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November 2006, the Justice Department indicted Jeff Pierson, an Alabama professional photographer, for taking modeling pictures of clothed minors with their parents' consent and posting the images online.  The federal prosecutor asserted that the images were "provocative" and therefore illegal.  Because no sex or nudity is involved, First Amendment concerns arise. 

17 November 2006, the federal Ninth Circuit Court vacated the sentence of convicted child pornographer John Kuchinski when it found that his 70-month sentence was based on the number of images found on his computer, including more than 10,000 images found in his temporary Internet files and deleted Internet files.  Judge Fernandez explains, to hold otherwise "turns abysmal ignorance into knowledge and a less than valetudinarian [sic, nerdy] grasp into dominion and control."

Pre-election fall 2006, the Mark Foley "House Page Scandal" adds saliva to the legislative palate for passage of a comprehensive Internet data retention act in the 110th Congress.

27 June 2006, five major online companies announced joint initiative with National Center for Missing & Exploited Children (NCMEC) to launch an aggressive new campaign against child exploitation on the Internet.

Late 2000, Congress enacted The Children’s Internet Protection Act (“CIPA-2000”), which required school and libraries to employ filtering software to address access by minors to inappropriate matter on the Internet.

Late 1998, Congress enacted the Protection from Sexual Predators Act (“PSPA-1998”), which amended the federal criminal code to increase penalties for any Predator using the Internet (or any other form of communication) to solicit the personal information of a person under 16 with the intent to entice, encourage, offer, or solicit any person to engage in illegal sexual activity.

 

 

In the 110th Congress, several bills will be considered that deal with the on-line exploitation of kids and child predators.  As an illegitimate child of the Foley affair, this legislation reflects governments fear of the Internet, as the Net redefines traditional commerce, media, politics and journalism.

Rep. DeGette's bill dealing with data retention will severely compromise the Internet  privacy of every American. 

Senators Charles E. Schumer's (D-NY) and John McCain's (R-AZ) have eliminated seriously objectionable aspects of the proposed bill submitted last year.  Their revised bill deputizes ISPs and, possibly, instant messaging providers and Web-based e-mail systems to report "child pornography" and any site allowing personal profiles to screen, remove and report registered sex offenders or face confiscatory fines.  The prior December 2006 version even deputized personal blogs and millions of commercial Web-sites and subjected them to major penalties.

The current proposed legislation also addresses the inability of most Parents to adequately supervise their children’s access to the Internet at home and the dispersal of Internet access using new mobile technologies away from the “protected” access points of schools, libraries and the home.  

Under current procedures when an ISP becomes aware of an instance of child pornography, the ISP provides the information to the National Center for Missing & Exploited Children (the “NCMEC”).  The NCMEC, a not-for-profit corporation mandated by Congress, serves as the national clearing house on missing and exploited children.  The NCMEC provides the appropriate local law enforcement agency of the facts, which obtain a subpoenas for the alleged predator’s Internet history from the reporting ISP.  The obtained information could be used a prosecutorial evidence.

Every American's Privacy Compromised: The more egregious of the bills will be proposed by Rep. Diana DeGette, a Colorado Democrat, who is planning on introducing legislation to force Internet Service Providers to maintain data on every American's net activity.  The Justice Department has been campaigning for this for years and the notoriety of the Mark Foley incident has served as a catalyst.

Caching 120 Billion Page Views: DeGette’s horrendous initiative would require ISPs to cache senders and receivers of emails, chat room activity, IM activity and users’ Internet histories for all U.S. Net users for an evergreen one- to two-year period.  In case a child predator or pornographer was identified, his entire Internet activity could be subpoenaed, scrutinized and provided as evidence in his possible trial. 

Caching 120 billion unique page views for 207 million Americans for up to two years to provide possible prosecutorial evidence on a thousand perverts is a misguided and dangerous invasion of American’s privacy.  While the “ends” are desirable the “means” are despicable.  Currently, for business reasons, ISPs cache their users’ Internet activity, but not in the detail specified in DeGette’s proposal.  ISPs do this for valid business reasons, generally to resolve possible billing disputes for periods of time matching the billing cycles.

Better Approach: A better approach is to make additional resources available to local law enforcement agencies to follow-up promptly to the NCMEC’s specific leads so that subpoenas can be requested and issued and the alleged predator’s Internet records obtained in a timely fashion.

Best Approach:  The best approach is for Parents to adopt sensible approaches to protect their children by using current home-based filtering technologies and rules for Internet usage for their families.  See Protect Kids Action Plan.

Senators McCain’s and Schumer's prior bill, introduced in the lame duck session of the 109th Congress, was frightening in both its breadth and also in its lack of specificity.  Millions of commercial Web sites and personal blogs would have been required to report illegal images posted by their users or pay fines of up to $300,000.  The uproar from this site and others forced McCain to re-think his proposed bill.

