Chapter 8
The Law . . . Is the Bad Stuff Legal?
What is the Communications Decency Act and Why Was It Ruled Unconstitutional?
(This is really boring stuff . . . but since you asked, your wish is my command.) In February 1996, as part of a larger bill deregulating the telecommunications industry, Congress enacted the controversial Communications Decency Act of 1996 (usually referred to as the "CDA"). The CDA was an attempt to regulate what was being transmitted over the Internet to children. In June 1997, the United States Supreme Court ruled that most of the CDA was unconstitutional.
First, a little legal background about free speech in the United States is in order. The First Amendment to the U.S. Constitution gives everyone in this country the right to free speech, unrestricted by government interference.
Now this doesn't mean that government is powerless to act when speech is concerned. For example, governments can set rules about when, where, and how a group can stage a protest march and forbid marches to take place at, say, three a.m. with noise levels loud enough to puncture eardrums. These "time, place, and manner" restrictions are fine, as long as they apply to everyone and are reasonable.
Generally, the government can't set rules about the content of communications. But certain exceptions to that rule exist, including one for obscenity. This is called "unprotected speech." If something is obscene, the government can regulate it, and criminalize its use.
However, the CDA tried to regulate "indecent" material, not "obscene speech." And that was its biggest problem. There's a big difference between "obscenity" and "indecency" legally, although to many of you they may seem the same. (Lawyers never speak the same language as normal people . . . you should know that by now. If we did, you wouldn't need us, and we'd all have to write books to make a living . . . ) Unfortunately, Congress confused them as well. (Most members of Congress are also lawyers, so what does that say about us?)
Indecency, unlike obscenity, is protected by the First Amendment, and is most easily described as what makes a movie "PG"-rated rather than "G"-rated. Because it attempted to regulate indecency, the CDA, if fully enforced, could have sent parents to jail just for sending an e-mail to their teenager about responsible birth control (since information necessary to that discussion could fall under the definition of "indecency"). That's why the CDA ruling is good news for free speech advocates, but makes things more confusing for parents.
Does the CDA decision mean that parents don't have any laws to protect their children from pornography and obscenity? Of course not!
Long before the CDA was dreamed up, there were already laws on the books that outlawed pornography. Parents have a lot of laws in their arsenal. And laws that protect people on the ground almost always apply equally in cyberspace.
You Say "Obscenity" . . . I Say "Serious Literary Value"
Whenever people discuss Internet hardcore sexual content and the need for regulation, they don't seem to realize how much of this content is already regulated.
As we discussed, obscenity is already illegal. Unfortunately, there is no clear definition of "obscenity." U.S. Supreme Court Justice Stewart defined "obscenity" over thirty years ago when he said, "I know it when I see it." Although that makes sense, given the difficulty in defining obscenity, it is an impossible standard to follow. We can both look at the same thing, and I'll "know" it's obscene, and you'll "know" it isn't. That's why the Supreme Court has tried to develop some tests to help other courts and communities determine what is obscene.
Right now, something is obscene if:
[1] the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest [the "community standards" test]; and
[2] the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law [the "violation of state law" test]; and
[3] the work, taken as a whole, lacks serious literary, artistic, political or scientific value [the "lacks serious value" test].
In order to be obscene, the communication or work at issue must meet all three tests. Even if a book contains so much sex performed in such a manner that your community would find that the whole book appeals to prurient interests, and it described sexual acts that violated state law, the book would not be obscene if, "taken as a whole," the book had some serious literary or scientific value.
Also, because the test is based on community standards and local state laws, what is "obscene" under Tennessee standards may not be considered "obscene" under California standards. That makes enforcement more difficult and things a lot more confusing.
It also makes it an impossible standard when something is published on the Internet from a server in California, and is immediately available everywhere, including Tennessee. Which community standard should apply?
