Sunday, March 22, 2015
Constructing a red-light district on the Internet
If you think politics makes strange bedfellows, try pornography.
Let me rephrase that.
A seemingly uncontroversial proposal to create a special domain on the Internet to help protect children (and others) from adult content developed strong opposition on the eve of its implementation earlier this month. It has been put on hold.
Joining forces to oppose the proposal: pornography fighters and some pornography producers.
Certainly these unusual bedfellows have different reasons for not wanting something called the xxx domain to be created on the Internet, but when they speak with one voice, the real and virtual governing bodies listen.
That’s why the U.S. Commerce Department, besieged by 6,000 letters of protest about the creation of a “red-light district” on the Internet, fired off its own letter requesting a delay in implementation. The Internet Corporation for Assigned Names and Numbers, the international body that among other things maps Internet geography, agreed.
Why is any of this important to Americans? Like it or not, smut is a multibillion-dollar business on the Internet. It is driven by demand and protected by the Constitution. We need to accept that as well as deal with it.
Five years ago, the Internet’s governing bodies and others began tinkering with the idea of creating a separate place on the Internet for adult-oriented material by adding “.xxx” as one of the 260 address suffixes that now identify countries, institutions and other cyber destinations.
The goal of the “dot-xxx” idea was to help parents and anti-porn groups identify and block access by children to indecent material; to protect the privacy and security of consumers who access such material; and to encourage providers of adult content to act more responsibly.
The .xxx conversation turned serious about a year and a half ago when a Florida firm, the ICM Registry, put together a proposal for implementing it. The proposal was sponsored by the International Foundation for Online Responsibility, a Canadian foundation with no connection to the adult industry.
On June 1, ICANN approved the proposal. As the time for implementation of the .xxx domain earlier this month neared, however, opposition solidified.
The Family Research Council, among other anti-porn groups, began generating letters and pressure. Murmurs of opposition began to arise within the adult-entertainment industry also.
The anti-porn groups say a .xxx domain would make Net porn legitimate, increase the amount of such material and reduce the pressure on the U.S. government to go after pornographers. “The .xxx domain proposal is an effort to pander to the porn industry and offers nothing but false hope to an American public which wants illegal pornographers prosecuted, not rewarded,” said Patrick Trueman of the Family Research Council.
For their part, some adult content providers voiced concern that the industry might be forced to give up lucrative dot-com real estate and be “zoned” to the margins of Internet traffic — or that the move might be turned into a tool for regulation or prosecution.
The last-minute opposition came as a troubling surprise to ICM Registry, which had carefully tried to form a system that worked to the advantage of all stakeholders. The sponsoring foundation, IFFOR, has set out missions that include making the public aware of ways to protect children online, sponsoring child safety and anti-child pornography organizations and programs, and creating a less-risky environment for consumers and providers of content, as well as support for freedom of expression.
The adult businesses that voluntarily sign up with ICM Registry would be required to sign a contract stating that they will adhere to responsible business practices, protect youngsters from marketing or targeting, defend customer privacy, ensure reliable identification of content (meta-tagging) and combat “unlawful malicious codes and technologies” such as spamming, spoofing and pfishing.
Establishing a .xxx domain would not eradicate Net porn, of course, but it could provide one more tool for parents trying to block such sites and better monitor their children’s online activities. It could encourage the adult industry to be more responsible. It could help grown-ups make better decisions.
And all of that could constitute a significant step forward.
Worry about government regulation in this situation is legitimate even if the likelihood is slight. ICANN is a private-public entity with global responsibility for the Internet’s operational stability. Theoretically, it is insulated from government control or sway.
But the U.S. Commerce Department actually operates the root server system that makes the domain names work. When a concerted letter-writing campaign can prompt the federal agency to big-foot a sincere and promising effort to make things easier and less risky for parents, consumers and providers, then strange bedfellows with strong voices become not just an oddity but a threat. Official U.S. intervention could heat up concerns in some countries that ICANN is overly influenced by American policy-makers.
In the minds of many, pornography is a worst-class ticket to perdition. They believe that full-force prosecution, even if it is impractical or unconstitutional, is the only option. On the other side are those who believe that private and government powers should not interfere with what grown-ups choose to access in cyberspace.
In the meantime, the vast majority located somewhere between those two positions should welcome any tool that helps Internet users, young and old, safely navigate the Internet.
Paul K. McMasters is First Amendment ombudsman at the First Amendment Center, 1101 Wilson Blvd., Arlington, Va. 22209. E-mail: firstname.lastname@example.org.
