It's time to ask you about these events and, equally important, about the story itself and how the Times reported it.
The events suggest that the Times may have intimidated Salon into retracting a piece it ran discussing Eichenwald's story. And the correction that Salon posted yesterday – the second of two, already highly unusual – suggests a legal agreement or bargain between the New York Times and Salon or Eichenwald and Salon that is not only troubling in itself but also casts doubt on the transparency, perhaps even the credibility, of Eichenwald's reporting.
1. QUESTIONS REGARDING THE TIMES AND/OR EICHEWALD'S INTERFERENCE WITH THE PUBLICATION OF AN OPINION PIECE IN SALON On August 25, Salon ran an opinion piece by investigative journalist Debbie Nathan called "Why I Need to See Child Porn." http:// groups.google.com/group/alt.activism.children/browse_frm/thread/ 78ed686336161d3a/9a82b3af78f63040?lnk=raot&hl=en#9a82b3af78f63040 The piece congratulated the New York Times for investigating – and viewing – images on the Internet that are almost certainly illegal (and the Times said were almost certainly illegal) under child pornography law. She described her own experience of inadvertently coming upon such images when researching a book on pornography for a Canadian publisher. An investigative journalist who has previously published leaked information, she was nonetheless terrified.
"Technically, according to federal statutes, just visiting a kiddie- porn site makes you a lawbreaker," she wrote, "because regardless of why you went there, the images end up in your hard drive. You 'possess' child porn, which is a serious crime. You can notify the authorities. You can clean up your cookies and your cache. Still, you broke the law. The feds might excuse you, or they could arrest you. It's entirely up to them."
These legal prohibitions – without exception for journalists, academics, or lawyers – place a large body of criminalized speech beyond public examination or comment, Nathan argued, and that is dangerous. We are left having to trust the government that there is indeed a great and growing menace to children in the trafficking of such pictures and that therefore government surveillance and penalties are justified. The situation is not unlike the Bush Administration's claims about the press's role vis a vis government secrecy around terrorism.
In the piece, Nathan interviewed several scholars who had done, or tried to do, similar research to Eichenwald's, but felt hamstrung by legal restrictions. Phillip Jenkins, the Penn State University historian who is probably the foremost authority on Internet child porn (whom the Times also interviewed) told her that while researching the subject in the late 1990s he disabled the viewing function of his computer so as to stay within the bounds of legality – hardly a satisfactory way to conduct social science research.
The Times cited the same restrictions, but apparently its lawyers interpreted them differently. Yes, it's illegal to possess or view child pornography, the paper noted in a sidebar. Then it added, "unless the images are promptly reported to authorities and no images are copied or retained. The Times complied with the law, disclosing what it found to appropriate authorities." Here's where things get weird. Within hours of publication, Salon ran a correction of Nathan's piece, stating that she had incorrectly asserted that no law protects journalists who view child porn online. "An 'affirmative defense' may exist that would protect such work under certain circumstances," Salon stated. But rather than just correcting the piece and keeping it on the site, Salon took the unusual step of removing it. Scores of outraged letters – many asking whether the New York Times or Eichenwald had demanded the retraction – were unsuccessful in wrenching further explanation from Salon's editors. Calls for a statement from the ordinarily outspoken Nathan were equally in vain. Readers wanted to know, was she also being gagged?
Then, last week, another, far lengthier, correction appeared in Salon. http://archive.salon.com/letters/corrections/2006/ Repeating the first correction, it also states: "The story indicates, and Eichenwald confirms, that the portrayal of the content of those sites was primarily based on the written descriptions of them on certain advertising portals, which contained links to the sites, and not based on reviewing the content of the sites themselves." The words, and Eichenwald confirms, indicate that Salon spoke with Eichenwald before posting the correction.
Salon continues: "The Times story did not state that Eichenwald or the Times visited and viewed those 200 [child porn] Web sites" and that "[t]he story did not indicate that anyone at the Times deliberately viewed any potentially pornographic images, or visited any sites believing they contained pornographic images."
These statements have an Alice in Wonderland quality –as if to deny the entire intent and conduct of Eichenwald's reporting. I mean, if nobody deliberately viewed any child porn or looked at sites expecting to find it there, what was the four-month investigation about?
