DB WK 8: Internet Child Pornography- Cyber Crime

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Computer Forensics and Cyber Crime

CHAPTER

Computer Forensics and Cyber Crime, 3rd ed. Marjie T. Britz

Applying the First Amendment to Computer-Related Crime

Computer Forensics and Cyber Crime, 3rd ed. Marjie T. Britz

Learning Objectives

Obtain information concerning the legal perception of indecency and obscenity.
Overcome the difficulty in defining child pornography.
Learn of the contradictions in the court system on the topic of child pornography.
Gain knowledge of legislation that is geared directly toward technology and the Internet.
Discuss in full detail the subject of Internet gambling.

Computer Forensics and Cyber Crime, 3rd ed. Marjie T. Britz

Introduction and General Principles

Protections against censorship of text and images, including available on a computer, exist in the First Amendment's right of free speech.

These protections pose problems; for example:
Courts differ on whether material is protected by the First Amendment.
Technology-specific criminal legislation has included intentionally vague descriptions of forbidden text and images so that content delivered via emerging technologies will be included in its scope.

Computer Forensics and Cyber Crime, 3rd ed. Marjie T. Britz

Introduction and General Principles

The US Supreme Court has not ruled on many such problems of law, depriving law enforcement officials and the public of guidance regarding the applicability and appropriateness of such laws.

Also, ambiguous public policies do not provide guidance for officers.

Computer Forensics and Cyber Crime, 3rd ed. Marjie T. Britz

Obscenity in General

It is difficult to define what is obscene: “I can’t define it, but I know it when I see it.”
Community standards, which matter here, generally vary regarding what is considered obscene.
This variation is further confounded by:
The existence of a worldwide community, the Internet, when trying to determine what is obscene.
The fact that virtual (i.e., not actual) images may be different than real images.

Computer Forensics and Cyber Crime, 3rd ed. Marjie T. Britz

Traditional Notions of Decency

Consider historical views regarding decency and obscenity:

Regina v. Hicklin (1868): British case trying to determine what was obscene when evaluating the immorality of Catholic priests; ruling was vague, ambiguous

Computer Forensics and Cyber Crime, 3rd ed. Marjie T. Britz

Traditional Notions of Decency

Roth v. United States (1957): U.S. Supreme Court declared that obscene material was not protected by the First Amendment

Court evaluated material from perspective of a "reasonable person," and by applying community standards, but this subsequently proved to be impossible to use

Computer Forensics and Cyber Crime, 3rd ed. Marjie T. Britz

Traditional Notions of Decency

Miller v. California (1973): U.S. Supreme Court came up with a three-prong test to strike a balance of protecting those who would look at material with dangers of censorship:
Use the perspective of an average person who is capable of applying community standards.
That person would determine whether a work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law.
As a whole, the material lacks serious literary, artistic, political, or scientific value.
Also recognizes different categories of individuals (i.e., children)

Computer Forensics and Cyber Crime, 3rd ed. Marjie T. Britz

Traditional Notions of Decency

FCC v. Pacifica Foundation: Court ruled that new media of communication must be scrutinized as they develop; different media vary in protection
Difference between indecent and obscene speech
Indecent speech, even if it does not reach the level of obscenity, cannot be broadcasted (radio, television) during times when children may be presumed to be part of an audience; so, accessibility to children results in reduction of protection

Computer Forensics and Cyber Crime, 3rd ed. Marjie T. Britz

Traditional Notions of Decency

Sable Communications, Inc. v. FCC; Turner Broadcasting system, Inc. v. FCC
Telephone communications and cable TV enjoy heightened levels of protection because they are not as pervasive or accessible, since they require affirmative actions to use and do not reach captive audiences.
The court recognized a compelling interest in protecting children, but to censor entire categories of speech is an unacceptable infringement.