Your Community or Mine? . . . The Thomas Case
Robert and Carleen Thomas were unlikely pornographers. Married for more than 20 years, with two teenage sons, they maintained a members-only bulletin board system (a BBS) in 1993, which predated the Web-type discussion boards. The Thomases' Amateur Action BBS was an electronic pornography "retailer" located in Milpitas, California. It sold videos and hard core sexual graphics to members of the BBS. Amateur Action had already been investigated by a local California police department a year earlier. The investigation disclosed no criminal activity (since they didn't find any child pornography and what remained didn't violate California's community standards), and the BBS posted a disclosure of the results of that investigation.
The Thomases were adamant about keeping their adult BBS free of child pornography, and would not allow any uploading of any photos to the BBS to avoid the risk of uploading any illegal material, such as child pornography. They also were very careful to make sure that any photos they used were of women over the age of eighteen. (They displayed nudist colony photos, which included children, but nothing involving sexual activity. Therefore, the photos were completely legal.)
They were also very careful to keep minors out of the membership. A text-only description of the photos was available to non-members to entice membership. Prospective members then had to fill out a form and snail mail it to the Thomases in California, who used various methods to prescreen members based on age.
In order to address the fetishes of their members, the Thomases used suggestive labels for the photos and video graphics. These labels suggested that some of the participants in these sexual activities were underage. A Postal Inspector from Memphis, Tennessee, David Dirmeyer, was searching for child pornographers and was tipped off about the BBS by someone who had discovered the site. There was an investigation, which smacked of the old Keystone Cops films, but the Thomases were tried in Tennessee using Tennessee local community standards, and found guilty on obscenity charges.
Although many of you may not be terribly sympathetic where the Thomases are concerned, you need to remember that we live in a free society where adults can do many things that children cannot. Adults can be licensed to drive cars, and can legally buy and consume alcohol and cigarettes. The U.S. Constitution prohibits any regulation which attempts to require adults to live by standards appropriate for six-year olds.
In 1957, U.S. Supreme Court Justice Frankfurter (generally thought of as one of the most brilliant of all the Supreme Court jurists) wrote the decision which overturned a Michigan state statute that made it a crime (actually a misdemeanor) to publish or sell publications tending to corrupt the morals of minors.
The Supreme Court found that states may not impose a standard which restricts adults to reading only that material which is suitable for young children. Justice Frankfurter compared the restrictive state statute to "burn[ing] the house to roast the pig." The lowest common denominator test for sexual content was thus firmly rejected by the Supreme Court. Yet, with the advent of technology and worldwide access to everything published on the Internet, that issue needs to be clarified, especially in light of the Thomases' conviction.
So, where is the community standards test now, with a worldwide community of viewers of all website material? I suspect that we'll be addressing this issue again, before long, in the courts.
Child Pornography . . . It's Still Illegal
Transmission of obscenity and child pornography is already illegal, whether it's transmitted online or by any other means. There are many laws (both federal and state laws), and many ways in which those laws can be enforced to prosecute pedophile sexual offenders, child solicitation and child pornography.
In the United States it's already illegal to:
• entice or coerce a minor to engage in sexually explicit conduct
• import or transport obscenity
• knowingly receive child pornography
• advertise child pornography
• depict minors engaged in sexually explicit conduct (even virtually)
• depict someone engaged in sexually explicit conduct who appears to be a child
• advertise or promote sexually explicit conduct by giving the impression that minors are engaged in sexually explicit conduct
In order to avoid the community standards problem, and recognizing that child pornography has a serious adverse impact on the welfare of children, Congress enacted special laws outlawing child pornography. The U.S. Supreme Court supported this view when it determined that child pornography didn't have to be "obscene" to be subject to regulation. Child pornography was deemed to be a separate unprotected speech category under the First Amendment. The Supreme Court set out a new standard, just for child pornography, which differs from the three-prong standard for obscenity I already described in the subchapter You Say "Obscenity" . . . I Say "Serious Literary Value."
Under this special child pornography standard, it is no longer necessary to find that the materials appealed to prurient interests of an average person, that the sexual conduct portrayed be done so in an offensive manner, or that the material be considered as a whole.
The courts now focus on:
(1) whether the depiction focuses on the child's genitals or pubic area; and
(2) whether the setting is sexually suggestive; and
(3) whether, taking into consideration the age of the child, she or he is depicted in an unnatural pose and inappropriate attire; and
(4) whether the child is only partially clothed or nude; and
(5) whether the depiction suggests sexual "coyness" or is designed to elicit a sexual response.
