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Tuesday, March 31, 2015

Pornography Is Not Addictive and Does Not Lead to Violence Against Women, by Daniel Linz

Pacific Center for Sex and Society - Pornography, Public Acceptance and Sex Related Crime: A Review, by Milton Diamond


Pacific Center for Sex and Society - Pornography, Public Acceptance and Sex Related Crime: A Review, by Milton Diamond
Pacific Center for Sex and Society - Pornography, Public Acceptance and Sex Related Crime: A Review, by Milton Diamond


Libertarian Intelligence: Ruwart on Child Pornography, by Brian Holtz

Ruwart on Child Pornography
Mary Ruwart is quoted: "Children who willingly participate in sexual acts have the right to make that decision as well, even if it’s distasteful to us personally. Some children will make for choice is just as some adults do in smoking and drinking to excess; this is part of life. When we outlaw child pornography, if the prices paid for child performers rise, increasing the incentives for parents to use children against their will."

Sigh. Well, at least Ruwart has settled for us the question of how radicals interpret this sentence from the vaunted 2004 platform: "We call for the repeal of all laws that restrict anyone, including children, from engaging in voluntary exchanges of goods, services or information regarding human sexuality, reproduction, birth control or related medical or biological technologies."

To the credit of Ruwart (and of Phillies, who posted the entirety when he broke the story), she included a sentence not quoted in Gordon's blog entry above: "Children forced to participate in sexual acts have the same rights and recourse as a rape victim. We can and should prosecute their oppressors." One wonders who the anarchist Ruwart would imagine pressing such prosecutions in cases where the parents were complicit in the forcing. Does she address this question anywhere in her ouevre?

This revelation seriously undermines the claim of Ruwart fans that she's a gold-standard popularizer of "plumbline" radical libertarianism. She apparently needs to learn about one standard principle of generic libertarianism, and one standard principle of anarcholibertarianism.

The first principle was expressed in the old platform thus: "Children always have the right to establish their maturity by assuming administration and protection of their own rights, ending dependency upon their parents or other guardians, and assuming all responsibilities of adulthood." Chuck is right about bright lines, and I would phrase it this way: "Communities may choose the age, between 14 and 18 years, at which a person is no longer rebuttably presumed to be a child, and instead is rebuttably presumed to be an adult."

The second principle is the anarcholibertarian idea (defended by Walter Block) that if parents abrogate their right (not obligation -- quelle horreur!) to protect and nurture their children, then anyone else may "homestead" that right and file a lawsuit (in a private court) to assume guardianship rights over the children. That theory may sound good in the Loyola University faculty lounge, but it's problematic on the LP presidential campaign trail -- to say nothing of the Real World where many children are being abused or even tortured while their parents look the other way. Or participate.

Sunday, March 29, 2015

Those that cry the loudest are the biggest offenders. Here is the irony; the same people writing Child Pornography laws are themselves being arrested. Republicans and Democrats alike.

Those that cry the loudest are the biggest offenders. Here is the irony; the same people writing Child Pornography laws are themselves being arrested. Republicans and Democrats alike.
Those that cry the loudest are the biggest offenders. Here is the irony; the same people writing Child Pornography laws are themselves being arrested. Republicans and Democrats alike.


Thursday, March 26, 2015

Overzealous Porn Prosecution Tramples Accused's Rights, by Wendy McElroy...................................According to Jeanne, he answered, "Because we can."

Overzealous Porn Prosecution Tramples Accused's Rights
Matt Bandy is the Arizona teenager who, until recently, faced 90 years in prison for having nine images of child porn on his computer. Matt is also a reminder of why the Bill of Rights championed due process--the procedural rights of a defendant in the legal arena.

Due process was not championed as a protection against false accusations by a victim but as a shield against abusive prosecution by the State. The Founding Fathers knew that people sometimes lie but their focus was to limit the power by government.

Power corrupts. The ability to arrest and imprison another human being is an immense power that is held in bounds by principles based on common sense and common decency. The principles allow an accused to defend himself: for example, the right to confront witnesses.

Why should Matt Bandy's case serve as a reminder of these protections?

For two years, he endured a legal prosecution that cost his family over $250,000; they are now broke, and their nightmare is ending only because the case caught the attention of the media. ABC News program 20/20 covered the story, likely spurring other reporters to take interest.

As C/Net reported, "After being contacted by reporters, the Maricopa County Attorney's Office offered the boy a plea bargain."

The charges were dropped from nine felony counts that carried a life sentence down to three "class 6 undesignated felonies" with no jail time. Class 6 felonies are "non-dangerous, non-repetitive offenses under the criminal code."

To read a transcript of Matt’s sentencing, click here.

The ‘crime’ to which Matt ultimately pleaded guilty was showing a Playboy magazine to some 16-year-old classmates. His conviction may be the first of its kind in America. Being in possession of a Playboy is legal, but a teenaged boy who shows it to a buddy now risks being arrested as a sex offender.

