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Computer Forensics and Cyber Crime, 2

nd
ed.
Britz
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
1
Computer Forensics and Cyber Crime, 2
nd
ed.
Britz
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
2
 Various 1
st
Amendment challenges to computer
evidence
 Traditional problems involving the 1
st

Amendment:
 Inconsistency in lower courts - Supreme Court has
only heard a handful of cases
 Much technology-specific legislation is intentionally
vague, so that emerging technologies will also be
included.
 Policies which are ambiguous do not provide
guidance for officers
 Those things which are published are protected
under the Free Speech clause of the 1
st
Amendment.
 Generally speaking, community standards vary in
terms of obscenity.
Computer Forensics and Cyber Crime, 2
nd
ed.
Britz
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
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 Hard to define – “Can’t explain it, but I know it
when I see it”
 I shall not today attempt further to define the kinds of
material I understand to be embraced with that shorthand
description, and perhaps I could never succeed in
intelligibly doing so. But I know it when I see it.
• The matter has been further confounded by
questions of a worldwide community (i.e. the
Internet), and by the concept of virtual (i.e. not
actual) images.


Computer Forensics and Cyber Crime, 2
nd
ed.
Britz
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
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Regina v. Hicklin (1868)
•Original standard – created to measure the immority of
Catholic priests.
•Very vague and ambiguous
Roth v. Vnited States (1957)
•Declared that obscene material was not protected by
the 1
st
Amendment
•Coupled the reasonable man with the community
standard doctrine
•Did not work in practice – created a concept of
national morality
Miller v. California (1973)
•Three prong test
•Average person who is capable of applying
community standards
•Determines a work depicts or describes, in a
patently offensive way, sexual conduct specifically
defined by the applicable state law; and
•Taken as a whole, lacks serious literary, artistic,
political, or scientific value
•Also recognizes different categories of individuals
(i.e. children)
Computer Forensics and Cyber Crime, 2
nd
ed.
Britz
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
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FCC v. Pacifica Foundation
•Ruled that new media of communication must be scrutinized &
different media vary in protection
•Indecent speech, even if it does not reach the level of obscenity, can not
be broadcast when children are the presumed audience
•Accessibility to children = reduction of protection
Sable Communications, Inc. v. FCC and Turner Broadcasting
system, Inc. v. FCC
•Telephone communications and cable TV enjoy heightened levels of
protection because they are not as pervasive or accessible as they
require affirmative actions and do not reach captive audiences.
•Recognized, a compelling interest in protecting children, but blanket
entire categories of speech is an unacceptable infringement.
Computer Forensics and Cyber Crime, 2
nd
ed.
Britz
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
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Telecommunications Reform Act of 1996
& Communications Decency Act
•Designed to regulate the previously untamed
frontier of cyberspace
•Criminalizes harassment, stalking, annoyance or
abuse of anyone using electronic medium
•Criminalized any obscene communication to a
minor AND the transmission of child pornography
•Struck down for overbreadth and vagueness
Computer Forensics and Cyber Crime, 2
nd
ed.
Britz
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
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P
r
o
t
e
c
t
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o
f

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A
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A
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(
1
9
7
7
)

Directly tied to
principles articulated in
Miller
3 Prong Analysis
Prohibited depictions
without redeeming
social value
Did not require scienter
on the part of the
violator as to age
Lack of scienter
requirement led to ruling
of unconstitutionality
C
h
i
l
d

P
r
o
t
e
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t
i
o
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A
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t

(
1
9
8
4
)
y

Eliminated the obscenity
requirement established
in Miller
Court rulings recognized
the state interest in
prohibiting vchild
pornography
Computer Forensics and Cyber Crime, 2
nd
ed.
Britz
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
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F
a
c
t
s

o
f

t
h
e

C
a
s
e

Bookstore proprietor
convicted of selling
films depicting young
boys masturbating.
Argued that a NY
statute prohibiting the
promostion of sex by
children under 16
through distribution
I
s
s
u
e
s

