Recently in Child Pornography Category

Broadcast today on The Kojo Nnamdi Show on WAMU in Washington, DC:

Traditionally, courts have punished those convicted of possessing child pornography with heavy jail time. But in a growing trend, victims are demanding that offenders pay restitution too. The approach is generating debate about how far courts can go in punishing people who are caught with pornography, but aren't the direct perpetrators of the crime.

Listen to the re-broadcast here.

This just in from Philly.com:

A group of Lower Merion and Harriton High School parents met to discuss ways to derail the possibility that a federal lawsuit over laptop spying could lead to a lengthy and expensive class-action case against their district.

Bryn Mawr resident Michael Boni, one of the organizers, said yesterday: "We have spoken to our neighbors and friends, and it seemed that there was a groundswell of opposition to one family with one lawyer bringing this action on behalf of the community."

He said the parents were "not suggesting there weren't problems" with how the district has handled the laptop issue. "But we don't think [a class-action lawsuit] is the answer."

The group, which calls itself lmsdparents.org, is limited to parents of students at the two high schools. Between 300 and 400 parents had signed on by yesterday afternoon, said Bob Wegbreit, another founder.

A related group calling itself Parents in Support of the Lower Merion School District, which said it shared the same objectives, had garnered more than 700 signatures on an online petition by yesterday evening.

Andy Derrow, a Harriton junior's father who has joined the new group, said yesterday: "There are a lot of us who are incredibly skeptical of the motives of the Robbins family." He said the district was a "pioneer" in buying laptops for students to use at home as well as in school.

"It is so easy to second-guess the decision [to use the laptop theft-tracking device], but there was no handbook out there for how to do it," he said. "We are all waiting for all the facts to be known, but so far, our attitude is that we want to help the school district fix whatever needs to be fixed and to move on."

Read the entire story here.

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 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.

More coverage and an update from the Legal Intelligencier on Friday's first ever federal appeals court hearing on sexing as child pornography:

As the nation's first case involving criminal prosecutions of teenagers for "sexting" made its way to a federal appeals court in Philadelphia, all three judges seemed skeptical of the prosecutor's claim that child pornography laws are violated when a teen transmits a nude image of herself.

The three 3rd U.S. Circuit Court of Appeals judges also appeared poised to declare that former Wyoming County District Attorney George Skumanick Jr. violated the First Amendment rights of three girls with his threat of a criminal prosecution if they refused to take a class he had designed to educate youths about the dangers of sexting.

More on this case at the First Amendment Center and Wilkes-Barre Times Leader.

This just in from the Legal Intelligencier:

A federal appeals court on Friday takes up the growing practice of "sexting" — in which teenagers transmit nude and semi-nude photos of themselves and others by phone — as the judges tackle the vexing question of whether such images can be deemed child pornography.

The appeal in Miller v. Skumanick stems from a civil rights suit brought by three Wyoming County girls against then-District Attorney George Skumanick Jr. alleging that he violated their First Amendment rights with his threat of a child pornography prosecution if they refused to take a class he had designed to educate youths about the dangers of sexting.

The case is the first in the country to challenge the constitutionality of bringing child pornography charges in the context of sexting.

I covered this case extensively last spring at Sexting Students Strike Back where you can find the legal complaint, several comments, and links to coverage in the New York Times and Pittsburgh Post-Gazette.

Thanks to Professor Paul Cassell for this post on The Volokh Conspiracy involving one of my cases:

Yesterday U.S. District Judge Patrick Schiltz of the District of Minnesota issued an interesting order regarding a restitution application in a child pornography case. In his order, found here, Judge Schiltz chastises the government for failing to pursue restitution for child pornography cases in his district, even though Congress has made restitution mandatory in such cases. Judge Schiltz wrote:

This Court has recently handled a number of other child-pornography cases in which the United States Probation Office has identified victims who are seeking restitution. Notwithstanding the strict mandates of § 2259, the government has also declined to pursue restitution in those cases. Given the clear Congressional mandate that those convicted of child pornography offenses pay restitution to their victims, the Court will no longer accept silence from the government when an identified victim of a child-pornography offense seeks restitution. If the government declines to seek restitution, the government will have to give the Court some explanation for its decision.