The federal laws are very comprehensive in outlawing child pornography. (Most states have very comprehensive child pornography laws, as well.) The federal Protection of Children Against Sexual Exploitation Act of 1977 (the "PCASEA") makes it a federal crime for anyone to employ, use, persuade, induce, entice, or coerce any minor to engage in, or assist another person in engaging a minor in, any sexually explicit conduct for the purpose of producing a visual depiction of such conduct. It also criminalizes activities of parents, legal guardians, and custodians of minors who knowingly permitted the minors to engage or assist in such conduct.
The provisions of the PCASEA have been amended several times to expand its protection. The most recent of these amendments, the Child Pornography Prevention Act of 1996 (the "CPPA"), was enacted specifically to combat the use of computer technology to distort visual depictions of pornography to convey the impression that children are involved in sexual activities, even if no children were actually used in the creation of the images. The law is based on the premise that depictions of children engaged in sexually explicit conduct is inherently dangerous. (It's already under challenge as being unconstitutional, although a recent decision found that it did not violate the constitution.)
Specifically, the CPPA outlaws:
any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture . . . of sexually explicit conduct, where
(A) the production 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 such 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. . . .
18 U.S.C. § 2256(8).
Many parenting groups have been active in getting new laws passed on the federal and state levels. Enough is Enough (www.enough.org) stands out as being very active in this area. Donna Rice Hughes (of former Gary Hart fame), a spokeswoman for Enough is Enough, appeared with me on Comcast's Family Talk Show, hosted by Mary Ambrose, to discuss protecting children in cyberspace. She has been lobbying for stronger laws to protect children. Although Ms. Hughes and I may disagree on certain matters, including the coverage of the CDA, there are many matters upon which we agree and the group has been very effective.
I warned you that the legal discussion can be very boring, but so many of you have asked me to include this information that I have broken my rule about trying not to sound like a lawyer. These laws, remember, are currently in effect, and only a small sampling of laws regulating child pornography and child welfare. In addition, these laws may change, and may have changed since we published this book. Finally, you should not rely on this discussion or any legal discussion as legal advice.
As I mentioned, there are many state laws, which supplement federal protection, as well. But since cyberspace crosses state lines, and uses other interstate devices, such as telephone lines, federal laws typically apply to these matters. And, as I have said repeatedly, the Clinton-Gore administration has been very sympathetic to parents' concerns about protecting children in cyberspace.
The Anatomy of a Cyber Predator . . . Protecting Your Children from Pedophiles
There have been many cases recently in the press where pedophiles and other adults have abducted and attempted to abduct children and teenagers they have seduced online. I debated whether I should discuss any of these cases, not wanting to sensationalize them. But if explaining the methods used might make parents more aware, and their children safer, it's worth it.
Each case differs, but the pedophiles tend to use the same general tactics. They first strike up a conversation with the child, trying to create a relationship of trust and friendship. They often masquerade as another child or teenager, typically of the opposite sex. Once they have broken down barriers of caution, they begin introducing sexual topics gradually, often with the use of child pornography to give the child the impression that other children are regularly involved in sexual activities. Then they begin to approach the child's own sexuality and curiosity, by asking questions and giving them "assignments," like wearing special underwear or performing certain sexual acts. These assignments eventually broaden to phone calls and the exchange of sexually explicit photographs or videos of the child. Finally, the pedophile attempts to arrange a face-to-face meeting. (They may also have divulged their true age at this point.)
There are many stages at which the pedophile can be thwarted by an observant parent. In addition, children with healthy friendships and a strong and trusting relationship with their parents are less likely to fall victim to pedophiles. Pedophiles typically prey on a child's loneliness. They feed the child's complaints about her homelife—creating an "us" versus "them" atmosphere. This atmosphere does two things: it creates a distance between the child and her parents while at the same time bringing the child into a special secret alliance with the pedophile.
