Child pornography is material that visually depicts sexual conduct by children. U.S. federal law defines "child pornography" as:
|“||any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct, where — (A) the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct; (B) such visual depiction is, or appears to be, of a minor engaging in sexually explicit conduct; (C) such visual depiction has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct; or (D) such visual depiction is advertised, promoted, presented, described, or distributed in such a manner that conveys the impression that the material is or contains a visual depiction of a minor engaging in sexually explicit conduct.”||”|
Child pornography is not protected by the First Amendment even when it is not obscene; i.e., child pornography need not meet the "Miller" test to be banned. The reason that child pornography is unprotected is that it
|“||is intrinsically related to the sexual abuse of children. . . . Indeed, there is no serious contention that the legislature was unjustified in believing that it is difficult, if not impossible, to halt the exploitation of children by pursuing only those who produce the photographs and movies.||”|
Because of the legislative interest in destroying the market for the exploitative use of children, there is no constitutional right to possess child pornography even in the privacy of one's own home.
Impact of technology
Digital cameras and computers have made it easier for offenders to produce and distribute child pornography because they can bypass print shops and upload photos from their cameras directly to the Internet. In addition, the increased sophistication of offenders in the production and distribution of child pornography and the use of advanced technologies to avoid detection has made it more difficult for law enforcement to detect their activities and identify suspects who attempt to hide their identifying information.
In response to the increase in online child pornography crime, multiple federal law enforcement agencies have developed specialized units to address crimes against children, and Congress has passed legislation requiring greater coordination on, and authorizing an increase in resources available to address, these crimes.
For more than thirty years, and particularly in recent years, Congress has focused attention on the scope of child pornography offenses and the severity of penalties for child pornography offenders. Through creating new offenses, enacting new mandatory minimums, and increasing statutory maximums, Congress has repeatedly expressed its will regarding appropriate penalties for child pornography offenders.
Congress has specifically expressed an intent to raise penalties associated with certain child pornography offenses several times and reducing the instances of downward departures for such offenses.
Child pornography offenses are covered by 18 U.S.C. §2251 et seq. These laws specifically include computers within the proscribed means of distribution and possession of child pornography. They specifically prohibit the production, transportation, receipt, or distribution of visual depictions that involve the use of a minor (any person under the age of 18) engaged in sexually explicit conduct, where the producer or distributor knows or has reason to know, that the depiction was or will be transported in interstate commerce or was created using a camera (or the like) that had traveled in interstate commerce.
In 1994, Congress amended the child pornography statute to provide that "lascivious exhibition of the genitals or pubic area of any person" "is not limited to nude exhibitions or exhibitions in which the outlines of those areas were discernible through clothing."
Child Pornography Prevention Act of 1996 (CPPA)
In 1996, Congress enacted the Child Pornography Prevention Act of 1996 (CPPA), which defined "child pornography" to include visual depictions that appear to be of a minor, even if no minor is actually used. The Supreme Court, however, declared the CPPA unconstitutional to the extent that it prohibited pictures that are produced without actual minors.
Pornography that uses actual children may be banned because laws against it target "[t]he production of the work, not its content"; the CPPA, by contrast, targeted the content, not the production. The government "may not prohibit speech because it increases the chance an unlawful act will be committed 'at some indefinite future time.'" Child pornography, to be unprotected by the First Amendment, must either be obscene or depict actual children engaged in sexual activity (including "lascivious" poses), or actual children whose images have been "morphed" to make it appear that the children are engaged in sexual activity.
The Court observed in Ashcroft that statutes that prohibit child pornography that use real children are constitutional because they target "[t]he production of the work, not the content." The CPPA, by contrast, targeted the content, not the means of production. The government's rationales for the CPPA included that "[p]edophiles might use the materials to encourage children to participate in sexual activity" and might "whet their own sexual appetites" with it, "thereby increasing . . . the sexual abuse and exploitation of actual children." The Court found these rationales inadequate because the government "cannot constitutionally premise legislation on the desirability of controlling a person's private thoughts" and "may not prohibit speech because it increases the chance an unlawful act will be committed 'at some indefinite future time.'"
The government also argued that the existence of "virtual" child pornography "can make it harder to prosecute pornographers who do use real minors," because, "[a]s imaging technology improves . . ., it becomes more difficult to prove that a particular picture was produced using actual children." This rationale, the Court found, "turns the First Amendment upside down. The Government may not suppress lawful speech as a means to suppress unlawful speech."
