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Crime Over Net: Content |
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Problems with Filters | Child Porn | Obscenity | CDA | COPA | ISP Obligations | CIPA and ERATE | Truth in Domain Names Act | |
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| Worms, Viruses, Attacks | Cyberwar | | Network Reliability & Security | DNS | |
| Fraud | ID Theft | | Censorship - Pornography | Gambling | | CyberStalking | |
| Info Gathering & Wiretaps | CALEA | | Encyrption | Echelon | | Electronic Communications Privacy Act | | Carnivore |Patriot Act | |
Congress's initial attempt to ban virtual kiddie porn, the CPPA, was struck down by the US Supreme Court. The problem was that the expressed government interest was the protection of children. Where the kiddie porn is virtual, however, their aint no actual children and therefore the expressed government interest is undone.18 USC 1466A as ameded by the Protect Act (Congress had a knee jerk reaction, introducing resolutions that the Supreme Court had gotten it all wrong. In 2003, Congress passed the Prosecutial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003 (PROTECT Act). The PROTECT Act sought to rectify either the failings of the CPPA or the Supreme Court (take your pick). The Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003 PROTECT ACT S 151
US v. Thomas, 74 F.3d 701 (6th Cir 1996) (note that much was made of the physical mailing of video tapes, off of the Net)
US v. Mohrbacher, 182 F3d 1041 (9th Cir 1999)
US v. Davidson, 246 F.3d 1240 (9th Cir. 2001)
Sec. 1466A. Obscene visual representations of the sexual abuse of children
(a) IN GENERAL- Any person who, in a circumstance described in subsection (d), knowingly produces, distributes, receives, or possesses with intent to distribute, a visual depiction of any kind, including a drawing, cartoon, sculpture, or painting, that--18 USC 2251 as ameded by the Protect Act ((1)(A) depicts a minor engaging in sexually explicit conduct; and(b) ADDITIONAL OFFENSES- Any person who, in a circumstance described in subsection (d), knowingly possesses a visual depiction of any kind, including a drawing, cartoon, sculpture, or painting, that--
(B) is obscene; or
(2)(A) depicts an image that is, or appears to be, of a minor engaging in graphic bestiality, sadistic or masochistic abuse, or sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex; and
(B) lacks serious literary, artistic, political, or scientific value;
or attempts or conspires to do so, shall be subject to the penalties provided in section 2252A(b)(1), including the penalties provided for cases involving a prior conviction.(1)(A) depicts a minor engaging in sexually explicit conduct; and(c) NONREQUIRED ELEMENT OF OFFENSE- It is not a required element of any offense under this section that the minor depicted actually exist.
(B) is obscene; or
(2)(A) depicts an image that is, or appears to be, of a minor engaging in graphic bestiality, sadistic or masochistic abuse, or sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex; and
(B) lacks serious literary, artistic, political, or scientific value;
or attempts or conspires to do so, shall be subject to the penalties provided in section 2252A(b)(2), including the penalties provided for cases involving a prior conviction.
(d) CIRCUMSTANCES- The circumstance referred to in subsections (a) and (b) is that--(1) any communication involved in or made in furtherance of the offense is communicated or transported by the mail, or in interstate or foreign commerce by any means, including by computer, or any means or instrumentality of interstate or foreign commerce is otherwise used in committing or in furtherance of the commission of the offense;(e) AFFIRMATIVE DEFENSE- It shall be an affirmative defense to a charge of violating subsection (b) that the defendant--
(2) any communication involved in or made in furtherance of the offense contemplates the transmission or transportation of a visual depiction by the mail, or in interstate or foreign commerce by any means, including by computer;
(3) any person travels or is transported in interstate or foreign commerce in the course of the commission or in furtherance of the commission of the offense;
(4) any visual depiction involved in the offense has been mailed, or has been shipped or transported in interstate or foreign commerce by any means, including by computer, or was produced using materials that have been mailed, or that have been shipped or transported in interstate or foreign commerce by any means, including by computer; or
(5) the offense is committed in the special maritime and territorial jurisdiction of the United States or in any territory or possession of the United States.(1) possessed less than 3 such visual depictions; and(f) DEFINITIONS- For purposes of this section--
(2) promptly and in good faith, and without retaining or allowing any person, other than a law enforcement agency, to access any such visual depiction- -(A) took reasonable steps to destroy each such visual depiction; or
(B) reported the matter to a law enforcement agency and afforded that agency access to each such visual depiction.(1) the term `visual depiction' includes undeveloped film and videotape, and data stored on a computer disk or by electronic means which is capable of conversion into a visual image, and also includes any photograph, film, video, picture, digital image or picture, computer image or picture, or computer generated image or picture, whether made or produced by electronic, mechanical, or other means;
(2) the term `sexually explicit conduct' has the meaning given the term in section 2256(2)(A) or 2256(2)(B); and
(3) the term `graphic', when used with respect to a depiction of sexually explicit conduct, means that a viewer can observe any part of the genitals or pubic area of any depicted person or animal during any part of the time that the sexually explicit conduct is being depicted.