Argued that a NY
statute prohibiting the
promostion of sex by
children under 16
through distribution
Argued that the same
statute also prohibited
the distribution of
medical and
educational books that
dealth with adolescent
sex in a realistic but not-
obscene manner
R
u
l
i
n
g
s

States are granted more
leeway in the
regulation of
pornographic
depictions of children
than in the regulation
of obscenity.
Computer Forensics and Cyber Crime, 2
nd
ed.
Britz
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
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 The use of children as subjects of pornographic materials
is harmful to the physiological, emotional, and mental
health of the child
 The standard of Miller v. California for determining what
is legally obscene is not a satisfactory solution to the child
porn problem
 The advertising and selling of child porn provide an
economic motive for and are thus an integral part of the
production of such materials, an activity illegal
throughout the nation
Computer Forensics and Cyber Crime, 2
nd
ed.
Britz
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
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 The value of permitting live performances and
photographic reproductions of children engaged in lewd
exhibitions is exceedingly modest, if not de minims
 Recognizing and classifying child porn as a category of
material outside the 1
st
Amendment’s protection is not
incompatible with this Court’s decisions dealing with
what speech is unprotected. When a definable class of
material, such as that covered by the NY statute, bears so
heavily and pervasively on the welfare of children
engaged in its production, the balance of competing
interests is clearly struck, and it is permissible to consider
these materials as without the 1
st
Amendment’s protection
Computer Forensics and Cyber Crime, 2
nd
ed.
Britz
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
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 Court relied on stats and opinion on various
sources (i.e. scholars, practitioners, etc.) regarding
the potential harm to real children resulting from
virtual images
 Blanket prohibition of all child pornography
 Stated that any literary, artistic, political, scientific
value of child porn does not ameliorate potential
harm to children
 Creation of the generalized victim
 No requirement of scienter

Computer Forensics and Cyber Crime, 2
nd
ed.
Britz
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
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 Upheld the standards originally established in
Ferber
 Upheld an Ohio statute which prohibited the
possession and viewing of child porn
 Upheld the notion of the generalized victim – noting
that the market for child pornography must be
destroyed and that pornographers use child porn
to whet their appetizer.
 Reiterated the potential for harm to all children

Computer Forensics and Cyber Crime, 2
nd
ed.
Britz
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
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 Attempted to codify the decisions articulated in Ferber
and Osborne
 Provided for the prohibition of virtual child
pornography
 Hotly debated in the lower courts
 Struck down by Court in Ashcroft v. Free Speech
Coalition
Computer Forensics and Cyber Crime, 2
nd
ed.
Britz
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
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 Ashcroft makes it difficult to prosecute child porn – due
to it’s requirement of proof of identity (i.e. must prove
that the images are real and not computer generated.
 Ashcroft creates a virtual pornography defense
 In the wake of Ashcroft, Congress passed Prosecutorial
Remedies and Other Tools to End the Exploitation of
Children Today Act (PROTECT)

Computer Forensics and Cyber Crime, 2
nd
ed.
Britz
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
15
 Exponentially increased since inception
 Internet Gambling Prohibition and Enforcement Act (IGPEA)
 Authorizes state and federal law enforcement to seek
injunctions against persons or entities which facilitate illegal
Internet gambling
 In response, media giants like Clear channel
Communications, Infinity Broadcasting, Discovery Networks,
Yahoo!, and Google all stopped carrying gambling
advertisements
 Civil libertarians argue that it is unconstitutional
 Gambling operators argues that it violates the 1
st
Amendment
 Casino City, Inc. v. U.S. Department of Justice – Casino City
filed a preemptive strike – case is still pending.
Computer Forensics and Cyber Crime, 2
nd
ed.
Britz
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
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 Other cases which might shed light on leaning of the
Court:
 Central Hudson Gas and Electric v. Public Service
Commission of New York
 Posadas de Puerto Rico Associates v. Tourism Co. of Puerto
Rico
 44 Liquormart, Inc. v. Rhode Island




Computer Forensics and Cyber Crime, 2
nd
ed.
Britz
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
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