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
---
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
-------------------------------------------------------------------------
POLITECH -- Declan McCullagh's politics and technology mailing list
You may redistribute this message freely if you include this notice.
To subscribe to Politech: http://www.politechbot.com/info/subscribe.html
This message is archived at http://www.politechbot.com/
Declan McCullagh's photographs are at http://www.mccullagh.org/
-------------------------------------------------------------------------
Sign this pro-therapeutic cloning petition: http://www.franklinsociety.org
-------------------------------------------------------------------------
Received on May 11 2002
Intro