I have followed one particular case involving a New Jersey teenager and an Ohio adult predator. Luckily, the liaison was discovered before the girl met the man face-to-face. But it had gone on for one and a half years before being discovered by the girl's mother. As you read the details, think about what could have been done to discover the situation earlier and how you can use these precautions to protect your children.
Paul Brown, Jr., an Ohio resident, was 46 years old. He was also unemployed, over 400 pounds and living in a basement. He had accounts with AOL, Prodigy and CompuServe. Mary (a hypothetical name for the young girl involved) was twelve when her mother, a school teacher, bought her a computer, reportedly because Mary was having problems making friends. When she got online, Mary posted a message on Prodigy, in Spring 1995, looking for a pen pal. In her message she described herself as a teenage girl. Paul Brown, Jr. responded to the message, using his real name but identifying himself as a fifteen year-old boy.
Brown and Mary maintained an e-mail and telephone relationship for several months. As the relationship became more involved, they began writing letters and Mary sent Brown a photograph. He told her that he was living at home with his mother, and was hoping to find a girlfriend. In early August, Brown asked Mary for a "favor."
If I sent you a roll of film, could you get one of your friends to take pictures of you in different outfits and maybe hairstyles. Make-up if you use any, and different poses. Some sexy if possible. Please. Baby for me. Thanx. You're the best. Love Ya.
Mary complied. For the next eight months, they continued to converse and correspond and Mary sent additional photos. Brown encouraged her with juvenile antics, such as using stickers in his letters to her saying things like "Getting better all the time!" In May 1996, Brown sent Mary a special love note. "Saying I love you . . . seems to be an understatement. At the age of [14] you have captured my heart and made it sing . . . I love everything about you . . ."
Shortly thereafter, Brown confessed to being in his twenties. He also suggested that Mary videotape herself in sexually provocative poses. She did. After Brown had reviewed her videotape, he returned it to her with instructions to redo the tape and include views of her genitalia and breasts. He later admitted to being divorced and in his thirties.
He reportedly also sent her small gifts, from time to time. A few months later, in response to Brown's promise to pass copies of the tape to four members of a rockband Mary admired, she sent additional videotapes to Brown. (Brown told Mary that he knew the band members very well.) Each tape was sent to Brown, designated for a different member of the band and containing sexually explicit conduct.
Brown apparently had also sent her his size 48 underwear. When her mother discovered the underwear, the authorities were notified. Tracing Brown through phone records, special agents of the FBI in Cleveland seized the videotapes and photos of Mary and of more than ten other teenage girls from across the country as well.
Mary was fourteen when this was all discovered. Brown recently pled guilty to enticing a minor to produce sexually explicit photos and videos and was sentenced to a little less than five years (the maximum penalty for a first offense). In a written statement to Brown, following all of this, Mary said "I trusted you. I thought you were my friend."
There are several things which stand out in this case. One, interstate phone calls were made by Mary. Parents should always be reviewing long distance bills for suspicious calls. Two, Mary was lonely. These kinds of children are often the most vulnerable. A parent should be involved in their online friendships, and monitor their online lives. And, three, as hard as it is to know what our kids are doing when we're not around, a year and a-half is a long time for a relationship to be going on and not discovered. You should spend time learning who your children's friends are.
But, Monday morning quarterbacking is always easier than playing the game in real time. We may look at the situation and say that could never happen to one of our kids. However, there but for the grace of God go all of us . . .
Knowing your child is lonely and has problems making friends is the first sign that your child may fall prey to a pedophile or cyber predator. They can spot lonely children. They can also spot kids who are new online and may not yet know all the rules. Pedophiles befriend these kids, and patiently build trust and a relationship . . . looking towards the day when they can meet face-to-face.
Encourage your children to make online friends, but keeping the computer in a central location and learning about their online friends is an important way to avoid these special secret relationships. Education is important in avoiding this danger too. (Had Mary been forewarned about how pedophiles operate online, she may have been more attentive to how old Brown sounded on the phone, and been more aware of his classic tactics.) So is control over incoming and outgoing information, using technology blockers. (You'll learn about all these options in Part Three.) These kinds of situations can be avoided, if you're very careful, educate your children and keep your eyes open.