ChildLaw Blog

It should come as no surprise that Facebook is now in the world-wide spotlight for harboring and tolerating child pornography and online child exploitation. Of a recent rash of articles about the popular site (none of them by the U.S. media), the following is the most serious:

Facebook fails to alert police on child porn from The Age (Australia)

The management of Facebook repeatedly failed to reveal the activity of an international child pornography syndicate operating on the social networking site and ignored continuing admissions by one of the ring's Australian members.

The failure was uncovered during an Australian Federal Police-led international investigation of the syndicate, which had operated via fake identities on the site.

''We are aware that Facebook knew of the existence of these pages and even went so far as to remove the profiles,'' said the director of the AFP High Tech Crime Centre, Neil Gaughan.

But despite closing down the men's pages after finding illegal material, Facebook did not contact police, Mr Gaughan said.

''Facebook deactivated the online accounts of the initial suspects but there were indications that, within hours, the groups were re-forming again under new accounts,'' he said.

After federal police arrested one of the Australian men, he stunned them by describing how he had sent up to 10 messages to Facebook, but the company failed to pass on the information to police.

Federal officers contacted a Facebook official in Australia to convey their concerns, and were told that he would relay their concerns ''to the boss''. But the AFP received no reply.

This failure by Facebook highlights our concern about the policy and practice in the United States that electronic communication services register exclusively with the National Center for Missing and Exploited Children's CyberTipline. According to NCMEC's website "there is a federal law, 18 U.S.C. §2258A which requires ESPs to report apparent child pornography to the National Center for Missing & Exploited Children's (NCMEC) CyberTipline." In the past, ECS's like News Corporation have been big donors to NCMEC.

I will state again what I said just last month: "As advocates for victims of child pornography, we have long believed, and continue to believe, that the detection, investigation and prosecution of child pornography offenses is solely a government responsibility. No private organization or entity, no matter how well-meaning or well-funded, should have any official or unofficial role in this essential governmental mission."

Returning to Facebook, there's much more of interest in the international news:

Mothers' group outraged after their Facebook campaign to expose paedophiles is removed from the internet from the Daily Mail (U.K.)

Six mothers who set up a campaign group on Facebook to track down and expose online paedophiles have been given a warning and had their page removed from the internet.

Leanne Moss, 33, set up the Mommies on a Mission group after claiming she stumbled across Facebook profile pages featuring images of child abuse.

The mother-of-four said she created the campaign page to ensure the offensive profiles were reported.

But the group, which attracted more than 300 people in two days, was later removed by Facebook, who sent Mrs Moss a message saying the content violated their terms of use.

Finally, there's this story out of Canada:

Charges against B.C. teacher linked to global child-porn network from Postmedia news (Canada)

One of the men arrested in Canada in relation to an international online child-exploitation network that used Facebook is a former Vancouver private school teacher, police say.

With the movie about Facebook just hitting the theaters, these articles might just be the perfect coda. Let the cameras roll!

Now just imagine if this child were in foster care (a topic I have written about frequently on this blog).

At 18 months, Kyle Warren started taking a daily antipsychotic drug on the orders of a pediatrician trying to quell the boy’s severe temper tantrums.

Thus began a troubled toddler’s journey from one doctor to another, from one diagnosis to another, involving even more drugs. Autism, bipolar disorder, hyperactivity, insomnia, oppositional defiant disorder. The boy’s daily pill regimen multiplied: the antipsychotic Risperdal, the antidepressant Prozac, two sleeping medicines and one for attention-deficit disorder. All by the time he was 3.

He was sedated, drooling and overweight from the side effects of the antipsychotic medicine. Although his mother, Brandy Warren, had been at her “wit’s end” when she resorted to the drug treatment, she began to worry about Kyle’s altered personality. “All I had was a medicated little boy,” Ms. Warren said. “I didn’t have my son. It’s like, you’d look into his eyes and you would just see just blankness.”

More than 500,000 children and adolescents in America are now taking antipsychotic drugs, according to a September 2009 report by the Food and Drug Administration. Their use is growing not only among older teenagers, when schizophrenia is believed to emerge, but also among tens of thousands of preschoolers.

