Child Exploitation and the Internet

Child Exploitation and the Internet Sean B. Hoar sean.hoar@usdoj.gov

What is child pornography? • In a nutshell: • any “visual depiction” • of a “minor” • engaged in “sexually explicit conduct”

any “visual depiction” Includes photographs, films, videos, pictures, etc. Includes data stored on a disk that can be converted to an image Includes undeveloped film

“a minor” Person under the age of 18 Does not matter that the conduct depicted is legal to engage in under state’s age of consent law

“sexually explicit conduct” Actual or simulated… sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex; bestiality; masturbation; sadistic or masochistic abuse; or lascivious exhibition of the genitals or pubic area

“lascivious exhibition of the genitals or public area” U.S. v. Dost, 636 F.Supp. 828 (N.D. Cal. 1986) - focal point on genitalia/pubic area - setting is sexually suggestive - unnatural pose or inappropriate attire - fully or partially clothed - depiction suggests sexual coyness/willingness - designed to elicit sexual response in viewer

Further guidance on “lascivious exhibition” • U.S. v. Wiegand, 812 F.2d 1239 (9th Cir. 1987) • lasciviousness is not characteristic of child but exhibition which photographer sets up • U.S. v. Grimes, 244 F.3d 375 (5th Cir. 2001) • images covered by definition despite pixelation covering pubic area • U.S. v. Knox, 977 F.2d 815 (3d Cir. 1992) • exhibition of genitals includes genital area covered by clothing

So what conduct is prohibited? Possession Receipt Transportation/shipment Distribution Production And ALL of the child pornography statutes include attempt and conspiracy with the same penalties as a completed offense

Key to federal jurisdiction… Interstate commerce or foreign commerce

Federal jurisdictional bases Three Commerce Clause jurisdictional bases in child pornography statutes: 1. Image traveled in interstate or foreign commerce 2. Image was “produced using materials that had been mailed, or shipped, or transported in interstate or foreign commerce” 3. For production (2251), offender intended that image would travel interstate

Transportation18 U.S.C. 2252A(a)(1) • Knowingly transports or ships any visual depiction of a minor engaged in sexually explicit conduct • Interstate nexus: • in interstate or foreign commerce • Examples of conduct • Penalty: mandatory 5 years and up to 20 years • One prior: mandatory 15 years and up to 40 years

Receipt or Distribution18 U.S.C. 2252A(a)(2) • Knowingly receives any visual depiction of minor engaged in sexually explicit conduct • Interstate nexus: • that has been mailed, shipped or transported in interstate or foreign commerce • Examples of conduct • Penalty: mandatory 5 years and up to 20 years • One prior: mandatory 15 years and up to 40 years

Sample Guideline Sentence for Receipt (all depends upon the facts of the case) U.S.S.G. Section 2G2.2 + 22 - Base offense level + 2 - Prepubescent minor + 4 - S & M; Violent Depictions + 2 - Use of computer + 6 - 600 or more images Total 36 - 3 - Acceptance of Responsibility 33 Criminal History Category I, Offense Level 33 135-168 months

Sample Guideline Sentence for Distribution (all depends upon the facts of the case) U.S.S.G. Section 2G2.2 + 22 - Base offense level + 2 - Prepubescent minor + 5 - Distribution for thing of Value + 4 - S & M; Violent Depictions + 2 - Use of computer + 6 - 600 or more images Total 41 - 3 - Acceptance of Responsibility 38 Criminal History Category I, Offense Level 38 235-293 months

Possession18 U.S.C. 2252A(a)(5) • Knowingly possesses one (1) or more visual depictions • Interstate nexus • in special federal jurisdiction; • that was produced using materials that have been transported in interstate or foreign commerce; • that has been transported in interstate or foreign commerce • Examples of conduct • Penalty: up to 10 yrs; • One prior: mandatory min 10 years and up to 20 years

Guideline Sentence for Possession (all depends upon the facts of the case) U.S.S.G. Section 2G2.2 + 18 - Base offense level + 2 - Prepubescent minor + 5 - Distribution for thing of value + 4 - S & M; Violent Depictions + 2 - Use of computer + 6 - 600 or more images Total 37 - 3 - Acceptance of Responsibility 34 Criminal History Category I, Offense Level 34 151- 188 months Note that statutory maximum is 120 months

Common Defenses • The First Amendment • New York v. Ferber, 458 U.S. 747 (1982). • Child pornography does not enjoy First Amendment protection.