Nevertheless, the plea bargain allowed County Attorney Andrew Thomas to tell ABC News that "this defendant did plead guilty in a court of law."

The extraordinary reduction in Matt’s charges hinged on a forensic analysis of his computer. Exculpatory forensics revealed that the nine images were probably downloaded without his knowledge onto his hard drive by a virus. Viruses with this capability are alarmingly common and can invisibly infect an operating system when someone clicks on an email attachment or the ‘wrong’ (not necessarily adult) website.

Last year, during the height of the Mocbot worm, an estimated 265,000 computers were infected daily.

Matt’s attorney vigorously sought to have forensic analysis performed on the computer, which was in possession of the police. With equal vigor, the District Attorney’s office (called the County Attorney’s office in Arizona) blocked access even though the defense had a legal right to examine evidence.

Court records reveal repeated requests for such disclosure.

Forensic analysis of computer files is akin to ballistic testing of a gun or DNA analysis of semen from a rape sample. If a defendant is guilty, then the forensics will bolster or prove the charges. If the defendant is innocent, then the results are essential to establishing a defense.

In a telephone interview, Matt’s father explained, "I don’t argue that they [the police] didn’t have a right to come with a search warrant but I can’t understand not giving someone a right to defend themselves."

As it was, the defense conducted forensic tests only after a court ruling gave them access. Even then the County Attorney’s office appealed the lower ruling to the Arizona Supreme Court, which refused to hear the case. The lower court’s ruling stood.

(Citing the Bandy case, the CyberCrime Law site advises, "The Department of Justice has released a 137-page "Investigations Involving the Internet and Computer Networks" manual aimed at local (and unsophisticated in fighting cybercrime) law enforcement units…This manual comes after several local law enforcement agencies bungled some high-tech investigations. "

The prosecution’s refusal to conduct forensic analysis is only one indication of overzealous prosecution. Consider two other indications.

First, the execution of the original search warrant, at 6 a.m., on Dec. 16, 2004. Matt’s mother Jeanne Bandy described the scene at the Bandy home on a web site dedicated to the case.

"There were about ten police. They made me and my kids go outside where we huddled together, frightened…My husband, Greg…was asleep upstairs with earplugs in. They pulled Greg (an emergency room physician) out of bed at gunpoint," the web site quotes Mrs. Bandy.

Second, upon being charged, Matt was required to wear an electronic bracelet on his ankle to track him 24 hours a day.

Third, despite disagreement from the probation department, "sex offender terms" were attached to Matt’s ‘Class 6’ probation. The "terms" severely restricted how close he could come to a minor.

In a recent phone interview, Matt stated that one of the first questions his probation officer asked was whether a minor was living in the Bandy household. Because Matt's sister Katie is 15 years old, there was a possibility Matt could not live at home.

When Matt asked about a planned family trip to Disneyland, the officer forbade him to go. Matt was ordered to "not even think about anything Disney," he said. Upon hearing this, Katie boxed up her Disney movies for fear that having them out would hurt her brother; an open search warrant allows authorities to search the house at will.

When Matt requested permission to attend church, he was told that the priest had to provide prior, written approval that reflected his understanding Matt was a sex offender. Matt was also required to sit in a separate pew away from children. He has not attended church since.

The "sex offender terms" were finally lifted by court order. When Prosecutor Daniel Strange reiterated the child pornography charges, the judge admonished, "I’ll just note for the record, as you were negotiating the plea agreement here, the reason why this agreement took place is because you couldn’t prove the things you just alleged now."

Why was the boy pursued so zealously? Jeanne calls it "a witch hunt" fueled by two factors: Thomas campaigned for office on a promise of being tough on sex offenders; and, he needs a high conviction rate in that area.

The real answer, however, may be the one Matt’s attorney reportedly received when he asked the County Attorney’s office, "Why are you doing this?"

According to Jeanne, he answered, "Because we can."

Wendy McElroy is the editor of ifeminists.com and a research fellow for The Independent Institute in Oakland, Calif. She is the author and editor of many books and articles, including the new book, "Liberty for Women: Freedom and Feminism in the 21st Century" (Ivan R. Dee/Independent Institute, 2002). She lives with her husband in Canada.


What Are Adware and Spyware? By Mary Landesman, Antivirus Expert

What Are the Differences Between Adware and Spyware?
By  Mary Landesman


Has this ever happened to you? One day you're browsing the Internet as normal. The next day your browser's homepage has been changed to some off-color site and your desktop is serving up some program you don't recall installing.

Termed adware, the Internet is filled with programs that hijack your PC for profit, most hidden inside so-called "free" downloads and pop-up ads that forcibly install software on systems with improper security configurations. This doesn't mean that all free downloads are bad or that all pop-ups try to surreptitiously install software. It does mean, however, that you'll want to play close attention to both the licensing agreement of free downloads and the security settings in your browser.

