Archive for the 'First Amendment Issues' Category

11
May
16

Website Reporting Obligations under Federal Law

Introduction

Adult website operators are typically familiar with the obligations imposed by Title 18 U.S.C. § 2257 (“Section 2257”) which mandates the compilation and maintenance of certain records relating to the production of sexually explicit content.  Less well known, but equally if not more important, are the reporting obligations imposed on certain website operators under 18 U.S.C. § 2258A.  This federal statute requires “electronic communication service providers” such as hosts, forums, dating sites, tube sites, and advertising networks, to report any apparent violations of child exploitation laws, to the CyberTipline; http://www.missingkids.org/cybertipline/, operated by the National Center for Missing and Exploited Children (“NCMEC”).  The following is a summary of those reporting obligations.

 

What Violations Must Be Reported?

Qualifying service providers must report “apparent” violations of federal laws relating to child exploitation or child pornography.  No specific definition of what constitutes an apparent violation is included in the statute.  However, as discussed below, there are benefits to erring on the side of submitting a report in questionable cases.

 

When Must the Report Be Made?

The report to the CyberTipline must be made as soon as reasonably possible after the website operator obtains actual knowledge of any facts or circumstances that a violation of the relevant laws has occurred in connection with the operation of the site or online service.  While no specific time frame is included in the law, the statute contemplates prompt reporting of suspected violations.

 

What Must the Report Contain?

There are 2 types of reports that can be submitted: a public report, or a secure, private report by a registered service provider.  The registration process requires that certain information about the service provider be voluntarily submitted. The secure report permits uploading of images, and provides a receipt confirming the submission.  Service providers are encouraged by NCMEC to register and submit secure reports by submitting an email to its coordinator at espteam@ncmec.org.

The report must include certain categories of information:

  • Identifying information about the individual responsible for posting or transmitting the images, such as IP address, or email address (including any self-reported information submitted by the user).
  • Historical information about when and how the user posted the illegal content.
  • A description of how the violation was discovered by, or reported to, the service provider.
  • Geographic location information relating to the responsible user such as billing address, IP address, or zip code.
  • The suspected images themselves. Note, all “associated images” must be preserved by the service provider as well.
  • The complete communication relating to the suspected images, including any data, digital file, or other information relating to the transmission of information.

 

What Other Obligations Apply?

In addition to reporting suspected violations, the service provider must preserve the  NCMEC report for a period of 90 days, plus an additional 90 days if requested by NCMEC.  The full contents of the NCMEC report must be preserved, along with any other images that are “comingled” or “interspersed” with the suspected images.  Read broadly, this could include all images that appear on a given web page, or which are uploaded by a particular user into the user’s folder or directory.  The website operator must also take steps to keep the preserved material in a secure location, and limit access to the material by its agents or employees.  Finally, operators must permanently destroy any reported images upon the request of law enforcement.

Importantly, the statute does not impose an obligation to monitor any user or the content of any user.  Moreover, there is no obligation to affirmatively seek out potential violations of the applicable laws.  In other words, service providers are not required to become child exploitation investigators.

 

Why Should the Report be Filed?

Affected website operators might ask themselves why they should get involved in submitting reports to law enforcement, relating to their users’ activities.  The most obvious answer is because the law requires such involvement.  Failure to report suspected violations is a criminal offense which can result in the imposition of substantial fines.  Moreover, federal law provides a form of immunity from civil or criminal prosecution for the service provider, in connection with the submission of any reports to the CyberTipline.  See, 18 U.S.C. §2258B(a).  However, this legal protection can be lost if the service provider engages in any intentional misconduct, or if it acts (or fails to act) with actual malice, or reckless disregard for injury to others. §2258B(b).

Conclusion

Certain popular online business models trigger compliance obligations with a wide variety of federal statutes and regulations.  Among them are the statutes imposing reporting obligations to the CyberTipline.  Affected website operators are encouraged to educate themselves regarding the details of these requirements, to avoid inadvertent violations and to foster a cooperative relationship with agencies investigating instances of child exploitation.

