Federal Child pornography legislation

Cumulative Supplement

Cases:

Action alleging that Child Online Protection Act (COPA) violated speech rights of World Wide Web publishers was likely to succeed on merits, for purposes of determining whether preliminary injunction should issue; because current technology did not permit publishers to restrict access to sites based on geographic locale of each particular Internet user, COPA essentially required that every publisher abide by the most restrictive and conservative state's community standards, and, furthermore, COPA was not readily susceptible to narrowing construction that would make it constitutional. U.S.C.A. Const.Amend. 1; Child Online Protection Act, § 1403, 47 U.S.C.A. § 231. American Civil Liberties Union v. Reno, 217 F.3d 162 (3d Cir. 2000); West's Key Number Digest, Civil Rights 268.

Postproduction computer alterations of visual depictions of unclothed girls that placed pixel blocks over their genital areas did not take depictions outside reach of child pornography statute prohibiting knowing possession of visual depictions whose production involved use of a minor engaging in sexually explicit conduct and which depict such conduct; depictions remained a "lascivious exhibition." 18 U.S.C.A. § 2252(a)(4)(B). U.S. v. Grimes, 244 F.3d 375, 56 Fed. R. Evid. Serv. 1048 (5th Cir. 2001); West's Key Number Digest, Obscenity 5.2.

In order for government to establish that specific images were downloaded from Internet, and thus were transported in interstate commerce, as required to support conviction for possession of three or more matters containing visual depictions of minors engaged in sexually explicit conduct which were produced using materials shipped or transported in interstate commerce, government must independently link all images upon which conviction is based to Internet. 18 U.S.C.A. § 2252A(a)(5)(B). U.S. v. Henriques, 234 F.3d 263 (5th Cir. 2000); West's Key Number Digest, Obscenity 5.1.

Evidence that defendant's computer was connected to Internet and contained child pornography on its hard drive, and that defendant had viewed pornographic images on Internet was insufficient to sustain conviction for possession of three or more matters containing visual depictions of minors engaged in sexually explicit conduct which were produced using materials shipped or transported in interstate commerce, even if one image from hard drive had website address embedded on it and witness testified that defendant had viewed another image on Internet, absent evidence connecting third image to Internet. 18 U.S.C.A. § 2252A(a)(5)(B). U.S. v. Henriques, 234 F.3d 263 (5th Cir. 2000); West's Key Number Digest, Obscenity 17.

PROTECT Act: In deciding whether to grant downward sentencing departure to defendant whose pornography offenses predated enactment of the Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act (PROTECT Act), which amended guideline for downward departure for diminished capacity making it inapplicable in child pornography cases, district court did not err in failing to apply provision of the PROTECT Act, where government conceded, when it brought the PROTECT Act to district court's attention, that court was not bound to follow the Act. 18 U.S.C.A. § 3553; U.S.S.G. § 5K2.13, 18 U.S.C.A. U.S. v. Lighthall, 389 F.3d 791 (8th Cir. 2004); West's Key Number Digest, Sentencing and Punishment 664(4).

Evidence supported defendant's conviction for knowing possession of materials that contained child pornography and were transported in interstate commerce by any means, including computers; two pictures were found on defendant's computer depicting girl in provocative poses which jury could find depicted sexually explicit conduct under child pornography statute, and there was evidence that pictures traveled through computer servers located outside of defendant's state to get there. 18 U.S.C.A. §§ 2252A(a)(5)(B), 18 U.S.C.A. §§ 2256(2)(E), (8). U.S. v. Rayl, 270 F.3d 709 (8th Cir. 2001); West's Key Number Digest, Obscenity 17.

Defendant had exercised dominion and control over images in his Internet cache files in his laptop computer, for purpose of possessing and receiving child pornography, by enlarging them on his screen and saving them there for five minutes before deleting them; while images were displayed on defendant's computer screen and simultaneously stored to his laptop's hard drive, he had ability to copy, print, or email images to other persons. 18 U.S.C.A. § 2252A(a)(2, a)(5)(B). U.S. v. Romm, 455 F.3d 990 (9th Cir. 2006); West's Key Number Digest, Obscenity 5.2.