Sec. 2251. Sexual exploitation
of children
(a) Any person who employs, uses, persuades, induces, entices, or coerces any minor to engage in, or who has a minor assist any other person to engage in, or who transports any minor in interstate or foreign commerce, or in any Territory or Possession of the United States, with the intent that such minor engage in, any sexually explicit conduct for the purpose of producing any visual depiction of such conduct, shall be punished as provided undersubsection (d), subsection (e), if such person knows or has reason to know that such visual depiction will be transported in interstate or foreign commerce or mailed, if that visual depiction was produced using materials that have been mailed, shipped, or transported in interstate or foreign commerce by any means, including by computer, or if such visual depiction has actually been transported in interstate or foreign commerce or mailed.
(b) Any parent, legal guardian, or person having custody or control of a minor who knowingly permits such minor to engage in, or to assist any other person to engage in, sexually explicit conduct for the purpose of producing any visual depiction of such conduct shall be punished as provided under subsection (d) of this section, if such parent, legal guardian, or person knows or has reason to know that such visual depiction will be transported in interstate or foreign commerce or mailed, if that visual depiction was produced using materials that have been mailed, shipped, or transported in interstate or foreign commerce by any means, including by computer, or if such visual depiction has actually been transported in interstate or foreign commerce or mailed.
(c)(1) Any person who, in a circumstance described in paragraph (2), employs, uses, persuades, induces, entices, or coerces any minor to engage in, or who has a minor assist any other person to engage in, any sexually explicit conduct outside of the United States, its territories or possessions, for the purpose of producing any visual depiction of such conduct, shall be punished as provided under subsection (e).
(2) The circumstance referred to in paragraph (1) is that--(A) the person intends such visual depiction to be transported to the United States, its territories or possessions, by any means, including by computer or mail; or
(B) the person transports such visual depiction to the United States, its territories or possessions, by any means, including by computer or mail.(c)(d)(1) Any person who, in a circumstance described in paragraph (2), knowingly makes, prints, or publishes, or causes to be made, printed, or published, any notice or advertisement seeking or offering -(A) to receive, exchange, buy, produce, display, distribute, or reproduce, any visual depiction, if the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct and such visual depiction is of such conduct; or(2) The circumstance referred to in paragraph (1) is that -
(B) participation in any act of sexually explicit conduct by or with any minor for the purpose of producing a visual depiction of such conduct;
shall be punished as provided undersubsection (d). subsection (e)(A) such person knows or has reason to know that such notice or advertisement will be transported in interstate or foreign commerce by any means including by computer or mailed; or
(B) such notice or advertisement is transported in interstate or foreign commerce by any means including by computer or mailed.(d)(e)Any individual who violates, or attempts or conspires to violate, this section shall be fined under this title or imprisoned not less than 10 years nor more than 20 years, and both, but if such person has one prior conviction under this chapter, chapter 71, chapter 109A, or chapter 117, or under section 920 of title 10 (article 120 of the Uniform Code of Military Justice), or under the laws of any State relating to the sexual exploitation of children, such person shall be fined under this title and imprisoned for not less than 15 years nor more than 30 years, but if such person has 2 or more prior convictions under this chapter,chapter 71, chapter 109A, or chapter 117, or under section 920 of title 10 (article 120 of the Uniform Code of Military Justice), or under the laws of any State relating to the sexual exploitation of children, such person shall be fined under this title and imprisoned not less than 30 years nor more than life. Any organization that violates, or attempts or conspires to violate, this section shall be fined under this title. Whoever, in the course of an offense under this section, engages in conduct that results in the death of a person, shall be punished by death or imprisoned for any term of years or for life.
