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Department of Justice Releases First National Strategy for Child Exploitation Prevention and Interdiction

Department of Justice
Office of Public Affairs
FOR IMMEDIATE RELEASE
Monday, August 2, 2010

Department of Justice Releases First National Strategy for Child Exploitation Prevention and Interdiction

U.S. Marshals Service to Launch Nationwide Operation Targeting Top 500 Most Dangerous, Non-compliant Sex Offenders

WASHINGTON – Attorney General Eric Holder today announced that the Department of Justice released its first-ever National Strategy for Child Exploitation Prevention and Interdiction. The strategy also provides the first-ever comprehensive threat assessment of the dangers facing children from child pornography, online enticement, child sex tourism, commercial sexual exploitation and sexual exploitation in Indian Country, and outlines a blueprint to strengthen the fight against these crimes. The strategy builds upon the department’s accomplishments in combating child exploitation by establishing specific, aggressive goals and priorities and increasing cooperation and collaboration at all levels of government and the private sector.

As part of the overall strategy, the U.S. Marshals Service is launching a nationwide operation targeting the top 500 most dangerous, non-compliant sex offenders in the nation. Additionally, the department will create a national database to allow federal, state, tribal, local and international law enforcement partners to deconflict their cases with each other, engage in undercover operations from a portal facilitated or hosted by the database, share information and intelligence and conduct analysis on dangerous offenders and future threats and trends. The department also created 38 additional Assistant U.S. Attorney positions to devote to child exploitation cases, and over the coming months will work to fill the vacancies and train the new assistants in this specialized area.

‘Although we’ve made meaningful progress in protecting children across the country, and although we’ve brought a record number of offenders to justice in recent years, it is time to renew our commitment to this work. It is time to intensify our efforts,’ said Attorney General Holder. ‘This new strategy provides the roadmap necessary to do just that – to streamline our education, prevention and prosecution activities; to improve information sharing and collaboration; and to make the most effective use of limited resources. Together, we are sending an important message – that the U.S. government, and our nation’s Department of Justice, has never been more committed to protecting our children and to bringing offenders to justice.’

‘Thanks to law enforcement operations like Operation Nest Egg and Operation Achilles, the department and our law enforcement partners have brought thousands of offenders to justice in the last year. But this progress is only a start,’ said Acting Deputy Attorney General Gary G. Grindler. ‘Tangible steps outlined in the National Strategy will bring our fight to the next level.’

The strategy first analyzed the threat to our nation’s children and described the current efforts at all levels of the government against this threat. Since FY 2006, the Department of Justice has filed 8,464 Project Safe Childhood (PSC) cases against 8,637 defendants. These cases include prosecutions of online enticement of children to engage in sexual activity, interstate transportation of children to engage in sexual activity, production, distribution and possession of child pornography and other offenses.

Despite vigorously fighting all aspects of child exploitation, the department recognized that more work remains to be done. To that end, the department’s strategy lays out goals to increase coordination among the nation’s investigators, better train investigators and prosecutors, advance law enforcement’s technological capabilities and enhance research to inform decisions on deterrence, incarceration and monitoring. The strategy also includes a renewed commitment to public awareness and community outreach.

As part of its public outreach efforts, the department is re-launching ProjectSafeChildhood.gov, PSC’s public website. PSC is a department initiative launched in 2006 that aims to combat the proliferation of technology-facilitated sexual exploitation crimes against children. Led by U.S. Attorneys’ Offices and the Criminal Division’s Child Exploitation and Obscenity Section, PSC marshals federal, state, tribal and local resources to better locate, apprehend and prosecute individuals who exploit children via the Internet, as well as to identify and rescue victims.

For more information regarding the National Strategy to Combat Child Exploitation, Prevention and Interdiction, please visit: www.projectsafechildhood.gov/docs/natstrategyreport.pdf

Links to blog in email made sender liable, says US court: “

Defamatory content ‘published’

A US bankruptcy court has said that a man committed defamation just by forwarding an email with links in it to online material that was defamatory. The court said that the man ‘published’ the blog to his email recipients.…

“

(Via The Register – Public Sector.)

