FC: Anti-pornsters give Congress tips on banning "virtual" child porn

[Declan McCullagh <declan () well com>]

Politech archive on "morphed" child porn:
http://www.politechbot.com/cgi-bin/politech.cgi?name=morphed

Wired News article:
http://www.wired.com/news/politics/0,1283,52453,00.html

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http://www.politechbot.com/docs/nlc.virtualporn.brief.051002.html

                Memorandum of Law on House Bill to enact the
  
          "Child Obscenity and Pornography Prevention Act of 2002"
  
                                     by
  
     Bruce Taylor, Chief Counsel, National Law Center for Children and
                                 Families,
  
     former Senior Trial Attorney, DOJ Child Exploitation and Obscenity
                                  Section,
  
        Janet LaRue, Chief Counsel, Concerned Women for America, and
  
    Patrick Trueman, former Chief, DOJ Child Exploitation and Obscenity
                                  Section
  
                                May 8, 2002
  
[...]
  
   It is not the pedophiles whom we would have to fear going into this
   business, they would be the target customer audience.  It would be the
   "adult" pornography syndicate operators who could seize the
   opportunity and could marshal the resources to obtain the necessary
   computer hardware and software to recreate images of children that are
   as realistic or better than those of the adult computer-generated
   "people" in the film Final Fantasy (see www.finalfantasy.com for how
   that film/game's image technicians and artists created the human
   figures that appear to be so real).  If the porn syndicates could
   legally sell counterfeit child porn that was created by computer, with
   the excuse of giving pedophiles their child porn without using real
   children in the production process, then imagine the wrath pedophiles
   could inflict on real children by being incited by such realistic
   images and using ! those images to seduce and "fool" children into
   becoming victims of imitating the sex depicted in such
   computer-generated synthetic still photos and video streams.  We
   submit that there is good reason for being concerned about codifying a
   permanent, legal defense to those who could then create an industry of
   producing and openly selling computerized child porn to the pedophile
   market. The hard-core "adult" porn syndicates could also flood the
   market with computerized child porn in order to lead law enforcement
   on a chase to determine whether it is real or not and divert attention
   and resources from adult obscenity and actual child pornography
   investigations.  Such a criminal tool does not deserve to go public
   and Congress should have no part in making it "legal" and enabling
   that which Congress sought to protect children from, even though you
   can't stop it this year.
  
     For our part, we are adamantly opposed to legalizing such traffic,
   for the reasons stated in our amicus brief filed in Ashcroft v. Free
   Speech Coalition and because we agree with the concerns of Congress
   from 1996 that computer and photo image technologies can and soon will
   be commercially and publicly available to create artificial, but
   authentically realistic, counterfeit images that appear to be of real
   children engaging in sexual conduct that is indistinguishable from
   photographic images of real children who did engage in sexual
   conduct.  We also agree with the Congressional finding and the
   recognition of the Supreme Court in Osborne v. Ohio in 1990 that
   pedophiles are incited by child porn to molest children and use child
   porn to seduce their child victims.  If the pedophiles and minors
   can't tell the difference, they will react the same way to an image
   they think is real, even if it was made by a computer instead of!
   a camera.  The act of producing and trafficking in such counterfeit
   child pornography should be considered a form of criminal conduct and
   consumer fraud of the most dangerous sort and should not be considered
   expression entitled to the protection of the First Amendment.

[...]

[...]