29
Dec
15

Close Up the Internet and Repeal the First Amendment

You know elections are upon us when politicians start talking about wanting to “close up” the Internet, or censor Twitter and Facebook.  Throw in a couple terrorist attacks and you have the perfect storm for loss of cherished First Amendment rights.

Donald Trump’s suggestion that America should consider “closing up the Internet in some way to fight Islamic State terrorists in cyberspace” illustrates the danger lurking around the corner for any disfavored speech.  In the early days of the Internet, the U.S. government took the lead in attempting to censor ‘indecent’ online communications, by passing the “Communications Decency Act (“CDA”).” Deemed the “Great Internet Sex Panic of 1995,” politicians in that time saw adult websites as a threat to the foundations of society, so they attempted to “close up” that part of the Internet.  What remains of the CDA is now often cited as a protection of free speech (i.e., “Section 230”), but the bulk of the legislation, which prohibited indecent Internet content, was struck down by a unanimous Supreme Court in 1997.  The Court could spot that blatant censorship attempt a mile away.

Now the Senate is considering legislation that would force social media companies to monitor posts, and report any “terrorist activity” to the government.  Sen. Diane Feinstein did some investigating and found that while sites like Facebook, YouTube, and Twitter take down content in response to valid abuse reports, they do not proactively monitor their networks, or report suspected violations to the government. “I think they should,” she said at a recent Judiciary Committee hearing.  Of course, the entire legal premise on which most online service providers operate is that they are not required to monitor the content of third party posts, or scour their networks for references to potentially unlawful activity.  Imposing that kind of burden could easily bring Internet traffic to a screeching halt, given the manpower, expense, and legal risks associated with operating an online service under those conditions.

However, the government has been busy laying the groundwork for imposing the burden of monitoring and censoring online speech in numerous ways; beginning with the startling life sentence handed down against the operator of SilkRoad.com, the passage of the SAVE Act, the criminal prosecution of escort advertising networks, and the intimidation of credit card processors associated with Backpage.com (later found to be unconstitutional). Each of these actions represents an attempt to hold an online service provider responsible for third party posts or advertisements.

Some of those calling for the proverbial heads of social network operators for permitting uncensored use of their networks rely on a provision of the USA Patriot Act, which prohibits anyone from providing “material support” to a terrorist organization.  If this action is prohibited, how can Twitter get away with providing a network for distribution of jihadist propaganda? Or so the argument goes. Despite Supreme Court Justices expressing some “grave concerns” with the constitutionality of that prohibition under the First Amendment, the law was upheld in 2010.  Thus began the gradual chipping away at what used to be a clear prohibition on criminalizing political speech.

Others who are upset with an open marketplace of ideas cite to legal obligations imposed on Internet service providers to remove and report child pornography, or take down reportedly infringing material under the DMCA, as evidence the government already has the tools it needs to create a valid, online censorship regime. Each of these instances can be distinguished from the wholesale prohibition of online communications envisioned by those desperate to find a quick fix for the complicated threat of terrorism facing today’s world populace.  Child pornography falls into one of the rare, historically unprotected categories of speech, given its unique, horrific nature – and the fact that it records the criminal act of child abuse.  DMCA takedowns do not involve censoring speech by the government, but the civil enforcement of intellectual property rights by copyright holders.  The targeted material may still be protected by the First Amendment, but owned by someone with superior rights to control its distribution. Mixing all these potential ‘options’ into a big, convoluted soup encourages the talking heads and politicians to conclude that there “must be a way” to close up the Internet, and keep us safe.