Messaging at work: Supreme Court rules in favor of employer who read worker’s messages – latimes.com

Supreme Court rules in favor of California police chief who read employee’s texts

The justices say the Ontario employer’s perusal of an officer’s sexually explicit messages, sent on his work pager, is justified and didn’t violate the 4th Amendment.

By David G. Savage, Tribune Washington Bureau

June 18, 2010

The Supreme Court on Thursday rejected a broad right of privacy for workers who send text messages on the job, ruling that supervisors may read through an employee’s communications if they suspect rules are being violated.

In a 9-0 ruling, the justices said a police chief in Ontario, Calif., did not violate the constitutional rights of an officer when he read the transcripts of sexually explicit text messages sent from the officer’s work pager.

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In this case, the high court said, the police chief’s reading of the officer’s text messages was a search, but it was also reasonable.

The court’s ruling comes at a time when most U.S. workers spend at least part of their day talking on phones or sending messages on computers or cellphones, many supplied by their employers.

At issue was whether the 4th Amendment’s ban on ‘unreasonable searches’ puts any limits on searches by public employers. The court said the limits were minimal, so long as the employer had a ‘work-related purpose’ for inspecting an employee’s desk or reading messages sent by the employee on an agency paging system.

This decision applies directly to the more than 20 million employees of state and local governments, as well as federal workers. In the past, the court’s decisions on the right to privacy have also influenced decisions in the private sector.

The ruling tossed out a privacy suit brought by a former police sergeant against the police chief in Ontario. Concerned that officers were using their text pagers mostly for personal messages, Chief Lloyd Scharf decided in 2002 to read some of them.

He learned most of the messages sent by Sgt. Jeff Quon were personal, and some were sexually explicit. Some of Quon’s messages were sent to an ex-wife, others to a girlfriend. In August 2002, for example, the audit found Quon had sent or received 456 messages, but only 57 were work-related.

After learning his messages had been read, Quon sued Scharf and the city, and won a ruling from the U.S. 9th Circuit Court of Appeals. Its judges said there was no need to snoop through Quon’s personal messages. They noted that Quon’s commanding officer had told him he could use the pager for personal messages, so long as he paid the cost.

But the Supreme Court disagreed. The justices said the law tilts the balance in favor of the employer, not the employee. A public employee has at most ‘a limited privacy expectation’ when using a text pager supplied by the police department, the justices said.

‘Because the search [by the police chief] was motivated by a legitimate work-related purpose and because it was not excessive in scope, the search was reasonable,’ said Justice Anthony M. Kennedy in City of Ontario vs. Quon.

More than 20 years ago, in its only similar ruling, the high court had upheld the search of an office and the desk of a doctor who worked for a state-run hospital in Northern California. In that case, the justices said that although the doctor had some right to privacy in his desk, hospital administrators could search if they had a legitimate basis for suspecting wrongdoing.

In Thursday’s opinion, the court said the same rationale applied to messages sent on a texting system supplied by a public agency.

The lawyer for Quon called the ruling a setback for employees everywhere. ‘It is a very bad opinion,’ said Michael McGill, a lawyer in Upland. ‘They are chipping away at the constitutional rights of employees.’

Kent Ashland, a lawyer for the city of Ontario, said the ruling vindicated the actions of the police chief.

‘This says what they did was reasonable in light of the circumstances,’ Ashland said. He also said the ruling was not a complete defeat for workers. ‘The court says there must be a legitimate reason for the search. It protects privacy to that extent.’

The text messaging case drew wide interest among experts in workplace law and privacy. Kennedy cautioned that the decision was narrow and did not seek to resolve all the disputes that will arise in an era when most employees spend much of their day using computers and cellphones.

Business lawyers said they advised employers to tell employees they did not have a right to privacy when they used a computer or cellphone supplied by the agency. And employees need to heed the warning, said Damon Dunn, a Chicago lawyer. They ‘need to anticipate their communication devices may be monitored for seemingly routine business purposes,’ he said, ‘even if the search reveals intimate and embarrassing information.’

david.savage@latimes.com

Copyright © 2010, The Los Angeles Times

EFF, Public Citizen And ACLU Ask Judge To Quash Mass Subpoenas From US Copyright Group: “While companies like Verizon apparently won’t stand up to protect their users’ rights against the ridiculous and overly broad mass copyright infringement lawsuit filings made by a group called US Copyright Group (really a DC-based lawfirm called Dunlap, Grubb and Weaver), Time Wadrner Cable is pushing back, but mainly on procedural issues — not in any way to stand up for the rights of those being sued. Thankfully, it looks like the EFF, Public Citizen and the ACLU are trying to help out.

