Cybertelecom Federal Internet Law & Policy An Educational Project

Child Pornography

Child pornography is an explosively sensitive issue. The Internet as a resource for this material has become an item of aggravated attention for both Congress and law enforcement. Nevertheless, even these efforts have suffered constitutional tribulations, similar to previous content censorship provisions such as the Communications Decency Act.

Traditionally, laws criminalizing child pornography [18 U.S.C. § 2251] have been founded on two distinct rationales: (1) obscenity and (2) protection of the child. Child pornography can legally be considered obscenity - and therefore have no First Amendment protection. Child pornography is also a policy issue on the grounds of protecting the welfare of children who are abused and mistreated in the creation of child pornography. The Supreme Court has affirmed that, based on this well founded government interest, the government can censor child pornography. [Ferber] The number of Internet child pornography prosecutions from 1995 and 2000 increased 10 percent each year. [DOJ]

The digital age, however, brings a new problem. Computer technology permits the creation of images that appear to be children but are not. In 1996, Congress amended the child pornography law to make clear that virtual kiddie porn, even such material that does not in any way involve children, is - nevertheless - illegal. According to the Child Pornography Prevention Act of 1996 (CPPA), content that appears to use children (individuals under the age of 18) engage in sexual conduct is illegal, regardless of whether such images have any scientific, literary, or artistic merit (in other words, regardless of whether it is obscene). CPPA also went one troublesome step further; merely giving the impression that material contains images of children engaged in sexual conduct, regardless of whether that impression is actually true, is illegal. Prosecutors argued that such legislation is needed because it is impossible to tell which child pornography actually involves children and which does not. [Keeney]

But now the government has a new problem. It can make obscenity illegal; it has a strong interest in protecting the mistreatment of children. What about material that does not involve children and is not obscene? What about the story of Romeo and Juliet, Shakespeare's story of two young lovers, the youngest of which is 13 years old. What about the movies American Beauty and Traffic, both of which deal with in part the sexuality of teenagers. What about the fact that the original Child Pornography Act was held constitutional, in part, because, where the sexual activity of minors is a part of scientific, literary, or artistic material, the court specifically found that the use of virtual children - people who are not in fact minors - "could be utilized." [Free Speech Coalition Slip at 13] What about the fact that individuals are allowed to get married at age 16.

The Supreme Court concluded that the government could not overcome these problems. If it is not obscene and it does not actually involve children, then the government has failed to articulate a compelling interest justifying censorship. Plenty of legitimate material falls within the wide gambit. Regardless of the difficulty of distinguishing kiddie porn from virtual kiddie porn, it is a fundamental First Amendment principle that "the government may not suppress lawful speech as a means to suppress unlawful speech." [Free Speech Coalition Slip at 17] The state cannot "reduce the adult population . . . to reading only what is fit for children." [Free Speech Coalition Slip at 14] Thus, the Supreme Court struck down the Child Pornography Prevention Act of 1996 as unconstitutional.

Well Congress did not like that much. And Congressmen generally do not like to give the impression to voters that they are not standing up against the Barbarian pornographers at the gates of our city. Thus Congress immediately (aka within about a year) passed the Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003 (aka PROTECT Act). The PROTECT Act was an odd collection of new and revised statutes designed to protect children. These included the Amber Alert Act, the Truth in Domain Names Act, statutory authority for a federal sexual offender website, and an attempt to cure what the Supreme Court had undone.

What the PROTECT Act sought to rectify was that thin area of content where it is not feasible to distinguish whether a child is actually being used; this content is illegal. [Summary] Note that the PROTECT Act does not seek to resurrect the ban on material that is suggestive of child sexuality without any actual displays of child sex (again, think of such literature as Romeo and Juliet, dealing with the romance of youth). The 11th Circuit was unpersuaded of this cure, and in U.S. v. Michael Williams, the court struck down Section 2252A(a)(3)(B).

In 2006, in order to facilitate investigations of child pornography, US Attorney General embarked upon a campaign for ISP data retention. He met with major ISPs asking for voluntary efforts and repeated recommended to congress the enactment of new legislation.

The Law:

Child pornography that which uses actual children remains illegal. [18 U.S.C. § 2251]

Child pornography that is obscene is illegal regardless of whether it uses children (someone in possession of child pornography can potentially violate both the 18 USC 2251 and 18 US 1462 (obscenity)).

Material which neither is obscene nor uses children is constitutionally protected (for example, medical text books).

