Politech archive on "morphed" child porn: http://www.politechbot.com/cgi-bin/politech.cgi?name=morphed Wired News article: http://www.wired.com/news/politics/0,1283,52453,00.html --- http://www.politechbot.com/docs/nlc.virtualporn.brief.051002.html Memorandum of Law on House Bill to enact the "Child Obscenity and Pornography Prevention Act of 2002" by Bruce Taylor, Chief Counsel, National Law Center for Children and Families, former Senior Trial Attorney, DOJ Child Exploitation and Obscenity Section, Janet LaRue, Chief Counsel, Concerned Women for America, and Patrick Trueman, former Chief, DOJ Child Exploitation and Obscenity Section May 8, 2002 [...] It is not the pedophiles whom we would have to fear going into this business, they would be the target customer audience. It would be the "adult" pornography syndicate operators who could seize the opportunity and could marshal the resources to obtain the necessary computer hardware and software to recreate images of children that are as realistic or better than those of the adult computer-generated "people" in the film Final Fantasy (see www.finalfantasy.com for how that film/game's image technicians and artists created the human figures that appear to be so real). If the porn syndicates could legally sell counterfeit child porn that was created by computer, with the excuse of giving pedophiles their child porn without using real children in the production process, then imagine the wrath pedophiles could inflict on real children by being incited by such realistic images and using ! those images to seduce and "fool" children into becoming victims of imitating the sex depicted in such computer-generated synthetic still photos and video streams. We submit that there is good reason for being concerned about codifying a permanent, legal defense to those who could then create an industry of producing and openly selling computerized child porn to the pedophile market. The hard-core "adult" porn syndicates could also flood the market with computerized child porn in order to lead law enforcement on a chase to determine whether it is real or not and divert attention and resources from adult obscenity and actual child pornography investigations. Such a criminal tool does not deserve to go public and Congress should have no part in making it "legal" and enabling that which Congress sought to protect children from, even though you can't stop it this year. For our part, we are adamantly opposed to legalizing such traffic, for the reasons stated in our amicus brief filed in Ashcroft v. Free Speech Coalition and because we agree with the concerns of Congress from 1996 that computer and photo image technologies can and soon will be commercially and publicly available to create artificial, but authentically realistic, counterfeit images that appear to be of real children engaging in sexual conduct that is indistinguishable from photographic images of real children who did engage in sexual conduct. We also agree with the Congressional finding and the recognition of the Supreme Court in Osborne v. Ohio in 1990 that pedophiles are incited by child porn to molest children and use child porn to seduce their child victims. If the pedophiles and minors can't tell the difference, they will react the same way to an image they think is real, even if it was made by a computer instead of! a camera. The act of producing and trafficking in such counterfeit child pornography should be considered a form of criminal conduct and consumer fraud of the most dangerous sort and should not be considered expression entitled to the protection of the First Amendment. [...] [...] 5. The creation of a secure database for identifying child pornography produced with actual children would be a much-needed tool for law enforcement and the courts. As prosecutors and law enforcement advocates, we have always wanted a joint collection of known images that were collected from FBI, Postal Inspection Service, Customs Service, and local police and make those images available for comparison to our case images. Each federal agency and local police departments have kept their own archives of child porn, which could now be assimilated in a federal repository where all agencies could contribute and have access, with security and privacy protections applicable to all such images. In the past, as then DOJ-CEOS attorney Bob Flores was able to do in U.S. v. Kimbrough, 69 F.3d 723 (5th Cir. 1995), and AUSA Arnie Huftalen and then DOJ-CEOS attorney Bruce Taylor did in U.S. v. Bateman in New Hampshire (and as many federa! l and state prosecutors have done in past cases), we had to ask our case agents to circulate some of our case pictures to Postal Inspectors, FBI Special Agents, Customs agents, Secret Service Agents, Deputy U.S. Marshals, or local police detectives, in hopes that someone would recognize our images from an old magazine, film, or child porn collection seized from a pedophile--to have further proof that our images were real and were produced out of State or beyond the U.S. and transported in interstate or foreign commerce to reach our federal District. In fact, since the Court's Free Speech decision, local police have been asking where to access any available databases in order to prove that pending charges and investigations involve "real" children being abused. CWA's Janet LaRue has received such inquiries by both phone and email and the only present method of verifying such images is by manually contacting the various agents and individual local and fed! eral a gencies in hopes of recognizing a "match". It is true, under existing =A7 2252, that a jury can conclude from the photographs or images alone that they are visual depictions of actual minor persons under age 18. A jury can reach such a conclusion beyond reasonable doubt, if the image is conducive to such conclusion. Such legally permissible inferences can and will be relied on and utilized to support present and future convictions under =A7=A7 2252 and 2252A, b= ut prosecutors will often seek to assist the jury with medical testimony from doctors who are pediatricians or medical examiners from a coroner's office to give expert opinions as to the age of the children depicted and prosecutors will try to offer or would like additional evidence of the reality of the images by being able to have testimony from an agent/police investigator that the image is of a known child or has appeared in an old film or magazine as evidence that it really is of a real child and must have been t! ranspo rted or transmitted across state lines or through facilities of commerce. The database of collected images from past child porn and child abuse cases could also be digitized, like fingerprint, DNA, and NCIC databases, for comparison with newly discovered images to search for a match. The new child porn database should, regardless of which agency or organization maintains it, collect from all federal and state law enforcement sources and be made available to all federal investigative agencies (FBI, Postal, Customs, Secret Service, Marshals, Tribal Police, and Military Police), plus the ICAC-Internet Crimes Against Children task forces, Innocent Images, local police agencies and state and local sexually exploited child units, and the National Center for Missing and Exploited Children. The confidentiality of the images and identities of the child victims would be maintained and