You are on page 1of 32

Computer Forensics and Cyber

Crime

CHAPTER 8
Applying the First
Amendment to
Computer-Related
Crime

Computer Forensics and Cyber Crime, 3rd ed. Copyright © 2013 by Pearson Education, Inc.
Marjie T. Britz All Rights Reserved
Learning Objectives

• Obtain information concerning the legal


perception of indecency and obscenity.
• Overcome the difficulty in defining child
pornography.
• Learn of the contradictions in the court system on
the topic of child pornography.
• Gain knowledge of legislation that is geared
directly toward technology and the Internet.
• Discuss in full detail the subject of Internet
gambling.

Computer Forensics and Cyber Crime, 3rd ed. Copyright © 2013 by Pearson Education, Inc.
Marjie T. Britz All Rights Reserved
Introduction and General Principles

• Protections against censorship of text and


images, including available on a computer, exist
in the First Amendment's right of free speech.
• These protections pose problems; for example:
 Courts differ on whether material is protected
by the First Amendment.
 Technology-specific criminal legislation has
included intentionally vague descriptions of
forbidden text and images so that content
delivered via emerging technologies will be
included in its scope.

Computer Forensics and Cyber Crime, 3rd ed. Copyright © 2013 by Pearson Education, Inc.
Marjie T. Britz All Rights Reserved
Introduction and General
Principles
• The US Supreme Court has not ruled on
many such problems of law, depriving law
enforcement officials and the public of
guidance regarding the applicability and
appropriateness of such laws.
• Also, ambiguous public policies do not
provide guidance for officers.

Computer Forensics and Cyber Crime, 3rd ed. Copyright © 2013 by Pearson Education, Inc.
Marjie T. Britz All Rights Reserved
Obscenity in General

• It is difficult to define what is obscene: “I can’t


define it, but I know it when I see it.”
• Community standards, which matter here,
generally vary regarding what is considered
obscene.
• This variation is further confounded by:
 The existence of a worldwide community, the
Internet, when trying to determine what is
obscene.
 The fact that virtual (i.e., not actual) images may
be different than real images.

Computer Forensics and Cyber Crime, 3rd ed. Copyright © 2013 by Pearson Education, Inc.
Marjie T. Britz All Rights Reserved
Traditional Notions of Decency

Consider historical views regarding decency


and obscenity:
• Regina v. Hicklin (1868): British case trying to
determine what was obscene when evaluating the
immorality of Catholic priests; ruling was vague,
ambiguous

Computer Forensics and Cyber Crime, 3rd ed. Copyright © 2013 by Pearson Education, Inc.
Marjie T. Britz All Rights Reserved
Traditional Notions of Decency

• Roth v. United States (1957): U.S. Supreme


Court declared that obscene material was not
protected by the First Amendment
 Court evaluated material from perspective of a
"reasonable person," and by applying
community standards, but this subsequently
proved to be impossible to use

Computer Forensics and Cyber Crime, 3rd ed. Copyright © 2013 by Pearson Education, Inc.
Marjie T. Britz All Rights Reserved
Traditional Notions of Decency

• Miller v. California (1973): U.S. Supreme Court


came up with a three-prong test to strike a
balance of protecting those who would look at
material with dangers of censorship:
 Use the perspective of an average person who is capable
of applying community standards.
 That person would determine whether a work depicts or
describes, in a patently offensive way, sexual conduct
specifically defined by the applicable state law.
 As a whole, the material lacks serious literary, artistic,
political, or scientific value.
• Also recognizes different categories of individuals
(i.e., children)
Computer Forensics and Cyber Crime, 3rd ed. Copyright © 2013 by Pearson Education, Inc.
Marjie T. Britz All Rights Reserved
Traditional Notions of Decency

• FCC v. Pacifica Foundation: Court ruled that new


media of communication must be scrutinized as
they develop; different media vary in protection
 Difference between indecent and obscene
speech
 Indecent speech, even if it does not reach the
level of obscenity, cannot be broadcasted
(radio, television) during times when children
may be presumed to be part of an audience;
so, accessibility to children results in reduction
of protection

Computer Forensics and Cyber Crime, 3rd ed. Copyright © 2013 by Pearson Education, Inc.
Marjie T. Britz All Rights Reserved
Traditional Notions of Decency

• Sable Communications, Inc. v. FCC; Turner


Broadcasting system, Inc. v. FCC
 Telephone communications and cable TV enjoy
heightened levels of protection because they
are not as pervasive or accessible, since they
require affirmative actions to use and do not
reach captive audiences.
 The court recognized a compelling interest in
protecting children, but to censor entire
categories of speech is an unacceptable
infringement.

