Recent reports of the Bush Administration’s subpoenas against major search engines are not without a strategy. BBC reports on increased efforts of the Attorney General Gonzales to push for measures that would allow law enforcement to combat what the AG has called epidemic" of child pornography.

Gonzales has proposed changes in the law under the Child Pornography and Obscenity Prevention Amendments of 2006 (COPA’s earlier version was declared unconstitutional by the Supreme Court) where ISPs would be required to report child pornography and bolster penalties for those parties who fail to do so. In addition, Gonzales also wants to find ways to require ISPs to retain records (logs) of user’s activities for longer period of time so that law enforcement can have a longer trail when tracking an alleged offender.

The European Union’s Directive on Data Retention mandates ISPs in Europe to preserve call and Internet records for a period of 6 to 24 months (as specified by each EU country’s government). It seems that AG Gonzales seeks to impose similar obligations to US ISPs which, under current law, are not required to maintain any records of ordinary activity (unless of course they are served with a timely subpoena.) Attorney General’s statement on these new proposed requirements included,

The investigation and prosecution of child predators depends critically on the availability of evidence that is often in the hands of internet service providers.
…
Unfortunately, the failure of some internet service providers to keep records has hampered our ability to conduct investigations in this area.

The debate in the US as to ISP data retention requirements has already started, and Gonzales’ statements will definitely help fuel the conversation. At stake are vital interests to subscriber privacy and law enforcement’s ability to prevent and catch among some of the most heinous crimes.

The answer, according to Representative Ed Whitfield (R-Ky), is "No." Mr. Whitfield is the chair of the House Oversight and Investigations Subcommittee hearing testimony on the increase of child pornography and exploitation as a result of the proliferation of webcams and online video streaming.

According to the testimony of a victim, Atlanta-based Earthlink Inc., one of the largest Internet service providers in the United States, sent a webcam to a 13-year old boy as a free promotion. Now 19 years old, he testified that he was contacted within minutes of setting up the video camera, which sits on top of the computer and broadcasts the images of the person at the keyboard. Adult men promised him favors–money, gifts and more computer equipment. The victim was "befriended" and exploited by the men, he testified, despite filtering technology and an attentive mother, for six years. His father was one of the 1,500 "customers" profiting from the business.

This testimony prompted Rep. Whitfield’s comment that a 13-year old shouldn’t need a webcam. Is he right?

A groundbreaking case in the area of Internet crimes came down last week from the Ninth Circuit Court of Appeals. The question presented to the court was whether a suspect’s membership to a website that displays child pornography provides a probable cause to search/seize his computer.

Mr. Gourde was a paying member of a child pornography website for a total of two months before it was shut down by the FBI. The site had in its possession illegal images and after the FBI obtained a list of all site members, agents applied for search warrants for the computers of the members. Months after the site had been shut down, agents found over 100 illegal child pornography images in Gourde’s computer. He was charged with, among other things, with possession of child pornography under 18 U.S.C. §§ 2252(a)(4)(B), (b)(2), and 2256.

Gourde moved to suppress the images, claiming that the FBI did not have a probable cause to search his computer. The district court disagreed; Gourde pleaded guilty, but reserved his right to appeal. A three-judge panel of the Ninth Circuit reversed in 2004. In rehearing the case en banc, the Ninth Circuit reversed its earlier ruling by a 9-2 vote. In an opinion authored by Judge McKeown, the Court held three factors critical to the correct determination that there was a probable cause. First, even though the site contained legal images, it was focused on illegal child pornography. Second, it was significant that Gourde remained a paid subscriber for two months and until the site was shut down by the FBI. Third, due to the nature of computers and because it is impossible (for average user, at least) to permanently delete an image from a computer, there was a likelihood that there would be evidence left on Gourde’s computer.

While at the end of this case justice prevailed, this case bears a hint of a slippery slope. It is not hard to conceive a scenario in which law enforcement could obtain warrant solely based on a user’s membership of a site which has some sort of illegal content. In an extreme example, someone posting child pornography images to eBay, for instance, could give a probable cause to search millions of users’ computers because they might have downloaded some of this content. As the dissents point out, the government could have easily obtained evidence about whether Gourde had in fact downloaded illegal images before applying for a warrant (Judge Reinhardt; presumably he meant feds checking the server logs to establish who downloaded what).