A Columbia University study recently found a doubling of the rate of prescribing antipsychotic drugs for privately insured 2- to 5-year-olds from 2000 to 2007. Only 40 percent of them had received a proper mental health assessment, violating practice standards from the American Academy of Child and Adolescent Psychiatry.

Read the entire story here on the New York Times website.

Wilkes-Barre, Pennsylvania is a coal-mining town along the Susquehanna River, in the Wyoming Valley. A town of about 40,000 people, it is the county seat for Luzerne, in the northeast part of the state.

It is also the epicenter of one of the most scandalous stories about the justice system in the country, involving allegations of bribery and kickbacks to judges from the operation of private juvenile detention facilities. Its implications for juvenile justice will likely set the tone for reforms for the next several years.

Excerpts from this article tell it all:

On Jan. 12, a devastating earthquake toppled Haiti’s capital and set off an international adoption bonanza in which some safeguards meant to protect children were ignored.

Leading the way was the Obama administration, which responded to the crisis, and to the pleas of prospective adoptive parents and the lawmakers assisting them, by lifting visa requirements for children in the process of being adopted by Americans.

Although initially planned as a short-term, small-scale evacuation, the rescue effort quickly evolved into a baby lift unlike anything since the Vietnam War. It went on for months; fell briefly under the cloud of scandal involving 10 Baptist missionaries who improperly took custody of 33 children; ignited tensions between the United States and child protection organizations; and swept up about 1,150 Haitian children, more than were adopted by American families in the previous three years, according to interviews with government officials, adoption agencies and child advocacy groups.

Under a sparingly used immigration program, called humanitarian parole, adoptions were expedited regardless of whether children were in peril, and without the screening required to make sure they had not been improperly separated from their relatives or placed in homes that could not adequately care for them.

Some Haitian orphanages were nearly emptied, even though they had not been affected by the quake or licensed to handle adoptions. Children were released without legal documents showing they were orphans and without regard for evidence suggesting fraud. In at least one case, two siblings were evacuated even though American authorities had determined through DNA tests that the man who had given them to an orphanage was not a relative.

In other cases, children were given to families who had not been screened or to families who no longer wanted them.

The results are playing out across the country. At least 12 children, brought here without being formally matched with new families, have spent months in a Pennsylvania juvenile care center while Red Cross officials try to determine their fate. An unknown number of children whose prospective parents have backed out of their adoptions are in foster care. While the authorities said they knew of only a handful of such cases, adoption agents said they had heard about as many as 20, including that of an 8-year-old girl who was bounced from an orphanage in Haiti to a home in Ithaca, N.Y., to a juvenile care center in Queens after the psychologist who had petitioned to adopt her decided she could not raise a young child.

Dozens of children, approaching the age of 16 or older, are too old to win legal permanent status as adoptees, prompting lawmakers in Congress to consider raising the age limit to 18.

Meanwhile, other children face years of legal limbo because they have arrived with so little proof of who they are, how they got here and why they have been placed for adoption that state courts are balking at completing their adoptions.

All I can say is THANK GOD for the white man adopting all them colored babies. The white man's burden sure hasn't gotten any easier after all these years. When will the world finally understand.

Read the entire article here one the New York Times website.

Yesterday, Attorney General Eric Holder announced the release of DOJ's National Strategy for Child Exploitation Prevention and Interdiction. The Report provides the first-ever comprehensive threat assessment of the dangers facing children from child pornography, online enticement, child sex tourism, commercial sexual exploitation and sexual exploitation in Indian Country, and outlines a blueprint to strengthen the fight against these crimes.

As part of the overall strategy, the U.S. Marshals Service is launching a nationwide operation targeting the top 500 most dangerous, non-compliant sex offenders in the nation. DOJ also created 38 additional Assistant U.S. Attorney positions to devote to child exploitation cases.

According to the Report, since FY 2006, DOJ has filed 8,464 Project Safe Childhood cases against 8,637 defendants. These cases include prosecutions of online enticement of children to engage in sexual activity, interstate transportation of children to engage in sexual activity, production, distribution and possession of child pornography and other offenses.