ISPs that become aware of child pornography must report this information to the National Center for Missing and Exploited Children.

ISPs are not liable for third party content on their systems.

Federal Agencies

• Department of Justice
• Federal Bureau of Investigations: Innocent Images National Initiative
• Office of Juvenile Justice and Delinquency Prevention (funds the NCMEC)
• Criminal Division Child Ex plot at ion and Obscenity Section
• US Attorneys' Office
• Department of Homeland Security:
• Immigration and Customers Enforcement: Cyber Crimes Center (established in 1997)
• Joint DHS-DOJ "Operation Protect Our Children" Seizes Website Domains Involved in Advertising and Distributing Child Pornography Release Date: February 15, 2011
• US Secret Service
• US Postal Inspection Service

Law

• PROTECT Our Children Act of 2008
• the Adam Walsh Child Protection and Safety Act of 2006, Pub. L. No. 109-248, § 503, 120 Stat. 587, 626-29
  • Section 2257A applies recordkeeping requirements to producers of depictions of "simulated sexually explicit conduct." 
• The Child Pornography Prevention Act 18 USC s 2252A
  • Passed as Amendment to Department of Defense Appropriations Act of 1997, PL 104-208 (HR 3610), 110 STAT 3009 (Sept. 30, 1996).
  • S Rept. 358, 104th Cong. 2d Sess. 1996 (Leg. Hist).
  • 2467 Keeney Memorandum -- Recent Amendments to the Federal Child Pornography and Abuse Statutes -- 18 U.S.C. § 2252A 
  • 18 U.S.C. § 2251Sexual exploitation of children
• Reporting of Child Pornography by Electronic Communication Service Providers, Public Law 101-647, 104 Stat. 4806, codified as 42 U.S.C. § 13031
  • 28 CFR § 81.1.
• Protect Act
  • Litigation
  • 6th Cir.: § 2257 Facially Unconstitutional, Joe Gratz 10/26/2007
  • US federal court overturns anti-child pornography act - Monsters and Critics.com, Monsters 10/26/2007
  • U.S. v. Michael Williams No. 04-15128 (11th Cir. April 6, 2006) striking down Section 2252A(a)(3)(B) as unconstitutional.
  • USDOJ, Fact Sheet Protect Act, April 30, 2003
  • White House, President Signs the Protect Act April 30, 2003
  • USSC Protect Act Guideline Emergency Amendments
  • First Amendment Center The PROTECT Act and the First Amendment
  • Summary
  • Title V: Obscenity and Pornography - Subtitle A: Child Obscenity and Pornography Prevention - (Sec. 502) Allows as an affirmative defense to the charge of virtual child pornography only that: (1) the alleged pornography was produced using only actual persons all of whom were adults; or (2) the alleged pornography was not produced using any actual minors.

    Prohibits: (1) making a visual depiction that is a digital image, computer image, or computer-generated image of, or that is indistinguishable from an image of, a minor engaging in specified sexually explicit conduct; (2) knowingly advertising, promoting, presenting, distributing, or soliciting through the mails or in commerce, including by computer, any material that is or contains an obscene visual depiction of a minor engaging in sexually explicit conduct or a visual depiction of an actual minor engaging in such conduct; (3) knowingly distributing, offering, sending, or providing to a minor any such visual depiction using the mails or commerce, including by computer, for purposes of inducing or persuading a minor to participate in an illegal act; and (4) knowingly producing, distributing, receiving, or possessing with intent to distribute a visual depiction of any kind, including a drawing, cartoon, sculpture, or painting, that, under specified circumstances, depicts a minor engaging in sexually explicit conduct and is obscene, or depicts an image that is or appears to be of a minor engaging in such conduct and such depiction lacks serious literary, artistic, political, or scientific value.

    (Sec. 505) Makes certain information identifying minors depicted in child pornography, other than age, inadmissible and subject to redaction from any otherwise admissible evidence in any prosecution.

    (Sec. 506) Sets penalties for using or inducing a minor to engage in sexually explicit conduct outside of the United States in order to produce any visual depiction of such conduct for transportation to the United States.

    (Sec. 507) Provides enhanced penalties under the Federal criminal code and the Uniform Code of Military Justice for recidivists with respect to child pornography, sexual abuse, and transportation for illegal sexual activity and related crimes.