Computer Forensics and Cyber Crime, 3rd ed. Copyright © 2013 by Pearson Education, Inc.
Marjie T. Britz All Rights Reserved
Emerging Statutes and the Availability
of Obscene Material to Children
Telecommunications Reform Act of 1996, aka
Communications Decency Act (CDA)
• Designed to regulate the previously untamed
frontier of cyberspace
• Criminalized harassment, stalking, annoyance, or
abuse of any individual in an electronic medium
• Criminalized any obscene communication to a
minor or the transmission of information that was
prima facie, offensive

Computer Forensics and Cyber Crime, 3rd ed. Copyright © 2013 by Pearson Education, Inc.
Marjie T. Britz All Rights Reserved
Emerging Statutes and the Availability
of Obscene Material to Children
Telecommunications Reform Act of 1996, aka
Communications Decency Act (CDA)
• Struck down for overbreadth, encompassing
speech protected by First Amendment and
vagueness, failing to define with sufficient clarity
what was subject of law

Computer Forensics and Cyber Crime, 3rd ed. Copyright © 2013 by Pearson Education, Inc.
Marjie T. Britz All Rights Reserved
Traditional Attempts to Criminalize
Child Pornography
Started with enactment of Protection of Children
Against Sexual Exploitation Act (1977)
• Directly tied to principles articulated in Miller,
with its three-prong test
• Prohibited depictions without redeeming social
value
• Did not require scienter (specific level of
knowledge) on the part of the violator as to age
to secure a conviction; lack of scienter
requirement led to ruling of unconstitutionality

Computer Forensics and Cyber Crime, 3rd ed. Copyright © 2013 by Pearson Education, Inc.
Marjie T. Britz All Rights Reserved
Traditional Attempts to Criminalize
Child Pornography
Child Protection Act (1984) (CPA)
• Eliminated obscenity requirement established in
Miller
• Subsequently aimed to expand CPA with
enactment of Child Protection Restoration and
Penalties Enhancement Act of 1990

Computer Forensics and Cyber Crime, 3rd ed. Copyright © 2013 by Pearson Education, Inc.
Marjie T. Britz All Rights Reserved
Applying Case Law to Traditional
Child Pornography Statutes
New York v. Ferber: most important case
regarding criminalizing child pornography
• Bookstore proprietor convicted of selling films
depicting young boys masturbating
• Argued that a NY statute prohibiting the
promotion of sex by children under 16 through
distribution was overbroad, censoring protected
speech under the First Amendment, because the
law also prohibited material on adolescent sex,
depicted in a realistic but not otherwise obscene
manner, so that it failed the Miller test
Computer Forensics and Cyber Crime, 3rd ed. Copyright © 2013 by Pearson Education, Inc.
Marjie T. Britz All Rights Reserved
Applying Case Law to Traditional
Child Pornography Statutes
• US Supreme Court ruled that states are granted
more leeway in the regulation of pornographic
depictions of children than in the regulation of
obscenity because:
 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 pornography
problem.

Computer Forensics and Cyber Crime, 3rd ed. Copyright © 2013 by Pearson Education, Inc.
Marjie T. Britz All Rights Reserved
Applying Case Law to Traditional
Child Pornography Statutes
 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.
 The value of permitting live performances and
photographic reproductions of children
engaged in lewd exhibitions is exceedingly
modest, if not "de minimus."

Computer Forensics and Cyber Crime, 3rd ed. Copyright © 2013 by Pearson Education, Inc.
Marjie T. Britz All Rights Reserved
Applying Case Law to Traditional
Child Pornography Statutes
 Recognizing and classifying child porn as a
category of material outside the First
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 First
Amendment’s protection.

Computer Forensics and Cyber Crime, 3rd ed. Copyright © 2013 by Pearson Education, Inc.
Marjie T. Britz All Rights Reserved
Applying Case Law to Traditional
Child Pornography Statutes
• What makes this opinion unique:
 Court relied on statistics, opinions from various
sources (i.e., scholars, practitioners, etc.)
Blanket prohibition of all child pornography
 Stated that any literary, artistic, political,
scientific value of child porn does not
ameliorate potential harm to children
 Did not specifically address issue of scienter

Computer Forensics and Cyber Crime, 3rd ed. Copyright © 2013 by Pearson Education, Inc.
Marjie T. Britz All Rights Reserved
Applying Case Law to Traditional
Child Pornography Statutes
Osborne v. Ohio
• Specifically defines scienter, here, as involving at
least a degree of recklessness
• Upheld the standards originally established in
Ferber
• Upheld an Ohio statute which prohibited the
possession and viewing of child porn

Computer Forensics and Cyber Crime, 3rd ed. Copyright © 2013 by Pearson Education, Inc.
Marjie T. Britz All Rights Reserved
Applying Case Law to Traditional
Child Pornography Statutes
• Upheld the notion of the generalized victim,
noting that the market for child pornography
must be destroyed, because child porn continues
to build demand for creation of more child
pornography
• Reiterated the potential for harm to all children

Computer Forensics and Cyber Crime, 3rd ed. Copyright © 2013 by Pearson Education, Inc.
Marjie T. Britz All Rights Reserved
Technology-Specific Legislation –
Contention in the Courts
Child Pornography Prevention Act (CPPA)
• Intended to criminalize virtual child pornography
on the grounds that it increases child molestation
and pedophilia, regardless of whether an actual
child is used to generate it
• Expansion of the CPA
• Did the Ferber and Osborne decisions
demonstrate compelling state interest to protect
all children, and not only those used in
production of child pornography?