Under bill, children in pornography wouldn't have to be real
COLUMBUS, Ohio — Legislation introduced in the Ohio House would amend Ohio law so that no proof would be required that a minor depicted in pornography is an actual person in order to prosecute child pornographers.
The bill is similar to a federal law that expanded the definition of child pornography to include computer images that are indistinguishable from real children.
Sponsoring Rep. Timothy DeGeeter, D-Parma, said he sought the change because of cases in which defense lawyers have tried to use the First Amendment in defending clients charged with child-pornography offenses.
He said defense lawyers make the claim that no crime has been committed because their clients aren't viewing actual children engaged in sex acts, but rather computer-generated images meant to represent children.
Gary Daniels of the Cleveland chapter of the American Civil Liberties Union said the proposed bill is an attempt to subvert a 2002 U.S. Supreme Court ruling, Ashcroft v. Free Speech Coalition, that virtual porn is protected by the First Amendment.
"People cooking images, using Photoshop to morph body parts, using sleight-of-hand computer generation ... . This is exactly the issue the Supreme Court addressed," said Daniels, adding that such image manipulation doesn't constitute child pornography.
Passage of the federal law, which hasn't been tested yet, followed that ruling.
DeGeeter said his bill is a "legislative fix" that reflects the new federal statute.
"The bill will take away the added burden placed on prosecutors to prove there is a real victim," he said.
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11th Circuit reverses child-porn conviction
11th Circuit reverses child-porn conviction
MIAMI — A federal appeals court reversed the child-pornography conviction of a St. Petersburg man late last week, ruling that a shipment of blank computer disks across state lines was not enough to satisfy the interstate commerce requirement of federal law.
Federal prosecutors stretched the link to interstate commerce by prosecuting James Maxwell for possession of child pornography without offering any evidence that he obtained the photos from out of state, the 11th U.S. Circuit Court of Appeals ruled Oct. 1.
The decision in USA v. Maxwell raises the bar for evidence needed to support federal child-pornography convictions by concluding simple use of computer equipment is insufficient to federalize the crime.
Writing for a three-judge panel, former Chief Judge Gerald Tjoflat said he had “no intention of breaking new ground.” But he concluded, “It strains reason to conceive of how Maxwell’s activity of possession was in any sense ‘commerce.’ ”
Tjoflat noted there were no allegations that Maxwell viewed the pornography or produced, purchased, distributed or traded it across state lines in violation of the Child Pornography Prevention Act of 1996.
“Stated bluntly, wholly intrastate activities that have a only minimal or insubstantial effect on interstate commerce are not proper subjects for federal regulation, at least not through the power bestowed by the commerce clause,” the judge wrote.
The decision restrains “the use of federal criminal law in this area unless there is a substantial connection to interstate commerce,” said Bruce Rogow, a constitutional law expert at Nova Southeastern University law school. “He’s saying that it could be a federal offense.”
Steve Cole, spokesman for the U.S. attorney’s office in Tampa, said, “We’re reviewing that opinion, and then we will decide if we’re going to seek any further action.”
Federal public defenders who represented Maxwell had no comment on the decision.
The ruling adds to a split among appellate courts on the minimum requirements for child-pornography convictions. John Harrison, a University of Virginia law professor, said he thought there was “a substantial chance” the U.S. Supreme Court would review one of the cases to resolve the differences.
During trial, the defense stipulated that a blank zip disk and floppy disk were produced outside of Florida. But Maxwell presented no defense and did not acknowledge anything about how the pornography got onto the disks.
The disks, among about 140 items seized by investigators, were taken by the FBI when Maxwell’s former roommate, a friend from church, became suspicious that he was interested in homosexual Internet activity, some involving children. Maxwell used his landlady’s computer before reporting to state prison for an unrelated crime.
Jurors heard a tape recording of a jailhouse phone call between Maxwell and his pastor three days before the FBI search asking her to get his computer disks and stash them somewhere. Maxwell was convicted last year after two hours of deliberation.
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3rd Circuit: 2 child-porn laws may be unconstitutional
Douglas E. Lee Special to the First Amendment Center Online Monday, April 23, 2012
Douglas E. Lee Special to the First Amendment Center Online Monday, April 23, 2012
Disagreeing with two other federal circuit courts, the 3rd U.S. Circuit Court of Appeals recently held that portions of two federal statutes aimed at producers of sexually explicit material might violate the First Amendment.
In Free Speech Coalition v. Attorney General of the United States, a three-judge panel of the 3rd Circuit on April 16 held that Section 2257 of the Child Protection and Obscenity Enforcement Act and Section 2257A of the Adam Walsh Child Protection and Safety Act potentially burden more speech than is necessary to further Congress’s interest in protecting children and might be otherwise overbroad. In doing so, the court acknowledged that the District of Columbia Circuit in 1995 upheld the statutes in American Library Association v. Reno and that the 6th Circuit did the same in 2009 in Connecticut Distributing Co. v. Holder.