Common defenses • The First Amendment • Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002), appeal after remand, Gonzales v. Free Speech Coalition, 408 F.3d 613 (9th Cir. 2005). • CPPA’s definition of child pornography is unconstitutional only as to the terms “appears to be” and “conveys the impression” as found in 18 U.S.C.  2256(8)(B) and (D) respectively.

Common defenses • Age – must prove child is a minor • Defense possibly be rebutted by • suggestive file names, folder names, label on disks • NCMEC database

Common defenses • Age – must prove child is a minor • U.S. v. X-Citement Video, 513 U.S. 64 (1994). • “Knowingly” in 18 U.S.C.  2252 extends both to the sexually explicit nature of the material and to the minority of the performers.

Common defenses • Age – must prove child is a minor • U.S. v. Griffith, 284 F.3d 338 (2d Cir. 2002). • For prosecutions under 2251(a) or 2423(a), government is not required to prove that D knew victim’s age.

Common defenses • State Age of Consent • U.S. v. Bach, 400 F.3d 622 (8th Cir. 2005). • D argued that his actions were not illegal because the images were made with a 16-year-old male in a state defining 16 as the age of consent for sexual activity. A state age of consent under 18 does not trump the federal child pornography age cutoff, because the congressional choice to define a “minor” as someone under the age of 18 is rationally related to the government’s legitimate interest in enforcing child pornography laws.

Common defenses • “not a real child” • Defense possibly rebutted by • Movie clips • Digital expert • Medical expert • Ultimately a jury question

Common defenses • “I got a virus!” • Defense possibly rebutted by • Pattern of usage • Multiple child porn sites/chat rooms visited? • Forensics • Any viruses found? • If so, what do they do? • Capable of depositing CP on computer?? • Capable of logging onto CP sites/chat rooms and uploading and downloading CP?

Common defenses • “It was somebody else” • Multiple users in the house • Wireless internet/hacker • Defense possibly rebutted by • Pattern of usage • Forensics – match internet activity • Was CP downloaded at the same time as e-mail or other activity identified with same user? • i.e. Online banking? Social Networking account logins? • Downloaded over long period of time?

Common defenses • “I don’t know much about computers … • Defense possibly rebutted by • Evidence of regular computer use, if not sophistication, such as: • Method of organizing files and folders • Peripherals • Installed programs • Usage of computer, i.e. email, social networking sites, online banking, etc.

Common defenses • Entrapment • Jacobson v. U.S., 503 U.S. 540 (1992). • Government did not establish that D had a predisposition, independent of government action, to receive child porn through the mail where evidence showed that D was ready and willing to commit the crime only after government had engaged in 2 years of undercover activity consisting of communications from fictitious organizations and persons attempting to convince D that he had the right, or should have the right, to engage in behavior prohibited by law.

Common defenses • Entrapment • U.S. v. Poehlman, 217 F.3d 692 (9th Cir. 2000). • Government’s protracted communications with D in undercover sting operation constituted unlawful inducement. In the absence of predisposition, this unlawful inducement amounted to entrapment as a matter of law. “If a D is predisposed to commit the offense, he will require little or no inducement to do so; conversely, if the government must work hard to induce a D to commit the offense, it is far less likely that he was predisposed.”

Common defenses • Impossibility • U.S. v. Morris, 549 F.3d 548 (7th Cir. 2008) • Mistaken belief that person D is trying to entice is underage is not a defense. The law against enticement is directed to a person who by his conduct demonstrates that had the attempt not been interrupted he would likely have completed the crime. That the person purporting to be a minor is an adult private citizen, as opposed to law enforcement officer, is not material because D’s dangerousness is unrelated to status of person acting in undercover capacity.

Common defenses • Impossibility • U.S. v. Blazek, 431 F.3d 1104 (8th Cir. 2006). • D engaged in explicit sexual conversations over the Internet with an undercover officer posing as a 15-year-old male. Court found evidence was sufficient to convict D of attempted enticement of minor.