Those three organizations filed an amicus brief with the court in the Time Warner Cable case, where they point out that there are multiple reasons why the subpoenas should be quashed. Among the many problems with the process used by USCG are the ideas of suing thousands of people in a single lawsuit and all in Washington DC. Obviously, this makes it easier and cheaper for Dunlap, but it’s not how the legal system is supposed to work. First, it only makes sense that each lawsuit should be filed individually, as each involves different circumstances. Second, they should be filed in the proper jurisdiction, not in DC. As the briefing notes:

This Court cannot consider this case unless it has personal jurisdiction over the Doe
Defendants, and it is Plaintiff’s burden to show that such jurisdiction exists. The Constitution
imposes that burden on every plaintiff as a fundamental matter of fairness, recognizing that no
defendant should be forced to have his rights and obligations determined in a jurisdiction with
which he has had no contact. These requirements ‘give[ ] a degree of predictability to the legal
system that allows potential defendants to structure their primary conduct with some minimum
assurance as to where that conduct will and will not render them liable to suit.’ World-Wide
Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980).

Plaintiff has not met this burden. Instead, the very information upon which Plaintiff
relies as a basis for seeking the identity of the Doe defendants — their Internet Protocol (IP)
addresses — indicates that few, if any, reside in this District. If, as it appears, the vast majority of
the Doe defendants do not have sufficient minimum contacts with this jurisdiction to satisfy due
process, the Court should quash the subpoena for information about out-of-district defendants.

….

Requiring individuals from across the country to litigate in this District creates exactly
the sort of hardship and unfairness that the personal jurisdiction requirements exist to prevent. It
requires the individuals urgently to secure counsel far from home, where they are unlikely to
have contacts. In this particular instance the hardship is very clear. When the underlying claim is a single count of copyright infringement, the cost of securing counsel even to defend a
defendant’s identity is likely more than the cost of settlement, and possibly even more than the
cost of judgment if the Defendant lost in the litigation entirely.

As for lumping all of the lawsuits into a single filing, the brief shows that courts have rejected this approach in the past as unreasonable and should do so again here:

There is little doubt that Plaintiff’s joinder of more than 4,500 defendants in this single
action is improper and runs the tremendous risk of creating unfairness and denying individual
justice to those sued. Mass joinder of individuals has been disapproved by federal courts in both
the RIAA cases and elsewhere. As one court noted:

Comcast subscriber John Doe 1 could be an innocent parent whose internet access
was abused by her minor child, while John Doe 2 might share a computer with a
roommate who infringed Plaintiffs’ works. John Does 3 through 203 could be
thieves, just as Plaintiffs believe, inexcusably pilfering Plaintiffs’ property and
depriving them, and their artists, of the royalties they are rightly owed. . . .

Wholesale litigation of these claims is inappropriate, at least with respect to a vast
majority (if not all) of Defendants.

BMG Music v. Does 1-203, No. Civ.A. 04-650, 2004 WL 953888, at *1 (E.D. Pa. Apr. 2, 2004)
(severing lawsuit involving 203 defendants).

Rule 20 requires that, for parties to be joined in the same lawsuit, the claims against them
must arise from a single transaction or a series of closely related transactions. Specifically:

Persons . . . may be joined in one action as defendants if: (A) any right to relief is
asserted against them jointly, severally or in the alternative with respect to or
arising out of the same transaction, occurrence, or series of transactions or
occurrences; and (B) any question of law or fact common to all defendants will
arise in the action.

Fed. R. Civ. P. 20. Thus, multiple defendants may be joined in a single lawsuit only when three
conditions are met: (1) the right to relief must be ‘asserted against them jointly, severally or in
the alternative’; (2) the claim must ‘aris[e] out of the same transaction, occurrence, or series of
transactions or occurrences’; and (3) there must be a common question of fact or law common to
all the defendants. Id.

