FC: Anti-pornsters give Congress tips on banning "virtual" child porn

From: Declan McCullagh (declanat_private)
Date: Sat May 11 2002 - 16:30:58 PDT

  • Next message: Declan McCullagh: "FC: Supreme Court disses COPA anti-erotica law, sends to appeals ct"

    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
    -------------------------------------------------------------------------
    



    This archive was generated by hypermail 2b30 : Sat May 11 2002 - 16:43:59 PDT