Renowned enemy of the First Amendment, Eric Posner, uses the threat posed by ISIS to promote “new thinking about the limits on freedom of speech.”  His latest attack on one of civilization’s most sacred values proposes a law that would criminalize access to websites that glorify or provide encouragement for ISIS.  Aside from the fact that true jihadists would likely use encrypted communications to evade detection, and investigators would lose the ability to monitor and track threatening communications, censorship never works and often backfires.  Typically such laws call more attention to the censored speech or inadvertently silence opposition views as well. History proves that the cure for bad speech is more speech, not censorship.  While recent calls to clamp down on free speech rights have been effectively mocked by civil libertarians, the proposals are becoming too frequent for comfort. Should one of these proposals gain traction, be prepared for a demand to block some type of erotic speech that a legislator decides is too extreme for his or her tastes. That’s exactly what happened when Iraq started blocking terrorist’s speech earlier this year – the ban on pornography soon followed.

In any other time, the author would conclude this article with a calming observation that the First Amendment protects offensive and even hateful speech, and that would be the end of it. The calls for censorship would eventually be quelled by cooler heads that were well-grounded in constitutional restraint on governmental power.  But we live in a time when Yale University students are perfectly willing to sign a petition to repeal their First Amendment rights (including the right to petition). We also exist in a world of trigger warnings, safe spaces, and abundant micro-aggressions, where university professors call for some “muscle” to kick journalists out of public protests.

The First Amendment was once held sacred – particularly when it came to online communications.  The Internet was everyone’s soap box, where the speaker didn’t need big media money to get a message out. The courts acted quickly to strike down laws that conflicted with free expression rights. However, in a time when 34% of poll respondents say the First Amendment goes too far, and the same percentage have no idea what rights the First Amendment protects, the bedrock principles that have formed the basic protections for online speech are on shaky ground.  Let’s hope they survive another election cycle.

10
May
13

More of the Same from Polk County’s Thought Police

Sheriff Grady Judd and his crew is at it again. Now they’ve turned their sites on some hapless gas station owner in Dundee, Florida, for allegedly selling some girly videos. Little did she know that the all powerful local government knew better than her what kind of entertainment the delicate citizenry of Polk County could tolerate. So now Minakashiben Patel sits in jail, apparently on a no-bond status, facing charges of obscenity. This isn’t the first time that this Central Florida jurisdiction has tried to enforce its version of “decency” on its citizens. The following article gives a pretty good history of Sheriff Judd’s efforts to promote Christian values in Polk County government: http://orlandoweekly.com/news/church-and-state-1.1109454. The First Amendment never stopped a skilled politician like Grady Judd, however.  He takes pandering to a new level, and destroys lives in the process. Fortunately, the First Amendment protects the New York Times the same way as a small gas station owner, when it comes to dissemination of free speech. We shall see how this case plays out, but their random obscenity prosecutions are certainly a threat to civil liberty, and the whole effort demonstrates a fundamental misunderstanding of the changing societal mores in this country. Just look at how fast 50 Shades of Grey flew off the shelves. In year 2013, I think we can tolerate the sale of a few adult films sold in a local gas station.

18
Mar
13

Feminism or Fascism: Iceland’s Stunning Ban on Pornography May Be Spreading

Iceland recently made headlines with the latest project on its allegedly progressive agenda: a nation-wide ban on pornography.  No stranger to proscribing activities related to commercializing sex, Iceland has already passed laws banning printed pornography, prostitution and stripping, and has done so all in the name of feminism.  Rattling off the standard laundry list of the evils of porn, the Icelandic Parliament noticeably lingered on the “damaging effects” adult material has on the children who view it and the women who participate in it.  Iceland’s Office of the Interior Minister defended the ban by stating that Icelandic citizens deserve to live and develop in a non-violent environment, therefore, the resulting law is “not anti-sex, but anti-violence.”  What’s potentially more concerning is that this feminist backlash against commercial sexualization is gaining serious momentum throughout Europe, as evidenced by the European Union’s recent parliamentary vote on a blanket pornography ban.  Taking a page from the Nordic view on feminism, the EU claims the ban will foster gender equality and combat sexual stereotypes by sanctioning individuals and businesses “promoting the sexualization of girls.”  With Parliament disclosing very little about the potential ban, most Europeans are looking to the recent path blazed by Iceland for some guidance on what’s to come.*  So what is the likelihood of Iceland being the first democratic state to successfully ban pornography?  The answer to that question probably depends on your definition of success…