DOJ outlined four distinct threats concerning child pornography:

1. research indicates child pornography poses a danger to both the victims and other children;
2. indicators suggest a significant increase in the proliferation of child pornography;
3. child pornographers are becoming more sophisticated in the production and distribution of materials;
4. organized crime syndicates are involved in the child pornography trade.

From 2005 through 2009, U.S. Attorneys prosecuted 8,352 child pornography cases, and in most instances, the offenders used digital technologies and the Internet to produce, view, store, advertise, or distribute child pornography. Unfortunately, the number of images and computers used to store and distribute child sex abuse images has increased exponentially.

Two programs are currently used by law enforcement agencies to identify IP addresses and catalog images. Since 2006 these two programs have identified over 20 million different IP addresses offering child pornography files (pictures, videos) on a Peer-to-Peer file-sharing network. Approximately 50% of these are located in the United States. Although a vast majority of these IP addresses had just one presumed child pornography image, over 60,000 had between 10 to 99 images, and 860 had between 100 and 299 images.

Further, the programs have identified 290,000 unique images representing some of the “worst” (movies and photographs of the most violent assaults, with the youngest victims) of the child sex abuse images.

It should come as no surprise that the vast majority of identified child pornography victims (69% in one data set) were abused/exploited by people familiar to the children. These people included parents, other relatives, neighbors, family, friends, babysitters, coaches, and guardians’ partners; only a small fraction of victims (4%) were victimized by individuals with whom the child had no relationship.

In terms of content, 21 percent of child pornography offenders had images that depicted violence such as bondage, rape or torture and most of these images involved children who were gagged, bound, blindfolded, or otherwise enduring sadistic sex.

Of greatest concern is the finding that organized criminal groups are becoming more prevalent in child exploitation investigations. Such groups include commercial enterprises that produce and distribute child pornography material for profit as well as non-commercial enterprises that produce and distribute child pornography images not for material gain, but to fuel the group members’ common sexual interest in minors.

The Report outlines an impressive list of resources DOJ utilizes to combat child pornography. The involvement of one powerful non-governmental organization, the National Center for Missing and Exploited Children [NCMEC], remains central to the Department's efforts. As advocates for victims of child pornography, we have long believed, and continue to believe, that the detection, investigation and prosecution of child pornography offenses is solely a government responsibility. No private organization or entity, no matter how well-meaning or well-funded, should have any official or unofficial role in this essential governmental mission.

For far too long, technology industry lobbyists have thwarted any effort to reign-in an online world which is seemingly beyond any regulation or oversight. According to the DOJ Report, "the lack of Internet regulation has restricted law enforcement investigations and assisted offenders in committing child pornography offenses" and "the lack of Internet Service Provider regulations, including but not limited to, reporting child pornography, responding to law enforcement inquiries, and retaining customer IP addresses, IP logs, and other subscriber information, have hampered law enforcement investigations."

One serious impediment to timely effective law enforcement investigations is that "there is no federal statute or regulation requiring providers to keep user IP information for any length of time, or at all. Some U.S. providers only keep the information for a few days. In a 2009 survey of 100 U.S. Internet crimes investigators, 61 percent of the investigators reported that they had had investigations detrimentally affected because data was not retained; and 47 percent reported that they had had to end an investigation because data was not retained."

If businesses need to keep basic information about gun sales, then Internet service providers should be required to keep some basic information about pedophiles on their networks.

The government's last attempt to require retention of this information, the Internet Stopping Adults Facilitating the Exploitation of Today's Youth Act of 2007 (SAFETY), was widely opposed by lobbyists representing AOL, Verizon Communications Inc., Comcast Corp., AT&T, Microsoft, and Yahoo [the U.S. Internet Service Provider Association].

Groups like NCMEC, which is funded with millions of dollars by tech industry giants such as CA, Google, Microsoft, AOL, Qwest, Sprint, MasterCard, Yahoo, Adobe and ATT, should not be involved in any aspect of the federal oversight, investigation and supervision of the high technology industry which has knowingly facilitated the worldwide distribution of child pornography and ongoing exploitation of children.