U.S. v. Gourde, 03-30262 (9th Cir., Mar. 9, 2006)

Internetnews reports on a guilty plea entered by a Washington, D.C. man on charges of using the Internet to distribute and receive child pornography. The guilty plea was on one count each of using a computer to advertise, transport, receive and possess child pornography. The US statute criminalizing child pornography is 18 U.S.C. §§2251-2260.

The prosecution by U.S. Department of Justice outlines an increased effort to prevent the use of Internet by child abusers,

"Pedophiles who think the Internet is a safe haven for the sexual exploitation of children are dead wrong," Assistant Attorney General Alice Fisher said in a statement. "We will find and punish those who prey on our nation’s youth."

Under the federal sentencing guidelines, Schiffer faces a likely sentence of 262 to 327 months in prison. The government is also seeking the forfeiture of the computer equipment allegedly used to commit these crimes. Sentencing is set for Feb. 9.

[Via InternetNews.com -]

With obscenity complaints at an all-time high, the FTC has launched an informational site to "educate" the public and to provide more information to people who file a complaint. With 160,000 complaints filed only this year, the FTC obscenity site tries to explain what is considered obscene under Supreme Court law and answers frequently asked question.

The FTC obscenity site.


[Via InternetNews.com -]

News.com reports a story on the arrest of a Florida web-site operator who created a controversy some time ago by posting the grimsy photos of corpses of people killed in Iraq and Afghanistan. However, the arrest in this case seems to be seemingly unrelated to the dead bodies controversy - Christoper Wilson was arrested allegedly on bscenity violations.

Although the article does not go into clear details, it may seems that the charges are under state scenity laws as Florida’s Polk County Sherriff was making a statement on the case. Alternatively, charges in many cases can be brought under the federal obscenity laws, 18 USC §§1460-1470, although the federal obscenity laws usually have a "transport in commerce among states" requirement which may or may not be easily met.

Obscenity on the Internet is not really a common crime. The roliferation of pornographic and other objectionable by some websites has rendered many law enforcement agencies unable to devote the resources to prosecute even a small portion. Generally, prosecution is reserved for some "special" cases. This highly selective approach may create an environment for bias and targeted prosecution, especially where there are other concerns involved, e.g. political or personal motivation by the prosecution.

With the sparse facts that seem to be released to the publit at this point, Mr. Wilson’s arrest in Florida seems to be one of those specially-motivated prosecutions that may not have happened had he not posted the war photos on a previous and seemingly unrelated incident. The fact that the prosecution could not go after Mr. Wilson previously for posting the war photos (not enough evidence, statute not broad enough to cover the facts) may indicate that the prosecution put him on a "sticky" note and waited for a second chance - obscenity in this case.

Obscenity in General

Obscenity las has been limited by the U.S. Spreme Court’s interpretation of the First Amendment. To be beyond the protection of the First Amendment as obscene the content must meet a three-part test:

1. whether an average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest,
2. whether the work depicts or describes, in a patently ofensive way, sexual conduct specifically defined by the applicable state law, and
3. whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

Obscenity in this case

It is very difficult to evaluate the strength of this obscenity case without the much needed factual details. The News.com article indicates that the charge is based on pornographic materials which may be harder to meet the Miller test, especially if access to the photos was restricted in some way to authorized users only. Additionally, the inescapable connection between this incident and the war photos incident may give the defense a strong argument that the current prosecution is motivated by expression of political ideas which strengthens the First Amendment protection.

This is a very preliminary overview of this controversy on a *very* sparse facts. More will follow shortly as more facts become available.

Fact Update:
The site in question is http://www.nowthatsf***edup.com/ [full the gaps appropriately.]  It seems to has the proper disclaimer and requirement that people 18 or over enter. Also, Mr. Wilson has been charged with 100 counts of distribution or transmission of obscene materials, 100
counts of offering to distribute or transmit obscene materials, and 100
counts of possession of obscene materials. All are misdemeanors. [Thanks Interstate4Jamming]