CyberLaw Blog

Archive for the ‘sexting’ Category

Court Says Parents Can Block ‘Sexting’ Cases – NYTimes.com

By TAMAR LEWIN, Published: March 17, 2010

In the first federal appeals court opinion dealing with ‘sexting’ — the transmission of sexually explicit photographs by cellphone — a three-judge panel of the United States Court of Appeals for the Third Circuit ruled Wednesday that parents could block the prosecution of their children on child pornography charges for appearing in photographs found on some classmates’ cellphones.

‘It does not resolve all of the constitutional issues implicated in sexting prosecutions, but it’s a terrific start for civil liberties,’ said Witold Walczak, legal director of the American Civil Liberties Union of Pennsylvania, who represented the parents.

The case, Miller v. Mitchell, began in 2008 when school officials in Tunkhannock, Pa., discovered seminude and nude photographs of some female students — some as young as 12 or 13 when the photographs were taken — on other students’ cellphones. The officials confiscated the phones and turned them over to the Wyoming County District Attorney’s Office.

The district attorney at the time, George Skumanick Jr., said that students possessing ‘inappropriate images of minors’ could be prosecuted for possession or distribution of child pornography, and sent letters to the parents of the students with the phones — and the parents of students who appeared in the photographs — threatening to prosecute any student who did not participate in an after-school ‘education program.’

The syllabus called for the girls to write a report explaining why they were there, what they had done, and why it was wrong.

‘Participation in the program is voluntary,’ the letter said. ‘Please note, however, charges will be filed against those that do not participate or those that do not successfully complete the program.’

Three families whose daughters were in the photographs refused to participate and instead filed suit to block the charges, which they said would amount to retaliation for that refusal. They said the district attorney’s actions interfered with the girls’ constitutional rights to be photographed and to be free from compelled speech — and with the parents’ rights to direct their children’s upbringing.

In March, the district court temporarily barred the district attorney from initiating any criminal charges against the girls. Wednesday’s opinion came in response to his appeal and upholds the injunction but does not resolve the case.

The unanimous ruling of the judges, Thomas L. Ambro, Michael A. Chagares and Walter K. Stapleton, criticized the district attorney’s reliance on the girls’ presence in the photographs as a basis for the potential charges.

‘Appearing in a photograph provides no evidence as to whether that person possessed or transmitted the photo,’ said the opinion, by Judge Ambro.

US – Study: 15 percent of teens have gotten 'sext' messages: “(CNET)
Sending explicit content, such as naked or near-naked photos, via text message – a phenomenon also known as ’sexting’ – is a familiar phenomenon among some teens, according to a survey by the Pew Research Center. Older teens, especially those who foot their own cell phone bills, are much more likely to send and receive these images. While 8 percent of 17-year-olds with cell phones have sent a sexually provocative image by text, this number goes up to 17 percent among those who pay their bills themselves. In all, 30 percent of 17-year-olds have received explicit images on their phones. The survey also shows that while the exchange of nude images mostly takes place among romantic partners or potential partners of the same age, these images are also forwarded to non-partners or people in different age groups.

(Via QuickLinks Update.)

I wondered when they would issue this warning in the UK!

Police warn over rise of teenage ’sexting’ trendPolice, parents and children’s charities have expressed alarm at a growing trend dubbed ‘sexting’, where young people send explicit and indecent photos to each other using their mobile phones.

(Via Tech and Web from Times Online.)

US judge bars teen ’sexting’ charges: “

Provocative is as provocative does

A federal judge has temporarily barred a Pennsylvania prosecutor from filing child pornography charges against three teenage girls who took nude or semi-nude pictures of themselves.…

“

(Via The Register – Public Sector.)

ACLU Sues Prosecutor Over ‘Sexting’ Child Porn Charges | Threat Level from Wired.com

By Kim Zetter EmailMarch 25, 2009 | 2:12:01 PMCategories: Crime

The American Civil Liberties Union is helping three teenage girls fight back against a Pennsylvania prosecutor who has threatened to charge the girls with felony child porn violations over digital photos they took of themselves.

In a federal lawsuit filed Wednesday in Pennsylvania, ACLU lawyers accuse District Attorney George P. Skumanick, Jr. (.pdf) of violating the civil rights of the girls. The lawsuit says the threat to prosecute the minors ‘is unprecedented and stands anti-child-pornography laws on their head.’

The lawsuit comes in the wake of a string of cases around the country in which teens have been arrested on child porn charges for making and distributing nude and semi-nude photos of themselves.

At issue in the case are photos seized from student cellphones last year by officials of the Tunkhannock School District in Wyoming County, Pennsylvania. The practice of taking nude or semi-nude self-portraits and distributing them via a cellphone or the internet has come to be called ’sexting’ and has resulted in teens being arrested in a number of states under child porn production, distribution and possession charges.

The Tunkhannock case involves two photos depicting the three girls. One photo of Marissa Miller and Grace Kelly shows them two years ago at age 13 lying side by side while one talks on the phone and the other makes a peace sign with her fingers, according to the ACLU complaint. The two are photographed from the waist up and are wearing white opaque bras. A second photo shows a girl referred to in the court document as ‘Jane Doe’ photographed outside a shower with a towel wrapped around her waist. Her breasts are bared.

Last October, Tunkhannock school officials discovered that male students had been trading these and other photos, showing various states of undress, on their phones. Officials confiscated the phones and turned them over to Skumanick’s office, which began a criminal investigation.

