Child pornography is an old scourge that has found epidemic new life on the Internet, deeply affecting everyone who comes in contact with it. As lawmakers and cops zero in on its perpetrators, the adult online community struggles to combat this ancient evil.
For an open medium, the Internet has any number of Dirty Little Secrets that need to be purged from its collective conscience, but child pornography (CP) is not one of them. That may come as a surprise for many people, but in one form or another, child porn is all over the place, and not only in cyberspace.
In addition to the thousands of websites dealing with either its proliferation or eradication, there are multitudes of articles published annually that keep the subject boiling on America's front burner. More actively, there are at least four federal law enforcement agencies mandated to fight CP from within and without our borders, with a bevy of laws at their disposal and more on the way. Backing them up are hundreds of State and local law enforcement agencies that not only help in the investigation and apprehension of pedophiles, but also monitor them after they've been released from prison. Then there are dozens of large and small organizations that help track and identify child porn websites and the miscreants who either stalk children online or trade in explicit child pornography. Supporting these groups is an army of concerned parents and citizens who devote precious time and resources to freeing the globe of the producers and purveyors of the sort of material that every person AVN Online spoke with agreed was about as close to evil as one can get. Last but not least are the politicians who sit on committees and vote for or against the laws that will determine the regulated future of the adult Internet industry.
Of course, not to be forgotten in the vast mix of people and institutions affected by this issue (aside from the children of course) are the thousands of responsible adult webmasters, often parents themselves, who try to earn their living by the legitimate display of sexual material on the Internet. By any estimation, they have as much at stake in the war against CP as anyone else. Indeed, every adult webmaster we spoke with was vehemently opposed to the proliferation of CP on the Internet, considering it not only inherently heinous, but also a serious threat to the survival of the industry as a whole.
One might assume, then, that the whole matter of CP is cut and dried. If no one is for it but the ones who do it, and the ones who do it are breaking the law, then everyone else would have to be on the same page as far as solutions are concerned. Unfortunately, that is far from the case. As with many other seminal issues that have found problematic new lives on the Internet, CP as an incessantly important problem that requires proactive attention is deeply shrouded in miscommunication, rhetoric, and vitriolic accusations that are often counter-productive, both within the adult Internet community and beyond.
Like the problem of copyright infringement, the lack of borders in cyberspace makes enforcement of existing laws extremely difficult, if not impossible at times. Also, the universally despised nature of CP makes it the most secretive and anonymous of crimes, even if the perpetrators we read about after they've been snared appear to be preternaturally careless in the following through of their offline liaisons. They are still an unusually closed group that extends through every profession and level of society. Sometimes, they are even judges and cops. But even people who might not be engaging in actual activity but who are peripherally profiting from it are loathe to come even close to admitting so, for they would surely be banished from doing business as usual if they did, even if they weren't convicted of a crime. In fact, much of the sniping within the adult webmaster community involves just these sorts of accusations: that webmasters who claim to be fighting the good fight are in fact profiting from CP by conveniently turning a blind eye to what is happening on their hosting sites, their servers, or their networks. Implying intent is one thing, proving it is quite another.
Of course, another big thorn for the industry is the fact that so many civilians (defined as those not involved in adult Internet) lump child porn and regular old adult porn into the same putrid pot - a perception that is, more often than not, fuelled by mainstream media. They regard all "obscene" material as detrimental to American ideals, and would love to see all of it regulated off the Internet. And if such a draconian measure seems severe, even one adult webmaster who is also a respected veteran of the CP wars, when asked how he would rid the Net of all CP, replied without hesitation, "Get rid of porn."
If such a hardcore opinion is music to the ears of conservative politicians and porn-haters, it could also provide a powerful emotional justification for a frenzied post-election escalation of obscenity prosecutions. For several years now, in fact, attorneys who represent adult Internet companies have been warning their clients to prepare for an imminent prosecutorial turn to the right. But even if George W. Bush is elected in November, with the possible opportunity to select three Supreme Court Justices, it isn't easy to imagine a High Court (www.supremecourtus.gov) decision that would turn the First Amendment on its head by banning all pornography from the Internet. More likely, the battle to eradicate CP, as distinct from the "mainstream" of adult, will continue, even if anti-porn forces succeed in bringing a new spate of prosecution attempts through either the front door of obscenity or the back door of 18 USC 2257 (labeling) violations (www4.law.cornell.edu/uscode/18/2257.html).