And why did Salon feel the need to run not one, but two, corrections -- and (so it seems) prohibit the writer from responding? The New York Observer has recently conjectured that the Times legal department pressured Salon or threatened to sue. 2. QUESTIONS REGARDING THE TRANSPARENCY AND CREDIBILITY OF EICHENWALD'S REPORTING
From the first paragraph of Eichenwald's story, any reasonable reader would infer he had visited "model sites" showing pictures of children in sexual poses and situations: "In the photograph, the model is shown rising out of a bubble bath, suds dripping from her body. Her tight panties and skimpy top are soaked and revealing. She gazes at the viewer, her face showing a wisp of a smile that seems to have been coaxed from off-camera."
It is clear that while the hosts and customers of these sites purport they are legal, the reporter, experts, and government sources he consults strongly suspect they are not. The investigation's purpose is to show there is a vast network of sites that are probably illegal, or should be illegal, on the Net. Eichenwald says he followed links from pedophile chat rooms to sites with comeons like, "Call 911 first." Now he claims he did not "deliberately view potentially pornographic images."
Throughout the story, he says his descriptions are based on customer descriptions, advertising language, and "Web pages showing image samples." Now (according to the Salon correction) he says descriptions were based on written descriptions and "not on reviewing the contents of the sites." The article states that the Times did not subscribe to the sites, but only entered free portals. This seems a technicality. Anyone who has ever visited a porn site knows there are images aplenty to view without giving up your credit card number.
Here are some other examples indicating that Eichenwald viewed child pornographic images:
"More than 200 of the sites have been found by The New York Times through online advertising aimed at pedophiles, and a vast majority focus mostly on one child. Almost all the children appear to be between the ages of 2 and 12."
How many did Eichenwald view to conclude that "Almost all appear to be…" and to whom did these children "appear"? To Eichenwald or some unnamed source?
"The sites often include images of 'guests': children who are described as a friend of the featured child, but who appear for only a day." If he didn't look more than once, how did he know they stayed on the pages only one day? "Based on the images and wording from online advertisements, the sites show toddlers wearing tight thongs, and slightly older children posing evocatively while wearing makeup and feather boas. There is even a site that offers images of girls and boys who appear to be 5 or 6 years old, wearing just diapers."
Again, "based on images," "appear to be." If, as he now claims, Eichenwald did not look at the sites, the story's credibility is greatly challenged, or at the very least its transparency. Why not say, "appear to be 5 or 6, according to government sources"? 3. QUESTIONS REGARDING THE LEGALITY OF THE TIMES' REPORT AND POSSIBLE AGREEMENTS MADE WITH THE U.S. GOVERNMENT My intention is not to accuse the Times of breaking the law. I don't plan to report it to federal authorities. I – and a growing number of other readers -- simply want to understand how the newspaper got away with doing what no other scholar, lawyer, or journalist (including me) has felt safe doing since the inception of these laws, in the mid-1990s.
The statute [USC Title 18 Part 1 Chapter 110, 2252 http:// www.law.cornell.edu/uscode/html/uscode18/ usc_sec_18_00002252----000-.html) states that, while it is illegal to possess or view child pornography, there is an "affirmative defense" available to people who happen on it inadvertently. An affirmative defense is one mounted after a criminal charge has been brought, and cannot be used unless there has already been a charge.
The affirmative defense may be employed only if the person "possessed less than three matters" containing child porn. Even a conservative count of the images described in the piece total more than three.
The law says the materials must be reported "promptly and in good faith." The Times states that it reported these sites to the federal authorities in July. The story ran at the end of August. The investigation took, according to the article, four months. If the Times reported the images on July 1 and the investigation continued until the day of publication, Eichenwald must have been searching for these sites (or viewing them) for at least two months before reporting them to the government.
Legal scholars who are expert in Internet law disagree with the Times' interpretation. For instance, George Washington University computer law expert Orin Kerr says that the affirmative defense applies only to inadvertent discovery of child pornographic images (not, e.g., following a link to a site where the researcher suspects he'll find such images) and to the possession of only a few (three or fewer) images. You may also call him to discuss this.
Any other journalist would be quaking in his boots, and maybe Eichenwald is, belatedly.
Or maybe the Times or the reporter negotiated special permission from the Department of Justice or another government body to pursue this investigation, in return for turning over whatever it found. In an earlier story, about a teenager who ran a pornographic webcam site, Eichenwald and the Times took the unusual, and controversial, step of persuading the subject to turn himself into the authorities and surrender his subscriber list. That was extremely valuable information to the DOJ.
Was Eichenwald again performing valuable investigative work for the government, with its permission?
Please address these questions in your column.
Sincerely,
Judith Levine
Author, Journalist