Given that Iceland is expected to implement similar blocking filters to those used in China and Iran, it stands to reason that Iceland would enjoy comparable success in restricting online content.  However, the environmental and temporal differences between Iceland’s efforts and that of middle and far east authoritarian regimes, shouldn’t be so easily dismissed.  Countries like China and North Korea limited citizens’ access to online content, but such restrictions have been in effect practically since the Internet’s inception.  Any armchair psychologist will tell you – and any parent of a toddler will confirm – it’s human nature to want what you can’t have.  And if whatever you can’t have, is something that was in your possession but was taken from you, well that ups the ante even more.  Like most citizens across the globe, Iceland’s people have had unfettered access to online adult material.  To put it bluntly, it doesn’t matter how inherently progressive a country is, when you confiscate a piece of personal autonomy, there’s bound to be consequences.

Even if the Icelandic government seamlessly weathers whatever discontent that’s thrown its way, there’s still the matter of enforcement.  Logistically speaking, Iceland will employ filters barring citizens from accessing flagged websites, and fire walls prohibiting Icelandic credit cards from purchasing adult content.  But what about the tangible transport of digital pornography?  Streaming, downloading and cloud access aren’t the only ways to retrieve digital content.  What’s stopping someone located in another jurisdiction from entering Iceland’s borders with a pornographic DVD?  With so many vehicles capable of transporting digital content, common sense says that it would be impossible to inspect each and every tablet, flash drive, laptop, and Smartphone that crosses Iceland’s borders.  As long as there’s been contraband, people have been smuggling contraband – the digitization of such contraband has only made it that much easier.

The ability to control infiltration of the banned content leads directly to the next hurdle – the black market.  We live in the Internet Age; every technological restriction is met with a response circumventing that restriction.  Whether it’s a scrubbing tool used to mask IP address identification or software that scrambles collected geo-location location, there are countless techniques enabling the average Internet user to evade government-imposed limitations.

Without getting too high up on the First Amendment soap-box, this type of regulation tends to invoke the constitutional scholar in all of us.  If Iceland wants to completely ban pornography, exactly what kind of material is considered “pornography”?  Without careful and meticulous drafting, any such law will inevitably encompass content as innocuous as the mere display of genitals.  Some reports say that the ban would only include “violent or degrading content.”  As admirable as that is, we’re still left with the subjectivity surrounding the definitions of “violent” or “degrading.”  Another variable to throw into the mix in determining what would constitute pornography is the intended purpose of the material in question.  Specifically, was the content created for private consumption or commercial use?  If Iceland’s chief concern is to prevent the commercialized sexualization of women and children, logically, only material disseminated commercially would violate the ban and any application of the law beyond that specific scope would be a flagrant infringement on privacy rights.  Given the widespread creation and sharing of private erotica, a substantial amount of pornographic material would presumably be unaffected by the legislation.

In a very short time, Iceland will undoubtedly find itself at the age-old prohibition impasse, asking which holds more clout: a government imposed ban or the tenacity of those looking to circumvent that ban?  As shown with most government-sanctioned goods or services, a black market develops; those participating eventually monopolize the marketplace; a consistent profit is generated; and ultimately standard supply and demand principles are used to exploit and perpetuate a marketplace devoid of legislative supervision.  Government-imposed prohibitions might change behavior, but a behavioral change does not prove that the problem was solved; only that it has been forced underground.  On that note, one must question whether the “problem” existed in the first place.  One person’s degrading porn, is another’s…you know the rest.  Ultimately, Iceland is unlikely to become a porn free zone irrespective of the pending legislation.  If history has taught us anything, it’s if there’s a will, there’s a way.

 

*As this post went to press, the EU Parliament voted against the anti-porn proposal due to censorship concerns: “Language that would ban online pornography has been dropped from a report approved by the European Parliament.”