18 USC 2252A Certain
activities relating to material constituting or containing child pornography
(as ameded by the Protect Act (deleted added)
(note this whole statute was added by
the CPPA)
(a) Any person who -18 USC 2256 as ameded by the Protect Act ((1) knowingly mails, or transports or ships in interstate or foreign commerce by any means, including by computer, any child pornography;(4) either -
(2) knowingly receives or distributes -(A) any child pornography that has been mailed, or shipped or transported in interstate or foreign commerce by any means, including by computer; or
(B) any material that contains child pornography that has been mailed, or shipped or transported in interstate or foreign commerce by any means, including by computer;(3) knowingly reproduces any child pornography for distribution through the mails, or in interstate or foreign commerce by any means, including by computer;
(3) knowingly--(A) reproduces any child pornography for distribution through the mails, or in interstate or foreign commerce by any means, including by computer; or
(B) advertises, promotes, presents, distributes, or solicits through the mails, or in interstate or foreign commerce by any means, including by computer, any material or purported material in a manner that reflects the belief, or that is intended to cause another to believe, that the material or purported material is, or contains--(i) an obscene visual depiction of a minor engaging in sexually explicit conduct; or
(ii) a visual depiction of an actual minor engaging in sexually explicit conduct;(5) either -(A) in the special maritime and territorial jurisdiction of the United States, or on any land or building owned by, leased to, or otherwise used by or under the control of the United States Government, or in the Indian country (as defined in section 1151), knowingly sells or possesses with the intent to sell any child pornography; or
(B) knowingly sells or possesses with the intent to sell any child pornography that has been mailed, or shipped or transported in interstate or foreign commerce by any means, including by computer, or that was produced using materials that have been mailed, or shipped or transported in interstate or foreign commerce by any means, including by computer;or
(A) in the special maritime and territorial jurisdiction of
the United States, or on any land or building owned by, leased
to, or otherwise used by or under the control of the United
States Government, or in the Indian country (as defined in
section 1151), knowingly possesses any book, magazine,
periodical, film, videotape, computer disk, or any other
material that contains an image of child pornography; or
(B) knowingly possesses any book, magazine, periodical, film,
videotape, computer disk, or any other material that contains
an image of child pornography that has been mailed, or shipped
or transported in interstate or foreign commerce by any means,
including by computer, or that was produced using materials
that have been mailed, or shipped or transported in interstate
or foreign commerce by any means, including by computer,; or(6) knowingly distributes, offers, sends, or provides to a minor any visual depiction, including any photograph, film, video, picture, or computer generated image or picture, whether made or produced by electronic, mechanical, or other means, where such visual depiction is, or appears to be, of a minor engaging in sexually explicit conduct--shall be punished as provided in subsection (b).(A) that has been mailed, shipped, or transported in interstate or foreign commerce by any means, including by computer;for purposes of inducing or persuading a minor to participate in any activity that is illegal.
(B) that was produced using materials that have been mailed, shipped, or transported in interstate or foreign commerce by any means, including by computer; or
(C) which distribution, offer, sending, or provision is accomplished using the mails or by transmitting or causing to be transmitted any wire communication in interstate or foreign commerce, including by computer,
(b)(1) Whoever violates, or attempts or conspires to violate,
paragraphs (FOOTNOTE 1) (1), (2), (3), or (4)paragraph (1), (2), (3), (4) or (6) of subsection (a)
shall be fined under this title or imprisoned not more than 15
years, or both, but, if such person has a prior conviction under
this chapter, chapter 109A, or chapter 117, or under the laws of
any State relating to aggravated sexual abuse, sexual abuse, or
abusive sexual conduct involving a minor or ward, or the
production, possession, receipt, mailing, sale, distribution,
shipment, or transportation of child pornography, such person shall
be fined under this title and imprisoned for not less than 5 years
nor more than 30 years.
(FOOTNOTE 1) So in original. Probably should be ''paragraph''.
(2) Whoever violates, or attempts or conspires to violate,
subsection (a)(5) shall be fined under this title or imprisoned not
more than 5 years, or both, but, if such person has a prior
conviction under this chapter, chapter 109A, or chapter 117, or
under the laws of any State relating to aggravated sexual abuse,
sexual abuse, or abusive sexual conduct involving a minor or ward,
or the production, possession, receipt, mailing, sale,
distribution, shipment, or transportation of child pornography,
such person shall be fined under this title and imprisoned for not
less than 2 years nor more than 10 years.(c) It shall be an affirmative defense to a charge of violatingparagraphs (FOOTNOTE 1) (1), (2), (3), or (4) of subsection (a)that -(1) the alleged child pornography was produced using an actualperson or persons engaging in sexually explicit conduct;(2) each such person was an adult at the time the material wasproduced; and(3) the defendant did not advertise, promote, present,describe, or distribute the material in such a manner as toconvey the impression that it is or contains a visual depictionof a minor engaging in sexually explicit conduct.