Whether it's Harvard Law School's high tech sell out [Cyber Conflict of Interest - Harvard Law School's Berkman Center Calls Online Threats to Children Overblown] or the tech industry co-opting the regulators through technology grants and feigned cooperation, following the money in Washington is a sure way to uncover the many conflicts of interest which prevent real reform to protect victims of child pornography and online exploitation.

The tech industry already enjoys almost limitless protection from liability for third party content posted or transmitted on their networks. The least they can do is support legislation which helps law enforcement track down the bad guys.

A Long Island judge has dismissed a $6 million defamation action filed by a teenager against four former classmates who set up a Facebook page on which they joked that the teen used heroin and contracted AIDS by having sex with animals in Africa.

The judge ruled that no reasonable person could believe that the allegedly defamatory statements were facts.

"A reasonable reader, given the overall context of the posts, simply would not believe that the Plaintiff contracted AIDS by having sex with a horse or a baboon or that she contracted AIDS from a male prostitute who also gave her crabs and syphilis, or that having contracted sexually transmitted diseases in such manner she morphed into the devil."

"Taken together, the statements can only be read as puerile attempts by adolescents to outdo each other."

The judge also dismissed a negligent-supervision claim against the teenagers' parents, saying that a computer does not constitute, as required by New York case law, a "dangerous instrument." "To declare a computer a dangerous instrument in the hands of teenagers in an age of ubiquitous computer ownership would create an exception that would engulf the rule against parental liability," the judge concluded.

The plaintiff in Finkel v. Dauber sought $3 million for the damage to her reputation and character and another $3 million in punitive damages.

In June 2009, a Manhattan judge granted Facebook's motion for summary judgment on the basis of the Communications Decency Act of 1996 which provides immunity to service providers for "information originating with a third-party user."

In dismissing the case, the judge found that "while the posts display an utter lack of taste and propriety, they do not constitute statements of fact. The entire context and tone of the posts constitute evidence of adolescent insecurities and indulgences, and a vulgar attempt at humor. What they do not contain are statements of fact."

This case illustrates the continuing difficulty in applying even long-established legal principles to cyberspace where hyperbole and conjecture are contagious. According to this court, the more sensational the statement, the more protection the poster will enjoy. In a world where almost anything is possible, and most of it is posted online, individuals seemingly enjoy less and less protection from even the most outrageous and sensationalistic statements.

In a recent little noticed unpublished First Circuit decision, former USSC Justice Souter held that "whatever the scope of a school’s responsibility towards its students . . . there is no apparent constitutional obligation to impose physical restraint upon teenagers not at immediate risk of harm to themselves or others."

This case was brought by mothers of teenagers who were not physically restrained by school officials from leaving their schools during instructional hours. The mothers brought action under state law as well as 42 U.S.C. § 1983 and § 1988 seeking monetary and injunctive relief for violating Fourteenth Amendment due process, the mothers’ right to preserve family integrity and the children’s right to enjoy freedom from abuse and neglect.

The school system explained their policy of permissiveness by referring to a state education regulation limiting use of lawful physical restraint to instances in which children’s unfettered behavior would raise a risk of “assault or imminent, serious, physical harm” to themselves or others; absent such danger, the prevention of truancy would not be worth the burden of defending the liability claims that would doubtless eventuate.

The magistrate judge hearing the case below recognized that the schools’ refusal to confine children to school premises during school hours effectively converted the state’s compulsory attendance law into the children’s option to wander off into trouble that the parents could not effectively prevent. He suggested that the mothers consider the possibility of relief from the general regulation through Individual Educational Plans for their children as special education students.

The mothers argued that inadequate supervision in schools infringes their rights to maintain the integrity of their families under Meyer v. Nebraska, 262 U.S. 390 (1923), and Pierce v. Society of Sisters, 268 U.S. 510 (1925), cases that held it to be beyond the power of states to limit a parent’s choice to provide foreign language instruction in elementary schools or to resort to private education. The Court found, however, that these cases recognized a parent’s liberty to be free from state interference with certain education choices, not a right to require state or local government to run public schools in a way a parent might think they ought to be administered. Any actionable interference with family integrity must be “directly aimed at the parent-child relationship.” Manarite v. Springfield, 957 F.2d 953, 960 (1st Cir. 1992).