04
May
12

The Ends of the Earth – How Far Can U.S. Content producers pursue foreign infringers?

I. Introduction.

We all witnessed the uproar over PIPA and SOPA at the beginning of the year. Internet free speech advocates took to cyberspace in a call for action against these proposed laws. Advocating for the broad principle of intellectual property protection, lobbyists for the mainstream film industry argued for the enhanced ability to go after foreign “rogue” websites involved in infringing activity. While the underlying motivations for enacting PIPA/SOPA may have been well-intentioned, they impacted personal freedoms to the point that made many Americans uncomfortable, and the legislation soon stalled in response to the public pressure. A major concern with PIPA/SOPA was that the bills granted the U.S government legal authority over any website domain, wherever hosted or operated, even in the absence of a domestic jurisdictional connection. While the legislative efforts continue, the courts have recently expressed concern, through a series of legal decisions, with enforcement of intellectual property rights against foreign website operators. These decisions may have a substantial impact on the ability of U.S. content producers to pursue foreign websites for copyright and trademark infringement.

U.S. courts primarily gain personal jurisdiction over the parties by the physical presence of the defendants in the location where the lawsuit was filed. However, when the defendant is a foreign entity or individual operating a website, U.S. courts have been increasingly hesitant to find the existence of jurisdiction, merely based on web presence. A U.S. district court can exercise personal jurisdiction over a defendant if the party is “subject to the jurisdiction of a court of general jurisdiction in the state where the district court is located.” Fed.R.Civ.P. 4(k)(1)(A). This means that personal jurisdiction over a non-resident defendant may be acquired by: (a) the defendant’s physical presence in the subject state; or (b) the state’s long-arm statute. A “long-arm” statute allows a court to assert jurisdiction over an out-of-state (or foreign) defendant based on injury suffered by the plaintiff in the state, or some other activity creating a relevant connection. Most long-arm statutes permit this type of extraterritorial jurisdiction so long as doing so constitutes ‘fair play,’ and otherwise comports with Due Process notions.

II. Recent Judicial Decisions.

In the earlier days of the Internet, U.S. courts seem to have had no qualms about imposing American law on websites maintaining any form of customer base within the U.S., regardless of where the site was operated. However, in recent times, as the world has gotten smaller and foreign online presence more established, judges are starting to realize that the U.S. may have previously attempted to exert a little too much control over the Internet. With seemingly endless cyberspace growth fostering a more “global marketplace,” U.S. courts may be starting to pay more heed to other countries’ laws and sovereignty. Concerns such as diplomacy and comity have come to the forefront, as all nations compete for a seat at the Internet table.

This struggle has played out in the attempt to enforce U.S. copyright and trademark law abroad. Over the last few months, several courts have addressed the issue of whether foreign websites can be held liable for intellectual property violations asserted by U.S. plaintiffs. These courts have all dismissed the cases for lack of jurisdiction. In Fraserside IP L.L.C. v. Hammy Media, Ltd., 2012 WL 124378 (N.D. Iowa Jan. 17, 2012), a federal judge found that the adult entertainment power house, Private Media Group (through its IP holding company), could not establish personal jurisdiction to sue operators of the adult tube site, xHamster.com, in the state of Iowa. Finding that the Cyprus-based tube site lacked sufficient minimum contacts in Iowa, the court rattled off a laundry list of reasons for its decision: “xHamster has no offices in Iowa, no employees in Iowa, no telephone number in Iowa, and no agent for service of process in Iowa. xHamster does not advertise in Iowa. No xHamster officer or director has ever visited Iowa. xHamster does not maintain any of its servers within Iowa. All of xHamster’s servers are located outside of the United States.” This ruling is consistent with the general principle that the mere availability of a website in the U.S. will not be sufficient to establish personal jurisdiction over the site operators. The same ruling occurred with Private’s case in Iowa against another foreign tube site, DrTuber.com. Fraserside v. Moniker, et al., Case No.: 11-cv-03040 (N.D. Iowa 2012).

