February 2010 Archives

FindLaw columnist and Cornell law professor Sherry Colb takes on a question involving my client that has sharply divided courts: Should a person who is found to have committed the crime of possessing child pornography be required to pay restitution to each child who appears in those images? The question has been posed very sharply recently, because images of one child victim -- whose pseudonym is "Amy" -- have been at issue in 350 criminal cases across the country. Moreover, the difference in the amount of restitution awarded in those cases is dramatic: Two Florida judges together awarded over three million dollars; a California judge awarded only $5000; and a Texas judge refused any award at all.

Read Professor Colb's entire article here.

The Lower Merion School District recently admitted to activating the webcams on 42 "missing" school-owned laptops without the knowledge or permission of students and their families. Surprisingly, the software that performs this function is not only widely available, it's free and downloadable by anyone.

One such program is called Prey. It's open source and was recently discussed in this TechRepublic video.

Prey is a lightweight program which runs in the background and is completely hidden to the end user. It's built in modules so an administrator can choose whether or not to install certain features like the ability to activate a laptop's webcam. Clearly, if they were using Prey (and it is by no means certain that they were), someone in the Lower Merion School District choose to enable this function. A laptop does not need to be "missing" in order to activate one or more of Prey's monitoring capabilities. An administrator, or anyone with access to the Prey internet control panel, can activate, for example, a laptop's webcam, anytime.

I am, perhaps, always the skeptic in these matters. But as anyone who has read this blog knows, this kind of activity is not surprising. Remember Brannum v. Overton County School Bd, covered here, where school administrators installed and operated video surveillance equipment in the boys' and girls' locker rooms? What about strip searching students over Advil in the Savana Redding case? Even the FBI was implicated when several employees were caught using security cameras to spy on underage girls in a dressing room during a prom dress charity event.

Sadly, it shouldn't be shocking to anyone that the Lower Merion School District administration is finally joining the cyber sexting party. Even sadder is the fact that some students knew something was amiss with their webcams but either didn't care or just chose to cover the webcam with a post-it.

Now where did I put my laptop? Hey, who deleted my copy of Brave New World. And why is my webcam blinking . . . . Thank goodness it's only the school nurse making sure I'm not chewing on an illicit Advil. Ms. Miller, if you're out there, it's only a cinnamon flavored tic tac. Really. It is.

In two separate stories today, the Los Angeles Times and ABCNews.com consider the issue of restitution for victims of child pornography and contribute new information to the debate (which still to me doesn't seem like much of a debate):

From the LATimes:

The issue of criminal restitution in child pornography possession cases emerged last February in Connecticut when a federal judge said he would order a man convicted of possessing and distributing child pornography to pay about $200,000 to Amy. The judge said it was the first criminal case in which someone convicted of possessing illegal images — but not creating them — would be required to pay restitution.

Since then, requests for restitution have picked up as more victims are identified — and as a couple of victims, including Amy, have hired attorneys, said Meg Garvin, executive director of the National Crime Victim Law Institute in Portland, Ore.

Hundreds of requests have been filed nationwide, most of them by Amy's attorney, James Marsh of New York. Marsh said that as recently as five years ago, restitution would have been impossible because victims wouldn't have known when someone was caught with an image of them. The Crime Victims Rights Act of 2004 set up a system for notifying the victims. Now, Marsh gets several notices a day on behalf of Amy.

Marie Failinger, a Hamline Law School professor, said allowing restitution in criminal cases is important because many victims don't have the resources to pursue civil cases. She predicted it would take three to five years for courts to figure out a consistent way to handle requests for criminal restitution.

Meanwhile, victims' advocates see criminal restitution as one more tool for fighting child porn.

"The people who engage in this stuff need to be held accountable, even if they are not the person who is raping the child," said Ernie Allen, president of the National Center for Missing and Exploited Children. "People who are distributing this stuff, people who are downloading this stuff — when they do that, there's a victim, and there's a real harm."