Joinder based on separate but similar behavior by individuals allegedly using the Internet
to commit copyright infringement has been rejected by courts across the country. In LaFace
Records, LLC v. Does 1-38, No. 5:07-CV-298-BR, 2008 WL 544992 (E.D.N.C. Feb. 27, 2008),
the court ordered severance of lawsuit against thirty-eight defendants where each defendant used
the same ISP as well as some of the same peer-to-peer (‘P2P’) networks to commit the exact
same violation of the law in exactly the same way. The court explained: ‘[M]erely committing
the same type of violation in the same way does not link defendants together for purposes of
joinder.’ LaFace Records, 2008 WL 544992, at *2. In BMG Music v. Does 1-4, No. 3:06-cv-
01579-MHP, 2006 U.S. Dist. LEXIS 53237, at *5-6 (N.D. Cal. July 31, 2006), the court sua
sponte severed multiple defendants in action where the only connection between them was
allegation they used same ISP to conduct copyright infringement.

The brief also takes issue with the evidence that Dunlap presents in the USCG filings:

Moreover, Plaintiff provides no specific evidence other than its summary declarations to
establish that its investigation was done for each Doe. And such evidence ought to be readily
available, including screen shots showing the IP addresses of the Doe defendants so the Court
can see that the addresses submitted to the Court match those discovered during the
investigation, copies or real-time capture of the activities of the ‘proprietary technologies’ used,
and shots of the P2P server logs that to which Plaintiff apparently had access. Without those, the
declarations merely describe downloading activity in general, and fail to provide the Court with
real information linking each of the individuals sued to the alleged infringement.

This is a big concern because Dunlap and USCG are seeking to reveal private information based on incredibly flimsy evidence:

Robust protection for the right to engage in anonymous communication — to speak, read,
view, listen, and/or associate anonymously — is fundamental to a free society. See, e.g., Talley v.
California, 362 U.S. 60 (1960) (recognizing the First Amendment right to communicate
anonymously); McIntyre v Ohio Elections Comm’n, 514 U.S. 334 357 (1995) (same;
‘Anonymity is a shield from the tyranny of the majority.’); Lamont v. Postmaster General, 381
U.S. 301 (1965) (recognizing the First Amendment right to receive ideas in privacy). This
fundamental right enjoys the same protections whether the context for speech and association is
an anonymous political leaflet, an Internet message board or a video-sharing site. See Reno v.
ACLU, 521 U.S. 844, 870 (1997) (there is ‘no basis for qualifying the level of First Amendment
scrutiny that should be applied to’ the Internet).

Courts in this District have recognized that First Amendment protections extend to the
anonymous publication of expressive works on the Internet even where, as here, that publication
is alleged to infringe copyrights. In re Verizon Internet Servs. Inc., 257 F. Supp. 2d 244, 260
(D.D.C.), rev’d on other grounds, 351 F.3d 1229 (D.C. Cir. 2003) (hereinafter ‘Verizon’); see
also UMG Recordings, Inc., v. Does, No. 06-0652 SBA, 2006 WL 1343597, at *2 (N.D. Ca.
March 6, 2006) (citing Sony Music Entm’t, Inc. v. Does 1-40, 326 F. Supp. 2d 556, 564
(S.D.N.Y. 2004)). As the court in Sony noted:

Arguably, however, a file sharer is making a statement by downloading and
making available to others copyrighted music without charge and without license
to do so. Alternatively, the file sharer may be expressing himself or herself
through the music selected and made available to others. Although this is not
‘political expression’ entitled to the ‘broadest protection’ of the First
Amendment, the file sharer’s speech is still entitled to ’some level of First
Amendment protection.’

326 F. Supp. 2d at 564 (quoting Verizon) (citations omitted). The Sony court continued:
‘Against the backdrop of First Amendment protection for anonymous speech, courts have held
that civil subpoenas seeking information regarding anonymous individuals raise First
Amendment concerns.’