A few months after the xHamster.com decision, a California district court protected another adult entertainment website by denying the plaintiff’s motion for a default judgment in the “faceporn.com case,” Facebook v. Pedersen, 10-Cv-04673 (N.D. Cal. March 2, 2012). Relying on a relatively broad jurisdictional argument, Facebook claimed that the defendant intended to compete directly with Facebook and given Facebook’s global notoriety, anyone infringing on Facebook’s intellectual property would know such infringement is harming a California entity. According to the district court ruling, plaintiff’s argument failed two-fold as Facebook lacked any evidence that the defendant purposefully directed its activities at California and further, was unable to prove that the defendant’s conduct successfully redirected traffic away from Facebook. Notably, the court essentially made the arguments for faceporn.com, since the decision was based on a motion for default judgment.

Coming out of Nevada just over a week later, another off-shore website dodged the jurisdictional bullet in the case of Stevo Design, Inc. v. SBR Marketing, Ltd., 2:11-CV-0304 (D. Nev. March 13, 2012). The Nevada district court ignored any potential personal jurisdiction issues, instead dismissing the case based on lack of “subject matter” jurisdiction – an issue that had not even been argued by the defendant. Subject matter jurisdiction involves the underlying authority of the court to consider the case, in the first instance. Often seen as a relatively simple hurdle, U.S. law gives the federal courts subject matter jurisdiction in when the suit is based on a violation of a federal statute, or when the resident of one state sues a defendant of a different state (or another country). Claiming that several of its sports betting reports were unlawfully uploaded and published via the defendant’s website, SBRforum.com, plaintiff’s sued forum site for various violations arising under the Lanham Act and the U.S. Copyright Act. The court noted that all of the alleged infringement occurred entirely on SBRforum.com. Because the defendant’s website was operated in Costa Rica, the court found that it lacked subject matter jurisdiction to even consider the case since federal statutes provide no relief for infringement that occurs solely in a foreign nation.

III. Conclusion.

What may have been taken as a ‘given’ in the past is now being questioned by this new line of cases, imposing what appears to be a higher burden on those seeking to hold foreign website operators responsible for U.S. intellectual property violations. The mere fact that the site is globally available and happens to maintain a U.S. customer-base may no longer be sufficient as a basis for bringing foreign defendants into U.S. courts, under recent judicial rulings. Whether these rulings are a brief respite for foreign website operators, or the beginning of a new judicial trend, remains to be seen. But adult content producers become more aggressive in pursuing theft of their content by foreign website operators, these legal issues are sure to gain significant attention in the coming months.

11
Mar
11

Tube Site Business Model is Legal – Protected by Free Speech Principles

Kevin Cammarata’s lawsuit against redtube.com, a popular ‘tube’ site, and its advertisers, was dismissed, and that dismissal was recently upheld by the California Court of Appeals. In addition, the court determined the suit to be an illegal SLAPP Suit, and awarded attorneys fees.

The the operation of a tube site was described as “conduct of placing speech on the Internet where it can be viewed for free by the public.” The court rejected any claims of predatory business practices, and noted:

We reject Cammarata’s argument that his causes of action arise from [Redtube.com’s] predatory pricing, not its speech, because here the product being priced is speech.” See, Xbiz.com, Appeals Court Rules Against Cammarata in RedTube Case,

The ruling is important in the continuing development of the law surrounding user generated content website operation. The utility of sites such as forum for expression of protected speech cannot be underestimated. Hopefully the courts will continue to afford legal protection for this business model, and dismiss ill-conceived lawsuits, brought against online service providers operating venues for expressive activities.