And even if the estimated 30 percent of Web-based child porn sites that originate in America were decisively eradicated, that would still leave a huge majority that emanate from foreign countries, the most despicable examples of which are generally agreed to be from former Eastern Bloc and Southeast Asian countries. As difficult a time as domestic law enforcement is having in catching up to the cornucopia of online criminal phenomena that clearly took it by surprise (CP being but one), effective international collaboration seems daunting at best, especially with countries with which the United States has no extradition treaties. Further, even if the already entrenched nature of the adult Internet industry would seem to cry out for reciprocal cooperation between law enforcement, foreign and domestic, and the adult Internet, achieving it is easier said than done, to say the least. Unfortunately, if concerted efforts to establish movement in that direction continue to flounder, more and more adult webmasters will be led onto the rocky shoals of conspiracy theory, in which law enforcement purposefully botches the job of fighting CP in an attempt to torpedo the entire industry; AVN Online does not ascribe to that theory, but many others do.
We prefer to believe that the vast majority of people in and out of this industry are reasonable and rational and would do anything they can to exterminate CP from the Internet in a civil manner, even if they are not fans of pornography in general. In order for that to happen, however, there are some gray areas that need to be more clearly defined. Our hope is that this article will help do that.
WHAT IS CHILD PORNOGRAPHY?
Starting with what is NOT child porn:
Child porn is not what the COPA Commission (www.copacommission.org) is studying; though many people are under that impression. The COPA Commission is specifically looking at issues surrounding children being exposed to explicit sexual material on the Internet, not excluding the possibility (some would say probability) that such material may in fact include other children depicted in illegal sexual acts. While significantly different from what we are concerned with in this article, because the outcome of the COPA commission's study is without doubt critical to the continued viability and relative respectability of the online adult industry, it begs a few words.
The Child Online Protection Act, known as COPA, was passed October 23, 1998 as part of an omnibus budget bill that was signed into law by President Clinton. The purpose of the Act was to prohibit online sites from knowingly making available to minors material that is "harmful to minors" (sexually explicit material meeting definitions set forth in the Act). Commercial providers of "harmful to minors" material may defend themselves against prosecution by restricting the access of minors to such material. This law also created a temporary Commission to study, mostly through research papers and testimony by experts, various technological tools and methods for protecting minors from "material that is harmful to minors."
Congress has specifically asked the COPA Commission to conduct a study of six topic areas related to methods for reducing minor's access to such material, including:
a. A common resource for parents to use to help protect minors (such as "one click away" resources)
b. Filtering or blocking software or services
c. Labeling or rating services
d. Age verification systems
e. The establishment of a domain name for posting of any material that is harmful to minors
f. Any other existing or proposed technologies or methods for reducing access by minors to such materials.
The Commission has also been asked to consider these topics while specifically considering the following:
* Cost of such technologies and methods to parents
* Accessibility of such technologies and methods to parents
* Effect of this technology on law enforcement
* Effect of this technology on privacy
* Effect of this technology on the global and decentralized nature of the Internet.
The Commission, whose budget is $1 million, held its first meeting on April 28, 2000 and is scheduled to submit its final report to Congress on November 30, 2000.
So what IS child porn?
By the letter of the law, CP is far easier to define, prove and convict than a more elusive concept like obscenity, which depends, among other conditions, upon local community standards. Child pornography offenses, or more accurately, the Sexual Exploitation of Children, are covered by Title 18 (Crimes and Criminal Procedures) of the United States Code, subsections 2251-2260. Specifically, 18 � 2256 defines child pornography as:
"any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical or other means, of sexually explicit conduct, where -
a. the production of such visual depiction 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 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."
The other subsections of Title 18 relevant to child porn deal with offenses such as the buying and selling of children, the transportation across borders or state lines of sexually explicit materials regarding minors, the distribution or receipt of such materials, and other related offenses. Child luring is covered by 18 � 2422(b), which prohibits the use of any facility or means of interstate commerce to knowingly persuade, induce, entice or coerce a minor to engage in criminal sexual activity or prostitution. 18 � 2423(a) prohibits a person from transporting a minor in interstate commerce with the intent to engage in criminal sexual activity with the minor or prostitution. A related provision, 18 � 2423(b) prohibits a person from traveling in interstate commerce, or conspiring to do so, for the purpose of engaging in criminal activity with a minor.