Judge Souter further found that the Supreme Court’s discussion in DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189, 199-200 (1989), is on point: “[W]hen the State takes a person into its custody and holds him there against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and general well-being." According to Souter:

The situation of the children in this case is not even close to facts that would thus raise a state obligation. There is neither restraint of the child (that indeed is the very complaint), nor any practice or circumstance rendering the child unable to care for himself, nor failure to provide basic human needs of food, clothing, shelter, medical care or reasonable safety. As the Supreme Court later observed in Vernonia School District 47J v. Acton, 515 U.S. 646, 655 (1995), “we do not, of course, suggest that public schools as a general matter have such a degree of control over children as to give rise to a constitutional ‘duty to protect’” (citing DeShaney, 489 U.S. at 200).

This decision did not consider any rights parents might have under the Individuals with Disabilities Education Act [IDEA] or other state or federal regulation. Clearly, the court might have found that a policy and practice of allowing special education students to leave with impunity might effectively deny them a free appropriate public education [FAPE]. Beyond this, however, there is no Constitutional duty for schools to keep children in the classroom, nor is there any apparent duty to insure their safety or well-being (or even notice to the parents or police) once they leave school grounds.

The case is Saez v. City of Springfield.

Almost 5 years ago, the Marsh Law Firm was instrumental in enhancing the federal civil legal rights of children who are victims of child pornography. Borrowing from intellectual property law, our firm helped draft, introduce and pass—in just seven months—a comprehensive update to a long-forgotten federal law which gives victims the right to sue anyone who produces, distributes or possess their child sex abuse images. Masha’s Law provides statutory damages of $150,000 for each violation of federal child pornography provisions and was incorporated into the Adam Walsh Child Protection and Safety Act signed by President Bush on July 27, 2006.

In 2008, Florida passed a state version of Masha's Law. Now Kansas has joined the effort by passing a state law which is modeled on the federal law we helped write.

The bill provides a recovery for actual damages of at least $150,000. In order to bring a civil action against a producer, promoter, or intentional possessor of child pornography the plaintiff must prove that while he or she was under the age of 18, he or she was the victim of an offense that resulted in a conviction, that offense was used in the production of child pornography, and the victim suffered personal or psychological injury as a result.

Civil action may be pursued through private counsel or by the Attorney General at the victim’s request. The bill also creates a three year statute of limitations.

In October 2009, the U.S. Children’s Bureau named University of Michigan Law School the National Quality Improvement Center on the Representation of Children in the Child Welfare System (QIC-ChildRep).

The QIC-ChildRep, is a five-year, $5 million dollar project to gather, develop and communicate knowledge on child representation, promote consensus on the role of the child’s legal representative, and provide one of the first empirically-based analyses of how legal representation for the child might best be delivered.

The Center, which is run by the legendary child advocate Don Duquette, has a great website and promises to answer the following questions:

• What should be the duties and responsibilities of the child’s representative in civil child protection proceedings?
• Who should represent the child in such proceedings? A lawyer? A CASA? A social worker? A team?
• What does the child representative do that makes a difference in a child’s life?
• How can effective representation for the child be accomplished? That is, what organizational structure best delivers legal services for a child?
• By what criteria is effective child representation to be measured?
• How should the child's representative accommodate the child's wishes in setting the goals of the advocacy?

This is a serious initiative which is long overdue and which will significantly advance the representation of children in the child welfare system. I look forward to the results.

Legislators and courts have long recognized what common sense makes clear - children depicted in child abuse images[1] are harmed not only by the sexual abuse captured by the images, but also by the subsequent distribution, possession, and viewing of the images of their abuse.[2] Legislators and courts have similarly recognized the importance of awarding restitution to victims who are harmed by crime to help make them whole, and to aid in their recovery.[3] Thus, it seems a straightforward proposition that children depicted in child abuse images should be awarded restitution from their offenders, including those offenders who possess and view their abuse. In fact, this simple supposition seems to underpin the statute governing restitution in cases involving sexual exploitation.[4]

Despite the logic, justness, and legality of affording restitution to the victims in child abuse images, federal courts differ greatly in their approach to the restitution rights of these victims[5] in the context of possession cases. As discussed below, over the last year alone, courts have awarded these victims full restitution, partial restitution, di minimus restitution, or even no restitution at all. These differences in outcome can be attributed, at least in part, to varied legal interpretations of the governing restitution statute, 18 U.S.C. § 2259. This article provides a brief overview of the current state of the law, and suggests that a court-based or legislative solution is urgently needed to avoid further victimization of these victims.

