20.2 Legal Considerations

The most commonly encountered sex offenses on the Internet include soliciting minors for sex, and making, possessing, or distributing child pornography. Although many sexual assaults do not involve computers directly, associated digital evidence increasingly exists. Proving the sexual assault of an adult rather than a child may be more difficult because of the possibility of consent. For instance, a man in Washington accused two other men he met on the Internet of holding him against his will and sexually assaulting him. However, prosecutors dismissed the charges after they examined the associated e-mail correspondence and determined that there were ample grounds to find that the men had made a consensual sex slave arrangement (Thomson 2002).

Investigating and prosecuting sexual assaults either facilitated or documented by computers or the Internet has myriad legal considerations. Whenever the Internet is involved, jurisdiction can be complicated as discussed in Chapter 3. In the United States, federal law enforcement has jurisdiction over most criminal activity facilitated by the Internet, even if both offender and victim are located in the same state. This is due to the Commerce Clause of the United States Constitution, which has been interpreted broadly to allow anything related to interstate commerce^[1] to fall under federal jurisdiction.

However, states have historically carried the burden of common law criminal law enforcement. While the interplay of federal and state jurisdiction has resulted in increased resource sharing and the creation of task forces (e.g. the Internet Crimes Against Children Program funded by the United States Office of Juvenile Justice and Delinquency Prevention), some in the legal community are concerned by the increasing federal involvement in the criminal law (Amar 2003).

A 2002 US Supreme Court decision has had major implications for computer assisted child exploitation cases. As noted in Chapter 3, Ashcroft v. Free Speech Coalition (US Supreme Court, 00–785, 198 F.3d 1083, 2002) held parts of the US child pornography law outlawing sexually explicit drawings and computer rendered images unconstitutional. In a constantly evolving line of cases, the federal and state courts seek to find the proper amount and strength of evidence to prove beyond a reasonable doubt that images alleged to be child pornography depict actual children engaged in sexually explicit conduct. To support this endeavor, the United States recently launched an effort to establish a library of child pornography images in which investigators have identified original sources and have identified the victims portrayed in the images. Also, the PROTECT Act of 2003 modified the federal pornography laws, and will likely become the subject of litigation over the course of the next few years (USDOJ 2003).

In some countries, such as England, laws relating to child pornography have exceptions such as a "legitimate reason for having the photograph or pseudo-photograph" (English Criminal Justice Act 1988). In the United States, the federal law and many state laws also contain exceptions for law enforcement and judicial uses of child pornography, and for the inadvertent possession when promptly reported to police. Without one of these exceptions, the stated intent of the defendant is usually irrelevant under federal law. For instance, Larry Matthews, a news reporter for National Public Radio (NPR), was convicted of possessing and distributing child pornography despite his claims that he was conducting research for a story about child pornography on the Internet (United States v. Matthews 2000a). The court held that his reason for sending and transmitting child pornography was irrelevant under the federal statute, "admission that he knew he was receiving and transmitting child pornography is all that was required." (United States v. Matthews 2000b.)

Knowing possession or importation, distribution or manufacture of child pornography is all that matters because child pornography is contraband, just as heroin is contraband. Imagine that a well-intentioned citizen seeks to bring heroin dealers to justice by going down to the local dealer and buying a large supply with the intent of destroying it or turning it over to the police. Such a person would be charged with possession of the drug if interdicted by law enforcement anywhere between obtaining the heroin and turning it in - the individual would have to hope that the authorities believed their defense for possession. In one case, an individual helped the FBI several times too many, leading them to believe that he was actually interested in the child pornography he was obtaining from the Internet (United States v. Hilton 1997).

Even those who evaluate sex offenders either for treatment or in the courts had to change how they conduct the evaluations. In the past, some evaluations used visual depictions of children as a stimulus to measure arousal via penile tumescence or visual reaction times. Some of these pictures or slides could arguably be considered child pornography and would place the evaluator at risk by possessing them. Obviously, these pictures are no longer used due to fear of prosecution, but the reason for possessing them was clearly antithetical to an offender's possession of child pornography.

CASE EXAMPLE (TEXAS 2002):

David Magargee pled guilty to possessing child pornography. At his sentencing hearing, Magargee told Judge Vela that his purpose in obtaining the child pornography photographs was to clothe the children and flood the Internet with angelic images, and his purpose for ordering the videos was to gather evidence for law enforcement. Judge Vela found that Magargee had previously admitted to knowingly possessing the child pornography, denied the defendant's motions seeking a lower sentence, and imposed the maximum 27 months term of imprisonment as recommended by the United States (USDOJ 2002c).

Computer security professionals in the private sector can also run foul of the law when dealing with child pornography on their systems. Even if the law does not require an organization to report child pornography found on their computer systems, a failure to do so can lead to criminal charges if the illegal materials are not properly disposed of. Furthermore, covering up such problems may be viewed as negligence if the illegal materials are symptomatic of a more serious crime such as sexual abuse.

Given the seriousness and sensitivity of these offenses, organizations should be prepared with policies and procedures for the inadvertent discovery of child pornography. Without this kind of preparation, individuals who report such crimes directly to law enforcement may find that they do not have the support of their employers and may need to find a new job, hire their own attorney, defend themselves against countersuits, and testify in their own time. Organizations that handle situations inappropriately also risk being sued by their employees.

CASE EXAMPLE (NEW YORK 2003):

After finding child pornography on Professor Edward Samuels's computers, two computer support technicians at the New York Law School reported the incident to their supervisors. An investigation ensued, Samuels was arrested, and ultimately pled guilty to possession of child pornography. Shortly after the incident, the two technicians were fired and sued their employers for 15 million dollars (New York Lawyer 2003).

In the process of creating policies and procedures for dealing with the discovery of child pornography on their systems, organizations should establish contact with law enforcement agencies to clarify expectations: What are the relevant state laws? What response can the organization expect from law enforcement? What law enforcement needs from the organization to resolve the case? Additionally, these policies and procedures should be cross-checked with existing policies, such as those protecting employee privacy to avoid conflict and inadvertent violations.

^[1]For example, making a threat by e-mail.