(c) It shall be an affirmative defense to a charge of violating paragraph (1), (2), (3)(A), (4), or (5) of subsection (a) that--No affirmative defense under subsection (c)(2) shall be available in any prosecution that involves child pornography as described in section 2256(8)(C). A defendant may not assert an affirmative defense to a charge of violating paragraph (1), (2), (3)(A), (4), or (5) of subsection (a) unless, within the time provided for filing pretrial motions or at such time prior to trial as the judge may direct, but in no event later than 10 days before the commencement of the trial, the defendant provides the court and the United States with notice of the intent to assert such defense and the substance of any expert or other specialized testimony or evidence upon which the defendant intends to rely. If the defendant fails to comply with this subsection, the court shall, absent a finding of extraordinary circumstances that prevented timely compliance, prohibit the defendant from asserting such defense to a charge of violating paragraph (1), (2), (3)(A), (4), or (5) of subsection (a) or presenting any evidence for which the defendant has failed to provide proper and timely notice.(1)(A) the alleged child pornography was produced using an actual person or persons engaging in sexually explicit conduct; and(2) the alleged child pornography was not produced using any actual minor or minors.
(B) each such person was an adult at the time the material was produced; or
(d) Affirmative Defense. - It shall be an affirmative defense to a charge of violating subsection (a)(5) that the defendant -(1) possessed less than three images of child pornography; and(e) ADMISSIBILITY OF EVIDENCE- On motion of the government, in any prosecution under this chapter or section 1466A, except for good cause shown, the name, address, social security number, or other nonphysical identifying information, other than the age or approximate age, of any minor who is depicted in any child pornography shall not be admissible and may be redacted from any otherwise admissible evidence, and the jury shall be instructed, upon request of the United States, that it can draw no inference from the absence of such evidence in deciding whether the child pornography depicts an actual minor.
(2) promptly and in good faith, and without retaining or allowing any person, other than a law enforcement agency, to access any image or copy thereof -(A) took reasonable steps to destroy each such image; or
(B) reported the matter to a law enforcement agency and afforded that agency access to each such image.
(f) CIVIL REMEDIES-(1) IN GENERAL- Any person aggrieved by reason of the conduct prohibited under subsection (a) or (b) or section 1466A may commence a civil action for the relief set forth in paragraph (2).
(2) RELIEF- In any action commenced in accordance with paragraph (1), the court may award appropriate relief, including--(A) temporary, preliminary, or permanent injunctive relief;
(B) compensatory and punitive damages; and
(C) the costs of the civil action and reasonable fees for attorneys and expert witnesses.
(2) ''sexually explicit conduct'' means actual or simulated -(A) sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex;(B) bestiality;(C) masturbation;(D) sadistic or masochistic abuse; or(E) lascivious exhibition of the genitals or pubic area of any person;
(A) Except as provided in subparagraph (B), `sexually explicit conduct' means actual or simulated--(i) sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex;(B) For purposes of subsection 8(B) of this section, `sexually explicit conduct' means--
(ii) bestiality;
(iii) masturbation;
(iv) sadistic or masochistic abuse; or
(v) lascivious exhibition of the genitals or pubic area of any person;(i) graphic sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex, or lascivious simulated sexual intercourse where the genitals, breast, or pubic area of any person is exhibited;. . . . .
(ii) graphic or lascivious simulated;(I) bestiality;(iii) graphic or simulated lascivious exhibition of the genitals or pubic area of any person;'.
(II) masturbation; or
(III) sadistic or masochistic abuse; or
(5) ''visual depiction'' includes undeveloped film and videotape, and data stored on computer disk or by electronic means which is capable of conversion into a visual image;
. . . . .