the use of the database in court would be governed by and subject to the privacy protection provisions of the "Child victims' and child witnesses' rights" guaranteed in 18 U.S.C. =A7 3509. [...] IN CONCLUSION Finally, we can keep in mind that the Supreme Court and the Ninth Circuit made their decisions under the assumption that =A7 2252A could apply to a broad category of images, including Renaissance paintings and youthful looking adults pretending to be minors and minors pretending or suggesting to engage in sex (even when not "depicting" the sex, like in Traffic or Romeo and Juliet). We know this was not the intent of Congress and is the exact opposite of the intended reach of the phrase in the CPPA that child pornography would consist only of an image that "is, or appears to be, of a minor person engaging in sexually explicit conduct" when it does just that--appears to be of a real minor person under 18 actually engaging in the felonious child abuse activity. That type of felony abuse does not take place on the set of Hollywood movies and the hard-core porn industry better not use minors to do sex scenes or they would vi! olate the old statute, as well. However, the Court thought that was what this statute and this case was about and struck the statute on that account. If the statute HAD applied to suggested, off-camera sex by teenage actresses or adults pretending to be a child character or even a painting, then the CPPA would have been unconstitutionally overbroad. The CPPA was not written or intended to be so vague or overbroad and it is unfortunate that the Court would not authoritatively construe the Act within permissible constitutional bounds. This was unlike the other Circuit Courts of Appeals that upheld =A7 2252A with a narrower interpretation, finding the statute applicable and construing it to apply only to realistic images that appear to be of real minors and not applicable to obvious fakes or adult body-doubles, like Hollywood movies with an adult body-double in the nude scenes or even porn-films like a Lolita with an over-18 performing the sex scenes. Once the Supreme Court Justices thought the CPPA could apply to paintings and Hollywood films that everyone knows are not of real children being abused, they thought the statute was overbroad--and they would have been correct if the Act were applicable to such obvious adult or fake materials. However much Congress tried to limit the CPPA to images that are, or appear to be, of real minors--to images that were indistinguishable from real minors and could not be distinguished from the very images that =A7=A7 2251 and 2252 prohibit, nevertheless, the Court rejected that attempt and felt compelled to consider the statute as applicable to the broader categories of protected speech. Being in the present situation, however, requires Congress and us to seek other ways to protect minors from sexual exploitation and from the harm that would be inflicted on them if computers generate a marketable form of counterfeit child porn to replace the real image! s that pedophiles risk their lives to obtain. The Court found that the record was insufficient to justify such an assumptively overbroad statute, in absence of proof that such realistic images were being produced by computer technology alone and that such images were frustrating proof or jury conclusions as to the authenticity of presently prosecuted child porn images. The Court concluded that much more proof would be needed to justify "banning" paintings and Traffic-like scenes, as well as realistic synthetic or counterfeit computer-generated images. Much less proof may have been persuasive for a statute that was interpreted and understood to be limited to only realistically indistinguishable images. Congress found that such proof was in existence in 1996 and that computer image technology was or would soon be available to create images that are or appear to be of real minors and that such technology would be commercially or publicly available within a short time, so! that& nbsp;existing law needed to be updated before vast numbers of child victims were seduced or exploited. If the Court understood or accepted that it was evaluating the justifications needed for the more narrow interpretation of the law, like that proposed in the present bill, then the Court may have upheld the statute this time. In light of the ruling, however, we must and can resort to using the old child porn laws, =A7=A7 2252 and 2252A for real child images (or obscenity laws when the age or authenticity of the child cannot be determined), but it is unwise, we submit, to "legalize" the artificial creation of realistic synthetic-counterfeit child porn and invite the porn industry to invest in the technology necessary to create such realistically indistinguishable child porn materials at this time. Congress tried to forestall such an avalanche of dangerous child porn imagery of the sexualization of children and we don't think the Members should capitulate and open the door to that which they wisely sought to prohibit. Now that Final Fantasy has proven that computers can create human images that are realistic enough to look real, especially if one were to scan and upload such an image onto the Internet and make a second-generation copy that could not be dis! tingui shed from a copy of an actual photograph of a real child, it is reasonable to anticipate that such technology will be more widely available and improved in the near future. Congress should wait, law enforcement should continue to gather the evidence, and we all should build the record to justify the original intent of the CPPA and then seek to return to a criminalization of the act of knowingly making, trafficking, and possessing images that are or appear to be real child porn images that are indistinguishable from images of actual children being abused. It's too early to quit on that score, but this bill could be a great vehicle to start the process of closing the loopholes and allowing law enforcement to enforce existing law and use obscenity laws to prosecute pseudo-child porn or child-theme sexual conduct that depicts or purports to depict children engaging in sexual conduct in an obscene way under the "Miller-Smith-Pope" test. We are honored to assist the Congress and the Department with the process of enacting a fair, if limited, first step in this direction. The Attorney General and the sponsors' goals are to protect our children and grandchildren from this victimization and they deserve our assistance and best advice to support this effort. Respectfully submitted, Bruce Taylor, President & Chief Counsel Janet M. LaRue, Chief Counsel National Law Center for Children and Families Concerned Women for America ------------------------------------------------------------------------- POLITECH -- Declan McCullagh's politics and technology mailing list You may redistribute this message freely if you include this notice. To subscribe to Politech: http://www.politechbot.com/info/subscribe.html This message is archived at http://www.politechbot.com/ Declan McCullagh's photographs are at http://www.mccullagh.org/ ------------------------------------------------------------------------- Sign this pro-therapeutic cloning petition: http://www.franklinsociety.org -------------------------------------------------------------------------
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