Presentation on theme: "The First Amendment & Computer Related Crime"— Presentation transcript:
1 The First Amendment & Computer Related Crime
Chapter Six The First Amendment & Computer Related Crime
2 Introduction and General Principles
Most common judicial challenges facing computer crime investigators include inconsistent interpretations and applications of the 1st, 4th, and 14th Amendments to emerging advancements in technology. However, the Supreme Court has denied cert in the
vast majority of cases, so a patchwork of legal doctrine has emerged in which emerging legislation has been questioned and traditional statutes struck down.
3
Traditional Statutes 18 U.S.C. { 1460 – crime to possess obscene material with intent to distribute 18 U.S.C. { 1462 — crime to distribute or receive obscene material through a common carrier in interstate or foreign commerce 18 U.S.C. { 1464 – crime to broadcast obscene, profane, or indecent language 18 U.S.C. { 1465 and 1466 – crime to knowingly transport or engage in the business of selling obscene, lewd, or filthy material through
interstate commerce
4 1st Amendment Challenges
Challenges include: the inviolability of electronically published materials, the sanctity of electronic communications, the intersection of obscenity and community standards, and the necessary level of particularity and specificity in emerging
legislative acts. While lower courts have tended towards consistency on the first two issues by reaffirming traditional case law, they have not even reached a semblance of consensus on the latter two.
5 Obscenity – In General Although recognizable on sight, obscenity is not easily defined. Traditionally, the Supreme Court has been the standard bearer for the line of demarcation
between something simply perverse and that which is obscene – often making direct statements about specific materials, and sometimes, generalized proclamations about indecency. However, the Supreme Court has either failed to provide guidance in most aspects of technology and obscenity, or overturned traditional standards. Thus, concrete notions of decency and pornography have not withheld the intangibility and virtuality of computer technology.
6 Traditional notions of decency
1868 – 1957 – governed by obscenity statute developed on the principles of Regina v. Hicklin This statute developed a level of obscenity which evaluated the alleged immorality of Catholic priests which defined the test as whether the tendency of the matter
charged…is to deprave and corrupt those whose minds are open to such immoral influences and into whose hands a publication of this sort may fall
7 Obscenity in the 1950s 1957 – Roth v. United States (354 U.S. 476) – determined that obscene material was NOT constitutionally protected by the 1st
Amendment. Coupled the reasonable man and the community standard doctrine Not workable - when abstractly applied, it appeared to cement a concept of national morality
8 Obscenity in the 1970s Miller v. California, 413 U.S. 15 – three prong analysis emerged in which a work is
obscene and not covered under the protections of the 1st Amendment, if: an average person who is capable of applying contemporary community standards; determines a work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law: taken as a whole, lacks serious literary, artistic, political, or scientific value
9 Miller’s Importance recognized the jurisdictional variability in standards of morality, and banished
the notion of universal decency recognized that adults and minors must be treated differently when definitions of constitutionally protected materials are at issue (i.e., minor’s rights do not reach the standard of adults in questions of obscenity). Most important - ruled that the state has a compelling interest in protecting the welfare of children
10 FCC v. Pacifica (438 U.S. 726) Held that protections under the 1st Amendment may not be applied universally across
mediums Established new boundaries for free speech via television and radio broadcasts. It distinguished between obscene speech and indecent speech, ruling that “indecent” speech, even if it does not reach the level of obscenity, cannot be broadcast during times when children may be presumed to be part of an audience.
11 FCC v. Pacifica (438 U.S. 726) It further ruled that the broad based nature of
radio communication mandated a greater level of scrutiny because: it was more accessible to children; broadcasting invaded the home of individual citizens , thus creating a constant risk of exposure; the scarcity of frequencies allowed government regulation.
12 Impact of Pacifica
George Carlin’s,” Filthy” which alluded to excretory and sexual activities, violated 18 U.S.C. 1464, and was not entitled to 1st Amendment protection, because of the content of the communication, the pervasiveness of the selected medium, and the subsequent accessibility to children.
13 Cable and telephone
Sable Communications, Inc. v. FCC, Turner Broadcasting System, Inc. v. FCC, telephone and cable broadcasts, respectively, are afforded different degrees of 1st Amendment protections, comparable to their disparate accessibility to children. Actually these heightened the levels of protection afforded these mediums, because they are not as accessible, and users must take affirmative action to access them.
14 Emerging statutes and the availability of obscene material to children
Telecommunications Reform Act of 1996 –first act specifically aimed at protecting families and children from online sexually explicit materials
Criminalizing the harassment, stalking, annoyance, or abuse of any individual in an electronic medium, the act further criminalized the communication of any obscene communication to a minor recipient or the transmitting of any communication that depicted or described sexual or excretory activities or organs that were prima facially offensive.
15 Telecommunications Reform Act of 1996
Struck down for vagueness and overbreadth, the Court invalidated sections 47 U.S.C. { 223 (a) and 223 (d) The interest in encouraging freedom of expression in a democratic society outweighs any theoretical but unproven benefit of
censorship Court further likened the Internet to a marketplace of ideas – suggesting that it was entitled to the highest level of 1st Amendment protection, as affirmative actions had to be taken to access the medium, AND that there was only a minimal risk to children of exposure to obscene material by surfing the net.
