Bootcamp 2009
Porn, Predators, and the
Pressure to Police
Jennifer Stisa Granick, Civil Liberties Director
Obscenity
Whoever knowingly uses an interactive
computer service for the distribution of
any obscene matter shall be fined or
imprisoned not more than five years, or
both. 18 U.S.C. 1465.
Also state laws
Obscenity and Children
Whoever uses interstate commerce,
including a computer, to knowingly
transfer obscene materials to someone
the person knows is under 16 years of
age shall be fined under this title,
imprisoned not more than 10 years, or
both. 18 U.S.C. 1470.
Obscenity and Domain Names
Whoever knowingly uses a misleading
domain name on the Internet with the
intent to deceive a person into viewing
obscenity shall be fined under this title or
imprisoned not more than 2 years, or
both. 18 U.S.C. 2252B
Definition of Obscenity
• Whether the average person, applying contemporary
community standards, would find that the work, taken
as a whole, appeals to the prurient interest
• Whether the work depicts/describes, in a patently
offensive way, sexual conduct or excretory functions
specifically defined by applicable state law
• Whether the work, taken as a whole, lacks serious
literary, artistic, political, and scientific value.
What is Obscene?
• Mere nudity is not obscene
• Pornography/sexual content is not
necessarily obscene
• Obscenity laws are often used when
prosecutors have trouble proving the
elements for child pornography
• Obscenity is not necessarily limited to visual
depictions
Duty to Report?
• Federal law: “Knowingly”
• California Penal Code 312.6:
Obscenity/CP laws do not apply to mere
access provider
Internet-specific Legal issues:
• Which community’s values apply when
the work is distributed over the Internet?
• Does any jurisdiction have the right to
pursue you if the work is distributed
over the Internet?
• Do other countries with more restrictive
standards have authority over you when
work is distributed over the internet?
Child Pornography
Federal law and every state has a child
pornography law prohibiting possession,
distribution, creation of child pornography.
Definition of Possession
• Knowingly possessed materials
• Knew the materials contained a visual
depiction of a minor engaged in sexually
explicit conduct
• Knew the visual depiction was of a minor
• Knew that production of the visual depiction
involved use of a minor in sexually explicit
conduct
• Interstate commerce
Duty to Report: NCMEC
• Whoever obtains knowledge of facts or
circumstances from which a violation of
child pornography laws is apparent,
shall, as soon as reasonably possible,
make a report of such facts or
circumstances to the Cyber Tip Line at
the National Center for Missing and
Exploited Children
Internet-Specific Legal issues
• Are the images “knowingly possessed” if you
view them on the internet, but don’t act to
store them on your computer?
• Is “virtual child porn” (images manufactured
to look like minors engaged in sexually
explicit conduct) illegal? One such statute
struck down in 2002, law passed in 2003
prohibiting pandering virtual CP upheld by
Supreme Court.
Potential Future Legislation
•
•
•
•
•
•
•
•
Rules re: sexually explicit ads (Craigslist)
Record retention requirements
Required filtering of known images
Requiring email registration as part of sex offender
registration
Filtering against sex offender registries
Restricting access to social-networking sites on
school and library computers
Labeling Web sites
Prohibition on “facilitating” access to child porn
Questions?