evolution of digital Child Pornography

regulation

Thomas K. Clancy
Director

National Center for Justice

and the Rule of Law
The University of Mississippi School of Law
 presentation overview
„ background

„ four basic forms of criminal activity involving CP

„ pandering
„ real CP
„ virtual CP
„ morphing CP

„ case law on probable cause to get warrant

 Impact of Internet, Technology

„ Access to vast quantities of images

„ Images instantly available

„ Creation of new images facilitated, plus conversion and

circulation of earlier magazine and film images

„ Collectors seemingly anonymous

„ Communication and image sharing among users facilitated

„ Exacerbation of victimization
* images circulate indefinitely
* re-victimized each time images viewed
 internet child pornography collectors

no typical profile ----

„ Store images on computer media

„ Collect as many images as they can

„ Tend to organize collections

„ Keep collection for long time

 internet child pornography collectors

Child Pornography
400,000
350,000 Online Enticement of
Children
300,000
Child Prostitution
250,000
Child Sex Tourism
200,000
150,000 Child Sexual Molestation
100,000
Obscene Material Sent to
50,000 Child
0 Misleading Domain
Totals Name
Cyber tips as of 9/20/06
 some statistics

„ 62 % of commercial child abuse sites are in US

„ 10,656 URLs with child abuse content

„ “images of child sexual abuse today are

more disturbing, more graphic, and more
sadistic than ever before....”
USDOJ project safe childhood guide
______________________________________
published search and seizure appellate ct. decisions
STATE FEDERAL
2007 9 (5) 14 (9)
_____ _______ __________
2006 17 (9) 14 (8)
green - total cases
(yellow ) - Child 2005 13 (8) 20 (15)
Porn 2004 14 (11) 6 (4)

2003 7 (6) 6 (6)

2002 9 (7) 7 (6)
2001 6 (4) 7 (4)
Pre-2001 16 (8) 26 (14)

total 91 (58) 100 (66)

excludes F. Supp. & military
 regulation of CP -- some background

„ “Pornography” is protected speech

„ “Obscenity” not protected

Miller v. California, 413 U.S. 15 (1973)

„ Average person, applying contemporary community

standards, finds work as whole appeals to prurient
interest

„ Work depicts or describes in patently offensive way

sexual conduct specifically defined by applicable state law

„ Work, as a whole, lacks serious literary, artistic, political,

or scientific value
 child pornography is distinct category of
prohibited speech

N.Y. v. Ferber, 458 U.S. 747 (1982)

banned distribution /manufacture

* does not have to meet obscenity test

rationale
* safeguarding well-being of child
* permanent record of abuse
* close distribution network to combat abuse
* advertising /selling:
economic motive is intregal part of abuse
* de minimis value of CP
Osborne v. Ohio, 495 U.S. 103 (1990)

permissible to ban mere possession of CP

* permanent record of abuse

* encourages possessors to destroy images

{dry up market}

* reduces use of images for “grooming”

 “Child Pornography”
„ visual depiction (photo, film, video, digital)

„ of sexually explicit conduct

1. using minor (under 18) engaging in the conduct

or

2. digital or computer-generated image that is,

or is indistinguishable from, a minor
or

3. created or modified to appear that

identifiable minor is engaging in act
18 U.S.C. 2252A CP Prevention Act
 “Sexually explicit conduct”

„ Sex acts

„ Actual or simulated

„ sexual intercourse (genital-genital, oral-genital, anal-

genital, or oral-anal, between persons of same or
opposite sex)
„ bestiality
„ masturbation
„ sadistic or masochistic abuse
or

„ “Lascivious exhibition” of genitals or pubic area

 “Lascivious Exhibition”

„ Nudity not required

U.S. v. Knox, 32 F.3d 733 (3rd Cir. 1994)

„ Six factors + others appropriate to case

U.S. v. Dost, 636 F. Supp. 828 (S.D. Cal. 1986)

U.S. v. Hill, 459 F.3d 966 (9th Cir. 2006)

 “Lascivious Exhibition”
„ Test: Six non-exclusive factors: Dost

„ Focal point -- genitals or pubic area?

„ Setting sexually suggestive?

„ Child in unnatural pose or inappropriate clothing?

„ Child fully or partially clothed, or nude?

„ Suggest coyness or willingness to engage in sexual activity?

„ Intended to elicit sexual response in viewer?

#1 “real” kids

permissible to ban possession of “real” CP

Osborne v. Ohio, 495 U.S. 103 (1990)

is it a real child ?
 is it a real child?

„ jury question -- don’t need expert

e.g., U.S. v. Vig, 167 F.3d 443 (8th Cir. 1999)

„ available evidence includes ---

„ PIC itself

„ Known image databases

More evidence . . . .

„ What does suspect call pics?

„ title of image
„ labels on disk: "perv" file
„ manner in which image advertised
„ emails / statements by defendant

„ website memberships “Lolitagurls.com”

„ volume of images
more pics, more expertise to create, alter lighting,
background, proportions to maintain consistency

„ Magazine images (pre-date morphing technology)

„ meta data within image

more evidence . . . .

„ choice of pictures
is same child clothed? waste of time to create?