What Exactly Is Adware?
Generally speaking, adware is a program that installs an additional component that feeds advertising, often by delivering pop-up ads or by installing a toolbar in your browser.

Some adware may hijack your browser start or search pages, redirecting you to sites other than intended. Unless you're a fan of guerilla marketing, such tactics can be annoying. Worse, the mechanism that feeds the advertising can introduce system anomalies or incompatibilities that cause problems with other programs and can even disrupt the functioning of the operating system.

A hijacked start page or toolbar can be difficult to reconfigure to its original settings because adware typically integrates itself in a manner that exceeds the average user's technical capabilities. Even more frustrating, the now present system anomalies can prevent even seasoned users from accessing the system areas they need to delete the offending program. (For tips on removing a stubborn infector, see How to Remove Adware and Spyware)

Of course, removing adware that is installed in exchange for free use of a program may violate the End User Licensing Agreement for that program. Once the adware has been successfully removed, the original free program the adware was bundled with may no longer work. It pays to read the EULA before installing any software -- particularly free software that is more likely to be bundled with advertising.

Some adware is a bit more insidious than others. In order to provide targeted ad banners, Adware often contains another hidden component that tracks web useage. When this occurs, the program is no longer considered Adware but instead is termed Spyware.

What Is Spyware?
Spyware surreptitiously monitors your computer and Internet use. Some of the worst examples of spyware include keyloggers that record keystrokes or screenshots, sending them to remote attackers who hope to glean user IDs, passwords, credit card numbers, and other sensitive information.

Most often, though, spyware takes a more benign (but still quite offensive) form. The information gathered, often referred to as "traffic data", can consist of monitoring the web sites visited, ads clicked, and time spent on certain sites. But even in its more benign form, the collected data can morph into something far more insidious.

Spyware tracking can link your system's unique numerical hardware ID (MAC address) and IP address, combine it with your surfing habits and correlate it with any personal information gathered when you registered for free programs or entered data in web forms. The spyware purveyor then trades this information with affiliate advertising partners, building an increasingly complex dossier on who you are and what you like to do on the Internet.

Your Best Defense: Read the Fine Print
With your privacy at stake, you may wish to think twice about the high price of free software. We all like a good bargain, but how good is that bargain when you end up spending the majority of your online time battling popups, filtering spam, and witnessing your connection speed slow to a crawl?

Of course, there are shining examples of free software that really are free with no strings attached. Admittedly tedious, the best way to sort good from bad is to simply read the EULA or privacy statement that accompanies the intended product or site.

Wotch Yourself takes a step through of a privacy statement from Wotch networks and helps identify potential pitfalls. Be sure to read the article to help you understand the terminology these advertisers often use to hide their malicious intent.




A flaw in the child porn witch-hunt; Sunday Times 8/25/05

A flaw in the child porn witch-hunt  Date: August 25, 2005 Source: Sunday Times
The hounding that has driven many suspects to suicide is based on tainted internet evidence, says expert witness Duncan Campbell
Ministers preparing for next month’s G8 summit have announced plans to create a central database of internet paedophiles. Such a database would necessarily include the names of those convicted as part of Operation Ore, the huge police investigation launched three years ago on the basis of a list of 7,200 names supplied to British police forces by American colleagues.

The men on the list are accused of having paid for child porn through Landslide, a website that operated in Texas from 1996-9. So far, about 1,200 cases have resulted in convictions. The public has been led to believe that a huge number of unsavoury — and possibly dangerous — men have been brought to book.

There is no dispute that abusing children is a hideous crime. But it is also appalling to be accused unjustly of such a crime. My investigations and work as an expert witness in a number of Operation Ore cases have led me to believe that the evidence has been exaggerated and used unacceptably.

The costs — in every sense — have been huge. Thousands of cases have been investigated, with scores of officers spending hundreds of weeks sifting through computers and disks. Thousands more may face investigation. Meanwhile, the accusations have led to 33 suicides, most recently that of Royal Navy Commodore David White, the commander of British forces in Gibraltar. On January 8, he was found dead in his pool.

Ministers appear not to have been informed that critical evidence from US investigators forming the backbone of Operation Ore has been found to be untrue. In information given to Interpol and in sworn statements submitted to British courts in 2002, Dallas detective Steven Nelson and US postal inspector Michael Mead claimed that everyone who went to Landslide always saw only a front page screen button offering “Click Here (for) Child Porn”.

According to them, this was the way in to nearly 400 pay-per-view websites, almost all of which specialised in child pornography; ergo, anyone who accessed Landslide and paid it money must be a paedophile.

When Operation Ore was launched in Britain in May 2002, pictures of the web page and its “click here” button were given prominent and sustained publicity. But what passed almost unnoticed eight months later was that after British police and computer investigators had finally examined American files, they found that the “child porn” button was not on the front page of Landslide at all, but was an advertisement for another site appearing elsewhere: thus the crucial “child porn” button was a myth.