Recently, Congress enacted 18 � 2425, which prohibits the use of a facility of interstate commerce, such as a computer connected to the Internet, to transmit information about a minor under the age of 16 for criminal sexual purposes. This statute would apply any time a sexual predator communicated online with another child predator for the purpose of exchanging personal information about a child under 16 for criminal sexual purposes. Congress has also allowed the Attorney General of the United States, through the enacting of 18 � 3486A, to delegate administrative subpoena power to the FBI (www.fbi.gov), the Criminal Division of the Justice Department (www.usdoj.gov/criminal), and the United States Attorneys' Office. That subpoena power allows those entities to gain access to subscriber information from Internet Service Providers during online child pornography or child abuse investigations. Of more potentially dire consequence, 42 � 13031 requires ISPs that become aware of any apparent violation of any federal child exploitation statute to report that information to the
CyberTipline at the National Center for Missing and Exploited Children (NCMEC, www.missingkids.com).
Despite the seemingly definitive and thorough nature of the statutes that deal with online child pornography, there is nevertheless a lot of disagreement among webmasters, attorneys and even lawmakers regarding precisely what, in certain circumstances, constitutes online CP. Examples would be, advertising child porn where there is none, having models over 18 portray minors engaged in sex, posting computer-generated images that look like actual children engaged in sexual activity, and displaying images of naked children that are not engaged in any sexual or lewd activity. It's actually quite easy to find sites employing all of these methods, with the exception of computer-generated minors, which is difficult, if not impossible, to discern with the naked eye.
Each one of these situations poses unique legal and ethical problems for webmasters. One gray area is all the sites that advertise "child porn" for the purpose of attracting surfers looking for that sort of smut, but once inside offer only models of legal age. Could they be prosecuted for child porn even though there is none? Yes. They may be found guilty under the definition that defines CP as sexually explicit visual depictions that are "advertised, promoted, presented, described or distributed" to convey the "impression" that a minor is involved. But even if most prosecutors don't go after these "marginal" cases, the Federal Trade Commission (www.ftc.gov) could as well, for engaging in false advertising or deceptive marketing practices, with fines that could be prohibitive indeed.
More problematic is the situation of using over-age models to portray minors. There are innumerable sites that engage in this sort of activity, sites that promote Teen or Lolita sex.
In a culture that celebrates youth, this is to be expected. Hustler's Barely Legal print magazine (www.barelylegal.com), for instance, is rife with images of young women who look to be under age. But is it legal? Section 2256 says that images that appear to depict a minor engaged in sexually explicit conduct, and images and advertisements that suggest images of minors engaged in sexually explicit conduct, can be considered Child Pornography. Just because the Justice Department (www.usdoj.gov) has failed to enforce this provision doesn't mean that prosecutions for this type of material are not possible, and is one very compelling reason why websites that are in this gray area should be particularly vigilant in complying with 18 � 2257 federal record keeping requirements.
A similar situation involves the use of computer-generated images of minors, and the courts are divided on this one. Despite the fact that "morphed" images are included within the definition of "visual depiction," The 9th Circuit Court of Appeals, in December of 1999, ruled on behalf of the Free Speech Coalition (www.freespeechcoalition.com) and plaintiffs that "the First Amendment prohibits Congress from enacting a statute that makes criminal the generation of images of fictitious children engaged in imaginary but explicit sexual conduct." The 9th Circuit is but one out of 11 Circuit Courts, however, and the 1st and 11th have upheld the same specific provisions of the Child Pornography Prevention Act of 1996 that the 9th construed as invalid. Where does that leave adult webmasters who "morph"? Obviously, unless they reside within the jurisdiction of the 9th Circuit, vulnerable to prosecution.
Sites in which real children pose naked but are not engaged in lewd or sexual activity are perhaps the most difficult for people to come to grips with, because of the emotional reactions that these pictures incite. Who, after all, but a pedophile would want to look at them? Understandably, several webmasters we spoke with thought that these sites should be taken down no matter what, based on the fact that they were advertised or promoted as child porn. But, according to 18 � 2256, "sexually explicit conduct" means actual or simulated -
a. sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex;
d. sadistic or masochistic abuse; or
e. lascivious exhibition of the genitals or pubic area of any person
In other words, no matter how they are advertised, or to what sites they are linked, if there isn't "sexually explicit conduct," it isn't child porn. However, some Courts that have interpreted section 'e' have done so broadly, defining (as in United States vs. Unox) "lascivious exhibition" to mean a depiction which displays or brings forth to view in order to attract notice to the genitals or pubic area of children, in order to excite lustfulness or sexual simulation in the viewer. So sites may risk prosecution if they display images of minors depicted in such a way that excites viewers. The determination of what excites viewers, however, may be a judgment call after all. It's a very gray area.