    (Sec. 508) Amends the Victims of Child Abuse Act of 1990 to authorize a provider of electronic communication or remote computing services that reasonably believes it has obtained knowledge of facts and circumstances indicating a State criminal law child pornography violation to disclose such information to an appropriate State or local law enforcement official. Authorizes the National Center for Missing and Exploited Children to forward to such an official any report of facts or circumstances indicating a violation of child pornography prohibitions by a provider of electronic communication service or remote computing services.

    (Sec. 509) Amends provisions regarding transactional information that may be obtained through an administrative subpoena issued with respect to the sexual exploitation or abuse of children, in order to be consistent with provisions regarding required disclosure of customer communications or records.

    (Sec. 510) Authorizes civil remedies, including injunctive relief and punitive damages, for child pornography offenses.

    (Sec. 511) Revises record-keeping requirements to include computer-generated images, digital images, and pictures of visual depictions.

    Directs the Attorney General to: (1) report to Congress detailing the number of times since January 1993 that the Department of Justice has inspected the records of any producer of materials with respect to sexual abuse and other exploitation of children; and (2) indicate the number of violations prosecuted as a result of those inspections.

    (Sec. 512) Directs the Commission to review and, as appropriate, amend the Federal sentencing guidelines to ensure that guideline penalties are adequate to deter and punish conduct that involves: (1) interstate travel with the intent to engage in a sexual act with a juvenile; and (2) promoting material believed to contain obscene visual depictions of a minor engaged in sexually explicit conduct.

    (Sec. 513) Directs the Attorney General to appoint 25 additional trial attorneys for investigation and prosecution of Federal child pornography laws. Authorizes appropriations. Requires the Attorney General to report biennially to specified congressional officials on Federal enforcement actions, including an outcome-based measure of performance and an analysis of the technology being used by the child pornography industry

• Child Protection and Obscenity Enforcement Act of 1988, Pub. L. No. 100-690, 102 Stat. 4181, 4485-4503 (1988)
  • required producers of certain kinds of photographs to maintain records regarding the individuals depicted. Congress subsequently modified the recordkeeping provisions twice, with the Child Protection Restoration and Penalties Enhancement Act of 1990, Pub. L. No. 101-647, Title III, §§ 301(b), 311, 104 Stat. 4808 (1990), and the Prosecutorial Remedies and Tools Against the Exploitation of Children Today Act of 2003 (PROTECT Act), Pub. L. No. 108-21 § 511, 117 Stat. 650 (2003). "
  • 18 U.S.C. § 2257(a)

Hearings

• Combating Child Pornography by Eliminating Pornographers’ Access to the Financial Payment System, US Senate Committee on Banking, Housing, and Urban Affairs Sept 2006

Caselaw

• CPPA Litigation

  • Ashcroft v. Free Speech Coalition (CPPA), Slip-op, No. 00-795, 535 U.S. __ (April 16, 2002) (CPPA Unconstitutional)
  • First Amendment Center: Case Summary Ashcroft v Free Speech Coalition April 16, 2002
  • Attorney General Transcript Response to Supreme Court Decision in Ashcroft v Free Speech Coalition April 16, 2002
  • Ashcroft v. Free Speech Coalition (9th Cir) (oral argument Oct. 30); Ashcroft v. ACLU, US Sup Ct granted cert 1/22/01 Order Page 3
  • The Free Speech Coalition v. Reno, No. 97-16536, Opinion 198 F.3d 1083 (9th Cir. December, 17 1999) 9th Cir Appeal of Free Speech Coalition | another version
  • "We hold that the language of "appears to be a minor" set forth in 18 U.S.C. S 2256(8)(B) and the language "convey[s] the impression" set forth in 18 U.S.C. S 2256(8)(D) are unconstitutionally vague and overbroad. The statute is sever- able. See Pub. L. No. 104-208, 110 Stat. 3009, S 101 (1996). The law is enforceable, except for these amendments to 18 U.S.C. S 2256, S 4 of Senate Bill 1237, through the free standing savings provisions of S 9, codified at 18 U.S.C. S 2256(9)"
  • Free Speech Coalition
  • District Court: Free Speech Coalition v. Reno, __ WL __ (DATE) (unpublished)

