Borders Conference - Rethinking the Line: The Canada-U.S. Border / Child Pornography on the Internet Session

Appendix II: Presentation Materials – Andrew Oosterbaan (continued)

Slide 19

Best Practices and Recommendations

  • Zero tolerance against child pornography on the Internet
  • Need for global partnership among all stakeholders
  • Worldwide criminalization of child pornography so that no safe haven exists for pornographers
  • Improving international law enforcement cooperation

Slide 20

Recommendations

  • Closer cooperation between governments and the Internet industry
  • Encouraging establishment of more Hotlines and Tiplines
  • Continued law enforcement training among partner nations
  • Raising awareness of child pornography problem among Internet users

Slide 21

Some Important Needs

  • Additional training for law enforcement and prosecutors focusing on:
    • keeping pace with changing technology
    • increasing the use of Mutual Legal Assistance Treaties and extradition as tools of international enforcement
  • Ongoing revision of most effective methods of fighting online crimes against children

Slide 22

U.S. Criminal Statutes

  • Production of Child Pornography
  • Transportation, Importation, Receipt, Distribution of Child Pornography
  • Possession of Child Pornography
  • Production for Importation
  • Reporting by ISPs
  • Transfer of Obscene Materials to Minors
  • Use of Interstate Facility to Transmit Information About Minor
  • Travel / Transportation Statutes

Slide 23

Production of Child Pornography

18 U.S.C. § 2251

  • Employing, using, persuading, inducing, etc. a minor to engage in or assist in sexually explicit conduct for the purpose of producing a visual depiction, IF subject knows or has reason to know the depiction will be transported or mailed, or it goes interstate.
  • Parents liable for permitting
  • Notices or advertisements are a violation.

Slide 24

Production Jurisdiction Expanded

Effective 10/30/98, now includes a 3 rd jurisdictional avenue:

if the depiction was produced using materials that have been mailed, shipped or transported in interstate or foreign commerce.

Slide 25

Transportation/Shipping, Receiving/ Distributing Child Pornography

18 U.S.C. §§ 2252 & 2252A

  • Transporting/Shipping involves carrying or uploading [2252(a)(1) & 2252A(a)(1)].
  • Receiving/Distributing involves images that have already moved interstate [2252(a)(2) & 2252A(a)(2)].
    • 2252 > visual depiction
    • 2252A > child pornography

Slide 26

Possession of Child Pornography

  • 18 U.S.C. § 2252(a)(4)(B)
  • “matters”
  • “visual depictions”
  • 18 U.S.C. § 2252A(a)(5)(B)
  • “images”
  • “child pornography”

Slide 27

Possession – a Federal Nexus

  • Either the depictions traveled in interstate or foreign commerce; OR
  • The materials used to produce the depictions traveled in interstate or foreign commerce.

Slide 28

Production for Importation

18 U.S.C. § 2260

  • Person outside the U.S.
  • Produces (2251(a)), traffics (2252), or possesses (2252) with intent to import into the U.S., or into waters within 12 miles of the U.S. coast.

Slide 29

Reporting of Child Pornography by ISPs

42 U.S.C. § 13032

  • ISPs must report child pornography occurring on their system;
  • As soon as reasonably possible after obtaining knowledge of facts or circumstances of an apparent violation of the child pornography statutes;
  • Penalty is a fine.
  • Monitoring is not required.

Slide 30

Transfer of Obscene Materials to Minors

18 U.S.C. § 1470

  • Use of mail or any facility of interstate or foreign commerce to knowingly transfer obscene matter to a minor under age 16 .
  • Includes attempt.
  • Must prove defendant's knowledge of minor's underage status;
  • Penalty: up to 10 years.

Slide 31

Use of Interstate Facility to Transmit Information About Minor

18 U.S.C. § 2425

  • Using the mail or any facility or means of interstate or foreign commerce;
  • To knowingly transmit biographical info or e-mail address of an individual under age 16 , with intent to entice, etc.
  • Defendant must know person is under 16;
  • Includes attempt.
  • Penalty: no more than 5 years.

Slide 32

Other Federal Statutes

  • Buying or Selling of Children
    • (18 U.S.C. § 2251A)

  • Forfeiture
    • (18 U.S.C. § 2253)

  • Record Keeping Requirement
    • (18 U.S.C. § 2257)

  • Communications Decency Act
    • (47 U.S.C. § 223)

  • Obscenity Statutes
    • (18 U.S.C. §§ 1460 –1466)

Slide 33

Traveler Case Example

What is a “traveler”?

  • Person who crosses state lines for illegal sexual activity

    • Travel by either victim or defendant
    • Also includes when defendant entices victim to travel
    • Sexual contact defined by state or federal law, depending on statute used
    • Age defenses vary depending on statute used

Slide 34

Potential Federal Charge(s)

  • 18 U.S.C. 2421: transporting any person across state lines with intent such person engage in prostitution or any criminal sexual activity.
  • 18 U.S.C. 2422(a): persuades, induces, entices, coerces any person to travel to engage in prostitution or any criminal sexual activity.

Slide 35

Potential Federal Charge(s)

  • 18 U.S.C. 2422(b): using any facility or means of interstate commerce to persuade, induce, entice, or coerce a person under 18.
  • Specific intent crime
  • Defendant must know that victim is under age 18, but gov't need not prove defendant knew exact age.

Slide 36

Potential Federal Charge(s)

  • 18 U.S.C. 2423(a): transporting a person under age 18 with the intent that the minor engage in prostitution or any sexual activity for which a person can be charged.
  • Intent must be formed before crossing state lines.
  • Defendant must know victim is < 18, but gov't need not prove defendant knew victim's exact age.

Slide 37

Potential Federal Charge(s)

  • 18 U.S.C. 2423(b): travel to commit a sexual act with a person < 18 that would be a violation of Chapter 109A if occurred in particular jurisdiction (basically on federal property).
  • Intent must be formed before crossing state lines.
  • Defendant must know victim is < 18, but gov't need not prove defendant knew victim's exact age.

Slide 38

Thank You

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