From ABCNews.com:

Not every jurisdiction agrees with the heavy court-ordered payments for those who view such images. Some judges have said restitution goes too far in punishing pedophiles whose only crime is to view photos, but Amy's lawyer, James Marsh, disagrees, saying the brutality in the "secret society" of child pornography requires tough measures.

"This is not 13-year-olds in bras or sexting or 17-year-old girls gone wild -- these are kids who are raped," said Marsh, a New York City lawyer.

"In one notorious set of images, the father used to put a studded collar around his 6-year-old and wrote on her in what looked like blood, 'I am Daddy's little girl, rape me.' He locked her in a dog cage," he told ABCNews.com.

Marsh is now seeking restitution in 350 cases that involve photos of Amy, through automated filings to the United States attorneys handling the cases.

In 1995, Marsh helped update a federal law that gives victims the right to sue anyone who produces, distributes or possess their child sex abuse images. It now 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 and signed by President Bush 2006.

"There is a misunderstanding of the crime, that it's photos of girls in bathing suits running around the sprinkler," said Marsh. "And people think pictures are not a big deal, it's just another greedy lawyer coming to cash in. But they don't understand the true nature of these criminal syndicates or the experience of the victim. For me, it's a no-brainer."

To read both of these excellent stories, visit the LA Times and ABCNews.com.

From The Legal Intelligencer:

Lawyers were scratching their heads on Thursday over a federal appellate court's seemingly conflicting rulings in a pair of closely watched student-speech cases that both involve high school students who were suspended for creating fake MySpace pages on their home computers to ridicule their principals.

Although the cases appeared at first glance to raise nearly identical legal questions about the limits on a school's power to discipline students for off-campus speech, the 3rd U.S. Circuit Court of Appeals sided with the student in Layshock v. Hermitage School District and with the school in J.S. v. Blue Mountain School District.

In Layshock, a unanimous three-judge panel declared that punishing students for off-campus speech violates their First Amendment rights. But the Blue Mountain panel split, voting 2-1 in holding that students may be punished for lewd speech on the Internet about school officials that has the potential to create a substantial disturbance at the school.

In Layshock, Judge Theodore A. McKee concluded that the student's suspension violated his First Amendment rights because the speech took place almost entirely off campus.

"It would be an unseemly and dangerous precedent to allow the state in the guise of school authorities to reach into a child's home and control his/her actions there to the same extent that they can control that child when he/she participates in school sponsored activities," McKee wrote.

"Allowing the district to punish Justin [Layshock] for conduct he engaged in using his grandmother's computer while at his grandmother's house would create just such a precedent," McKee wrote in an opinion joined by Judges Jane R. Roth and D. Brooks Smith.

But in Blue Mountain, Judge D. Michael Fisher concluded that school officials have the power to punish "student speech, whether on- or off-campus, that causes or threatens to cause a substantial disruption of or material interference with school or invades the rights of other members of the school community."

The Constitution, Fisher said, "allows school officials the ability to regulate student speech where, as here, it reaches beyond mere criticism to significantly undermine a school official's authority in challenging his fitness to hold his position by means of baseless, lewd, vulgar, and offensive language."

In dissent, Judge Michael A. Chagares said he believed that "neither the Supreme Court nor this court has ever allowed schools to punish students for off-campus speech that is not school-sponsored and that caused no substantial disruption at school."

Read the entire story on Law.com.

From Wednesday's New York Times:

When Amy was a little girl, her uncle made her famous in the worst way: as a star in the netherworld of child pornography. Photographs and videos known as “the Misty series” depicting her abuse have circulated on the Internet for more than 10 years, and often turn up in the collections of those arrested for possession of illegal images.

Now, with the help of an inventive lawyer, the young woman known as Amy — her real name has been withheld in court to prevent harassment — is fighting back.

Read the complete story here.

The first law review article on the topic of wrongful death of children in foster care has just been published. It is co-authored by Daniel Pollack, Professor at the School of Social Work at Yeshiva University in New York City and a frequent expert witness in child welfare lawsuits, and Gary Popham, Jr., an attorney in Arizona. For a PDF of the article please contact Professor Pollack.

For more articles on ChildLaw by Professor Pollack click here.