Supreme Court

• Ashcroft v. Free Speech Coalition, Slip-op, No. 00-795, 535 U.S. __ (April 16, 2002)
• New York v. Ferber, 458 US 747 (1982), which distinguished child pornography from other sexually explicit speech because of the State's interest in protecting the children exploited by the production process. See id., at 758. As a general rule, pornography can be banned only if obscene, but under Ferber, pornography showing minors can be proscribed whether or note the images are obscene under the definition set forth in Miller v California, 413 US 15 (1973). Ferber recognizes that "[t]he Miller standard, like all general definitions of what may be banned as obscene, does not reflect the State's particular and more compelling interest in prosecuting those who promote the sexual exploitation of children." 458 US, at 761.
• The court held the CPPA to be substantially overbroad because it bans materials that are neither obscene nor produced by the exploitation of real children as in New York v. Ferber, 458 U.S. 747 (1982)... While the Ninth Circuit found the CPPA invalid on its face, four other Courts of Appeals have sustained it. See United States v. Fox, 248 F.3d 394 (CA5 2001); United States v. Mento, 231 F.3d 912 (CA4 2000); United States v. Acheson, 195 F.3d 645 (CA11 1999); United States v. Hilton, 167 F.3d 61 (CA1), cert denied, 528 US 844 (1999). -- Ashcroft v. Free Speech Coalition, Slip-op, No. 00-795, 535 U.S. __, Sec. I (April 16, 2002)

  The Constitution gives significant protection from overbroad laws that chill speech within the First Amendment's vast and privileged sphere. Under this principle, the CPPA is unconstitutional on its face if it prohibits a substantial amount of protected expression. See Broadrick v. Oklahoma, 413 US 601, 612 (1973). -- Ashcroft v. Free Speech Coalition, Slip-op, No. 00-795, 535 U.S. __, Sec. II (April 16, 2002)

• New York v. Ferber, 458 US 747 (1982).

Appellate Court

• FREE SPEECH COALITION, INC. v. US Attorney General, Court of Appeals, 3rd Circuit 2016 (This case reaches us for the third time and requires us to consider the import of two recent Supreme Court cases, Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015),and City of Los Angeles v. Patel, 135 S. Ct. 2443 (2015), on the constitutionality of the recordkeeping, labeling, and inspection requirements set forth in 18 U.S.C. §§ 2257 and 2257A (collectively, "the Statutes") and their accompanying regulations, 28 C.F.R. §§ 75.1-75.9. In light of Reed, we determine that the Statutes are content based, and therefore require strict scrutiny review under the First Amendment. We will remand to the District Court to determine whether the Statutes withstand strict scrutiny. In light of Patel, we conclude that the inspection provisions of the Statutes and C.F.R. § 75.5 are facially unconstitutional under the Fourth Amendment.)
  •  Free Speech Coal., Inc. v. Att'y Gen. (FSC III),787 F.3d 142 (3d Cir. 2015), vacated and reh'g granted, 2015 U.S. App. LEXIS 15448 (3d Cir., Sept. 01, 2015)
  • Free Speech Coal., Inc. v. Holder (FSC II), 957 F. Supp. 2d 564 (E.D. Pa. 2013). 
  • Free Speech Coal., Inc. v. Att'y Gen. (FSC I), 677 F.3d 519, 525 (3d Cir. 2012) (describing legislative efforts to criminalize child pornography).
• Connection Distributing Co. v. Keisler, No. 06-3822 (6th Cir. October 23, 2007) Plaintiff's " appeal the judgment of the district court granting summary judgment to the government. Plaintiffs had challenged the recordkeeping requirements 18 U.S.C. § 2257 placed upon producers of images of "actual sexually explicit conduct" as violative of the First Amendment. We conclude that the statute is overbroad and therefore violates the First Amendment, and accordingly we reverse the district court's judgment and remand with instructions to enter summary judgment for the plaintiffs. "
• Connection Distributing Co. v. Peter D. Keislerm, No. 06-3822, 6th Cir. 2007 ("Plaintiffs had challenged the recordkeeping requirements 18 U.S.C. § 2257 placed upon producers of images of “actual sexually explicit conduct” as violative of the First Amendment. We conclude that the statute is overbroad and therefore violates the First Amendment, and accordingly we reverse the district court’s judgment and remand with instructions to enter summary judgment for the plaintiffs.
• US v Schaefer, No. 06-3080 (10th Cir. Sept. 5, 2007) (conviction of federal position of child pornography reversed where defendant was found to have child pornography on his computer and to have subscriptions to child pornography websites, but there was no showing of where the child pornography on the computer had come from or that it had crossed state lines).
• US v MacEwan, 445 F3d 237 (2006) ("given the interstate character of the Internet, a connection to a web site or server must involve data moving in interstate commerce")
• US v Kuchinski, No 05-30607 (8th Cir Nov. 27, 2006) ("defendant cannot be convicted on child pornography charges based on possession of images found in his computer's Internet cache files unless there is knowledge that the computer automatically saved the images from web sites the defendant visited." - NAAG Newsletter)
• U.S. v. MacEwan, No. 05-1421 (3rd Cir. April 5, 2006) (use of Internet is interstate and therefor satisfies the interstate commerce element of federal law)
• US v Runyan, 290 F3d 223 (5th Cir 2002) ("use of the Internet may be equated with a movement in interstate commerce of child pornography")
• Alliance for Community Media v. FCC, 56 F.3d 105, 112 (D.C. Cir. 1995) (citing R.A.V., 112 S. Ct. at 2545), cert. granted sub nom. Denver Area Educ. Telecommunications Consortium, 116 S. Ct. 47 (1996)