   5. The creation of a secure database for identifying child pornography
   produced with actual children would be a much-needed tool for law
   enforcement and the courts.  As prosecutors and law enforcement
   advocates, we have always wanted a joint collection of known images
   that were collected from FBI, Postal Inspection Service, Customs
   Service, and local police and make those images available for
   comparison to our case images. Each federal agency and local police
   departments have kept their own archives of child porn, which could
   now be assimilated in a federal repository where all agencies could
   contribute and have access, with security and privacy protections
   applicable to all such images.  In the past, as then DOJ-CEOS attorney
   Bob Flores was able to do in U.S. v. Kimbrough, 69 F.3d 723 (5th Cir.
   1995), and AUSA Arnie Huftalen and then DOJ-CEOS attorney Bruce Taylor
   did in U.S. v. Bateman in New Hampshire (and as many federa! l and
   state prosecutors have done in past cases), we had to ask our case
   agents to circulate some of our case pictures to Postal Inspectors,
   FBI Special Agents, Customs agents, Secret Service Agents, Deputy U.S.
   Marshals, or local police detectives, in hopes that someone would
   recognize our images from an old magazine, film, or child porn
   collection seized from a pedophile--to have further proof that our
   images were real and were produced out of State or beyond the U.S. and
   transported in interstate or foreign commerce to reach our federal
   District.  In fact, since the Court's Free Speech decision, local
   police have been asking where to access any available databases in
   order to prove that pending charges and investigations involve "real"
   children being abused. CWA's Janet LaRue has received such inquiries
   by both phone and email and the only present method of verifying such
   images is by manually contacting the various agents and individual
   local and fed! eral a gencies in hopes of recognizing a "match".
  
   It is true, under existing =A7 2252, that a jury can conclude from the
   photographs or images alone that they are visual depictions of actual
   minor persons under age 18.  A jury can reach such a conclusion beyond
   reasonable doubt, if the image is conducive to such conclusion.  Such
   legally permissible inferences can and will be relied on and utilized
   to support present and future convictions under =A7=A7 2252 and 2252A, b=
ut
   prosecutors will often seek to assist the jury with medical testimony
   from doctors who are pediatricians or medical examiners from a
   coroner's office to give expert opinions as to the age of the children
   depicted and prosecutors will try to offer or would like additional
   evidence of the reality of the images by being able to have
   testimony from an agent/police investigator that the image is of a
   known child or has appeared in an old film or magazine as evidence
   that it really is of a real child and must have been t! ranspo rted or
   transmitted across state lines or through facilities of commerce.
  
   The database of collected images from past child porn and child abuse
   cases could also be digitized, like fingerprint, DNA, and
   NCIC databases, for comparison with newly discovered images to search
   for a match.  The new child porn database should, regardless of which
   agency or organization maintains it, collect from all federal
   and state law enforcement sources and be made available to all federal
   investigative agencies (FBI, Postal, Customs, Secret Service,
   Marshals, Tribal Police, and Military Police), plus the ICAC-Internet
   Crimes Against Children task forces, Innocent Images, local police
   agencies and state and local sexually exploited child units, and the
   National Center for Missing and Exploited Children.
  
   The confidentiality of the images and identities of the child victims
   would be maintained and the use of the database in court would be
   governed by and subject to the privacy protection provisions of the
   "Child victims' and child witnesses' rights" guaranteed in 18 U.S.C. =A7
   3509.

[...]
  
    IN CONCLUSION
  
   Finally, we can keep in mind that the Supreme Court and the Ninth
   Circuit made their decisions under the assumption that =A7 2252A could
   apply to a broad category of images, including Renaissance paintings
   and youthful looking adults pretending to be minors and minors
   pretending or suggesting to engage in sex (even when not "depicting"
   the sex, like in Traffic or Romeo and Juliet). We know this was not
   the intent of Congress and is the exact opposite of the intended reach
   of the phrase in the CPPA that child pornography would consist only of
   an image that "is, or appears to be, of a minor person engaging in
   sexually explicit conduct" when it does just that--appears to be of a
   real minor person under 18 actually engaging in the felonious child
   abuse activity. That type of felony abuse does not take place on the
   set of Hollywood movies and the hard-core porn industry better not use
   minors to do sex scenes or they would vi! olate the old statute, as
   well. However, the Court thought that was what this statute and this
   case was about and struck the statute on that account. If the statute
   HAD applied to suggested, off-camera sex by teenage actresses or
   adults pretending to be a child character or even a painting, then the
   CPPA would have been unconstitutionally overbroad. The CPPA was not
   written or intended to be so vague or overbroad and it is unfortunate
   that the Court would not authoritatively construe the Act within
   permissible constitutional bounds. This was unlike the other Circuit
   Courts of Appeals that upheld =A7 2252A with a narrower interpretation,
   finding the statute applicable and construing it to apply only to
   realistic images that appear to be of real minors and not applicable
   to obvious fakes or adult body-doubles, like Hollywood movies with an
   adult body-double in the nude scenes or even porn-films like a Lolita
   with an over-18 performing the sex scenes.
  
