Monday, February 11, 2013

The PROTECT Act of 2003 deserves discussion

I wanted to point out another detail from Mike Young’s book (post yesterday) that needs to be mentioned specifically on this blog.
This matter would be the PROTECT Act of 2003, or the ”Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act” of 2003. The simplest source for imparting an understanding of the provisions of the law is simply the entry on Wikipedia, here

Young notes that the Supreme Court had at one time rules that computer-generated images (stills or videos) that simulate child pornography and that didn’t use actual minors in their creation, are protected from prosecution by the First Amendment.  (I’m not sure what case this was – might have been CDA.) The 2003 law specifically punishes the user of computer generated images that look exactly like minors, inasmuch as animation technology is so good now that this can be done.  An interesting question could arise if a real actor were “made up” to look under 18 and then used in explicit images, but that sounds legal.  I wouldn’t do it! Wikipedia notes that non-obscene fictional beings under 18 do not, in the language of the law, trigger prosecution.  That makes it sound as if the person simulated in an image must exist to trigger prosecution, but that could be a very dangerous assumption for a website to make.
The law also prohibits drawings of minors that meet the “Miller Test" of obscenity, and has some age relationships as explained on Wikipedia. 
The United States Department of Justice has a Fact Sheet on the Act here
The full text of the law can be viewed on Thomas here.
Public Resource has a one-hour video on “Protect Act: The Statement of Reasons” (2010) on YouTube. 

I recall the libertarian opposition to this law back in 2003.
There is another law, the Child Protection and Sexual Predator Punishment Act of 1998, which requires ISP’s to report suspected child pornography detected on customer’s sites, although ISP’s do not monitor sites for them.  Their responsibility (as far as future liability) is a bit like DMCA Safe Harbor; it usually ends when they report and cooperate with authorities.  Wikipedia doesn’t seem to have a page for it.  

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