The revised bill, "Securing Adolescents from Exploitation-Online Act of 2007," (or, "SAFE Act of 2007") narrowed the scope to ISPs and, possibly, IM providers and Web-based e-mail systems.  The proposed bill requires that reports be submitted to the CyberTipline of the NCMEC (National Center for Missing and Exploited Children), which, in turn, will forward the reports to the relevant law enforcement agency.  While the proposed act authorizes $20 million for the Internet Crimes Against Children Task Force, one can imagine that the system will be inundated with reports.  Historically, the weak link in the system is the local law enforcement agency that often prioritize actual violent crimes over "victimless" crimes.  Timeliness is an issue—which DeGette’s bill would address.

Internet companies are concerned about compliance costs and argue that the new law is redundant with current law, as seen above.  An online service provider that “knowingly and willfully” fails to make a report would be subject to fines of $150,000 for a first failure to report and $300,000 for a subsequent failure to report. 

Another section of the draft bill says that anyone convicted of certain child exploitation-related offenses and who also use the "Internet to commit the violation" will get an extra ten years in prison.  The ACLU argues that the incremental penalty is based on using a perfectly legal service, but in an illegal way.  This is not the same as the extra penalty that, for instance, is added when a felon uses a gun (illegal item) in the commission of a crime.

The continuing problem is that the definitions of child pornography have become relatively broad, ill-defined, and subject to personal interpretation.  "Pornography is in the eye of the beholder." The proposed bill also requires reporting of both real and "cartoon" images.  The case of an Alabama photographer that was indicted for taking modeling pictures of clothed minors with their parents' consent and posting them online is an issue.  The feds asserted that the images were "provocative."

The Act also specifies the information contained in the report; requires the online service provider to store the relevant image and vital information for not less than 180 days (or for an unspecified longer period as requested by the NCMEC or the referred law enforcement agency) after the report date; prevents the online service provider from destroying any related data for; authorizes the NCMEC to disseminate elements of pornographic images to online service providers; indemnifies personnel at the NCMEC; targets convicted sex offenders by creating a federal registry of any “e-mail address, instant message address, or similar Internet identifier used by” such offenders and mandates fines and up to a 10-year imprisonment for offenders who fail to register; and increases the penalty for violations of selected sections of the federal criminal code by adding on an additional 10-years, served consecutively.

The proposed Act also directs “any online service provider that is a social networking site” to take “effective measures to remove any web page hosted by that provider that is associated with any identifier listed” in the federal registry, under the Sex Offender Registration and Notification Act.  According to CNET News.com, a McCain aide said on December 8 that the measure was targeted at any Web site that “you’d have to join up or become a member of to use,” with or without any payment.

 

The Advocates support the goals of the NCMEC, a 501(c)(3) not-for-profit organization, which serves as a national clearinghouse for information and a resource for child protection.  NCMEC's congressionally mandated CyberTipline, a reporting mechanism for child sexual exploitation, has handled nearly a half million leads.  The organization received $32.6 million in tax dollars in 2005.

Tiny Stars is a nonprofit organization committed to exposing the growing multi-billion dollar industry of the child sex trade and working behind the scenes alongside law enforcement to capture international child predators.

The Internet Keep Safe Coalition is a not-for-profit organization that teaches basic rules of Internet safety to children and parents.

The Protection Project is a human rights research institute based at the Foreign Institute at The Johns Hopkins School of Advanced International Studies to address the issue of tracking in persons as a human rights violation.

Summary:  Protection from Sexual Predators Act.

In late 1998, Congress enacted the Protection from Sexual Predators Act (“PSPA-1998”), which (Title I) amended the federal criminal code to solicit by any form of communications the personal information of a person under 16 with the intent to entice, encourage, offer, or solicit any person to engage in illegal sexual activity; (Title II) provides for the prosecution of individuals for the production of child pornography if the image was transported by any means in interstate or foreign commerce; (Title III) doubles the maximum term of imprisonment for abusive sexual content with a child under 13; (Title IV) prohibits and sets penalties for using any means to or attempt to transfer obscene matter to a child under 16; (Title V) increases penalties for offenses against children and for repeat offenders; (Title VI) provides for pre-trial detention of persons for scheduled federal sex offenses, (Section 604) requires ISPs to report to law agencies child pornography, (Section 605) expands the list of sex crimes against minors eligible for civil remedy; (Title VII) expands FBI’s serial murder authority, (Section 702) amends the criminal code for kidnapping offenses; (Title VIII) restricts federal prisoners unsupervised access to the Internet; and (Title IX) directs various studies on the Internet and child pornography.

Summary: The Children’s Internet Protection Act of 2000

In late 2000, Congress enacted The Children’s Internet Protection Act (“CIPA-2000”), which required school and libraries to employ filtering software to address: (a) access by minors to inappropriate matter on the Internet; (b) the safety and security of minors when using electronic mail, chat rooms and other forms of direct electronic communications; (c) unauthorized access by minors online; (d) unauthorized disclosure, use, and dissemination of personal information regarding minors; and (e) restricting minors’ access to materials harmful to them.  The current proposed legislation addresses the fact that Parents have failed to supervise their children’s access to the Internet at home and that now new mobile technologies have dispersed Internet access away from the “protected” schools, libraries and the home access point.

Securing Adolescents from Exploitation-Online Act