Thursday, December 07, 2017

Sexting case seems to fail in unreasonable intimate search of male teen by police

Here is a bizarre case in Virginia where police went too far in investigating a teenager suspected of sending pornographic images of himself to an underage girl. Tom Jackman has the story in the Washington Post Dec. 6.  The incident took place in Manassas in Prince William County, about 30 miles from Washington.

The cased move to the federal system and to the 4th Circuit, as a 4th Amendment issue. The 4th Circuit Ruling is here

Saturday, November 25, 2017

Case against California doctor dismissed because original image was not illegal and subsequent searches were illegal

The child pornography possession case against a California oncologist has been dismissed after a federal judge had ruled that the original evidence used to justify his home search inadmissible (May 18). Tom Jackman has his update story in the Washington Post on p A2 on Friday, November 24, 2017.  The defendant had filed suit with the help of the Electronic Frontier Foundation. 

Again, it’s worthy of note that images found in unallocated space (related to deletion) may lack the metadata necessary to show possession in the eyes of the law.

Furthermore, the one image in question, allegedly of a minor female, may have constituted erotica but was not explicit enough to meet the definition of child pornography, according to the judge.  There is some controversy over this, as I know other material on this issue claims that images (at least photos, not animation) intended to arouse could be considered pornographic even if they don’t “show everything.”

But the case is thrown out because all the subsequent searches of the doctor’s house were ruled illegal, and therefore inadmissible, because the original image did not meet the legal definition of child pornography.

There remains a troubling question of whether technicians at the Geek Squad center in Kentucky (where computers needing extensive repairs are sent) were paid by the FBI and may have made gratuitous examinations of the hard drives. Company policy says that technicians will not look for illegal images but must report them when found. There remains a questions as to the legal judgment of a technician as to what is an illegal image (as in this case).  We’ve covered before the troubling possibility that an illegal image could be placed on a computer by malware (and there is at least one variant of ransomware that does so).

The sex trafficking issue may seem part of this, because many sex trafficking victims (especially overseas) are minors.  Viewing an ad for sex trafficking would not be illegal, but responding to one might well be.

Viewing of a motion picture of video or still image (on a computer or smartphone) produced overseas could raise legal questions.  In the United States, actors must certify they are 18 or over in order to act in adult films. The age may be lower in Europe.  Most reputable production companies enforce the 18 year old rule overseas, but some might not, exposing the viewer to possible legal liability, it would seem. 

Wednesday, November 15, 2017

Thune's amendment to SESTA seen as unworkable by EFF

Senator John Thune (R-SD) has floated an amendment t SESTA (S 1693) that would criminalize online platforms that “assist, support, of facilitate” sex trafficking, and reinforce “state of mind” provisions.  The “manager’s amendment” is explained in an EFF article Nov. 3 by Sophia Cope.

Thune seems to believe his amendment will make the law less of a problem for “legitimate” hosts and forums, as they purport to implement what Thune calls a “knowing” standard. 

(See correlated post today on my main "BillBoushka" blog.)

Tuesday, November 07, 2017

Anthony Weiner begins sentence for criminal behavior that really had indirect unintended consequences for all "the people"

Former Congressman Anthony Weiner was  sentenced to 21 months in prison for a few instances of receiving or transmitting obscene images with a minor under 16, in early 2016.  Some of the images had been transmitted with apps that normally delete images after viewing.

He will also have three years of supervised release and have to register as a sex offender. CNN
CNN ran the story Sept. 25 here

The Huffington Post reported on Nov. 6 that he had reported to start his sentence at a federal “treatment center” in Massachusetts.

Weiner’s activities wound up leading to complications during the last two weeks of the 2016 regarding the discovery of emails from Hillary Clinton to his ex wife.  Had this not happened. Hillary might have won the election.


So Weiner’s conduct had accidental consequences that affected many people. This is a true example of where criminal justice is for “the people” and not just one “victim”. 

Thursday, October 12, 2017

Washington DC not tracking teachers with criminal records

Scott McFarland of NBC Washington reports on Washington DC’s lack of a system to keep known sex offenders from resuming teaching in Washington DC.  Apparently the City is unreliable in using the MASDTEC database, and other states might not find out why a teacher was dismissed. e story aired on Wednesday Oct. 11, here.

There seem to be many problems with teacher background checks.  Stories about teachers started to increase around 2006, after NBC aired its series “To Catch a Predator” with Chris Hansen.  Most offenders were heterosexual. 

Sunday, October 08, 2017

Sex trafficking laws can catch unknowing bystanders

While Backpage and Section 230 continue to provide legal controversy, zealous prosecution of those who incidentally, and perhaps inadvertently, assist sex trafficking of minors becomes a problem.
Truthout, in a long piece by Lauren Walker, describes a federal conviction of a young woman who allowed an underage minor sex worker in her mother’s apartment to change clothes and apparently have a sex act, as guilty of trafficking and is on a sex offender registry for life (link).   The young woman says she was told that the other girl was an adult.  All of this is fallout from the Trafficking Victims Protection Act. 

One wonders if allow one's Internet connection to be used without one's knowledge for trafficking could qualify as an offense. 

Thursday, September 28, 2017

Hollywood lobbies hard to hold service providers responsible for downstream liability in the Backpage-Section 230 controversy

Today, the Cato Institute held a day-long symposium in Washington DC, “The Future of the First Amendment”.

Most of the remarks about Section 230  and the recent Backpage controversy are on the “BillBoushka” blog entry.

But in a private conversation after the event, and executive from Cloudflare said that the law regarding sex trafficking already worked the same was as the law does for child pornography. That is (as Volokh suggested at lunch), intermediaries need report violations only when they know about them; they don’t have to go looking for them in advance.
He also suggested that Hollywood had been lobbying the Backpage issue deliberately to weaken Section 230, even though in the copyright world Hollywood has the benefit of a similarly structured DMCA Safe Harbor,,