CyberLaw Blog

Archive for May 20th, 2008

Bits: Tracking Hate 2.0 on the Web: The Simon Wiesenthal Center, a Jewish human rights organization, says the number of online hate sites has jumped 30 percent in the last year.

At the briefing, Rabbi Abraham Cooper, an associate dean at the Simon Wiesenthal Center, a Jewish human rights group based in Los Angeles, presented the organization’s annual study of online terror and hate. He said the group had identified some 8,000 problematic sites in the last 12 months, a 30 percent spike over last year.

(Via NYT > Technology.)

For further information about the Congressional Hearing visit Hate in the Information Age (15 May, 2008)

Criticism for ‘UK database’ plan: “Plans for a centralised database of all e-mail and phone calls in the UK are criticised by the IT industry.”

(Via BBC News.)

Cisco Systems Denies Online Censorship Role in China: A Cisco executive told a Senate subcommittee Tuesday that comments in an internal document about China’s goal to ‘combat’ a religious group did not reflect the company’s views on censorship.

(Via NYT > Technology.)

This is the New York Times coverage of the recent US Supreme Court decision on the “pandering” provisions.

Supreme Court Upholds Child Pornography Law - New York Times: “May 20, 2008
Supreme Court Upholds Child Pornography Law
By DAVID STOUT

WASHINGTON — The Supreme Court on Monday upheld a 2003 federal law aimed at child pornography, concluding in a 7-to-2 opinion that a federal appeals court was wrong to find the law unconstitutionally vague.

The law in question arose from a sensible, constitutionally acceptable approach by Congress to correct faults that the high court found in an earlier child-pornography law, Justice Antonin Scalia wrote for the court.

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Another detailed article discussing the recent decision of the US Supreme Court with regards to the so called “pandering” provisions.

Justices Uphold Child Porn Law: “Justices Uphold Child Porn Law
Case Involved Criminalization Of ‘Pandering’

By Robert Barnes
Washington Post Staff Writer
Tuesday, May 20, 2008; A01

The Supreme Court yesterday upheld an expansive federal law that punishes people who peddle or seek child pornography, saying Congress’s remedy for a growing problem on the Internet does not violate free-speech guarantees.

In its 7 to 2 vote, the court also concluded that the law that criminalized ‘pandering’ of real or purported child pornography online or through the mail is not unconstitutionally vague.

The majority dismissed what it called ‘fanciful hypotheticals’ that the law might make movie reviewers or even unsuspecting grandparents subject to its standards.

‘We hold that offers to provide or requests to obtain child pornography are categorically excluded from the First Amendment,’ Justice Antonin Scalia wrote.

He said that ‘child pornography harms and debases the most defenseless of our citizens,’ and that the law was ‘carefully crafted’ to respond to child pornography ‘proliferating through the new medium of the Internet.’

Justices David H. Souter and Ruth Bader Ginsburg dissented, saying ‘the First Amendment protection of expression . . . requires a limit’ even in pursuit of a worthy goal.

Federal authorities have said the law — known as the PROTECT Act (Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today) — is vital in targeting the trafficking of online child pornography.

The law bars not only the exchange of sexually explicit images of children but also any attempt to convince another person that child pornography is available. The law covers offers that do not contain actual pornography and even offers in which no pictures exist.

Its pandering provision targets the person who ‘advertises, promotes, presents, distributes or solicits . . . any material or purported material in a manner that reflects the belief, or that is intended to cause another to believe,’ that it depicts children engaged in sexual activity.

The provision is needed, authorities said, because it is often difficult to prove that pornography on the Internet involved real children.

But challengers said such language was overly broad, an argument that the U.S. Court of Appeals for the 11th Circuit in Atlanta had upheld. It would apply to ‘any promoter — be they a braggart, exaggerator, or outright liar — who claims to have illegal pornography,’ the appellate court said, even if the person had nothing more than ‘a video of ‘Our Gang,’ a dirty handkerchief or an empty pocket.’

That was not the situation with the defendant in the case, Michael Williams, who sent an undercover agent in an Internet chat room a link to images of minors engaged in sexual conduct. A subsequent search of Williams’s Florida home turned up additional child pornography. He is serving a five-year sentence for possession of the material but is contesting the additional five years he received on the pandering charge.

The American Booksellers Foundation for Free Expression and other groups had asked the court to overturn the law, saying it would restrict protected speech and allow for prosecution even if actual child pornography did not exist.

But Scalia methodically dismissed each of the hypotheticals raised by challengers and the appeals court, including whether movies that purported to show underage sex — or even advertisements for such movies — would violate the law. ‘We think it implausible that a reputable distributor of Hollywood movies, such as Amazon.com, believes that one of these films contains actual children engaging in actual or simulated sex on camera; and even more implausible that Amazon.com would intend to make its customers believe such a thing,’ he wrote.

Similarly, Scalia said, examples of grandparents swapping photos of their grandchildren in the bath or of sleeping toddlers titled ‘good pics of kids in bed’ would not run afoul of the law. No reasonable juror, he wrote, would find that the speaker meant the pictures would show ‘actual children engaged in ’sexually explicit conduct’ as defined in the act. The prosecutions would be thrown out at the threshold.’

Scalia was one of the dissenters in 2002 when the court struck down parts of an earlier law, the Child Pornography Prevention Act of 1996, saying they were written so broadly that, as Justice Anthony M. Kennedy wrote, they could apply to a production of ‘Romeo and Juliet.’

Justice John Paul Stevens had worried during oral arguments that a documentary of atrocities in foreign countries that showed soldiers raping children might violate the new law. But he joined the majority and wrote a concurring opinion saying he was convinced that Congress intended the law to apply only to material with a ‘lascivious purpose.’

He said advertising, promotion and distribution of a documentary would not be captured by the law.

But Souter said that ‘the government does not get a free pass whenever it claims a worthy objective for curtailing speech’ and that prosecutors had not shown a single case in which the law was necessary to prove a defendant guilty. ‘Perhaps I am wrong, but without some demonstration that juries have been rendering exploitation of children unpunishable, there is no excuse for cutting back on the First Amendment and no alternative to finding overbreadth in this act,’ he wrote.

The case is United States v. Williams.”

(Via .)

The Volokh Conspiracy - BREAKING — Court Upholds Child Porn Law 7-2:: “This morning the Supreme Court rejected a challenge to the a federal law prohibiting soliciting the sale or purchase of child pornography by a vote of 7-2. Justice Scalia wrote the majority opinion. Justice Stevens wrote a concurrence, joined by Justice Breyer (both of whom also joined the Scalia majority). Justice Souter dissented, joined by Justice Ginsburg. The opinions in United States v. Williams are available here, courtesy of SCOTUSblog.”

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Google defends helping police nab defamer: “Google helps police in Pune, India to arrest an user who allegedly posted vulgar information against a top Indian leader.

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(Via Macworld.)