Computer Crime Research Center
By Jack Karp

Virtually Illegal

In October of 2001, the US Supreme Court heard arguments over whether or not the government can ban "virtual" child pornography -- computer-altered or generated images that don't portray actual minors engaged in sexual conduct but do "appear" to portray such conduct.

The case grows out of the 1996 passage of the Child Pornography Prevention Act (CPPA). Now part of Section 2256, Title 18 of the US Code, CPPA is the first law to make it illegal to create or possess images of child pornography even when the images have been made without the participation of any real children.

While many people see the passage of CPPA as an important step in extending the government's ability to protect children, one group instead sees the law as setting a dangerous precedent.

That group is the Free Speech Coalition, a trade association of businesses involved in the production and distribution of adult material. In a case known as Free Speech Coalition vs. Reno (now Ashcroft), the group challenged part of the CPPA in federal court shortly after it was passed, claiming that it violates the First Amendment of the US Constitution "because it is not content-neutral."

The specific part of the law the coalition is challenging is the language that outlaws any image that "appears to be" or that "conveys the impression" of minors engaging in sexual conduct.

"If you don't use a child, you don't have a victim," Louis Sirkin, attorney for the Free Speech Coalition, told "CyberCrime." "In virtual reality, there is no person, so there is no injured party."

That's the argument the coalition made in federal court in 1997. The judge hearing the case upheld the law, however, writing in his decision that CPPA "clearly advances important and compelling government interests: the protection of children from the harms brought on by child pornography and the industry that such child pornography has created."

Sirkin and the Free Speech Coalition appealed the ruling. In 1999, the US Ninth Circuit Court of Appeals in San Francisco ruled in the coalition's favor, declaring that the parts of the law that ban "virtual" child pornography "do not pass constitutional muster" and do indeed violate the free speech guarantee of the First Amendment.

In the court's majority opinion, District Judge Donald W. Molloy wrote:

"The CPPA prohibits any sexually explicit depiction that 'appears to be' of a minor or that is distributed or advertised in such a manner as to 'convey the impression' that the depiction portrays a minor. Thus, the CPPA distinguishes favored from disfavored speech on the basis of the content of that speech.... When a statute restricts speech by its content, it is presumptively unconstitutional."

Molloy went on to write, "The language of the statute questioned here can criminalize the use of fictional images.... Images that are, or can be, entirely the product of the mind are criminalized.... Because the 1996 Act attempts to criminalize disavowed impulses of the mind, manifested in illicit creative acts, we determine that censorship through the enactment of criminal laws intended to control an evil idea cannot satisfy the constitutional requirements of the First Amendment."

The appeals court also ruled that CPPA is unconstitutionally vague (because it fails to define the phrases "appears to be" and "conveys the impression of") and overbroad (because it outlaws "non-obscene sexual expression that does not involve actual children").

A good example of what the court meant in its objection to the law can be found in mainstream movies, Sirkin says.

"It is not uncommon in movies to have a scene where a minor 'appears to be' involved in sexual activity," Sirkin explains. "Under the law, films like 'Blue Lagoon' and 'American Beauty' would be illegal."

In addition, Sirkin says that if certain images or films are banned because they "convey the impression" that a crime is taking place -- in this case, child pornography -- then films like "Pulp Fiction" or "The Godfather" could also be banned because they, too, "convey the impression" that a crime is taking place.

While few people believe a court would actually apply CPPA to these films, the fact that one could makes Sirkin and the Ninth Circuit Court of Appeals nervous.

"We were concerned," Sirkin says, "mainstream filmmakers, artists, illustrators are concerned about who is making these decisions."

Source: www.techtv.com

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