Landslide certainly gave access to thousands of adult sex sites. But accessing such material, which is now freely broadcast and sold in high street grocers’, is not a crime.

The real front page of Landslide was an innocuous image of a mountain, carrying no links to child porn. There was “no way” a visitor to Landslide could link from there to child porn sites, according to Sam Type, a British forensic computer consultant who was asked by the National Crime Squad (NCS) to rebuild the Landslide website. She dismissed the idea that Landslide had created a service devoted to child porn. She described it as different merely in that it was a “ pay-per-view” service.

Landslide operated two services, one of which gave access to thousands of sites for a small monthly fee. The other, called Keyz, was more expensive and required a separate payment for each site. The American investigators, it transpired, had copied the contents of 12 sites out of nearly 400 accessible through Keyz. Those sites definitely did contain child porn. It was also suspected that about a quarter of the other sites contained child porn. But investigations carried out more than a year after Operation Ore was launched found that about 180 Keyz sites were likely to have been adult sites only or were completely unknown. “We are unable to say what material these sites ever contained,” a police report stated.

This was not a problem in early cases, which relied on actual possession of indecent images. But the length of time since the alleged offences occurred — Landslide shut in 1999 — meant that in many cases, there were no indecent images, just the record of name and credit card details.

Here, the American evidence that having paid to get into Landslide meant having paid to access child porn has become crucial. Many of the accused argue that their card details could have been stolen and used without their knowledge, or admit that they used Landslide, but for adult material.

The NCS detective who found the real, innocuous Landslide front page in the American police files acted quickly to make it available to police forces and prosecutors. But nobody seems to have paid attention to the contradiction this created in the Operation Ore evidence. Nor did they apparently notice that there were now two, utterly different “Landslide front pages” presented in Operation Ore prosecutions — one totally incriminating, the other (and accurate) page quite innocuous.

The Texan investigators’ claims collapsed further in February this year, when Mead was cross-examined during an Operation Ore case held in Derby. Mead gave evidence by satellite video link. On oath, he admitted he and Nelson had only ever seen the “Click Here Child Porn” button appear once, at the very start of their investigation.

Mead also agreed they had provided British police with a photograph that did not show most of the page they had been looking at. Had they provided a full image, it would have been obvious that it was not, as they told the NCS, the “Landslide front page”. In evidence, Mead accepted the photograph had shown only part of the page. “The child porn link was at the bottom,” he agreed. He was asked: “In June 1999, it is likely that the ‘click here for child porn’ was not on the Landslide’s home page?” “Correct,” he replied.

The 2005 testimony contradicted what was said in sworn statements given to British police in October 2002. But despite these flaws being uncovered in the early part of 2003, Operation Ore accelerated. When police investigators found no evidence on seized computers, they did not assume the user might be innocent or had sought only legal, adult material. They were charged instead with “incitement”. These charges alleged that, simply by making a credit card payment through the internet, the child porn webmasters were encouraged to continue trafficking.

One of the targets was Robert Del Naja, frontman of the group Massive Attack, who was arrested in February 2003. All his computer equipment was seized. The case was dropped barely a month later. After being falsely arrested on child porn charges, Del Naja later described 2003 as the worst year of his life. “When the story was leaked to newspapers the human cost was horrible for me, my friends and family,” he said.

Many arrested Operation Ore suspects who were cleared because there was no evidence also found their names and details leaked to the press. Information about Del Naja was leaked to The Sun before investigations concluded. The same thing happened to Who guitarist Pete Townshend, who later admitted visiting child porn sites as part of a research project. The Sunday Times saw a complete copy of the Landslide British database of 7,200 names in January 2003.

In Britain, none of the 33 dead has been formally cleared, although the record of Operation Ore prosecutions, both successes and failures, suggests some would have been found guilty at trial and some must have been innocent.

And the pattern of investigations, media leaks and publicity preceding investigations that then failed has been repeated in other countries to which Landslide information was sent. In April 2003, at the start of a Canadian investigation, Operation Snowball, Toronto police chief Julian Fantino held a high-profile press conference to announce arrests for child pornography. He publicly listed the names and ages of six men: one was never charged and three others later had all charges withdrawn.

One of those was James LeCraw, the director of a non-profit agency in Toronto providing computers to schools. He was suspended and later lost his job. But five months after the press conference, LeCraw was formally cleared. It was too late. Stigmatised, he killed himself on July 19, 2004.

Even for those never charged, or acquitted before trial, the experiences are so scarring that very few want to talk. An exception is David Stanley, who runs his own computer-programming company in Wales. Like many men, from time to time he signed up for adult images on the net. In the summer of 1999 he saw his credit card details had been used five times in less than three weeks on the Landslide website. He complained quickly and got a refund. He thought no more of it until the police knocked on his door three years later.