Computer Forensics and Cyber Crime, 3rd ed. Marjie T. Britz

Emerging Statutes and the Availability of Obscene Material to Children

Telecommunications Reform Act of 1996, aka Communications Decency Act (CDA)

Designed to regulate the previously untamed frontier of cyberspace
Criminalized harassment, stalking, annoyance, or abuse of any individual in an electronic medium
Criminalized any obscene communication to a minor or the transmission of information that was prima facie, offensive

Computer Forensics and Cyber Crime, 3rd ed. Marjie T. Britz

Emerging Statutes and the Availability of Obscene Material to Children

Telecommunications Reform Act of 1996, aka Communications Decency Act (CDA)

Struck down for overbreadth, encompassing speech protected by First Amendment and vagueness, failing to define with sufficient clarity what was subject of law

Computer Forensics and Cyber Crime, 3rd ed. Marjie T. Britz

Traditional Attempts to Criminalize Child Pornography

Started with enactment of Protection of Children Against Sexual Exploitation Act (1977)

Directly tied to principles articulated in Miller, with its three-prong test
Prohibited depictions without redeeming social value
Did not require scienter (specific level of knowledge) on the part of the violator as to age to secure a conviction; lack of scienter requirement led to ruling of unconstitutionality

Computer Forensics and Cyber Crime, 3rd ed. Marjie T. Britz

Traditional Attempts to Criminalize Child Pornography

Child Protection Act (1984) (CPA)

Eliminated obscenity requirement established in Miller
Subsequently aimed to expand CPA with enactment of Child Protection Restoration and Penalties Enhancement Act of 1990

Computer Forensics and Cyber Crime, 3rd ed. Marjie T. Britz

Applying Case Law to Traditional Child Pornography Statutes

New York v. Ferber: most important case regarding criminalizing child pornography

Bookstore proprietor convicted of selling films depicting young boys masturbating
Argued that a NY statute prohibiting the promotion of sex by children under 16 through distribution was overbroad, censoring protected speech under the First Amendment, because the law also prohibited material on adolescent sex, depicted in a realistic but not otherwise obscene manner, so that it failed the Miller test

Computer Forensics and Cyber Crime, 3rd ed. Marjie T. Britz

Applying Case Law to Traditional Child Pornography Statutes

US Supreme Court ruled that states are granted more leeway in the regulation of pornographic depictions of children than in the regulation of obscenity because:

The use of children as subjects of pornographic materials is harmful to the physiological, emotional, and mental health of the child.
The standard of Miller v. California for determining what is legally obscene is not a satisfactory solution to the child pornography problem.

Computer Forensics and Cyber Crime, 3rd ed. Marjie T. Britz

Applying Case Law to Traditional Child Pornography Statutes

The advertising and selling of child porn provide an economic motive for (and are thus an integral part of) the production of such materials, an activity illegal throughout the nation.
The value of permitting live performances and photographic reproductions of children engaged in lewd exhibitions is exceedingly modest, if not "de minimus."

Computer Forensics and Cyber Crime, 3rd ed. Marjie T. Britz

Applying Case Law to Traditional Child Pornography Statutes

Recognizing and classifying child porn as a category of material outside the First Amendment’s protection is not incompatible with this Court’s decisions dealing with what speech is unprotected. When a definable class of material, such as that covered by the NY statute, bears so heavily and pervasively on the welfare of children engaged in its production, the balance of competing interests is clearly struck, and it is permissible to consider these materials as without the First Amendment’s protection.

Computer Forensics and Cyber Crime, 3rd ed. Marjie T. Britz

Applying Case Law to Traditional Child Pornography Statutes

What makes this opinion unique:
Court relied on statistics, opinions from various sources (i.e., scholars, practitioners, etc.) Blanket prohibition of all child pornography
Stated that any literary, artistic, political, scientific value of child porn does not ameliorate potential harm to children
Did not specifically address issue of scienter

Computer Forensics and Cyber Crime, 3rd ed. Marjie T. Britz

Applying Case Law to Traditional Child Pornography Statutes

Osborne v. Ohio

Specifically defines scienter, here, as involving at least a degree of recklessness
Upheld the standards originally established in Ferber
Upheld an Ohio statute which prohibited the possession and viewing of child porn

Computer Forensics and Cyber Crime, 3rd ed. Marjie T. Britz

Applying Case Law to Traditional Child Pornography Statutes

Upheld the notion of the generalized victim, noting that the market for child pornography must be destroyed, because child porn continues to build demand for creation of more child pornography
Reiterated the potential for harm to all children

Computer Forensics and Cyber Crime, 3rd ed. Marjie T. Britz

Technology-Specific Legislation – Contention in the Courts

Child Pornography Prevention Act (CPPA)

Intended to criminalize virtual child pornography on the grounds that it increases child molestation and pedophilia, regardless of whether an actual child is used to generate it
Expansion of the CPA
Did the Ferber and Osborne decisions demonstrate compelling state interest to protect all children, and not only those used in production of child pornography?