(8) ''child pornography'' means any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct, where -(A) the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct;(9) ''identifiable minor'' -
(B) such visual depiction is a digital image, computer image, or computer-generated image that is, or is indistinguishable from, that of a minor engaging in sexually explicit conduct; orsuch visual depiction is, or appears to be, of a minor engaging in sexually explicit conduct;
(C) such visual depiction has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct;or(D) such visual depiction is advertised, promoted, presented, described, or distributed in such a manner that conveys the impression that the material is or contains a visual depiction of a minor engaging in sexually explicit conduct; and(A) means a person -(10) `graphic', when used with respect to a depiction of sexually explicit conduct, means that a viewer can observe any part of the genitals or pubic area of any depicted person or animal during any part of the time that the sexually explicit conduct is being depicted; and(i)(I) who was a minor at the time the visual depiction was created, adapted, or modified; or(B) shall not be construed to require proof of the actual identity of the identifiable minor.
(II) whose image as a minor was used in creating, adapting, or modifying the visual depiction; and
(ii) who is recognizable as an actual person by the person's face, likeness, or other distinguishing characteristic, such as a unique birthmark or other recognizable feature; and(11) the term `indistinguishable' used with respect to a depiction, means virtually indistinguishable, in that the depiction is such that an ordinary person viewing the depiction would conclude that the depiction is of an actual minor engaged in sexually explicit conduct. This definition does not apply to depictions that are drawings, cartoons, sculptures, or paintings depicting minors or adults.'.
Voluntary
Prosecutorial Remedies and Tools Against the Exploitation of Children Today Act (PROTECT Act) Amendments and Redline Showing Changes to 18 U.S.C. § 2702 Regarding Disclosures to the National Center for Missing and Exploitation of Children
§ 2702. Voluntary disclosure of customer communications or records(a) Prohibitions.--Except as provided in subsection (b)--
(1) a person or entity providing an electronic communication service to the public shall not knowingly divulge to any person or entity the contents of a communication while in electronic storage by that service; and(b) Exceptions for disclosure of communications.-- A provider described in subsection (a) may divulge the contents of a communication--
(2) a person or entity providing remote computing service to the public shall not knowingly divulge to any person or entity the contents of any communication which is carried or maintained on that service--(A) on behalf of, and received by means of electronic transmission from (or created by means of computer processing of communications received by means of electronic transmission from), a subscriber or customer of such service;(3) a provider of remote computing service or electronic communication service to the public shall not knowingly divulge a record or other information pertaining to a subscriber to or customer of such service (not including the contents of communications covered by paragraph (1) or (2)) to any governmental entity.
(B) solely for the purpose of providing storage or computer processing services to such subscriber or customer, if the provider is not authorized to access the contents of any such communications for purposes of providing any services other than storage or computer processing; and(1) to an addressee or intended recipient of such communication or an agent of such addressee or intended recipient;(c) Exceptions for disclosure of customer records.--A provider described in subsection (a) may divulge a record or other information pertaining to a subscriber to or customer of such service (not including the contents of communications covered by subsection (a)(1) or (a)(2))--
(2) as otherwise authorized in section 2517, 2511(2)(a), or 2703 of this title;
(3) with the lawful consent of the originator or an addressee or intended recipient of such communication, or the subscriber in the case of remote computing service;
(4) to a person employed or authorized or whose facilities are used to forward such communication to its destination;
(5) as may be necessarily incident to the rendition of the service or to the protection of the rights or property of the provider of that service;
(6) to the National Center for Missing and Exploited Children, in connection with a report submitted thereto under section 227 of the Victims of Child Abuse Act of 1990 (42 U.S.C. 13032);(6)(7) to a law enforcement agency--(A) if the contents--(i) were inadvertently obtained by the service provider; and
(ii) appear to pertain to the commission of a crime; or(B) if required by section 227 of the Crime Control Act of 1990; or
[(C) Repealed. Pub.L. 107-296, Title II, § 225(d)(1)(C), Nov. 25, 2002, 116 Stat. 2157](7)(8) to a Federal, State, or local governmental entity, if the provider, in good faith, believes that an emergency involving danger of death or serious physical injury to any person requires disclosure without delay of communications relating to the emergency.(1) as otherwise authorized in section 2703;
(2) with the lawful consent of the customer or subscriber;
(3) as may be necessarily incident to the rendition of the service or to the protection of the rights or property of the provider of that service;
(4) to a governmental entity, if the provider reasonably believes that an emergency involving immediate danger of death or serious physical injury to any person justifies disclosure of the information; or
(5) to the National Center for Missing and Exploited Children, in connection with a report submitted thereto under section 227 of the Victims of Child Abuse Act of 1990 (42 U.S.C. 13032); or(5)(6) to any person other than a governmental entity.
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