Computer Forensics and Cyber Crime, 3rd ed. Copyright © 2013 by Pearson Education, Inc.
Marjie T. Britz All Rights Reserved
Technology-Specific Legislation –
Contention in the Courts
• Did virtual child pornography stimulate child
molesters, increasing their dangerousness?
• Struck down by the Court in Ashcroft v. Free
Speech Coalition

Computer Forensics and Cyber Crime, 3rd ed. Copyright © 2013 by Pearson Education, Inc.
Marjie T. Britz All Rights Reserved
Technology-Specific Legislation –
Contention in the Courts
Ashcroft v. Free Speech Coalition
• U.S. Supreme Court invalidates CPPA, that the
threat of injury to children is not enough to
suppress protected speech
• If upheld, it was overbroad, and would
criminalize work such as Shakespeare’s
• Omitted link between prohibition and affront to
community standards
• So, virtual pornography is protected since there
has to be proof of identity, that the images are
real and not computer generated

Computer Forensics and Cyber Crime, 3rd ed. Copyright © 2013 by Pearson Education, Inc.
Marjie T. Britz All Rights Reserved
Technology-Specific Legislation –
Contention in the Courts
Prosecutorial Remedies and Other Tools to
End the Exploitation of Children Today Act
(PROTECT)
• Enacted in wake of Ashcroft
• Made illegal virtual images "indistinguishable
from" that of actual child pornography
• Effectively incorporated Miller test for obscenity
• Also incorporated provisions from Truth in
Domain Names Act, regarding innocent-sounding
names used for tricking children into seeing
obscene material

Computer Forensics and Cyber Crime, 3rd ed. Copyright © 2013 by Pearson Education, Inc.
Marjie T. Britz All Rights Reserved
Technology-Specific Legislation –
Contention in the Courts
U.S. v. Williams
• Upheld efforts by PROTECT Act to address
weaknesses in the CPPA

Computer Forensics and Cyber Crime, 3rd ed. Copyright © 2013 by Pearson Education, Inc.
Marjie T. Britz All Rights Reserved
Internet Gambling

Old Wire Act of 1961 language not


enough to respond to dramatic increase in
online sports betting and bookmaking
activities
• Unlawful Internet Gambling Enforcement Act of
2006 (UIGEA) aimed to regulate payment
systems, lifeblood of gambling activities

Computer Forensics and Cyber Crime, 3rd ed. Copyright © 2013 by Pearson Education, Inc.
Marjie T. Britz All Rights Reserved
Case Law on Internet Gaming
Statutes
• Central Hudson Gas and Electric v. Public Service
Commission of New York produced a four-prong
test regarding commercial speech, which applied
to Internet gaming:
 Is the commercial speech concerning lawful
activity and not misleading?
 Is the government’s interest in restricting the
speech in question substantial?
 Does the regulation directly advance the
governmental interest asserted?
 Is the prohibition more extensive than is
necessary to serve that interest?
Computer Forensics and Cyber Crime, 3rd ed. Copyright © 2013 by Pearson Education, Inc.
Marjie T. Britz All Rights Reserved
Case Law on Internet Gaming
Statutes
• Posadas de Puerto Rico Associates v.
Tourism Co. of Puerto Rico
 The court used Central Hudson Gas and
Electric’s four-prong test by recognizing
government's interest in protecting residents
from the harmful effects of excessive gambling

Computer Forensics and Cyber Crime, 3rd ed. Copyright © 2013 by Pearson Education, Inc.
Marjie T. Britz All Rights Reserved
Internet Gambling

• 44 Liquormart, Inc. v. Rhode Island suggested a


skepticism from the U.S. Supreme Court about a
state's interest in protecting citizens, when it
came to First Amendment protections

• Lack of international cooperation and the WTO

Computer Forensics and Cyber Crime, 3rd ed. Copyright © 2013 by Pearson Education, Inc.
Marjie T. Britz All Rights Reserved
Internet Gambling

Regarding international, online gaming:

• Online casino gambling flourishes, appealing to


U.S. citizens
• Complaint about U.S. laws, when presented to
the WTO, apparently limits them to their original
scope, so would not apply beyond those original
circumstances/situations

Computer Forensics and Cyber Crime, 3rd ed. Copyright © 2013 by Pearson Education, Inc.
Marjie T. Britz All Rights Reserved
Future Issues and Conclusions

• Tension between providing for free flow of


information, protected by First
Amendment, and compelling interest to
protect children
 However, questions remain about protections
and technologically-generated or
technologically-altered images

Computer Forensics and Cyber Crime, 3rd ed. Copyright © 2013 by Pearson Education, Inc.
Marjie T. Britz All Rights Reserved