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United States General Accounting Office 

Washington, DC 20548 

November 14, 2003 

The Honorable Orrin G. Hatch 

Chairman 

Committee on the Judiciary 

United States Senate 

Subject: Posthearing Questions from the September 9, 2003, Hearing on 

“Pornography, Technology, and Process: Problems and Solutions on Peer-toPeer Networks”

Dear Mr. Chairman: 

This letter responds to your September 17, 2003, request that we provide answers to 

questions relating to our September 9, 2003, testimony.1 In that testimony, we discussed 

the availability of child pornography on peer-to-peer (P2P) networks. The questions 

posed by Senator John Cornyn and Senator Patrick Leahy to GAO, along with our 

responses, follow. 

1. Could you provide examples or data regarding potentially positive uses of 

P2P technology? 

Among the major uses of peer-to-peer technology are the following: 

• File sharing, which includes applications such as Napster and KaZaA, along with 

commercial applications such as NextPage.2

 File-sharing applications work by making 

selected files on a user’s computer available for upload by anyone else using similar 

software, which in turn gives the user access to selected files on the computers of other 

users on the peer-to-peer network. 

• Instant messaging (IM), which includes applications that enable online users to 

communicate immediately through text messages. IM promotes a two-way conversational 

style of communication with minimal delay. Commercial vendors such as America 

Online (AOL), Microsoft, and Jabber offer free IM tools. 

 

1 U.S. General Accounting Office, File-Sharing Programs: Users of Peer-to-Peer Networks Can Readily Access Child 

Pornography, GAO-03-1115T (Washington, D.C.: Sept. 9, 2003).

2NextPage provides information-intensive corporations with customized peer-to-peer file-sharing networks. It enables 

users to manage, access, and exchange content across distributed servers on intranets and via the Internet.
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• Distributed computing, which includes applications that use the idle processing power of 

many computers. For example, the University of California–Berkeley’s SETI@home 

project uses the idle time on volunteers’ computers to analyze radio signal data. By 

taking advantage of the unused resources on volunteers’ computers, the SETI@home 

project has been able to obtain more processing power than that available from the most 

powerful supercomputer for about 2 percent of the cost. 

• Collaboration applications, which enable teams in different geographic areas to work 

together and increase productivity. Collaboration applications often combine singlefunction peer-to-peer applications, like IM and file sharing, into more complex 

applications. For example, the Groove application can access data on traditional 

corporate networks and on nontraditional devices such as personal digital assistants 

(PDAs) and handheld devices. This application offers IM, Web connectivity, and other 

add-on services. 

2. To what extent are P2P software sellers able to track individuals who use 

their software?

The ability of peer-to-peer software vendors to track or regulate the use of their software 

depends on whether the peer-to-peer network is based on a centralized model, such as 

that used by Napster, or a decentralized model, such as the Gnutella3 network used by 

KaZaA. In the centralized model, which is based on a central server or broker that directs 

traffic between individual registered users, it is possible for the administrators of the 

central server to track some of the individuals’ activities by monitoring their interactions 

with the central server or database. In the decentralized model, in which individuals find 

and interact directly with each other, the ability of peer-to-peer software vendors to track 

individuals who use their software is greatly diminished. Any user of a decentralized 

peer-to-peer network, including the vendors of the software, can search the network to 

determine the files that are being shared on the network. However, according to one 

major software vendor, vendors of file-sharing software have no special ability to track or 

regulate the actions of the users of the software.4

3. Are there any reasons why child pornography may be underreported on 

peer-to-peer networks?

 

3According to LimeWire LLC, the developer of a popular file-sharing program, Gnutella was originally designed by 

Nullsoft, a subsidiary of America Online (AOL). The development of the Gnutella protocol was halted by AOL 

management shortly after the protocol was made available to the public. Using downloads, programmers reverseengineered the software and created their own Gnutella software packages. 

4 Statement of Mr. Alan Morris, Executive Vice President, Sharman Networks Limited, before the Senate Judiciary 

Committee regarding “Pornography, Technology and Process: Problems and Solutions on Peer-to-Peer Networks” 

(Washington, D.C.: Sept. 9, 2003). 
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We do not know if the volume of child pornography on peer-to-peer networks is 

underreported. In our testimony, we cited the number of reports or tips received by the 

National Center for Missing and Exploited Children (NCMEC) as one indication of the 

volume of child pornography on peer-to-peer networks and on the Internet in general. 

NCMEC, a federally funded nonprofit organization that serves as a national resource 

center for information related to crimes against children, operates a CyberTipline that 

receives child pornography tips provided by the public; its CyberTipline II receives tips 

from Internet service providers. The Exploited Child Unit investigates and processes tips 

to determine if the images in question constitute a violation of child pornography laws 

and provides investigative leads to the Federal Bureau of Investigation (FBI), U.S. 

Customs, the Postal Inspection Service, and state and local law enforcement agencies. 

As shown in table 1, in 2003 the NCMEC CyberTiplines received over 62,000 Internetrelated reports of child pornography. Of these, 840, or about 1.4 percent, were related to 

peer-to-peer networks. However, we do not know if the number of reports received by 

NCMEC accurately reflects the volume of child pornography on peer-to-peer networks or 

on the Internet in general, since the reports are based on tips that the public or system 

users submit rather than a systematic analysis of network content. 