Also check out the Star Tribune which covered this issue in a story today.

Here is the full text of the judge's decision.

Minnesota Public Radio also covered this issue here.

For those of you who believe in the power of rehabilitation, or that age conquers the irresistible impulse to exploit and abuse children, or for the liberal horde who expressed indignant outrage at the prospect of the death penalty for child sex abusers, this one's for you:

According to the Huffington Post, Theodore Sypnier, a 100-year-old child molester who will soon be released from prison, has an "unrepentant heart" and continues to deny that he ever harmed any children.

New York's oldest registered sex offender is scheduled to move by week's end out of a Buffalo halfway house for released inmates and into a place of his own, after completing his latest term in state prison for molesting little girls.

The judge who sentenced him said at the time that she expected him to die behind bars.

But 10 years after his last arrest, as Sypnier prepared to shed the closely monitored lifestyle of the halfway house, its director warned that the spry and active Sypnier has not changed from the manipulator who used his grandfatherly charm to snare and rape victims as young as 4.

"Whether he's 100 or 101 or 105, the same person that was committing these crimes 10, 25, 30 years ago still exists today and has an unrepentant heart," said the Rev. Terry King, director of Grace House, which has twice taken Sypnier in from prison. "He is someone that we as parents, as members of the community, any community, really need to fear."

Six months after marking his 100th birthday in the Groveland Correctional Facility - becoming the first New York inmate to reach the milestone while incarcerated - the retired telephone company worker now says he wants to get to know the youngest members of a family that has disowned him.

Being grandfatherly was how the 5-foot-5, 150-pound Sypnier found his victims, authorities say. After his most recent arrest at age 90 on charges of raping and sodomizing a 4-year-old girl and her 7-year-old sister, his neighbors in the suburb of Tonawanda recalled what appeared to be a kindly Sypnier offering rides to adults, handing out money to children so they could buy candy, and baby-sitting.

The victimized sisters called him "Grandpa," their mother said at the time, adding that it "was a total shock" when police showed her sexually explicit pictures of her girls found in Sypnier's apartment.

Sypnier's convictions date to 1987, when he was given three years' probation for sex abuse. He spent a year in prison for sexually abusing a minor in 1994. His neighbors in Tonawanda never knew of Sypnier's background because he was convicted before the adoption of laws requiring sex offenders to register with police.

But Sypnier says he is the victim of a miscarriage of justice, despite twice pleading guilty in the case involving the sisters.

"Those children crawled into bed with me because they were frightened, but there was never any sexual hanky-panky," Sypnier told the Buffalo News.

Sypnier initially pleaded guilty in 2000 to two counts of rape, 15 counts of sodomy and endangering the welfare of a child for molesting the Tonawanda girls, as well as three in Buffalo. An appeals court threw out the conviction in 2002 after Sypnier claimed he was confused at the time, leading to another plea the following year to a lesser charge.

In sentencing Sypnier to as many as 10 years in prison, state Supreme Court Justice Penny Wolfgang told him she expected he would spend the rest of his life behind bars.

"The sheer notion of him wandering the streets unattended or unsupervised is a scary proposition," King said.

On Monday, a federal district judge in the Eastern District of Texas issued a memorandum opinion and order denying restitution to a now 20-year-old woman known as "Amy" in the case of a defendant who downloaded and possessed her images.

The Court’s decision is a serious set-back for victims of child pornography like Amy in their effort to obtain just and timely restitution for the ongoing crimes perpetrated against them. How can we, as a country, justify awarding tens of thousands of dollars in damages to record companies for downloading a single song, while criminals who exploit children pay nothing?

For over 30 years, Congress and the Supreme Court have recognized that victims of child pornography experience significant life-long harm by individuals like the defendant in this case who trade and possess images of their rape, abuse and humiliation.

It is now up to Congress, the Fifth Circuit Court of Appeals, and the United States Supreme Court to decide this issue in the interest of children like Amy and the American people who have little tolerance for these crimes and the abuse and exploitation of our nation’s young people.

For coverage of this case see the Tyler Morning Telegraph

Further background can be found here.