31
Aug
09

Sex, Lies and Children

A favorite trick of the censors in this country is to blur the lines between protected speech, in the form of adult erotica on the one hand, and patently illegal material, in the form of child pornography on the other, by mixing the two at every opportunity. Family Values groups and other opponents of free speech routinely use the terms “pornography,” “obscenity” and “child pornography,” interchangeably, in the attempt to cause confusion in the mind of the public, and intentionally link perfectly legal content with evidence of a horrific crime. The media often plays along, whether through ignorance or complicity, and refers to the new child porn arrest as a “Pornography Bust.”   All of this helps convince the public through confusion, that pornography has something to do with abuse of children, and that all of it is probably illegal somehow. In some jurisdictions, law enforcement investigators seize every chance to mix these concepts in a blender, by charging defendants with obscenity as well as child pornography, no matter how remote the connection, or how strong the evidence. Some evidence of this can be found in a couple recent cases initiated by the Polk County, Florida, Sheriff, Grady Judd.   This is the same Sheriff that was made famous by declaring that he had jurisdiction to regulate anything online, so long as it was available for download in Polk County, Florida.  According to Judd:

“But it makes no difference, because if you fed that server or you could receive information off that server in this county, then it gives us jurisdiction. … Technically I could charge someone in Kansas, if I received child pornography here, obtained a warrant and had him extradited from Kansas and tried here.” http://www.ojr.org/ojr/stories/051018glaser/

Note the stray reference to “child pornography” there. That particular case had nothing to do with children, but was an adult obscenity case against Chris Wilson, arising from his operation of a user-generated content site. This quote provides a unique glimpse into the strategy of many law enforcement agencies and anti-porn groups, who constantly mention child pornography whenever discussing adult erotica.

Judd’s office recently investigated an antique store owner by the name of John Denitto, who engaged in some adult content production on the side. See, here. Sheriff’s Deputies raided the business based on the claim of a “confidential informant” that a teenager was being photographed there. Leaving aside the fact that a teenager can be 18 or 19 and still legally participate in adult photography, this unconfirmed statement gave law enforcement the hook they needed to raid the modeling studio, under the guise of a child pornography investigation. However, no evidence of child pornography was ever found, and the “confidential informant” turned out to be a former “model” herself, who was trying to buy her way out of her own criminal problems by turning informant for the state. Not the most reliable informant, to put things mildly.

But what does a good Deputy do when his information results in the seizure of nothing more than a bunch of video tapes of adults having sex? File obscenity charges, of course! Not much is required to arrest someone for alleged obscenity. A charging document needs to be filed saying that a prosecutor believes in good faith that there is probable cause that the material is obscene. Polk County usually goes the extra step of getting a local judge to sign off on a confirmation that such probable cause exists, but that is all smoke in mirrors. Any erotic work might be obscene, simply based on its sexually-explicit nature.  The question of obscenity is for the judge or jury.   So just about anybody involved in the commercial production or distribution of adult material can be prosecuted for obscenity. That is one of the (many) reasons the obscenity laws are unfair, unconstitutional and inhumane on modern society. There is no fair warning as to what material might result in serious felony charges, with implications and innuendo of child pornography to boot. Denitto’s felony obscenity case remains pending, and no proof of child pornography ever came to light.

Law enforcement and prosecutors know that as soon as the specter of child pornography is raised, the defendant loses public sympathy, support of friends, and jury appeal. So they try to throw it in any time they can.

In another recent case from Polk County, Sheriff Deputies arrested Timothy Keck for numerous counts of obscenity depicting a minor.  This sounds like a valid offense, until the facts get in the way. Keck was a former Sheriffs Deputy himself, until he had a falling out with the agency. Oddly enough, he found himself was targeted for some Internet surveillance by the same agency, and a warrant was issued for offenses involving child pornography. Keck allegedly used Limewire, a popular file sharing service, to download various images, including numerous drawings of underage individuals engaged in sexual activity. That’s right, drawings.   Oh, and the investigators apparently also dug up a single image from a temporary cache file allegedly depicting only the genitals of an underage couple in the act of intercourse.  It has not been explained how one divines the age of models based solely on a depiction of their genitals engaged in a sex act. But Keck faces one count of possession of child pornography (for the temp file) and 26 counts of distribution of obscenity, for the drawings. This arrest has been described by Judd as the “largest roundup in the county,” and “horrific.” See: here and here ;