Computer Forensics and Cyber Crime, 3rd ed. Marjie T. Britz

Technology-Specific Legislation – Contention in the Courts

Did virtual child pornography stimulate child molesters, increasing their dangerousness?
Struck down by the Court in Ashcroft v. Free Speech Coalition

Computer Forensics and Cyber Crime, 3rd ed. Marjie T. Britz

Technology-Specific Legislation – Contention in the Courts

Ashcroft v. Free Speech Coalition

U.S. Supreme Court invalidates CPPA, that the threat of injury to children is not enough to suppress protected speech
If upheld, it was overbroad, and would criminalize work such as Shakespeare’s
Omitted link between prohibition and affront to community standards
So, virtual pornography is protected since there has to be proof of identity, that the images are real and not computer generated

Computer Forensics and Cyber Crime, 3rd ed. Marjie T. Britz

Technology-Specific Legislation – Contention in the Courts

Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act (PROTECT)

Enacted in wake of Ashcroft
Made illegal virtual images "indistinguishable from" that of actual child pornography
Effectively incorporated Miller test for obscenity
Also incorporated provisions from Truth in Domain Names Act, regarding innocent-sounding names used for tricking children into seeing obscene material

Computer Forensics and Cyber Crime, 3rd ed. Marjie T. Britz

Technology-Specific Legislation – Contention in the Courts

U.S. v. Williams

Upheld efforts by PROTECT Act to address weaknesses in the CPPA

Computer Forensics and Cyber Crime, 3rd ed. Marjie T. Britz

Internet Gambling

Old Wire Act of 1961 language not enough to respond to dramatic increase in online sports betting and bookmaking activities

Unlawful Internet Gambling Enforcement Act of 2006 (UIGEA) aimed to regulate payment systems, lifeblood of gambling activities

Computer Forensics and Cyber Crime, 3rd ed. Marjie T. Britz

Case Law on Internet Gaming Statutes

Central Hudson Gas and Electric v. Public Service Commission of New York produced a four-prong test regarding commercial speech, which applied to Internet gaming:
Is the commercial speech concerning lawful activity and not misleading?
Is the government’s interest in restricting the speech in question substantial?
Does the regulation directly advance the governmental interest asserted?
Is the prohibition more extensive than is necessary to serve that interest?

Computer Forensics and Cyber Crime, 3rd ed. Marjie T. Britz

Case Law on Internet Gaming Statutes

Posadas de Puerto Rico Associates v. Tourism Co. of Puerto Rico

The court used Central Hudson Gas and Electric’s four-prong test by recognizing government's interest in protecting residents from the harmful effects of excessive gambling

Computer Forensics and Cyber Crime, 3rd ed. Marjie T. Britz

Internet Gambling

44 Liquormart, Inc. v. Rhode Island suggested a skepticism from the U.S. Supreme Court about a state's interest in protecting citizens, when it came to First Amendment protections

Lack of international cooperation and the WTO

Computer Forensics and Cyber Crime, 3rd ed. Marjie T. Britz

Internet Gambling

Regarding international, online gaming:

Online casino gambling flourishes, appealing to U.S. citizens
Complaint about U.S. laws, when presented to the WTO, apparently limits them to their original scope, so would not apply beyond those original circumstances/situations

Computer Forensics and Cyber Crime, 3rd ed. Marjie T. Britz

Future Issues and Conclusions

Tension between providing for free flow of information, protected by First Amendment, and compelling interest to protect children
However, questions remain about protections and technologically-generated or technologically-altered images