   Once the Supreme Court Justices thought the CPPA could apply to
   paintings and Hollywood films that everyone knows are not of real
   children being abused, they thought the statute was overbroad--and
   they would have been correct if the Act were applicable to such
   obvious adult or fake materials.  However much Congress tried to limit
   the CPPA to images that are, or appear to be, of real minors--to
   images that were indistinguishable from real minors and could not be
   distinguished from the very images that =A7=A7 2251 and 2252 prohibit,
   nevertheless, the Court rejected that attempt and felt compelled to
   consider the statute as applicable to the broader categories of
   protected speech. Being in the present situation, however, requires
   Congress and us to seek other ways to protect minors from sexual
   exploitation and from the harm that would be inflicted on them if
   computers generate a marketable form of counterfeit child porn to
   replace the real image! s that pedophiles risk their lives to obtain.
  
   The Court found that the record was insufficient to justify such an
   assumptively overbroad statute, in absence of proof that such
   realistic images were being produced by computer technology alone and
   that such images were frustrating proof or jury conclusions as to the
   authenticity of presently prosecuted child porn images.  The Court
   concluded that much more proof would be needed to justify "banning"
   paintings and Traffic-like scenes, as well as realistic synthetic or
   counterfeit computer-generated images.  Much less proof may have been
   persuasive for a statute that was interpreted and understood to
   be limited to only realistically indistinguishable images.  Congress
   found that such proof was in existence in 1996 and that computer image
   technology was or would soon be available to create images that are or
   appear to be of real minors and that such technology would be
   commercially or publicly available within a short time, so! that&
   nbsp;existing law needed to be updated before vast numbers of child
   victims were seduced or exploited.
  
   If the Court understood or accepted that it was evaluating the
   justifications needed for the more narrow interpretation of the law,
   like that proposed in the present bill, then the Court may have upheld
   the statute this time.
  
   In light of the ruling, however, we must and can resort to using the
   old child porn laws, =A7=A7 2252 and 2252A for real child images (or
   obscenity laws when the age or authenticity of the child cannot be
   determined), but it is unwise, we submit, to "legalize" the artificial
   creation of realistic synthetic-counterfeit child porn and invite the
   porn industry to invest in the technology necessary to create such
   realistically indistinguishable child porn materials at this time.
   Congress tried to forestall such an avalanche of dangerous child porn
   imagery of the sexualization of children and we don't think the
   Members should capitulate and open the door to that which they wisely
   sought to prohibit.  Now that Final Fantasy has proven that computers
   can create human images that are realistic enough to look real,
   especially if one were to scan and upload such an image onto the
   Internet and make a second-generation copy that could not be dis!
   tingui shed from a copy of an actual photograph of a real child, it is
   reasonable to anticipate that such technology will be more widely
   available and improved in the near future.  Congress should wait, law
   enforcement should continue to gather the evidence, and we all should
   build the record to justify the original intent of the CPPA and then
   seek to return to a criminalization of the act of knowingly making,
   trafficking, and possessing images that are or appear to be real child
   porn images that are indistinguishable from images of actual children
   being abused.  It's too early to quit on that score, but this bill
   could be a great vehicle to start the process of closing the loopholes
   and allowing law enforcement to enforce existing law and use obscenity
   laws to prosecute pseudo-child porn or child-theme sexual conduct that
   depicts or purports to depict children engaging in sexual conduct in
   an obscene way under the "Miller-Smith-Pope" test.
  
   We are honored to assist the Congress and the Department with the
   process of enacting a fair, if limited, first step in this direction.
   The Attorney General and the sponsors' goals are to protect our
   children and grandchildren from this victimization and they deserve
   our assistance and best advice to support this effort.
  
                          Respectfully submitted,
  
   Bruce Taylor, President & Chief Counsel Janet M. LaRue, Chief Counsel
  
   National Law Center for Children and Families Concerned Women for
   America
  




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