"Created to solve the problem of child sexual abuse, child pornography law...has grown dramatically in the past two decades, expanding and proliferating along with the underlying problem that it targets. Yet, curiously, the law's expansion has not solved the problem, but only presided over its escalation." Amy Adler, Associate Professor, New York University School of Law**The TRUTH about Child Pornography; the myths and your cognitive dissonance. attorney notes
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Historically, witch hunts have not been a good thing. Innocent people have suffered extreme temperature conditions. Now, the witch hunt has shifted its focus away from non-traditional religious practices, and into something everybody can agree is perverted--the possession of child pornography.
The current state of the law is scary. Simply viewing child porn is illegal in Florida. Pretty soon, just thinking about viewing child porn will be illegal. Can you think of anything else that is illegal to see?
I understand the logic here--if you cut of the demand (the viewers), the supply of child porn will decrease as well. But that's not how child porn works. Sure, if you cut down cocaine users, the supply of cocaine will decrease, but that's economics 101. Child porn is not an economically driven activity--there's no money changing hands. Let's face it, the production of child porn is some sort of perversion. So, it doesn't take a rocket scientist to figure out that the massive prison terms child porn possession cases has not made a dent in its production.
Here's my concern for today. The government's quest to find child pornography is diminishing our constitutional rights, by setting the bar so low to issue a home search warrant. The level of proof to enter a suspected grow house, or to enter a home suspected of containing drugs, is far greater than the proof required to enter a home suspected of containing child pornography. The case that will prove this to you is State v. Woldridge, 958 So. 2d 455 (Fla. 2d DCA 2007).
Woldridge was charged with possession of child pornography, based upon a search of Woldridge's home. Naturally, this search began as an Affidavit in Support of a Search Warrant. Typically, law enforcement must produce quite a bit of evidence to a judge (in the form of a sworn affidavit) to get into somebody's house. The constitution requires probable cause that there will actually be evidence of a crime in a house before violating the sanctity of a citizen's home. In Woldridge's case, a judge let the police into his home because the police received a tip that child porn could be found in the home. So the question is, who gave the police this "tip", and how reliable was this "tip?"
Tips can be a sketchy business. Not all tips are created equal. I've seen plenty of jealous wives and husbands give bogus tips to the police, just to thwart a new relationship. I've seen plenty of bogus tips given to the police just because a business owner wants to knock out the competition. And sometimes, folks are simply prejudice and assume that someone is up to no good because they drive too nice of a car. You get the point. Cops have to be careful, and make sure the tips they receive are reliable and can be substantiated before asking a judge to enter a home.
In Woldridge, the tip came from the National Center for Missing and Exploited Children (NCMEC), and they received their info from America Online (AOL). AOL had reported to NCMEC that one of their users attempted to email child porn files. Now, in case you didn't know, our Federal government actually requires internet providers to report to NCMEC any child pornography they come across. AOL was simply following the law. Law enforcement then obtained this information, put it into a warrant application, and a judge signed this warrant. A search was done of Woldridge's house, and you know the rest of the story. The problem boils down to this--do we really know how reliable these internet tips are? No human being seemed to touch this tip, it was just an automated email of sorts sent to NCMEC. How many automated emails to you get in a day that aren't all they're cracked up to be? How many times have major companies sent you an email in error?
No, we don't know how reliable AOL is. We don't know how reliable NCMEC is, they're just a pass through organization that does no independent analysis of the tips they receive. You could have some webmaster out of Russia sending tips to NCMEC, and some judge will sign the warrant, unfortunately. And, that's the problem. Some judges see the term "child porn" and ask "where do I sign?" The constitution requires a neutral magistrate to sign home search warrants, and we're not seeing much neutrality in these cases.
There's no verification of the NCMEC internet tips. if it comes from a website, it must be valid. Do any of you out there believe everything you read on the internet? Do you believe everything you see on the internet? Well, the cops do, and the judges do--and that should scare you.
Back to Woldridge. Let's oversimplify things a bit and say that when a tip is considered reliable, there is probable cause to enter a home. If a tip is anonymous, it is generally not reliable, and a judge will not sign a search warrant to permit entry into a home unless the tip's reliability can be established in other ways. A tip from NCMEC is not necessarily anonymous, nor is a tip from AOL. But, is this tip as reliable as a citizen informant, like "Kathy Jones who lives at 1234 Main Street, phone number 407-,Kathy says that the suspect did XYZ"?
Federal law compelled AOL to report the child pornography in Woldridge. Does that make the reliable? However, what about this reporting requirement makes the content of their tip any more or less reliable? Information provided by the internet is often unreliable, it is often tainted, and it is often misleading. Unfortunately, the court in Woldridge didn't really care much about the wild west landscape of the internet, opting to support the witch hunt in any way they can.
Bottom line: local law enforcement has gone beyond Woldridge, and now uses tips from non-ISP internet providers. Yep, just plain old website tips are good enough. That's scary. I have a website, you probably have a website. Any of us can submit a tip to NCMEC, that tip will be forwarded to law enforcement and some judge may just be dumb enough to sign the warrant. Notice the distinction here, Woldridge dealt with an ISP like AOL, another case dealt with Yahoo. But the bar has been lowered to include any website that reports child porn, even though they're not an ISP.