Generally, in order to discourage the use of children in sexually explicit videos and other material, the statutes require producers of adult media to maintain a photo identification and the date of birth for each performer depicted as being engaged in “sexually explicit conduct” and to state on the distributed media where these records are kept. Violators of the statutes face criminal charges and possible imprisonment.
A coalition of individuals and entities involved in the adult media industry challenged the statutes in a Pennsylvania federal district court, arguing in part that the statutes violate the First Amendment because they burden producers that work with performers who clearly are adults and because they are otherwise overbroad.
The district court, relying on Reno and Holder, disagreed and dismissed the coalition’s First Amendment arguments.
On appeal, the 3rd Circuit agreed with the district court that the statutes are content neutral and advance a substantial government interest. The appellate court, however, disagreed with the trial court’s conclusions that the statutes could not in any circumstance burden substantially more speech than is necessary to advance that interest and could not be considered overbroad.
The 3rd Circuit therefore reversed the district court’s dismissal of the coalition’s First Amendment claims and held that the coalition is entitled to pursue the case further.
“If one of the Plaintiffs employs performers that no reasonable person could conclude were minors,” the court said, “then that plaintiff may be able to demonstrate that the Statutes burden substantially more of that plaintiff’s speech than is necessary to protect children from sexual exploitation.”
Without providing the coalition the opportunity to gather and present evidence, the court said, “we cannot accurately compare the amount of Plaintiffs’ constitutionally-protected speech that does not implicate the government’s interest in protecting children (e.g., speech involving performers who are obviously adults) to the amount of Plaintiffs’ speech that implicates the government’s interest (e.g., speech involving performers who are not obviously adults).”
Similarly, the court held that the coalition should be permitted the opportunity to present evidence that the statutes are overbroad, particularly because the statutes apply to depictions without regard to “the performers’ actual or apparent ages.”
“The degree of the asserted overbreadth is obviously the critical determination, but Plaintiffs were never afforded the opportunity to conduct discovery or develop a record from which we could determine this degree,” the court noted. “Without some notion of both the amount of speech that implicates the government’s interest in protecting children (e.g., depictions of performers who reasonably could be minors based on their apparent ages) and the amount of speech that is burdened but does not further the government’s interest (e.g., depictions of performers who are obviously adults), we cannot intelligently weigh the legitimate versus problematic applications of the Statutes.”
N.Y. high court: Just viewing child porn not state crime; Associated Press, Wire Report, Wednesday, May 9, 2012
N.Y. high court: Just viewing child porn not state crimeAssociated Press Wire Report Wednesday, May 9, 2012
ALBANY, N.Y. — New York’s top court ruled yesterday that simply viewing child pornography online does not constitute either criminal possession or procurement under state penal law.
The Court of Appeals dismissed two counts against James D. Kent, who was a professor of public administration at Marist College, where a virus scan of his computer in 2007 found pornographic images. He was convicted of two counts of procuring and 134 counts of possessing a sexual performance by a child. He was sentenced to one to three years in state prison and began his sentence in 2009.
The Court of Appeals agreed that Kent, now 65, was properly convicted because he had downloaded, saved and deleted 132 images. But the majority said some images in his computer cache, temporary files automatically stored from sites he had viewed, cannot be held against him under state law. The court sent Kent’s case down to a lower court for resentencing.
The five judges said it was still a federal crime knowingly to access with intent to view any book, magazine, periodical, film, videotape, computer disk or other material containing an image of child pornography. Under state law, such browsing can be used to show a guilty intent, that access to an illicit image or site was not a mistake, they said.
“Nonetheless, that such images were simply viewed, and that defendant had the theoretical capacity to exercise control over them during the time they were resident on the screen, is not enough to constitute their procurement or possession,” Judge Carmen Beauchamp Ciparick wrote. “Rather, some affirmative action is required (printing, saving, downloading, etc.) to show that defendant in fact exercised dominion and control over the images that were on his screen.”
Chief Judge Jonathan Lippman and Judges Susan Read, Robert Smith and Theodore Jones Jr. agreed.
Judge Victoria Graffeo wrote that the Legislature recognized that a child is victimized each time his or her pornographic image is viewed, that every time an image is accessed it further drives demand, and that it should be considered illegal under the statute.
“It goes without saying that in light of the majority’s decision, the Legislature needs to revisit this definition,” she said.