According to a FOXNews.com exclusive investigation, inspired in part by this blog's April 20th post Wikipedophilia:

Wikipedia has become home base for a loose worldwide network of pedophiles who are campaigning to spin the popular online encyclopedia in their favor and are trying to lure more people into their world, an investigation by FoxNews.com confirms.

Chat room posts show a clear effort by pedophiles to use Wikipedia, which can be accessed unfiltered in public schools across the country, to further their agenda. Message board posts often include links to specific Wikipedia articles that the participants say need to be edited to "normalize" pedophile behavior in the public eye and to recruit more pedophiles into their community.

“Pedophiles have campaigned to push their point of view that 'pedophilia is OK and doesn’t hurt children' on Wikipedia,” says Xavier Von Erck, director of the online pedophile watchdog organization Perverted Justice Foundation and Wikisposure.com, its offshoot project devoted to tracking pedophiles and pedophile activism on Wikipedia. “This has been a problem since Wikipedia started.

A series of FOXNews.com exposés last month resulted in a shakeup at the top levels of Wikipedia as administrators tried to deal with the growing controversy surrounding pornographic images that appear on the online encyclopedia and its associated websites.

After much pressure from within the Wikipedia community, co-founder Jimmy Wales was forced to relinquish his top-level control over the encyclopedia's content, as well as all of its parent company's projects.

According to FOXNews.com, though he remains the chairman emeritus of the Wikimedia Foundation, Wales is no longer able to delete files, remove administrators, assign projects or edit any content. Essentially he has gone from having free reign over the content and people involved in the websites to having the same capabilities of a low-level administrator.

Insider sources and publicly available internal listserve discussions revealed that Wikimedia editors rebelled against Wales' attempts to remove pornographic images from the nonprofit's websites. Those images were the subject of heated discussion within the community since their existence was revealed by FoxNews.com on April 27.

Hundreds of listserve discussions among Wikimedia board members, administrators and editors reveal the eruption of a heated and chaotic debate over whether to delete the images, which legal analysts say may violate pornography and obscenity laws.

On May 7, FoxNews.com reported exclusively that Wales had personally deleted many of the images from Wikimedia's servers, and that he'd ordered that thousands more be purged. Now many of those images have been restored to their original web pages.

For more on these stories visit:

EXCLUSIVE: Shakeup at Wikipedia in Wake of Porn Purge

EXCLUSIVE: Pedophiles Find a Home on Wikipedia

ChildLaw Blog posts on Wikipedia

Almost two years after a federal lawsuit was filed to secure the civil legal justice demanded by Congress in 2006, Masha Allen's federal lawsuit was dismissed today--incredibly--for "failure to properly plead a basis for federal jurisdiction."

Despite the trenchant involvement of a reconstructed legal team consisting of much-sought after guardian ad litem Cambria County bankruptcy attorney Timothy J. Sloan (who replaced Masha's former mother Faith Allen as lead plaintiff), Georgia attorneys David S. Bills (who blogs anonymously about Masha's case at poundpuplegacy.org), William Q. Bird and Darren Summerville (who were originally hired by Faith Allen who reportedly now lives in Georgia), and Pennsylvania First Amendment attorney Thomas Vecchio (who replaced renowned Philadelphia attorney Robert N. Hunn who withdrew under protest last year), Masha "did not oppose (and consents to) dismissal [of the lawsuit] without prejudice on ground of lack of subject matter jurisdiction."

Masha, who turns 18 in August, vowed to fight on by "pursuing the claim outlined in the Amended Complaint in an alternative forum." No word yet on where her case is headed, if anywhere.

Despite the involvement of no less than 27 attorneys in the last 7 years, justice remains elusive for one of the most notorious victims of child trafficking in recent history.

Order to Show Cause
Letter Consenting to Dismissal