Table 1: NCMEC CyberTipline (Internet-Related) Referrals to Law Enforcement Agencies, Fiscal 

Years 1998–2003 

 Number of tips 

Technology 1998 1999 2000 2001 2002 2003 

Web sites 1,393 3,830 10,629 18,052 26,759 45,035 

E-mail 117 165 120 1,128 6,245 12,403 

Peer-to-peer — — — 156 757 840 

Usenet newsgroups & 

bulletin boards 

531 987 731 990 993 1,128 

Unknown 90 258 260 430 612 1,692 

Chat rooms 155 256 176 125 234 786 

Instant Messaging 27 47 50 80 53 472 

File transfer protocol 25 26 58 64 23 13 

Total 2,338 5,569 12,024 21,025 35,676 62,369 

Source: Exploited Child Unit, National Center for Missing and Exploited Children. 

4. Is there something particularly dangerous about the pornography on peer-topeer networks, either in the user’s ability to share it anonymously or in its 

accessibility to children?

The pornography available on peer-to-peer networks is not necessarily more dangerous 

than the pornography available on Web sites or through other electronic means of 

dissemination. Although some users of peer-to-peer networks might believe that they are 

sharing files anonymously, it is possible for law enforcement officials to discover the 
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identities of individuals sharing child pornography and other illegal material on peer-topeer networks. With peer-to-peer networks, pornography is easily accessible to children 

and the risk of inadvertent exposure to pornography is significant. However, pornography 

is also easily accessible through other electronic means, such as Web sites, and the risk of 

children’s inadvertent exposure to pornography exists on these other mediums as well. 

5. What steps does it take to keep child pornography off a peer-to-peer 

network?

Preventing the introduction of child pornography on a peer-to-peer network would be 

very difficult, but legal means exist to investigate and prosecute those sharing this 

material on the network. Unlike traditional Web sites, which have centralized content 

management, users control the content that is available on peer-to-peer networks, and the 

users of the network are constantly in flux. Nonetheless, law enforcement agencies can 

search peer-to-peer networks for child pornography and investigate reports of illegal 

material submitted to the NCMEC and other agencies. Once child pornography files are 

identified on a peer-to-peer network, legal mechanisms can be used to identify, 

investigate, and prosecute the individuals sharing the illegal files. 

6. The “fair use” doctrine of copyright law gives consumers a certain amount 

of flexibility to use copyrighted materials they legitimately possess, without 

risk of liability for copyright infringement. Does that doctrine apply, 

however, to materials that have yet to even be released to the public? Under 

what conditions, if any, would it even be possible for ordinary consumers to 

lawfully possess such “pre-release” materials? Should the NET Act, Pub. L. 

No. 105-147, 111 Stat. 2678 (1997), be amended, so that any reproduction or 

distribution of “pre-release” material shall constitute per se infringement 

under 17 U.S.C. 506(a)(2)? 

The doctrine of fair use can apply to unreleased material. The fair use doctrine, which has 

been codified at 17 U.S.C. § 107, is available as an affirmative defense to those who 

infringe on copyrighted works that have yet to be released to the public. In order to 

respond to your question, we have interpreted your term “released,” which is not defined 

under copyright law, to be equivalent to the term “published” under these laws. Although 

an infringing use of an unpublished work is less likely to be deemed fair by the courts, 

Congress amended the statutory codification of the fair use doctrine in 1992 to make 

explicit that the fact that a work is unpublished shall not itself bar a finding of fair use. 

Under copyright law, it is not only possible but also plausible that a consumer could 

lawfully possess “pre-release” materials. For example, software developers frequently 

distribute “beta” versions of software programs for the purpose of “debugging” before the 

release of the program for retail sale. Any individual that the copyright holder intended to 

receive a work for a limited purpose would have a lawful right to its possession, 
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notwithstanding that the material had not been released for sale to the general public. The 

subsequent distribution of such a work from an intended recipient might breach the terms 

the copyright holder set, if any, and could subject the recipient to civil and criminal 

penalties under copyright laws. 

Our work on peer-to-peer networks did not address issues concerning pre-release 

materials, and therefore we are unable to provide an opinion on the merits of amending 

the No Electronic Theft (NET) Act. We note, however, that the act’s criminal penalties 

apply to all copyrighted works, regardless of whether they have been released to the 

public, and civil and statutory damages, up to $150,000 per infringement of a registered 

work, remain available to copyright holders regardless of whether the infringed work has 

been published or released (17 U.S.C. § 504). Further, in order to satisfy the threshold for 

a criminal infringement, the infringement must involve at least one copy, and the value of 

the total infringement must exceed $1,000 within a 180-day period (17 U.S.C. § 506). We 

understand that Senators Cornyn and Feinstein recently introduced legislation proposing 

to remove this threshold for criminal infringement. 

In responding to these questions, we relied primarily on past work. We assessed the 

major uses of peer-to-peer technology, examined methods available to track the users of 

peer-to-peer applications, and reviewed the feasibility of controlling the content available 

on peer-to-peer networks. We also obtained updated information regarding the number of 

Internet-related Cybertipline referrals from the NCMEC. Finally, we reviewed and 

analyzed the applicability of the fair use doctrine of copyright law to pre-release 

copyrighted material. 

Should you or your offices have any questions on matters discussed in this letter, please 

contact me at (202) 512-6240 or Mike Dolak, Assistant Director, at (202) 512-6362. We 

can also be reached by e-mail at koontzl@gao.gov and dolakm@gao.gov, respectively. 

Key contributors to this correspondence include Jason B. Bakelar and Lori D. Martinez. 

Sincerely yours, 

Linda D. Koontz 

Director, Information Management Issues 

(310392)