42 U.S.C. §13032
Originally enacted in 1998 as an amendment to the Victims of Child Abuse Act of 1990, 42 U.S.C. §13032 required providers of an electronic communication service or remote computing service to the public through a facility of interstate or foreign commerce to make a report to a law enforcement agency designated by the U.S. Attorney General, as soon as reasonably possible, whenever they obtain knowledge of "facts or circumstances" indicating an apparent violation of enumerated federal statutes relating to child pornography.
The following year, Congress amended that key reporting requirement to direct providers to make their reports, not directly to a law enforcement agency, but instead to the CyberTipline at the National Center for Missing and Exploited Children (“NCMEC”), which was charged with the duty to forward the reports to the appropriate law enforcement agency. Subsequent amendments clarified the responsibilities of NCMEC, authorized it to forward CyberTipline reports to state law enforcement officials, and provided limited immunity for actions taken by NCMEC in the performance of its CyberTipline responsibilities and its efforts to identify child victims.
Section 13032 was an important step forward in clarifying the roles and responsibilities of service providers as involuntary intermediaries in the channels of criminal conduct by which online child pornography is distributed. Reporting apparent child pornography under §13032 was mandatory for providers — once they obtained knowledge of the relevant facts and circumstances — and failure to report would draw fines of up to $50,000 for an initial failure and up to $100,000 for a second or subsequent failure.
Appropriately, however, §13032 also enacted limited service provider immunity, assuring that actions taken in good faith by service providers to comply with the mandatory reporting requirement would not result in civil liability. Perhaps most important for maintaining the proper role of service providers, §13032 made it absolutely clear that nothing in its provisions may be construed by the courts to require providers to engage in monitoring of their users, or of the content of their users' electronic communications.
For all its benefits (including its brevity and simplicity), §13032 came up short in several respects that became apparent as service providers, NCMEC, law enforcement, and prosecutors gained experience with the reporting provisions.
Service providers received little guidance in §13032 concerning just what “facts or circumstances” relating to the apparent violation of child pornography laws should be contained in the CyberTipline report. The only provision addressing the substance of the report was subsection (d), indicating that a service provider “may include additional information or material” that the provider developed (without describing what that additional information might be), except that "the Federal Government may not require the production of such information or material" in the service provider's report. The vagueness of §13032 left service providers guessing as to what additional information might be helpful or advisable to provide to law enforcement.
Needless to say, the possession and transmission of images of child pornography are federal felonies. Certainly the providers, NCMEC, law enforcement agencies, and prosecutors all contemplated that the "facts and circumstances" surrounding reportable instances might include the image of child pornography that triggered the reporting obligation. Nothing in §13032, however, made it explicit that providers would be protected from potential criminal liability for the necessary handling and transfer of such images in the course of their mandatory reporting to NCMEC.
Law enforcement authorities also sought changes to §13032 that would improve the reporting process and remove unwarranted impediments to investigations of child pornography crimes, such as obtaining readily accessible contact information from service providers, promoting a greater degree of standardization in the content of CyberTipline reports, and permitting NCMEC to forward CyberTipline leads to foreign law enforcement agencies.
The consensus that developed among interested parties seeking improvements in §13032, as set forth in industry "sound practices" documents and congressional testimony of both NCMEC and service providers, in the context of ongoing dialogue with Members of Congress and their staffs, resulted in the repeal of §13032 and the enactment of the detailed reporting provisions of Title V of the PROTECT Our Children Act of 2008.
Title V of the PROTECT Our Children Act of 2008
In 2008, Congress responded by enacting Title V of the PROTECT Our Children Act of 2008, which prohibits any "digital image, computer image, or computer-generated image that is, or is indistinguishable from, that of a minor engaging in sexually explicit conduct." It also prohibits "a visual depiction of any kind, including a drawing, cartoon, sculpture, or painting, that . . . depicts a minor engaging in sexually explicit conduct," and is obscene or lacks serious literary, artistic, political, or scientific value. It also makes it a crime to advertise, promote, present, distribute, or solicit any material in a manner that reflects the belief, or that is intended to cause another to believe, that the material is child pornography that is obscene or that depicts an actual minor.
Adam Walsh Child Protection and Safety Act of 2006
The Adam Walsh Child Protection and Safety Act of 2006 amended 18 U.S.C. §2257, which requires producers of material that depicts actual sexually-explicit conduct to keep records of every performers' name and date of birth; it also enacted 18 U.S.C. §2257A, which requires essentially the same thing with respect to simulated sexual conduct. The Effective Child Pornography Prosecution Act of 2007 and the Enhancing the Effective Prosecution of Child Pornography Act of 2007 expanded existing law by, among other things, making it applicable to intrastate child pornography violations that affect interstate or foreign commerce.