District Court

• CENTER FOR DEMOCRACY & TECHNOLOGY V. PAPPERT. Case No. 03-5051 (E.D. Pa. Sept. 10 2004) ("On September 10, 2004, Judge Jan DuBois of the United States District Court for the Eastern District of Pennsylvania invalidated Pennsylvania's "Internet Child Pornography" law, finding that the law has blocked access to more than one million wholly innocent web sites, while having little if any effect on the few hundred child pornography sites that were targeted under the law. In one instance described by Judge DuBois, access to the web site of a rural Pennsylvania community recreation center was blocked as a result of an order issued to an Internet Service Provider (ISP) by the Pennsylvania Attorney General. Although targeted at a single child pornography site, the order resulted in the blocking of more than ten thousand innocent web sites" CDT)
• Commonwealth v. Diohoro, No. 1889 (PA Super. Ct Nov. 2, 2006) ("merely looking at child pornography on the Internet, without internationally saving or downloading the images, does not constitution "knowing possession" of child pornography as prohibited by Section 6312(d) of the state's Crime and Offenses Code" - NAAG Newsletter).

Papers

• Protecting Children in the Internet Age, New York State Senate Task Force on Critical Choices (2007)
• FBI Online Child Pornography/Child Sexual Exploitation Investigations
• DOJ, The Electronic Frontier Appendix C (March 9, 2000)
• 2467 Keeney Memorandum - Recent Amendments to the Federal Child Pornography and Abuse Statutes - 18 U.S.C. § 2252A
• First Amendment Center Virtual Child Pornography
• Primer: Children, The Internet and Pornography, Washington Post June 2004

Links

• DOJ CEOS Child Pornography
• Immigration and Customs: Cyber Crime Center: Child Exploitation Section: Operation Predator
• Safe Surfing Foundation

News

• Senators OK triple fines for ignoring Net child porn, CNET 10/2/2007
• Police Blotter: Is computer-generated pornography illegal?, cnet 11/5/2007
• DOJ Pushes Stiffer Porn Law, Wired 8/14/03
• U.S. Asks High Court To Overturn Porn Ruling, AP 6/20/02
• U.S. appeals porn ruling, USA Today 6/20/02
• Feds Ease Rules on Child Porn Charges, Findlaw 4/22/02
• Court Strikes Down Virtual Child Porn Law, Wash Tech 4/17/02
• Virtual' child porn law struck down, MSNBC 4/17/02
• 'Virtual' Child Pornography Ban Overturned, NYT 4/17/02
• High Court Strikes Down Law Banning Child Porn on Internet, Newsfactor 4/17/02
• Supreme Court ends ban on virtual child porn, USA Today 4/17/02
• U.S. court to examine Computer generated porn, CNEWS 10/30/01
• U.S. Supreme Court To Hear Internet Porn Cases, Washtech 10/1/01
• High Court Should Strike Down Pseudo-Child Porn Bill, Newsbytes 4/27/01
• Group Wants Supreme Court To Uphold Anti-Child Porn Law, Washtech 4/25/01
• Child Porn Law Creates Catch-22, Wired 4/4/03
• Child porn complaints rocket, Guardian 1/21/03
• Bush Backs New Online Protections for Children Wash Post 10/30/02
• US - Judge Vacates Child Porn Guilty Plea NYLJ 10/18/02
• EU accord on child porn F T 10/15/02
• Vermont Child-Porn Monitoring Law Struck Down, Wash Tech 4/24/02