Being an Operation Ore suspect was, he said, “a trial of the mind”. “I lost mine at the time. If people are guilty, they can say to themselves, yes, been there, done that. But if you haven’t, then it’s impossible to make sense of what’s happening to your life.” When Stanley proved to police that details he’d given for adult access had been stolen and reused at Landslide to send money to child porn... ... reused at Landslide to send money to child porn merchants, his innocence was accepted.

The laudable objective of Operation Ore was the protection of vulnerable children from adult abuse and harm. But many fear that mistakes have caused huge quantities of police, technical and social work resources to be misdirected to some futile and ill-founded investigations. Many families as well as accused men have been damaged, sometimes irretrievably, by the nature of the investigations. The claims made by the authorities may need to be weighed against the harm done to innocent lives.

Tuesday, March 24, 2015

Human Trafficking vs. Prostitution, by Daniel Walker

Human Trafficking vs. Prostitution

******

Responsible semantics should not be underrated.

The words we use when we communicate, especially when talking about nonprofit charities, faith-based or not, that require fundraising efforts are extremely important.

There is much confusion, for example, around the terms ‘human trafficking’ and ‘prostitution,’ and when working in the area of covert investigations into the sex industry, this is a vital distinction that should be made.

Human Trafficking. The social injustice of modern day slavery is quickly becoming a buzzword– an issue stars like Lucy Lu are tackling and a leading focus of politicians like Hillary Clinton. MTV and CNN {The Freedom Project} have campaigns committed to keeping the issue on a global stage, and there are new movies, like Nefarious and the MTVExit videos, that highlight the realities of the 20-some million people who are forcibly held against their will, either in labor camps or in sexual slavery today. {You can read here some recent words Clinton shared with the international community on the issue.}

It is true that as I type this, there are young girls and women {and some boys} who are physically locked behind closed doors, who are threatened with their family’s safety, and who are paying off debts by servicing men in brothels. Estimates are, in fact, that there are about 4.5 million women and children forced, by coercion or abuse, into the sex industry today.

******

Prostitution. Another heartbreaking reality for many women globally is that of prostitution, involving around 40 million women in this, the “oldest profession in the world.” In this part of SouthEast Asia, as is the case in much of the world, many women turn to prostitution because there are very little economic opportunities elsewhere, particularly for those born in impoverished areas. Couple the fast money even an uneducated woman can make with the pressure to provide for her family, and add that to the widespread cultural acceptance of the sex industry, and prostitution quickly becomes a viable option– sometimes seemingly the only one.

But, here’s the thing we are learning working in the counter-trafficking community of NGO’s in Asia– fighting human trafficking and reaching out to prostitutes is not the same thing.

And while obviously there is a fuzzy margin of gray between the two, we often see “helping bar girls” pegged under the “fighting human trafficking” banner– an example of unintentionally irresponsible communication, in our opinion. Because there are 40 million prostitutes, working mostly by choice, compared to the {much smaller} 4.5 million trafficked victims, trapped in the sex industry by force. And while you could make valid arguments that poor women don’t have much of a choice to begin with, economically-speaking, most prostitutes come to bars, and then stay in bars, not by outright force or coercion {as is the case with trafficked victims}.

Both situations for women {and some men} are heartbreaking, nonetheless.Heartbreaking.

*********

And, so, who really cares what we call what? Why do the semantics really matter anyway? It’s all charitable work helping women who are poor, undervalued and often abused, right? What does it matter what we call it in our newsletters and charity-pitches?

Well, it does matter. Greatly. Because we have seen firsthand the subtle damage that can be done by Westerners who barge into red light districts assuming they are fighting modern day slavery and who raise funds under that belief, but then teach English to prostitutes who are working in the industry by choice. And while it is good that awareness is being raised for the issue of slavery, and while it is absolutely a loving thing to reach out to those working in the sex industry {especially by providing them with other work opportunities}, it is not the same thing as rescuing victims of trafficking or slowing down the economic machine that makes the sale of flesh so lucrative.

And I wonder if the funds, efforts and organizations that do effectively fight modern day slavery become diluted by the myriad of well-inentioned people that jump on the bandwagon under its name.

***************

In the words of Daniel Walker, an undercover investigator into the sex industry,


“I would be doing them {prostitutes} a gross disservice to pretend that there are not degrees of freedom and more subtle forms of exploitation involved in every case. What broke my heart on many occasions was hearing the stories of women who were equally enslaved by poverty, sexism, gender inequality or addiction. While they fell outside the narrow legal definition of ”forced” or “trafficked” and were therefore beyond our ability to assist, they longed for an alternative means of survival and for the opportunity to escape the invisible chains that held them.” - God in a Brothel

* Article adapted from original post by Laura Parker

Monday, March 23, 2015

Federal Child Pornography Law Costing States Real Money, by Sonya Ziaja


Federal Child Pornography Law Costing States Real Money

The aim of the Adam Walsh Child Protection and Safety Act of 2006 is to protect children by forcing sex offenders to register, and making the sex offender registry publicly available. In the case of juvenile sexting, though, the “victim” and the “perpetrator” can be the same person. Registering teens as sex offenders and subjecting them to public shame further victimizes these kids.