- New York v. Ferber, 458 U.S. 747, 764 (1982) (full-text). The definition of "sexually explicit conduct" in the federal child pornography statute includes "lascivious exhibition of the genitals or pubic area of any person [under 18], and "is not limited to nude exhibitions or exhibitions in which the outlines of those areas [are] discernible through clothing." 18 U.S.C. §§2256(2)(A)(v), 2252 note.
- Id. §2256(8), incorporated by reference in 47 U.S.C. § 254(7)(F).
- New York v. Ferber, 458 U.S. at 759-60.
- Osborne v. Ohio, 495 U.S. 103 (1990) (full-text).
- For example, 18 U.S.C. §3553(b)(2)(A), enacted by §401 of the PROTECT Act, sought to reduce below-guideline sentences for "child crimes and sexual offenses," including child pornography offenses. It permitted courts to depart below guideline ranges in very limited circumstances and to consider "only the sentencing guidelines, policy statements, and official commentary of the Sentencing Commission together with any amendments thereto by act of Congress." 18 U.S.C. §3353(b)(2)(A). The status of this provision was in question after the Supreme Court's opinion in United States v. Booker, 543 U.S. 220 (2005) (full-text). In that case, the Court held that mandatory application of the guidelines violated the Sixth Amendment and excised §3553(b)(1) which limited district courts' ability to impose a sentence outside the guideline range in all cases not covered by § 3553(b)(2)(A). 543 U.S. at 259. Although the Booker court did not directly address the status of § 3553(b)(2)(A), every court of appeals to address the issue has concluded that Booker likewise requires the excision of that provision. United States v. Hecht, 470 F.3d 177, 181 (4th Cir. 2006) (full-text); United States v. Shepherd, 453 F.3d 702, 705 (6th Cir. 2006) (full-text); United States v. Jones, 444 F.3d 430, 441 n.54 (5th Cir. 2006) (full-text); United States v. Grigg, 442 F.3d 560, 564 (7th Cir. 2006) (full-text); United States v. Selioutsky, 409 F.3d 114, 117 (2d Cir. 2005) (full-text); United States v. Yazzie, 407 F.3d 1139, 1145 (10th Cir. 2005) (full-text).
- 18 U.S.C. §2252 note.
- Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002) (full-text).
- Id. at 249; see also id. at 242.
- Id. at 253.
- Pub. L. No. 105-314, Tit. VI, § 604(a), 112 Stat. 2974.
- 42 U.S.C. §13032(b)(1) (1998).
- Pub. L. No. 106-113, Appendix, enacting H.R. 3421 as introduced on Nov. 17, 1999, §121, 113 Stat. 1535 (codified at 42 U.S.C. §13032(b)(1) (1999)).
- Pub. L. No. 108-21, Title V, §508(a), 117 Stat. 683.
- 42 U.S.C. §13032(b)(3) (1998).
- Id. §13032(c).
- Id. §13032(e).
- Id. §13032(d).
- See, e.g., Proposed Sound Practices for Reporting Apparent Child Pornography, United States Internet Service Provider Association (full-text).
- See Testimony of Ernie Allen, President & CEO, NCMEC, before the Senate Committee on Commerce, Science and Transportation, Hearing on Online Child Pornography (Sept. 19, 2006) (full-text).
- See, e.g., Testimony of Elizabeth Banker, Vice President, Associate General Counsel, Yahoo! Inc., before the House Committee on the Judiciary, Hearing on Sex Crimes and the Internet (October 17, 2007) (full-text).
- Codified as 18 U.S.C. §§2258A et seq.
- Pub. L. No. 108-21.
- To the extent that the prohibitions described in the two preceding sentences apply to non-obscene child pornography that was produced without the use of an actual child, they would apparently be unconstitutional under Ashcroft.
- In United States v. Williams, 553 U.S. 285 (2008) (full-text), the Supreme Court upheld the constitutionality of this prohibition. It noted that, under the provision, "an Internet user who solicits child pornography from an undercover agent violates the statute, even if the officer possesses no child pornography. Likewise, a person who advertises virtual child pornography as depicting actual children also falls within the reach of the statute." Id. at 1839. The Court found that these activities are not constitutionally protected because "[o]ffers to engage in illegal transactions [as opposed to abstract advocacy of illegality] are categorically excluded from First Amendment protection," even "when the offeror is mistaken about the factual predicate of his offer," such as when the child pornography that one offers to buy or sell does not exist or is constitutionally protected. Id. at 1841, 1842, 1843.
- Pub. L. No. 109-248.
- Pub. L. No. 110-358, Title I.
- Pub. L. No. 110-358, Title II. The Act was signed into law on October 8, 2008.