As recently as a year ago only 20% of teens were engaged in sexting. Now a new MTV-AP poll of teens aged 14 to 17 reveals that the practice is growing with 24% of underaged teens involved in some kind of naked sexting.

Here are some highlights from the survey:

• Girls are slightly more likely to have shared a naked photo or video of themselves (13%) than boys (9%).

• Those who have shared a naked photo or video mostly report that they initially sent the photo to a significant other or romantic interest. However, 29% of those who sent sexts report sending them to people they only know online and have never met in person. 24% sent sexts to people they wanted to date or hook up with.

• While girls are more likely to share naked photos or videos of themselves, boys are more likely to report receiving a naked photo or video of someone else that has been passed around - 14% vs. 9%.

• 61% of those who have sent a naked photo or video of themselves have been pressured by someone else to do so at least once.

• Those involved in sexting are likely to use words like “flirty”, “exciting”, “hot”, “fun” and “trusting” to describe the practice.

Perhaps the most surprising (or not) statistic is that almost half of sexually active young people report being involved in sexting. While their underaged sexual activity is probably legal under state law, creating a visual record of ANY teenage sexual activity is illegal production of child pornography under federal law and subjects the creator, distributor and recipient to a mandatory minimum five year sentence.

Sexual activity includes actual or simulated masturbation, sexual intercourse, or a "lascivious exhibition of the genitals or pubic area."

Parents can be liable too. Any parent who "knowingly permits" such activity "or has reason to know" such activity is occurring faces a 15 year mandatory minimum sentence in a federal prison.

Here's an outline of potential federal criminal liability in a typical sexting scenario:

17 year old John challenges his 15 year old girlfriend Karen to masterbate for him on her webcam. Karen takes off her clothes and simulates masturbation in front of the webcam. John and his friend Sam record the episode on a laptop computer. The following day Sam asks his buddy Tony if he wants to see the video. Tony does and Sam emails it to him. Later that same day Karen's mom Debbie discovers a still image from the webcam masturbation on Karen's cell phone.

Under current federal law, John is guilty of violating 18 USC 2251 which prohibits an individual from "persuading, inducing, enticing, or coercing any minor to engage in sexual activity" including simulated masterbation. If convicted, John will receive a 15 year mandatory minimum sentence, registration as a sex offender, and up to lifetime supervision by a probation officer.

While Karen will probably escape liability for production of child pornography, she is guilty of "knowingly transporting by computer a visual depiction of a minor engaging in sexually explicit conduct" which is a 5 year mandatory minium federal sentence, registraiton as a sex offender, and up to lifetime supervision by a probation officer. 18 USC 2255 and 18 USC 2255A.

Sam is guilty of pandering child pornography under 18 USC 2251 by "offering to distribute a visual depiction of a minor engaging in sexually explicit." He'll join his friend John in federal prison for the mandatory minimum 15 years.

Tony is guilty of receiving child pornography in violation of 18 USC 2252A and will receive a 5 year mandatory minimum sentence, plus registraiton as a sex offender and up to lifetime of probation monitoring.

Karen's mom Debbie also faces federal criminal liability. If, after finding the incriminating image on Karen's phone, she continues to "knowingly permit" Karen "to engage in sexually explicit conduct for the purpose of producing a visual depiction of such conduct or for the purpose of transmitting a live visual depiction of such conduct," she will join John and Sam in federal prison for 15 years. 18 USC 2251. Better yank out that web cam mom! And the video cell phone. And the Filp video cam. And the Canon SureShot. And . . . you get the picture (hopefully not).

These are theoretical hypothetical possibilities and it is unlikely that any federal prosecutor would ever bring such a case. These are, however, very real crimes with substantial criminal penalties. Federal prison is far cry from the "flirty exciting hot fun” most teenagers experience while sexting.

The question remains, should federal law change to protect Karen? If so, what about her boyfriend John? Should Sam and Tony escape liability? What about permissive parents like Debbie? And what if Karen was 13 instead of 15? Or 12? What if John was 18 or 20?

Any federal exception for sexting needs to take into account many complex scenarios and aggressive defense attorneys who will use any opening in the law to exempt real pedophiles from criminal liability.