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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
Computer Forensics and Cyber Crime, 3rd ed. Copyright © 2013 by Pearson Education, Inc.
Marjie T. Britz All Rights Reserved
Introduction and General Principles
Computer Forensics and Cyber Crime, 3rd ed. Copyright © 2013 by Pearson Education, Inc.
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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.
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Obscenity in General
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Traditional Notions of Decency
Computer Forensics and Cyber Crime, 3rd ed. Copyright © 2013 by Pearson Education, Inc.
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Traditional Notions of Decency
Computer Forensics and Cyber Crime, 3rd ed. Copyright © 2013 by Pearson Education, Inc.
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Traditional Notions of Decency
Computer Forensics and Cyber Crime, 3rd ed. Copyright © 2013 by Pearson Education, Inc.
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Traditional Notions of Decency
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.
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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.
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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.
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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.
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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
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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
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Internet Gambling
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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.
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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
Computer Forensics and Cyber Crime, 3rd ed. Copyright © 2013 by Pearson Education, Inc.
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Internet Gambling
Computer Forensics and Cyber Crime, 3rd ed. Copyright © 2013 by Pearson Education, Inc.
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Future Issues and Conclusions
Computer Forensics and Cyber Crime, 3rd ed. Copyright © 2013 by Pearson Education, Inc.
Marjie T. Britz All Rights Reserved