16 Child Pornography Defined
Regardless of jurisdiction and civil libertarians, until very recently, all actors unilaterally dismissed readily available obscene material AND child pornography from active consideration of 1st Amendment challenges. All actors recognized a compelling government interest in protecting children from harm, and a subsequent interest in prosecuting those individuals who promote the sexual exploitation of children (New
York v. Ferber and Osborne v. Ohio). However, a recent ruling by the Court has significantly altered the jurisprudential climate.
17 Child Pornography Statutes
18 Protection of Children Against Sexual Exploitation Act of 1977
Guided by the three- pronged test originally established in Miller the Act expressly prohibited those expletive depictions of children which did not have redeeming
social value it also did not require scienter on the part of the violator as to the age of the individuals depicted This omission proved to be the Act’s Achilles heel, as the 9th Circuit ruled, and the Supreme Court upheld, that the First Amendment mandates that a statute prohibiting the distribution, shipping or receipt of child pornography requires knowledge of the minority of the performers as an element of the crime it defines (U.S. v. Thomas – 893 F.2d 1066 (9th
Circuit), cert denied, 498 U.S. 826, 111 S.Ct 80 (1990); U.S. v. X-Citement Video, Inc (982 F.2d 1285, 9th Circuit 1992). Thus, the Act, in and of itself, was invalidated.
19 Child Protection Act of 1984 18 U.S.C. {{ 2251-2253
Eliminated the obscenity requirement
established in Miller Included images sent electronically
20 Child Pornography Prevention Act of 1996 (CPPA)
expanded the Child Pornography Act to include the production and distribution of computer-generated or other mechanically
altered images of minors engaging in explicit conduct Act assumed that the lack of an actual victim is irrelevant as actual or real victimization may occur via a communication characterized with no social significance and which fails to further the interest of free thinking Assumed that the risk of child victimization is not diminished by the fact that no actual children were victimized as the viewer is largely unaware of the true nature of the scene depicted
21 Supreme Court & Child Pornography
New York v. Ferber (458 U.S. 747, 102 S. Ct. 3348, 73 L.Ed. 2d 1113 (1982) Bookstore proprietor, convicted for selling films depicting young boys masturbating, argued that a NY statute prohibiting the promotion of sexual
performances by children under the age of 16 was unconstitutionally overbroad. Ferber argued that because the statute also prohibited the distribution of materials, such as medical and/or educational books, which deal with adolescent sex in a realistic but non-obscene manner [458 U.S. 747, 753], it failed to establish a level of obscenity consistent with Miller.
22 Ferber Supreme Court held that states are granted more leeway in the regulation of child pornography as
opposed to obscenity because: the use of children as subjects of pornographic materials is harmful to the physiological, emotional, and mental health of the child. The standard of Miller v. California, 413 U.S. 15, for determining what is legally obscene is not a satisfactory solution to the child pornography problem; The advertising and selling of child pornography provide an economic motive for, and are thus an integral part of, the production of such
materials, which is an activity illegal throughout the Nation; The value of permitting live performances and photographic reproductions of children engaged in lewd exhibitions is exceedingly modest, if not de minimis. Notable Quotes from Ferber the prevention of sexual exploitation and abuse of children constitutes a government objective of surpassing importance. The legislative judgment, as well as the judgment found in the relevant
literature, is that the use of children as subjects of pornographic materials is harmful to the physiological, emotional, and mental health of the child The distribution of photographs and films depicting sexual activity by juveniles is intrinsically related to the sexual abuse of children in at least two ways. First, the materials produced are a permanent record of the children’s participation and the harm to the child is exacerbated by their circulation. Second, the distribution
network for child pornography must be closed if the production of material which requires the sexual exploitation of children is to be effectively controlled… There is no serious contention that the legislature was unjustified in believing that it is difficult, it [458 U.S. 747, 760] not impossible, to halt the exploitation of children by pursuing only those who produce the photographs and movies. While the production of pornographic materials is a low-profile, clandestine industry,
the need to market the resulting products requires a visible apparatus of distribution.
23 Ferber Summarized Court emphatically stated that child pornography was a national problem as it encouraged the victimization of all children through its very existence. However, they also cautioned against
overgeneralization – a ruling that would have significant consequences in the new millennium. To wit: if it were necessary for literary or artistic value, a person over the statutory age who perhaps looked younger could be utilized. Simulation outside of the prohibition of the statue could provide another alternative. In addition, the Court argued that any legislation must be evaluated independently, as the 1st Amendment does require specificity in an elemental application. Thus, it
ruled that the behavior proscribed and the level of scienter must be clearly articulated, although it failed to provide thresholds for each. In fact, no formal level of scienter existed until 1990.
24 Osborne v. Ohio (495 U.S. 103, 115,
110 S. Ct. 1691, 1699) Finally established scienter – (i.e., recklessness was sufficient due to the potential harm to children) Held that states could enact child pornography legislation as it hopes to destroy a market for the exploitative use of children Thus, both Ferber and Osborne recognized the state’s compelling interest in protecting children from harm
25 Free Speech Coalition v. Ashcroft
Struck down the Child Pornography Prevention Act – ruling that the Act was too vague and overbroad To wit: the language which prohibits material that appears to be or conveys the impression of child pornography lacked specificity Basically,
ruled that the act’s blanket prohibition of child pornography constituted a content-based regulation which is unconstitutional as computer images may not involve the use of real children
26 Conclusions Courts have not agreed on the application of the 1st Amendment to electronic communications and expressions. The sole ruling regarding the definitions of child pornography appears to contradict traditional notions of compelling government interests.