Skumanick told an assembly of students that possessing inappropriate images of minors could be prosecuted under state child porn laws. Anyone convicted under the laws faces a possible seven year sentence and a felony conviction on their record. Under a state sex offender law, they must also register as a sex offender for 10 years and have their name and photo posted on the state’s sex offender website — the latter requirement will include juvenile offenders when the law is amended later this year.

Skumanick, who is running for re-election in May, also sent a letter to 20 students, including the three girls, who were found in possession of images. In a meeting with the students and their parents, he said he would file felony charges against the students unless they agreed to six months of probation, among other terms. He gave the parents 48 hours to agree. The parents of the three girls in the ACLU suit refused to sign.

Skumanick then threatened to charge the girls with producing child porn unless their parents agreed to the probation, and sent the teenagers to a five-week, 10-hour education program to discuss why what they did was wrong and what it means to be a girl in today’s society. The girls would also have to subject themselves to drug testing — a standard probation term in the county.

In an interview with Threat Level, Skumanick defended his actions, and said he offered the agreement in an attempt to avoid prosecution while still teaching the teens a lesson.

‘In other places around the country, they’ve simply charged [teens] and not given them an opportunity to avoid a criminal record,’ the prosecutor said. ‘Frankly, it would have been simpler to just charge them and force them to do what we wanted them to do. But then they’d end up with criminal records, and we felt this was a better approach. We were trying to do the right thing by helping them out.’

He pointed to an incident last year in Ohio to emphasize the dangers of sexting. In that case, a teenage girl killed herself over a nude photo she sent to her boyfriend, which he’d redistributed to other students, who taunted her.

‘Once these photos are out, God only know who’s going to get them,’ Skumanick said.

The ACLU of Pennsylvania is representing the three girls and their parents. In its lawsuit — filed in U.S. District Court for the Middle District of Pennsylvania — the organization charges that Skumanick violated the girls’ First Amendment rights. The lawsuit says the photos do not constitute child pornography under Pennsylvania’s criminal code since they depict no sexual activity and do not display the pubic area of the girls’ bodies.

The ACLU wants a federal judge to bar the prosecutor from charging the girls.

‘Skumanick’s threatened prosecution chills Plaintiff’s First Amendment right of expression, causing them concern about whether they may photograph their daughters, or whether the girls may allow themselves to be photographed, wearing a two-piece bathing suit,’ the ACLU wrote.

The lawsuit also claims the demand that the parents agree to place their girls in an education program violates the parents’ Fourteenth Amendment rights to direct the upbringing of their own children.

When lawyers for the parents asked for a copy of the photos that would be used to charge their children, Skumanick reportedly refused on grounds that he would be committing a crime by sharing child porn.

Skumanick still insists the images are child porn under the state law, which makes it a felony to possess or distribute images depicting a minor engaged in a sex act or the ‘lewd’ depiction of genitalia or nudity that is meant to arouse or titillate.

‘Just depicting nudity could be considered a sex act,’ he told Threat Level.

He said the photo of Miller and Kelly ‘at least constitutes open lewdness’ — which is a misdemeanor in the state — and the picture of ‘Jane Doe’ standing outside the shower ‘frankly is child porn under the statute.’ He said school administrators confiscated other pictures that showed even more nudity.

Witold Walczak, legal director for the ACLU of Pennsylvania, disagreed with Skumanick’s definition of child porn.

‘It’s not just pictures of kids that may show a little bit of flesh. It’s either got to depict sexual activity or it’s got to be some lascivious display,’ he said. ‘If you’ve just got kids standing upright outside a shower, that’s not lascivious. … If anyone needs to understand this, it’s prosecutors who have this heavy hammer they can bring down on people.’

Walczak said that ’sexting’ is a problem that parents and educators need to address. But felony charges aren’t the answer.

‘Teens are stupid and impulsive and clueless,’ he said. ‘But that doesn’t make them criminals. Child porn charges that land you on an internet registry even if you’re a juvenile? That’s a heck of a way to teach a kid a lesson about not being careless.’

He added that beyond the problem inherent in charging teens for child porn are Fourth Amendment issues related to the school district having searched the phones of his clients and other students to uncover stored images.

He said the ACLU is looking at bringing suit against school administrators either in Tunkhannock or elsewhere to challenge the searches.

This story was updated with comments from Skumanick and the ACLU.

Students Sue Prosecutor in Cellphone Photos Case: “Almost unheard of a year or two ago, cases related to ‘sexting,’ nude or seminude photos sent over wireless phones, are popping up all over the country.”

(Via NYT > Child Pornography.)

FOXNews.com – 6 Pennsylvania Teens Charged With Cell Phone ‘Sexting’

Tuesday, January 13, 2009

GREENSBURG, Pa. — Three teenage girls who allegedly sent nude or semi-nude cell phone pictures of themselves, and three male classmates in a western Pennsylvania high school who received them, are charged with child pornography.

Police in Greensburg, about 30 miles east of Pittsburgh, say the girls are 14 or 15 and the boys charged with receiving the photos are 16 or 17. None are being identified because most criminal cases in Pennsylvania juvenile courts are not public.

Police say Greensburg Salem High School officials learned of the photos in November when a student was seen using a cell phone during school hours, which violates school rules.

The phone was seized and the photos were found on it. When police investigated, other phones with more pictures were seized.