Given that Keck was lumped in with 45 other suspects, all of whom are referred to as a group despite the lack of any apparent connection, some of the other images involved in the other cases may well have been horrifying. Child pornography is a heinous, inexcusable crime, and legitimate cases should be vigorously prosecuted.   But when politicians or special interest groups start mixing in allegations of child porn with adult pornography, both children and adults are the losers.   Trying to force a tenuous charge of child pornography just to tarnish the reputation of a suspect in an adult obscenity case dilutes and reduces the importance – and indeed the ‘horror’ – of real child pornography cases.   Future child pornography investigations will not be taken as seriously by prosecutors, judges and juries, as a result.   Adults also lose, when important constitutional safeguards are dismissed or glossed over as a result of the forced connection with child pornography allegations in these cases.  Sexually-oriented media is entitled to full First Amendment protection. Ashcroft v. Free Speech Coalition, 534 U.S. 234 (2002). Protecting the most controversial and indecent speech is essential so that all other speech remains securely within the coverage of the First Amendment.

The tactic of mixing child pornography with adult obscenity has been used in countless other cases in the past, including the highly-publicized obscenity case against Mike Jones[1] in Chicago, and the federal obscenity case against certain written stories involving children by Karen Fletcher a/k/a Red Rose[2].   Child pornography was not the focus of either of these cases, but the concepts were thrown around by the prosecutors in court and in the public, in an effort to tarnish the reputation of the defendant, and make the obscenity charge more likely to stick.


[1] Jones was charged with several counts of both obscenity and child pornography, the latter involving dubious evidence of possession in temp files.  His attorney, J.D. Obenberger referred to the child porn charges as “concocted.”  All charges against Jones were ultimately dismissed after the court suppressed the state’s evidence resulting from an illegal search.

[2] Fletcher was indicted for federal obscenity violations, although the U.S. Attorney, Mary Beth Buchanan, referred to the material as involving “…the rape and torture of children.” C, Deitch, Dirty Words, Pittsburg City Paper, http://www.pittsburghcitypaper.ws/gyrobase/PrintFriendly?oid=oid:30196.  Of course, no children were raped or tortured by Ms. Fletcher, and she was never actually charged with child pornography.

Nowhere is the misuse of child pornography charges more apparent than in the case of ‘sexting.’ Countless articles, blogs and Op-Ed pieces have come out recently, decrying the use of harsh child pornography statutes against teenagers accused of sending racy photos of themselves. Eg. Provocative Photos: Don’t Overreact to “Sexting”   Several states are currently considering legislation to decriminalize the behavior, or reduce its severity to nothing more than a misdemeanor.   This is a step in the right direction.   Children convicted of child pornography are forced by a federal law, the Adam Walsh Child Protection Act, to register as sex offenders – a label that can deal damage for the rest of their lives. Teens impacted by this registration requirement cannot go to school, find jobs, or lead normal lives. Eg.: Sexting Teens Who Send Racy Photos Run Risk of Child Porn Charges. Oddly, this is the only instance where the child porn victim is also the perpetrator.

The end game for the activists and politicians here is to cause the public to immediately associate any incident involving pornography with the rape and abuse of children. If they can somehow work the word “child” into any sentence referencing “pornography” they have achieved a victory. But the misuse, and overuse, of child pornography statutes to prosecute these tangential cases involving cache files, young-looking adults, and sexting behavior, undermines the core policies of the child pornography laws for a cheap political purpose. Children will suffer when these cases are passed over by prosecutors, or dismissed by judges flooded with dubious claims of child exploitation. The censors may gain minor ground with some, but the voices opposing distortion of constitutional freedoms under the guise of protecting children are getting louder.

Lawrence G. Walters, Esq. www.FirstAmendment.com © 2009. All rights reserved.