The Child Pornography Prevention Act of 1996 (CPPA), insofar as it criminalizes material that "appears to be a minor" and "convey[s] the impression" that the material is a minor engaged in explicit sexual activity, is unconstitutionally overbroad, as including constitutionally protected activity as well as legitimately prohibited activity, since Congress may serve its legitimate purpose in protecting children from abuse by prohibiting pornography actually involving minors. U.S.C.A. Const.Amend. 1; 18 U.S.C.A. § 2256(8)(B, D). Free Speech Coalition v. Reno, 198 F.3d 1083 (9th Cir. 1999); West's Key Number Digest, Obscenity 2.5.

In prosecution of defendant for knowingly taking or receiving, from common carrier or interactive computer service, images of child pornography, government could rely on circumstantial evidence to prove that pornography was obtained through the internet. 18 U.S.C.A. § 1462. U.S. v. Dodds, 347 F.3d 893 (11th Cir. 2003); West's Key Number Digest, Obscenity 17.

Child Protection and Obscenity Enforcement Act: Participants in adult entertainment industry failed to meet the preliminary injunction standard of showing a substantial likelihood of success on claim that amended portions of Child Protection and Obscenity Enforcement Act and associated regulations, requiring producers to keep a copy of each depiction or an identifying reference associated with each Internet depiction, created an undue burden on their free speech rights, with the exception of requirement as applied to Internet chat rooms and as applied beyond websites controlled by producer; participants presented evidence that requiring copy of each depiction in chat rooms would involve extraordinary computer capacity costing as much as $15 million annually, and even government's expert witness testified that it would be impossible to comply with the requirement with respect to websites not controlled by a producer. U.S.C.A. Const.Amend. 1; 18 U.S.C.A. § 2257; 28 C.F.R. §§ 75.1(c)(1, 2, 4), 75.2(a)(1). Free Speech Coalition v. Gonzales, 406 F. Supp. 2d 1196 (D. Colo. 2005); West's Key Number Digest, Civil Rights 1457(2).

Expectation of privacy during repair of computer: Defendant charged with possession of child pornography images on his home computer did not have reasonable expectation of privacy in images viewed by repair shop's computer technician, as required to establish that subsequent search and seizure of computer violated Fourth Amendment; defendant's wife brought computer to shop for repair, and defendant himself told technician that he would find "raunchy" photographs on the computer, and instructed technician to save such photographs. U.S.C.A. Const.Amend. 4; 18 U.S.C.A. § 2252(a)(4)(B). U.S. v. Grant, 434 F. Supp. 2d 735 (D. Neb. 2006); West's Key Number Digest, Obscenity 7.6.

CPPA: Accused's plea of guilty to distributing child pornography found on his computer was provident, notwithstanding accused's contention that he did not invite others to view child pornography stored on his computer, or make others aware such materials existed, and thus there was no evidence of his intent to distribute the pornography; accused's use of peer-to-peer file-sharing software to search for and download child pornography files from other users of the software, while allowing other users to search for and download child pornography from him, constituted "distribution" of child pornography within meaning of Child Pornography Prevention Act (CPPA). 18 U.S.C.A. § 2252A(a)(2). U.S. v. Christy, 65 M.J. 657 (A.C.C.A. 2007); West's Key Number Digest, Military Justice 988.

Knowing possession: Evidence did not establish that defendant possessed illegal images on computer hard drives knowing their content so as to support conviction for possession of pictorial representations of minors; there were many ways that images or text could have been stored to hard drive, pop-up advertisements, unsolicited emails, and banner advertisements could contain illegal images or text, and even if computer user ignored them or deleted them, text could be stored to hard drive, of thousands of pornographic images and texts on school computers, less than 100 images depicted minors, and some websites found were merely text references within other websites, not sites visited by computer user. M.S.A. §§ 617.246 subd. 1(f), 617.247 subd. 4(a). State v. Myrland, 681 N.W.2d 415 (Minn. Ct. App. 2004), review denied, (Aug. 25, 2004); West's Key Number Digest, Federal Civil Procedure 17.