Judge Robert Smith wrote separately that under Graffeo’s reading, someone who does no more than click on a link to look at a pornographic picture for free — someone who has never interacted with a child victim or copied, downloaded or saved a picture or put any money into a pornographer’s pocket, could face up to seven years in prison for a first offense.
“This is surely a stringent punishment for someone whom many would think more pathetic than evil,” Smith wrote. “I agree that the exploitation of children by child pornographers is an appalling evil; on this, I have no doubt that the court is unanimous.”
According to the court ruling, e-mails found in Kent’s computer said he had collected images as part of a potential research project on the regulation of child pornography. A 2001 message said that as a father he was “pretty appalled” by them, and that if it wasn’t going to be a legitimate research project he’d wipe them from his computer.
Defense attorney Nathan Dershowitz said his client had been asked to do a research project 12 years ago, involving legislative drafting on the topic of child pornography. He said was disappointed that the court failed to dismiss the other charges and address another issue: whether deleted files on a part of the computer hard drive Kent could no longer access can be used as evidence to show criminal possession.
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N.Y. lawmakers agree on need for new online child-porn lawAssociated Press Wire Report Monday, June 18, 2012
ALBANY, N.Y. — New York leaders have agreed to a bill that will again make viewing all child porn online illegal under state law, a measure needed because of a state high court ruling that shocked the bill’s sponsor.
Yesterday, Gov. Andrew Cuomo and leaders of the Senate and Assembly said they reached agreement on legislation making all viewing of child pornography online illegal. It is in response to a Court of Appeals ruling in May that said New York’s law was outdated, technologically, because it required a viewer to download or otherwise directly access child porn for it to be considered possession.
Today’s video streaming and other Internet advances no longer require that action to, as the law defines it, “possess” child pornography.
“Today, just a month from the time that citizens of New York and our nation were shocked and offended by a loophole that prevented the appropriate prosecution of individuals who view child pornography, we have effectively changed the law,” said state Sen. Martin Golden, a Brooklyn Republican.
“When it comes to protecting children, we can’t allow loopholes in the law,” said Assemblyman Joseph Lentol, a Brooklyn Democrat.
The state law now more closely resembles the federal law. The federal law can be used when a federal agent is involved in the investigation.
The bill will now be ready for its expected passage in Assembly and Senate votes by the end of the legislative session on June 21.
Cuomo said yesterday that he would sign the measure.
“Together with my colleagues in the Senate and Assembly, we are taking every precaution to ensure that our children are protected and that justice is served,” Cuomo said.
The court in making its ruling urged the Legislature to act. As recently as June 15, Golden was concerned the Assembly might not agree on a measure in time to be printed for the end of the session.
A Weekly edition of News and Views from around our country
October 18, 1996 #5 by: Doug Fiedor email@example.com
A Weekly edition of News and Views from around our country
October 18, 1996 #5 by: Doug Fiedor firstname.lastname@example.org
Please Distribute Widely
IT'S A MATTER OF HONOR
A ninety year old man cut through the flack in the election, and
brought it all home this week. "It's a matter of Honor," the old man said.
"Who would you trust? Which one would you dare let your mother, wife, daughter spend a half-hour alone with in a hotel room?"
PART OF THE PROBLEM
As governor of Arkansas, Bill Clinton allowed thousands of pounds of cocaine to be smuggled through Mena Airport. The evidence is sound. As the state's chief law enforcement officer, he knew about the drug trafficking, but did nothing.
As President, Bill Clinton already pardoned seven drug dealers. He
slashed the staff of the Drug Czar's office to 25, from 147 under Bush. He cut the Drug Enforcement Agency by 227 agents. And, he stopped many of the drug interdiction efforts at the borders.
Today, the amount of drugs available on the street is at an all time
high. So too is adolescent drug use. Kids are experimenting with drugs at a younger age. The quality of the drugs is up. The price of the drugs is down. And, there are more illegal drug sellers on the street than ever before.
One bright light through all of this haze is the fact that Independent Prosecutor Kenneth Starr has spent a lot of time in Arkansas
questioning people with knowledge of the drug trafficking at Mena Airport. The evidence is there, if Starr chooses to use it. This could easily become the scandal of the century.
Many of us believe that drugs should probably be legalized. We
cannot find authority in the Constitution for the central government to regulate such things. But, until that time, Article II, section three of our Constitution instructs the president to "take Care that the Laws be faithfully executed."
To that end, Bill Clinton is a complete failure. He's consistently
crying about terrorists, and suggesting a whole series of oppressive anti-
terrorist laws. Most of the terror in our cities, however, is caused by the drugs -- the illegal drugs, and the way the drug laws are enforced. It's time for some changes.