There have, additionally, been some recent legal developments regarding sex crimes against children. On July 25, 2000, under a measure approved by the House, and still to be acted on by the Senate, people convicted for a second sex crime against a child would get a mandatory life sentence. Under the bill, whether or not the first conviction was in a federal or state jurisdiction, if the second falls under federal jurisdiction, then the legislation will apply. The law is based on statistics indicating that pedophiles are four times more likely than other criminals to recommit their crimes.
More directly related to online CP cases was a case in May regarding a man found guilty of having 19 illegal images of child porn on his office computer. A three-judge panel of the 3rd Circuit Court of Appeals in Philadelphia grappled with how exactly to apply sentencing guidelines when counting computer files. Sentenced to 27 months, the defendant's attorney argued that the original judge had erred by giving his client two "enhancements" - a two-point increase for having child porn on his computer, and another two for having more than ten items. He said that the second enhancement for the 19 illegal items should have been treated like a single book since they were all in one computer folder. Under sentencing guidelines, a defendant gets a two-point increase for having 10 or more "books, magazines, periodicals, films, videotapes or other items" containing visual depiction involving sexual exploitation of a minor. This case highlights the problems facing courts when dealing with the relatively new world of computer crime.
Beyond the letter of the law
But the letter of the law doesn't begin to describe the true nature of these crimes and the impact that seeing the worst of the child porn images has on anyone who looks at them. We're talking about videos in which a four-year-old girl lies smiling and trusting as a face-obscured adult enters the frame and rapes her, her cooing becoming screams as the camera continues to record for posterity. We're talking about two-year-old boys being sodomized. We're talking about the sexual molestation of infants as young as four months old, according to interviews conducted by AVN Online. We're talking about parents who rape their own children and then share or trade the photos on the Internet like baseball cards. We're talking about images that make adult webmasters cry and give grown men nightmares. We're talking about more than one person we spoke with openly wanting to kill the people who commit these acts. No, laws don't begin to tell the story.
HOW EXTENSIVE IS THE PROBLEM?
Even though online child porn is not just an American problem, this country contains by far the lion's share of porn sites and most of the largest online adult companies. So even if there are no borders in cyberspace, there is a strong perception from within and without the industry that this country needs to lead the way in fighting CP, even if international cooperation will be ultimately needed to effectively combat it. But the breadth and depth of the problem is extremely difficult to nail down, especially regarding the number of child porn websites in existence and the number of active pedophiles who are currently using the Internet to either prey on children or trade in CP material.
According to the Department of Justice, child pornography is traded 24 hours a day in online chat rooms and on Internet Relay Chat channels, and thousands of images of child sex abuse are available in easily accessible newsgroups. In addition, pedophiles can lurk around chat channels and rooms and message boards and use e-mail to lure children for sex. The prosecution of Internet-related child pornography and luring cases is increasing. The Justice Department has found that prosecutions of these cases have increased by 10 percent every year since 1995. In the last year, the Department of Justice estimates it will have prosecuted over 400 such cases. Many of these cases are international in scope. For example, Operation Cheshire Cat, a joint investigation between the Customs Service (www.customs.gov) and the English National Crime Squad, involved over 100 members of a major pedo-phile ring that operated in 21 countries.
According to the Encyclopedia Britannica (www.eb.com), pedophilia is a psychosexual disorder in which an adult's arousal and sexual gratification occur primarily through sexual contact with prepubescent children. The typical pedophile is not able to find satisfaction in an adult relationship and may have low self-esteem, seeing sexual activity with a child as less "threatening" than sex with an adult. Most pedophiles are men, and the condition is extremely rare in women. Pedophilia is considered in most Western nations to be one of the most serious of sexual offenses, and in general, the younger the victim or the greater the disparity in age between perpetrator and victim, the more severe the penalty will be. This profile is most disturbing considering the fact that an estimated 15 million children use the Internet every day.
According to a 1998 study by the National Victim Assistance Academy (www.nvaa.org), even though sexual abuse by strangers is by far the most publicized form of child sexual abuse, it is committed far less frequently than sexual abuse by family members or acquaintances. According to the study, sexual abuse by strangers comprises only 10 percent of all reported cases. The study also states that stranger perpetrators are almost always male and often prey on male children, even though they often deny homosexual tendencies.