So, the Woldridge court trusted an ISP as a reliable informant, but stated that "we certify the following question as one of great public importance:
WHETHER INFORMATION PROVIDED TO LAW ENFORCEMENT BY AN INTERNET SERVICE PROVIDER PURSUANT TO THE PROVIDER'S STATUTORY OBLIGATION . . . IS ACCORDED A PRESUMPTION OF RELIABILITY AKIN TO THAT OF A CITIZEN INFORMANT SUCH THAT NO INFORMATION CONCERNING THE RELIABILITY OF THE "TIPSTER" IS NECESSARY TO PROVIDE PROBABLE CAUSE FOR THE ISSUANCE OF A SEARCH WARRANT" id. at 460
Yes, this is an issue of great public importance, at least they got that right.
Every era in human history has its version of a witch hunt. In the late 1600's, colonial Massachusetts put many people to death via hanging, or burning at the stake, because these folks "confessed" to being witches. In my view, part of what qualifies any government activity as a "witch hunt" involves examining the large gap between the punishment and the crime. Burning at the stake for being a witch is but one example. Twenty years in prison for possessing child pornography, that's today's example. Yes, our government would probably sanction burning at the stake for child pornography, if they could get away with it. And bear in mind, we're talking about child pornography that doesn't--necessarily--involve child victims that are currently alive and well. These child victims may have long since passed into the afterlife, yet their images continue to send scores of citizens to prison every day (well, maybe not every day).
The punishment for child pornography is steep. Possession of child pornography can send a citizen to prison, even though the child victims in the pornography are no longer living, or even identified. So, based upon the fact that a citizen viewed a few pictures on the internet--that momentary viewing may lead to years and years of prison. That meets my definition of a witch hunt, plain and simple. I'm not talking about the suspects that are actually photographing these children. That's another story, and that's another charge. I'm not talking about the folks that are featured on NBC's To Catch a Predator--that too is an entirely different charge.
Any discussion of viewing lewd pictures of children on the internet would not be complete without explaining how one's computer can take such pictures and create additional charges. You see, many people now have "cloud" computing. There is, for example, an Apple product called "iCloud". With this program, Apple will upload all of your pictures onto the "iCloud". If you lose your iPhone, simply buy a new one, and download all of your pics from the iCloud back onto your phone. It's simple, easy, and quick. But if those pictures constitute child pornography--can you be convicted of transmitting child pornography? Well, the recent case of Biller v. State addresses this very issue. 109 So. 3d 1240 (Fla. 5th DCA 2013).
Biller pled to 15 counts of possession of child pornography, and one count of transmission of child pornography by electronic device. The accusation involving the transmission of child stems from the fact that Biller permitted his entire computer to be accessible via Limewire. The Limewire service permits anyone to access your computer files, much in the way services like Dropbox permit limited file sharing in the "cloud". The definition of "transmit" states that Biller must commit "the act of sending and causing to be delivered any image" via the internet. But, Biller did not transmit an image via Limewire. In fact, it was the government that downloaded the child porn from Biller's computer via Limewire. As such, is Biller guilty of "transmitting" the images to law enforcement via Limewire? No.
When the police downloaded child porn from Biller's Limewire account, Biller had no real knowledge that they (or anyone) retrieved his images. The State contends that opening up one's computer to Limewire services is, in effect, violating the spirit of the law. Fortunately, the appeals court wasn't buying what the State was selling, and they resorted to Webster's Dictionary in their rejection of the State's position, finding that the "definition of the word 'send' is, 'to cause to go or be carried.'" Id. at 1241. Even though the appeals court found the State's position to be reasonable under the circumstances, the good news is that we Americans enjoy a privilege known as "statutory lenity". In essence, this principle stands for the proposition that "when a criminal statute is susceptible of more than one construction, we are compelled to construe the statute most favorable to [the citizen]". Id. As such, the court overturned Biller's conviction for transmission of child pornography.
A couple of side notes here. Notice how many counts Biller pled to? 15? That's pretty common, on a plea, though in many of these cases the State will bring 100+ counts. Start adding up that many counts, and you've got mandatory prison just based on the number of points racked up. And, going to trial on such a case will be brutal. Can you imagine the jury viewing the first image of child pornography? Then the second image? Then the third image? Then the fourth image? Then the fifth image? Then the sixth image? Then the seventh image? Ouch. And, even if a defense expert can testify that some of the images do not constitute child pornography (it happens, sometimes these are 18 year old--legal--females that happen to look younger than they are), it is pretty common for the State to simply have several other--uncharged--pictures which they can then slip right into the count that was once occupied by the possibly legal image. So, after paying an expert tons of money to evaluate the age of the "children" in the pictures, you may still end up with the same number of counts. Biller's criminal defense attorney also fought to declare the possession of child pornography statute unconstitutional and void for vagueness. I agree that this statute should be declared unconstitutional, so I think the defense attorney was on the right path here, but the appeals court denied this portion of the appeal. After all, what judge during the Salem Witch Trials had the gonads to stand up while someone is burning at the stake, and tell everyone something isn't right?