This result is not something that anyone wants. But, there is money involved. So the decision to protect teens from harsh penalties for sex offenses becomes more difficult in cash strapped states.


States that do not comply with the federal law suffer a 10% loss of law enforcement grant money from the federal government. How much money is that?
                                         

- Maryland stands to loose approximately $2 million
- California lost over $3 million; and,
- Texas lost over $2 million


Similarly, Florida receives almost $2 million for complying with the federal law.


Compliance comes at a cost though. The federal law requires states that wish to receive grant money to register juveniles as sex offenders for life, if they have committed an aggravated sex offense. This requirement includes registering children as young as 14.


Considering the diminished capacity of minors, the consequences of being registered as a sex offender, and the possibility of rehabilitation, the federal law is extreme.


To date, only four states have complied with the federal law: Florida, Ohio, Delaware, and South Dakota.


This February, South Dakota took a proactive approach that might allow them to keep the federal grant money without having to register teens for sexting. The legislature there considered a bill that distinguishes aggravated sexting from a lesser offense, and prohibits the state from registering minors as sex offenders “solely for committing the offense of juvenile sexting or aggravated juvenile sexting.”


Whether South Dakota’s approach would allow it to remain in compliance with the federal law is yet to be seen. If it works, that legislation might be adopted by other states, as they weigh concerns about funding against the futures of teens.


Incoming search terms for the article:


Ef´Čücient Tagging of Remote Peers During Child Pornography Investigations; Marc Liberatore, Brian Neil Levine, Clay Shields, Brian Lynn

What to Watch Out For, When You Remain Silent and Ask to See a Lawyer

Just Cause Law Collective : What to Watch Out For, When You Remain Silent and Ask to See a Lawyer

When you’re in custody, once you say I’m going to remain silent. I would like to see a lawyer, the police are not allowed to question you—but you actually have to remain silent. You can’t talk to the police about anything, not the weather or sports or movies. You can’t ask simple questions, like “When do I get my phone call?” 1 Don’t make small talk. Don’t make jokes. Silent really means silent.


The only exception to remaining silent is giving your name and address. You will have to provide that information if you want to be “released on promise to appear” (the promise to appear is a document, usually a ticket, telling you when to come to court—Sample Promises to Appear). Do not give any other information, such as your social security number, the names of family members, employment data, etc. This is important, because one of the most effective police interrogation techniques is to relax the subject by posing safe, normal questions—the kind that come up on countless forms and applications. The cop will seem bored and business-like, just “getting through all the paperwork.” An experienced officer will then move very gradually into questions about the people and incident under investigation, without any pause or change of tone. So don’t let them get you on a roll, obediently answering “safe questions.” Instead, mentally rehearse exactly what information you’re going to give: you’re going to say only your name and address, nothing else. If you don’t set that limit ahead of time, you’ll find yourself answering all sorts of questions, some of which are bound to hurt.


If you’ve been arrested and you break your silence to give your name and address, immediately follow-up by repeating the Magic Words: I’m going to remain silent. I would like to see a lawyer. This restores your constitutional protection, making it illegal for the police to question you further.


There are two common misconceptions when it comes to remaining silent:


Misconception 1: Many people assume that if they say I’m going to remain silent, I would like to see a lawyeror “I take the fifth,” then nothing they say afterward can be used against them. That’s a ghastly mistake. Saying the Magic Words merely keeps the police from questioning you after arrest, and only as long as you stay silent. If you break the silence by saying anything at all—whether it’s a statement or a question—your words can be used against you you’ll have destroyed the effect of the Magic Words. You’ll have to say them again to be protected from questioning.


Misconception 2: Sometimes people get confused and think that informal conversation is okay, as long they don’t “make a statement” or “give a confession.” That’s dangerously wrong. Anything you say—anything at all—can be used against you, even questions, casual remarks, and jokes. It doesn’t matter whether your words are written down or spoken, or whether you’re in custody or free to go. And your statements can easily be twisted, taken out of context or misquoted. It’s impossible to predict all the things that could go wrong once you start talking. So the only safe course is to remain silent. Here are some examples, based on real cases, of people who talked their way into prison:


Example: Sue and Sally were arrested together in a drug case. At the police station, they were kept in separate holding cells, out of earshot of each other. The detective investigating the case questioned them individually about the crime. Neither of them answered these questions. However, Sue chatted with the detective, just making small talk—she told him where she went for dinner the night before, where she was planning to go for vacation, etc. Later on, the detective went to Sally and fooled her into thinking that Sue snitched on her. Sally wouldn’t have believed the detective, except that he mixed in the trivial information Sue had given him earlier, and those tidbits of truth made his story very convincing. Once Sally was persuaded that Sue had told on her, Sally angrily insisted it was all Sue’s doing. The detective then took Sally’s statements to Sue, who was outraged, and promptly ratted on Sally. So in the end, both suspects were suckered into snitching on each other.2


When law enforcement officers are questioning you, it’s completely legal for them to lie about the evidence and even create false documents in order to fool you into talking! Since you cannot be sure that the officers you’re dealing with are telling the truth, the only safe thing to do is to stay silent. As the saying goes, “a fish won’t get caught if it keeps its mouth shut.” 3


1. You should be allowed to make a phone call within a few hours of arrest, usually soon after you arrive at the police station or jail. Normally, you're put in a holding cell that has a telephone in it, though these phones are often rigged so that you can only make collect calls. The authorities are allowed to listen in on your calls from jail, so you must not talk about the incident for which you were arrested or any other illegal activities in which you might have been involved. It's best not even to talk about other people, because they might be investigated or questioned. The importnat thing to communicate is that your friends or relatives should get you a lawyer and/or a bail bondsman. If you haven't been given access to a telephone, say: "I would like to call a lawyer." This has the same legal effect as saying, "I would like to see a lawyer," so it doesn't wipe out the protection you get from saying the Magic Words.


2. For another example of this technique, see Rat Jacket.


3. Attorneys have been giving this particular piece of advice for hundreds of years. Back in 1614, an English lawyer named John Hoskyns (who was, at the time, locked up in the Tower of London for being disruptive) wrote to his young son:
Sweet Benjamin, since thou art young,
And hast not yet the use of tongue,
Make it thy slave, while thou art free;
Imprison it, lest it do thee.
The Columbia World of Quotations, s.v., "John Hoskyns," http://bartleby.com/.

Just Cause Law Collective : Dealing With Search Warrants

Just Cause Law Collective : Dealing With Search Warrants

Dealing With Search Warrants

Search warrants allow law enforcement agents to search a particular place (or vehicle or person) and seize items that might have evidentiary value. To obtain a search warrant, an officer must show a judge that there’s probable cause that a crime has been or is being committed. The officer’s “affidavit,” or statement of probable cause, is usually submitted to the court in writing, but sometimes an officer gives her affidavit orally, usually when calling from a crime scene to request a warrant. (For an example of probable cause, see Arrest)

The general rule is that the police are required to “knock and announce” when serving a search warrant, as in: [knock, knock] “Ma’am, this is the police. We have a search warrant for these premises.” If you then refuse to let the officers in, they have the right to force the door open.

The police are allowed to skip the knock and announce part when they reasonably believe that officers would be endangered or evidence destroyed, should the occupants have any warning.1 Even when they do knock and announce, they may only wait a few seconds before bursting in.

If police knock on your door and state that they have a search warrant, step outside and close the door behind you, then ask them to give you the warrant so you can read it. (If you stand inside with the door open, the police may just push past you before you can react.) Make sure you actually get your hands on the warrant so you can read it properly. Don’t let the officer just wave it in front of you.

You’re looking for three things, to be sure it’s a valid warrant:
• the address
• the date
• the judge’s signature

Address: checking that the warrant really does have your address on it is the most important thing. Police frequently search the wrong house or apartment, and claim it was just a mistake. Note that a warrant can’t be for a whole apartment building or floor—it has to be for a specific apartment.
Date: the date should not generally be older than two weeks. There isn’t a precise number of days that warrants are good for. They can be served as long as a reasonable officer would expect to find the items listed in the warrant. Some judges have held that a particular warrant was valid even after a month or two, but these were rare cases. For simplicity’s sake, most police departments just make a rule for themselves about how many days the officers can wait before serving a search warrant—usually it’s seven or ten days.

Signature: it’s pretty unusual for a warrant to lack a judge’s or magistrate’s signature2, but it could happen.

Warrants come in a wide variety of formats. Take a look at the sample search warrants, and see how quickly you can spot the address, date, and signature. (While you’re looking for these items, imagine that you’re standing in front of your door, with police officers breathing down your neck.) The address is hardest, because it’s often in the middle of a paragraph. The date and signature will be at the end.

If you do find a flaw in the warrant, show it to the police and tell them that you don’t consent to their coming in. For example, you might say:

• This warrant is for a different address: it’s for 1965
Montgomery St., and my house is 1966 Montgomery.
I don’t consent to your coming in.
• This house has apartments in it. Your warrant doesn’t say
whether it’s for Unit A or Unit B, so it’s no good. I don’t
consent to your coming in.
• This warrant is four months old. It’s not valid anymore. I don’t
consent to your coming in.
• This warrant doesn’t have a judge’s signature, so it’s not valid.
I don’t consent to your coming in.
• This is a laundry receipt, not a search warrant. I don’t consent
to your coming in.