Common defenses • Outrageous Conduct/Manufacturing Jurisdiction • U.S. v. Musslyn, 865 F.2d 945 (8th Cir. 1989). • The court held that the outrageous government conduct defense is not available to D because he was clearly predisposed to order child pornography and the government agents only acted in concert with D’s illegal request.

Common defenses • Outrageous Conduct/Manufacturing Jurisdiction • U.S. v. Smith, 749 F.2d 1568 (11th Cir. 1985). • A government agent or informer must unilaterally supply the interstate element of the offense at the government’s behest, e.g., when the agent goes out of state merely for the purpose of making the interstate call and creating federal jurisdiction, before federal jurisdiction will be deemed to have been improperly manufactured.

Common defenses • Public Authority • U.S. v. Parker, 267 F.3d 839 (8th Cir. 2001). • Public authority defense requires a D to show that he was engaged by a government official to participate in a covert activity. D who continued to download child pornography after being instructed to deliver to the FBI only the images he had already obtained and stored showed D was acting on his own as opposed to at the authorization of the FBI and was not entitled to have jury instructed as to a “public authority” defense.

Production18 U.S.C. § 2251(a) • Using, persuading, enticing, etc., a minor to engage in sexually explicit conduct for the purpose of producing a visual depiction of that conduct • Interstate nexus: • depiction was produced using materials mailed or transported in interstate or foreign commerce; • depiction was mailed/transported in interstate/foreign commerce; • suspect knows or has reason to know that visual depiction will be mailed or transported in interstate or foreign commerce • Examples of conduct • Penalty: mandatory 15 years and up to 30 years • One prior qualifying conviction: 25 to 50; 2 priors: 35 to life

Production18 U.S.C. § 2251(a) • U.S. v. Ortiz-Graulau, 526 F.3d 16 (1st Cir. 2008), cert. denied, 129 S.Ct. 742, (2008). • Congress’ passage of 2251(a), the production statute, was meant to prevent the production of child pornography, even if for private use. • U.S. v. McCalla, 545 F.3d 750 (9th Cir. 2008), cert. denied, 129 S.Ct. 1363 (2009). • Application of CPPA to noncommercial intrastate production of child pornography does not exceed Congress’ power under the Commerce Clause

Advertising18 U.S.C. § 2251(d) • Knowingly makes, prints, or publishes any notice or advertisement seeking or offering to: • receive, exchange, buy, produce, display, distribute, or reproduce CP; or • participate in any act of sexually explicit conduct so CP can be produced • Interstate nexus: advertisement was or suspect knows or has reason to know that the notice or advertisement will be transported in interstate commerce • Examples of conduct • Penalty: mandatory 15 years and up to 30 years • One prior: mandatory 25 years up to 50 years • Two priors: mandatory 35 years up to life

Obscene Representations of the Sexual Abuse of Children18 U.S.C. § 1466A Part of PROTECT Act: April 30, 2003 - Targets obscene images of minors engaging in hardcore actual or simulated sexual acts Includes drawings, cartoons, sculptures or paintings (unlike child pornography statutes) Production, distribution, receipt, and possession with intent to distribute Examples of conduct Penalty: same as child pornography penalties

Transfer Obscene Material to Minor18 U.S.C. § 1470 Using the mail or any facility or means of interstate or foreign commerce, knowingly transfers obscene matter to a person less than 16 years, (knowing they are less than 16) or attempts to do so Examples of conduct Penalty: up to 10 years

Enticing18 U.S.C. § 2422(b) Use facility or means of interstate or foreign commerce to knowingly persuade, induce, entice, coerce person under 18 to engage in prostitution or in any illegal sexual activity or attempts to do so Examples of conduct Adam Walsh Act: July 26, 2006 – 10 year mandatory minimum to maximum of life

Enticing18 U.S.C. § 2422(b) U.S. v. Dhingra, 371 F.3d 557 (9th Cir. 2004). Court rejected a Fifth Amendment vagueness challenge because the statute’s imposition of liability is not based on “whether the minor actually engaged in criminal sexual activity, but rather whether the defendant sought such sexual activity from a minor.” Court also rejected a First Amendment overbreadth challenge that 2422(b) is a content-based regulation of speech.

