, it is incumbent upon the ISPs, legally and morally, to be ever vigilant in protecting the public from this criminal activity," said State Police Superintendent James W. McMahon.
BuffNET admitted that it failed to take action when it was notified by a customer as well as by law enforcement that one of the newsgroups it carried was being used to distribute graphic child pornography.
In a statement, the company said:
“BuffNET has consistently maintained that it played no role in actively promoting the possession or distribution of illegal material on its server. The investigation by the New York State Attorney General's Office has not disclosed otherwise. At worst, the product of the earlier input by corporate counsel (that no illicit material had been detected on our server), and the inadequacy of the company's internal communications regarding the law enforcement visit was a failure on BuffNET's part to conduct an appropriate follow up after that visit. That arguably helped the individuals - who have no connection whatsoever to BuffNET, its customers or subscribers - who were responsible for posting illicit images on the newsgroup in question to perpetuate the availability of the images to users of the internet.”
In the US, as in the UK, ISPs are under a duty to remove illegal material when its presence is brought to their attention although they are not required to police the content of their servers.