No one is arguing that a legitimately filed lawsuit shouldn’t entitle USCG to get the right to an individual’s information. The issue is that not nearly enough evidence is presented in these cases, and what is presented is done in a way that does not allow an individual to protect their First Amendment rights. This destroys the basic balance that the courts have established to permit such lawsuits to go forward.

The filing is an important one, and it’s unfortunate that it had to come from three public interest groups rather than the ISPs themselves. In an email from Verizon PR, in response to a question on this issue from reporter Dave Burstein, Verizon PR gave the ‘we’re just following orders’ response, and tries to suggest it goes above and beyond by giving their customers a week or less of notification to fight this on their own. Verizon (and Time Warner Cable) could be making these same arguments on behalf of their customers, and it’s a shame that they have not and, in fact, have handed over information on such flimsy proof in such questionably filed lawsuits.

Permalink

(Via Techdirt.)

LimeWire must share users’ liabilities for copyright infringement, says US court: “Peer to peer (P2P) software company LimeWire induced its users to infringe copyright by the unauthorised sharing of music and film files and shares responsibility for that infringement, a US court has ruled.“

(Via OUT-LAW News.)

US telco watchdog finds new legal basis for regulating ISPs: “The US telecoms regulator has redefined internet access in order to assert its authority to regulate the provision of broadband access there. The regulator recently suffered a legal defeat when a court ruled that it did not have the authority it claimed.“

(Via OUT-LAW News.)

Cybercrime talks end in failure

US and Euros object to proposed changes: Plans to ratify an updated version of a global treaty against cybercrime have failed.…

(Via The Register – Public Sector.)

US, EU to launch programme against Internet child pornography – The Independent

AFP, Sunday, 11 April 2010

The United States and the European Union announced they plan to launch a joint action programme to fight child pornography on the Internet.

The agreement was announced at the end of an EU-US meeting of justice and interior ministers in Madrid.

‘We decided on something very important for both our citizens, that is to set up a common action in order to take down child pornography from the Internet,’ said EU Commissioner for Home Affairs Viviane Reding.

‘Child pornography should be eliminated whenever we spot it,’ she told a news conference.

‘Many of those sites are all over the planet, many are in Europe, many are in the United States. We should join forces to protect children and to give no chance to pornography.’

The Swedish commissioner said the programme would involve the use of ‘hotlines’ and the European police agency Europol.

‘We are looking forward to this action, that is going to be set up in the coming weeks.’

Spanish Interior Minister Alfredo Perez Rubalcaba, whose country holds the six-month rotating presidency of the European Union, said the two sides also discussed efforts to combat cyber crime in general.

‘We know that if the Internet is global by definition we need to prevent child pornography and other cyber crimes from happening,’ he said.

Spanish police have stepped up their fight against Internet child pornography in recent years, arresting hundreds, aided by Hispalis, a computer programme that identifies those who access paedophile sites.

The US delegation at the meeting was headed by Attorney General Eric Holder and Homeland Security Secretary Janet Napolitano.

Federal Judge Finds N.S.A. Wiretaps Were Illegal – NYTimes.com

By CHARLIE SAVAGE and JAMES RISEN
Published: March 31, 2010

WASHINGTON — A federal judge ruled Wednesday that the National Security Agency’s program of surveillance without warrants was illegal, rejecting the Obama administration’s effort to keep shrouded in secrecy one of the most disputed counterterrorism policies of former President George W. Bush.

In a 45-page opinion, Judge Vaughn R. Walker ruled that the government had violated a 1978 federal statute requiring court approval for domestic surveillance when it intercepted phone calls of Al Haramain, a now-defunct Islamic charity in Oregon, and of two lawyers representing it in 2004. Declaring that the plaintiffs had been ‘subjected to unlawful surveillance,’ the judge said the government was liable to pay them damages.

The ruling delivered a blow to the Bush administration’s claims that its surveillance program, which Mr. Bush secretly authorized shortly after the terrorist attacks of Sept. 11, 2001, was lawful. Under the program, the National Security Agency monitored Americans’ international e-mail messages and phone calls without court approval, even though the Foreign Intelligence Surveillance Act, or FISA, required warrants.

The Justice Department said it was reviewing the decision and had made no decision about whether to appeal. (more…)

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.