Direct contact with “minor” required? Section 2422(b) does not require direct contact with a minor or an undercover agent posing as a minor; encompasses conduct where a defendant arranges to have sex with a minor through communications with an adult intermediary, including an adult law enforcement agent posing as a parent of a minor child United States v. Murrell, 368 F.3d 1283 (11th Cir. 2004)

Transporting Minor18 U.S.C. § 2423(a) Knowingly transports a minor in interstate or foreign commerce with intent minor engage in prostitution or any illegal sexual activity; or conspires or attempts to do so Examples of conduct Adam Walsh Act: Effective July 26, 2006 – 10 year mandatory minimum, maximum life

Traveling18 U.S.C. § 2423(b) Interstate or foreign travel for purposes of engaging in any illicit sexual conduct “Illicit sexual conduct” – Chapter 109A sex act with minor or a commercial sex act with minor Examples of conduct PROTECT Act: April 30, 2003 – maximum of 30 years If minor is under 12, can charge 18 U.S.C. § 2241(c) which carries mandatory 30 years and max life

Under the age of 18? • Actual age doesn’t matter – it is what defendant thought • U.S. v. Farner, 251 F.3d 510 (5th Cir. 2001) • D traveled to have sex with 14 year-old who turned out to be an FBI agent • Argued impossibility on appeal • Impossibility was factual, because the D unquestionably intended to engage in the illegal conduct but failed only because of circumstances unknown to him

Transporting/traveling18 U.S.C. § 2423(a) & (b) • U.S. v. Simonson, 244 Fed.App’x 823 (9th Cir. 2007) • D was convicted under 18 U.S.C.  2423(a)-(b) for intent to engage in illicit sexual conduct and attempted enticement. Court held that law does not violate D’s due process rights because he is U.S. citizen, and Congress has power to regulate foreign commerce and to act to prevent channels of commerce from being used for immoral injurious purposes.

Engaging in Illicit Sexual Conduct in Foreign Places18 U.S.C. §2423(c) Enacted by PROTECT Act U.S. citizen or alien admitted for permanent residence who travels in foreign commerce, and engages in any illicit sexual conduct with another person Examples of conduct Penalty: Maximum of 30 years.

Engaging in Illicit Sexual Conduct in Foreign Places18 U.S.C. §2423(c) • U.S. v. Clark, 435 F.3d 1100 (9th Cir. 2006) • D was arrested in Cambodia while engaging in sex acts with two young boys. The court held • (1) extraterritorial application in 2423(c) was proper based on the nationality principle, which permits a country to apply its statutes to extraterritorial acts of its own nationals;

Engaging in Illicit Sexual Conduct in Foreign Places18 U.S.C. §2423(c) • U.S. v. Clark, 435 F.3d 1100 (9th Cir. 2006) • (2) Court also rejected D’s contention that 2423(c) required conduct to occur “while” D was traveling. • (3) Based on D’s U.S. citizenship, application of 2423(c) to D's extraterritorial conduct did not violate Due Process Clause. • (4) Finally, Congress did not exceed its authority under U.S. Const. art. I,  8, cl. 3 to regulate commerce with foreign nations in enacting 2423(c).

Buying/Selling Children18 U.S.C. § 2251A Parent, guardian or person w/custody or control sells or transfers custody, or offers to do so, or person purchases or obtains custody With knowledge the minor will be portrayed in visual depiction, or with intent to promote sexually explicit conduct for purpose of producing a visualdepiction Interstate Nexus: Actor or victim traveled in IC/FC or any offer was communicated or transported in IS/FC Examples of conduct Penalty: 30 year mandatory minimum to maximum of life

Mandatory Life Imprisonment18 U.S.C. § 3559(e) • Convicted of federal sex offense in which victim is age 16 or younger • 2241, 2242, 2244(a)(1) • 1591, 2422(b), 2423(a) • 2251, 2251A • At time federal sex offense committed, defendant had previously been convicted of a federal or state felony sex offense • Examples of conduct

Child Exploitation and the Internet