Now, just because you point out a mistake in the warrant and withhold consent, that doesn’t mean the officers won’t come in and search. The police may decide to ignore your statements; or the warrant may, in fact, be valid. Your job is simply to create ammunition for your lawyer to defend you with later on, by showing that the police didn’t “make an honest mistake” in relying on that warrant. Memorize what the police say in response to your showing them the error in the warrant—especially if it’s something like, “I don’t give a shit what your address is.”

There are other parts to a search warrant that may be relevant during the course of defending a criminal case, but they’re not as useful while the police are right at your door. For example, search warrants must specify what is being looked for and which parts of your home, vehicle, etc. can be searched. However, as you can see in the samples, search warrants usually have a whole long list of things to look for and places to look in. This gives the police plenty of room to maneuver. Nonetheless, you should make notes (written notes if possible, otherwise mental notes) about where the officers search and what they move.

Normally, search warrants must be executed during daylight hours, unless the warrant includes specific permission for the officers to serve it at night.

While executing the search warrant, the officers are allowed to detain anyone who happens to be present. The police can pat down the people they’re detaining,3 but cannot search any of them more intrusively, unless the warrant specifies that particular person by name. (The second of the sample search warrants includes a person to be searched, as well as a place.) However, it’s not unusual for police who are searching pursuant to a warrant, to discover things that give them probable cause to arrest some or all of the people present—and once a suspect’s been arrested, the officers can search her clothing, body, etc.

Some search warrants include permission for the officers to answer your telephone while they’re on the premises searching. The police pretend to be you, or someone who’s a part of your household, business, etc. They try to get the caller to say things that can be used against you (or against the caller) in court.

Most searches are very destructive. Your property is likely to be thrown about and damaged. So after the police have gone, take three or four dozen photographs of the place, before doing any clean-up. These may be useful in defending against criminal charges and/or in suing the police. Make sure you’ve got good enough lighting that the photos will come out well.

1. If the police kick the door in and point guns at you, screaming, "Police! Down on the floor, nobody move," you can skip attempting to read the warrant, and instead just keep your hands in view and hold very still.
2. A magistrate is a subspecies of judge.
3. During a detention (as opposed to an arrest), the police are allowed to pat down the suspect, in order to protect themselves from hidden weapons. This search is limited to feeling the surface of clothing, and does not include emptying the suspect's pockets or undressing the suspect. See Detention.

Child pornography in peer-to-peer networks; Chad M. S. Steel

Child pornography in peer-to-peer networks; Chad M. S. Steel
http://fulltext.study/preview/pdf/345591.pdf


Computer search and seizure issues in Internet crimes against children cases; Kreston, Susan S.


Computer search and seizure issues in Internet crimes against children cases; Kreston, Susan S.


New Jersey Computer Evidence Search & Seizure Manual Department of Law & Public Safety Division of Criminal Justice

Sample Standard Pretrial and Trial Defense Motions, by Victoria Lee

Sample Standard Pretrial and Trial Defense Motions by Victoria Lee

Defending Possession of Child Pornography; Rick Albee

Defending Possession of Child Pornography; Rick Albee
Defending Possession of Child Pornography; Rick Albee

EnCase Legal Journal Second Edition

EnCase Legal Journal by kimchee88

A New Way to Detect Digital Child Pornography?; By KI MAE HEUSSNER

A New Way to Detect Digital Child Pornography?; By KI MAE HEUSSNER
A New Way to Detect Digital Child Pornography?; By KI MAE HEUSSNER


Digital Forensics in Child Pornography Cases; Larry E. Daniel

Electronic Crime Scene Investigations; U.S. Dept. of Justice

Dodging the Bullet Cross Examination Tips for Computer Forensic Examiners; Craig Ball

Cross Examination of the Computer Forensic Expert; Craig Ball

Sunday, March 22, 2015

Constructing a red-light district on the Internet

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: pmcmasters@fac.org.

Under bill, children in pornography wouldn't have to be real, Ohio

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.

First Amendment Schools: Resources; 11th Circuit reverses child-porn conviction

First Amendment Schools: Resources
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.

First Amendment Schools are dedicated to educating for citizenship

First Amendment Schools are dedicated to educating for citizenship by teaching and modeling the democratic principles of the Constitution of the United States. Schools take this mission seriously by providing all members of the school community with daily opportunities to exercise their constitutional rights with responsibility.

Freedom of Religion

Speech

Press

Assembly

Petition


These are fundamental and inalienable rights. All Americans have a civic responsibility to guard these rights for every citizen.

3rd Circuit: 2 child-porn laws may be unconstitutional by, Douglas E. Lee

3rd Circuit: 2 child-porn laws may be unconstitutional
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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