„ evidence of trading

„ Expert testimony:

„ Medical expert / pediatrician’s opinion

e.g., body fat, proportions, movements of child that age

„ Digital Imaging Expert

„ Photographic Expert

„ Expert re: economics of technology

 #2 “virtual” kids
“Virtual” child pornography

Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002)

„ rejected “appear to be minor”

„ new statute: digital /computer image that is or is

indistinguishable from a minor
 Ashcroft v. Free Speech Coalition

the statute "prohibits speech that records no

crime and creates no victims by its production"

* rejected dry up the market theory

{whet appetite for real CP not enough}

* protect real kids from sexual abuse

overbreadth
* included young adults
* included artistic works
 “Indistinguishable”

Ordinary person would conclude depiction is of actual

minor engaged in sexually explicit conduct

inapplicable to
drawings,
cartoons,
sculptures,
paintings

affirmative defense for most crimes: image is adult or

not “actual minor”
CURRENT TECHNOLOGY

computer
video
games
 popular science:

top 10 hurdles to making video games

1. processing power
"like re-creating the sistine chapel
with a couple of crayons"

processing power doubles

every 18 months
2. Water

3. human faces
5. artificial intelligence

6. light and shadows

 6. Fire

7. Material Physics

8. realistic movement

http://news.filefront.com/breast-physics-a-growing-social-problem/
 9. True to life simulation

10. Motion capture

dirty dancing
 state of technology
problems creating image of person

„ correct form, proportions of body

„ facial expressions

„ color, texture of skin

„ interaction of light with above ---

„ digital imaging Experts:

current technology does not allow creation of

computer generated images indistinguishable
from real
#3. created or modified to appear that
identifiable minor is engaging in act

morphing images
 morphing images

Ashcroft v. Free Speech Coalition

declined to address constitutionality of

but noted:

morphed images "implicate the interests of

real children and are in that sense closer to
Ferber"
http://www.planit3d.com/source/tutorial_files/poser7/2/p7controls1.html
commercially available programs

http://www.greenbriarstudio.com/3D/C4Dmorphs.htm
http://poserpros.daz3d.com/store
bill and hillary
george and tony blair
 paris hilton morphed with
emperor from star wars
www.morphthing.com
listed as best morph
on site

angelina jollie and jennifer lopez

http://wang.zhenzhou.googlepages.com/morph.htm
 Crimes

„ Production

„ Sending/Distributing

„ Receipt

„ Possession

„ Viewing, “Browsing”, or “Reaching out” to images to view

them on Internet ?

„ Pandering
 "possession"?

„ Images viewed online are automatically saved to temporary

Internet files / cache

„ Images can be reviewed and manipulated even when only in

cache files

„ Images deleted after viewing are still recoverable

When does a user “exercise dominion and control”

over the images?
 virtual worlds
„ http://www.lively.com/html/landing.html

create own virtual space

chat and interact with your friends
in rooms you create

express yourself
customize your avatar and
stream personal videos and photos

add your room to your site

Invite your friends to chat and
decorate
virtual worlds
conversations
virtual Porn
rooms in virtual world
 pandering

"knowingly ... advertises, promotes, presents, distributes or

solicits ... any material or purported material in a
manner that reflects the belief, or is intended to cause
another to believe, that the material or purported material
is, or contains" CP
United States v. Williams, 128 S. Ct. 1830 (2008)

does not violate 1st Amendment [overbreath claim]:

„ does not include criminalize substantial amount of protected

expressive activity because CP categorically excluded from 1st
protection

„ govt can ban both fraudulent offers and offers to provide

illegal products

does not violate Due Process: [impermissibly vague claim]

„ provides fair notice to person of average intelligence of what

is prohibited
Williams dissent (Souter + Ginsburg)

majority undermined Free Speech Coalition which

distinguished between fake CP and real

cannot prosecute persons for trafficking in material that

does not depict real children

TH: cannot prosecute for pandering such material

 location of CP

„ Offender’s computer

„ accessed and downloaded images

„ user log files
„ Internet connection logs
„ browser history and cache files
„ email and chat logs

„ Hand-held devices

„ digital cameras
„ PDAs
„ mobile phones
 More locations of Evidence
„ Servers

„ ISP authentication user logs

„ FTP and Web server access logs

„ Email server user logs

„ LAN server logs, image collections

„ Online activity

„ IP addresses of chat room contributors

„ digital evidence of involvement in CP activity

 probable cause statements: child pornography cases

Search warrant must establish:

1. Is image sexually explicit?

Give as much detail as possible and / or attach image

2. Does image depict real child?

Affiant's statement that image appears to be that of

real child is sufficient

E.g., U.S. v. Love, 516 F.3d 580 (7th Cir. 2008)

(estimated age of person depicted)
 members of child porn web sites
Do you have probable cause to believe "mere" member has CP on
his computer?

considerations:

„ does site have both legal / illegal materials? -- if so, less

likely probable cause exists

„ what if site has only illegal materials?

„ some courts: mere membership = probable cause

„ other courts: not enough –

See U.S. v. Shields, 458 F.3d 269 (3rd Cir. 2006) (collecting cases)
 additional info beyond membership

„ put in statement of PC additional info that substantiates

suspect's sexual interest in children or child porn, such as:

„ site focus is clearly CP

„ evidence of actual downloading of child porn

„ automatic transmission as part of site's services

„ use of suggestive screen names /email addresses

(ex) Littlebuttsue ; Littletitgirly

„ prior convictions for sex offenses involving children or child porn

more PC evidence ....

„ possession of child erotica

U.S. v. Hansel, 524 F.3d 841 (8th Cir. 2008)

 staleness

affidavit that person has CP and characteristics

of collector include keeping for long periods of time

- ALMOST universally held to overcome staleness clams

E.g., U.S. v. Morales-Aldahondo, 525 F.3d 115 (5th cir. 2008)

(3 years since last download)

U.S. v. Perrine, 518 F.3d 1196 (10th cir. 2008)

(111 days after chat room/images displayed on web cam)

Mehring v. State, 884 N.E.2d 371 (Ind. 2008) (collects authorities)

 Justice Stewart

“I know it when I see it.”

Jacobellis v. Ohio, 378 U.S. 184 (1964)

„ publications Thomas K. Clancy
„ lectures
„ upcoming events 662-915-6918

tclancy@olemiss.edu

www.NCJRL.org