NOT THE PEOPLE'S COURT
The government of the United States has a secret court. The special
court was created in 1978 by the Foreign Intelligence Surveillance Act (FISA), and so far has received over 7,500 applications to authorize electronic surveillance within the U.S. It approved all but one. The point is, each of these decisions was reached in secret. The court does not publish orders, opinions, or provide a public record. And,the people and organizations spied on were not notified of either the hearing or the surveillance.
Now comes Clinton's Executive Order 12949. That order gives the
court authority to approve black-bag operations, and allows the Department of Justice to conduct physical, as well as electronic, searches -- without first obtaining a warrant in open court. Nor would they have to notify the subject, or provide an inventory of items seized. Oh, and the subjects of the search need not even be under suspicion of committing a crime. Any association with a group, or member of a group, that might pose a threat to national security is enough nowadays.
So, the police are secret, the courts are secret, the actions of both
are secret, and the reasons they are acting is secret. This presents some very interesting possibilities. No wonder the Clintons want so much included under the anti-terrorist laws. And is this why the administration wants the Internet listed as a national security asset?
THE TENTH IS DEAD
"We federalize everything that walks, talks, and moves," said Senator Joe Biden, Democrat chairman if the Senate Judiciary Committee from 1986 to 1994. Former Attorney General Edwin Meese II agrees.
"Unfortunately, this is not much of an exaggeration," Meese told a
Heritage Foundation meeting last spring. Today there are more than 3,000 federal crimes on the books. Hardly any crime, no matter how local in nature, is beyond the reach of federal jurisdiction. Federal crimes now reach from serious but purely local crimes like carjacking and drug dealing to trivial crimes like disrupting a rodeo. President Clinton's 1994 crime bill alone created two dozen new federal crimes."
Nationalizing crime contradicts the Constitution. The Founding
Fathers gave the central government jurisdiction over three crimes: treason, counterfeiting and piracy. The states were intended to bear responsibility for public safety.
Meese got it exactly correct when he told the group: "Unfortunately, the damage caused by the federalization of crime is not merely abstract or academic. The more crime that is federalized, the greater the potential for an oppressive and burdensome federal police state."
It sure would have been nice if Ed Meese felt that way while he was Attorney General. Because, if he did, it didn't show.
Thousands of people attended the Knob Creek, Kentucky function last weekend. One report says that there were about seventy-five shooters there with class III licenses. That's an automatic weapon, for those of you not into guns. Many of those guns can fire from twenty-five to one-hundred dollars worth of ammunition per minute. And that, folks, is what an assault weapon really is: full automatic. As usual, vendors were selling everything from Tommy guns to T-shirts. One report said that over the three days, at least twenty-thousand people attended.
There were also a few side meetings within the main gathering.
Herein is a short report from an attendee of one such meeting:
Knob Creek Ky. Oct 12,1996 Representatives from various Militia groups meet this weekend to consolidate their resources in the never ending fight to preserve liberty and freedom. Many new friendships and bonds where established. Leaders agreed to expand their capabilities to establish a nation- wide communications system which will serve the movement in its efforts to re-establish a constitutional government. Further efforts will be reported in this newsletter.
Somewhere buried in that huge budget bill passed in the last days of Congress was another child pornography statute. This one outlaws "computer-generated" depictions of children engaging in sexual conduct, the New York Times reports. This law is called The Child Pornography Prevention Act of 1996. The law expanded the definition of child pornography to include images not necessarily based on a real child. You know, drawings. And, they set a mandatory prison sentence of 15 years for creating or transmitting this type of drawing!
Yup! You read it correctly. You can now get 15 years. Mandatory.
For drawing. It looks like we're going to have to remove a few dozen medical books from the Internet. And for those of us who are poor artists, we better not try drawing humans lest some mean, near-sighted prosecutor misinterpret the art as being a minor engaged in "lascivious" behavior. And another thing: I seem to remember something being said in a psychology class way back when that the people who continually fixate on such things are themselves the very ones with the personal problems. . . .
IT'S A SECRET
Word on the street is that the indictments from the Whitewater grand jury were out last week. They just were not made public. We the people are said to not be able to handle the information before the election. Really, there was a "deal" made between the White House, a few Members of Congress and, evidently, Special Prosecutor Kenneth Starr. Clinton threatened to veto one or two appropriations bills -- specifically the parks bill -- and make it look like the Republicans were shutting down parts of the government again, if the indictments were released before the election. Apparently, Clinton's blackmail scheme worked.
Three independent sources say that there were "a few" White House people indicted. No one would say more. Uncharacteristically for Washington, everyone is very quiet about this. Members of the press have to know, but nothing is being said. Why?