And even though the study does say that violence against children is one of the least well-documented areas of personal crime, the numbers are frightening. In 1995, according to the study, more than one million children were identified as victims of child abuse or neglect in this country, with about 13 percent the victims of sexual abuse. More than half were 7 years of age or younger and about 26 percent were younger than 4 years old. In fact, more than half of all violent crimes committed against children involved victims who were 12 years old or younger. The study goes on to state that two-thirds of all prisoners in the U.S. convicted of rape or sexual assault, committed their crime against a child.
According to material found on the NCMEC CyberTipline website, "One of the most important things in a pedophile's life is his collection of pornography. The pornography collection of a pedophile is never complete and he must always add to it. To acquire their collection, pedophiles will exchange images amongst themselves. Unlike commercial adult obscenity dealers, domestic child pornographers will rarely, if ever, openly advertise or solicit new business. Their operations are underground and restricted. They deal mostly with known pedophile customers. Often the pornographic images are exchanged among the pedo- philes through the computer or through the United States mail."
A big area of concern for adult webmasters and legislators is a "cause and effect" phenomenon that asserts a causal relationship between child porn sites and child molestation; in other words, pedophiles who view child pornography and as a result of viewing it, subsequently seek out victims to sexually molest. A belief in this causal relationship is behind the laws against depictions of sexual activity using adults either dressed or "morphed" to look like children.
However, Tampa, Florida psychologist Dr. Gary Calhoun, who is currently conducting independent research on the development of an adult Internet User profile, says that he is "not aware of any empirical research that identifies a direct causal link between viewing child pornography and subsequently engaging in child molestation." He did, however, find "some research... by R.C. Wright and S. L. Schneider, on sexual fantasies and sex offenders. They found that sex offenders, unlike non-offenders, use fantasies as a tool to, in essence, justify their sexual fantasies about children, as well as to rehearse and plan the assault through fantasy... One could easily see how child porn sites could help sustain a molester's behavior pattern. The child porn sites could be used in the fantasy stage to plan, rehearse, justify and enable the ensuing sexual assault. This is a far cry from a cause and effect phenomena, but does provide empirical evidence of how Internet child pornography could be a significant contributing factor to sexual assaults on children." Calhoun adds that it is important to keep in mind that all the research he found involved individuals who were convicted sex offenders, since non-incarcerated child molesters aren't known to make themselves available for interviews or research.
Child Porn Websites
Perhaps the most frustrating aspect of trying to write about CP on the Internet is getting a handle on how many sites we're talking about. Setting aside how to define what a CP site is, because of the peripatetic nature of the Internet, there is no way to get a reliable fix on sites that are taken down as soon as they are discovered, yet spring up elsewhere only days or even hours later. This phenomenon accounts for some of the most vehement debates both within and without the adult Internet community, such as whether or not the sites should be taken down immediately or left up for law enforcement to in-vestigate, and who in the Industry might be profiting by leaving them up. These issues we will focus on shortly. As to actual numbers, perhaps the only way to have any idea of the scope of the problem is by the number of sites thus far identified, and extrapolating from that a larger picture.
According to statistics compiled by the NCMEC's Cyber Tipline, since its creation in 1998, it has received almost 17,000 reports of online child pornography. According to testimony before COPA by Parry Aftab of Cyberangels (www.cyberangels.org), "the world's oldest and largest Internet safety, help and educational program," they, together with SOC-UM (Safeguard Our Children, www.socum.org), a non-profit site dedicated to the prevention of child abuse, have compiled a list of 45,000 sites that advocate pedophilia or support pedophilia groups. In an interview with AVN Online, Aftab said that Cyberangels was also finding about 70 child porn sites a day. Andrew Edmond, CEO and President of Flying Crocodile (www.flyingcrocodile.com), an adult webmaster resource site and free hoster, has said that since May of 2000, iQcheck, their Internet software that identifies child porn sites, had disabled approximately 1200 counters and free host sites, an average of 70-100 a week. And Alec Helmy, an adult webmaster who runs an organization called Adult Sites Against Child Pornography (ASACP, www.asacp.com), couldn't even guess at how many hundreds of child porn sites have been reported to ASACP and taken down since its founding in 1995.
Altogether, these figures hint at the size of the problem. At the least, we are talking about tens of thousands of child porn sites that have existed or continue to exist on the World Wide Web. And just because sites are reported and taken down, or even if they are reported to law enforcement agencies, that doesn't mean that the webmasters who have put them up are not putting them up again somewhere else. Even Helmy, who has been turning in sites to Customs and the FBI for years, expresses frustration. "Even I don't know what the FBI or US Customs does with these reports," he told AVN Online. "Some of them get shut down, some of them don't no matter how many times we repo