Fogle will plead guilty in controversial and legally troubling child pornography possession case

There is more development of the news story of Jared Fogle, who now will plead guilty to possession of child pornography, after his home was raided, following the arrest in July of Russell C. Taylor.  CNN has a detailed story by Dana Ford here. That story links to an earlier posting by Mark O’Mara warning computer users that they can be held responsible for child pornography placed on their devices by others (like roommates, spouses or children) unless they can show they didn’t know.  As noted in some news stories in the summer of 2013, the possibility of hacking (or malware) and defenses to it sounds troubling, even if actual incidents are infrequent.  Cases like Fogles are sometimes discovered by monitoring for digital watermarks on the Internet by CMEC in Alexandria, VA, but the government could become more aggressive in monitoring “the cloud” in the future.

  

CNN covered the latest story on AC360 Tuesday night.  Jeffrey Toobin reinforced what O’Mara says in his July 2015 op-ed on CNN.
 
Update:  As of Wednesday morning, the charges against Fogle became more "serious".  Follow the media. 

Reviewing the history of CPPA and "virtual child pornography"

When I saw the movie “The Diary of a Teenage Girl” Saturday night (review Movies blog Sunday morning), I wondered if the images in the film, purporting to be of a 15-year-old girl, could be illegal (child pornography).  I presume that since the actress who played her was actually 21, there would be no legal problem (as long as the production company collected evidence of her age, which all reputable US, Canadian, Australian and European movie studios do to comply with laws).

Previously I’ve covered COPPA and CIPA (as well as COPA) in this blog, but some time back, in 1996, there was also a law called CPPA, the Child Pornography Prevention Act, which was largely overturned by the Supreme Court in 2002 (Ashcroft v. Free Speech Coalition).  Some technicalities regarding expert testimony remained, and then Congress muddied the waters again with the PROTECT Act (Prosecutorial Remedies and Other Tools to End the Exploitation of Children), which would make the goading of customers a crime even if no real minors were involved.

All of this is explained pretty thoroughly in a somewhat rambling post by the First Amendment Center, “Virtual Child Pornography”, by David L. Hudson, posted first in 2002 and updated in 2009.  The article appears to show that, without the Supreme Court’s overturning of CPPA, movies like “American Beauty” and “Traffic”, let alone “Teenage Girl”, would be illegal.

The controversy over drawings or animations that simulate child pornography would be similar as Congress has tried to outlaw it.  If an actual minor had been the subject of such a drawing or painting, that would still seem to make the work or possessing it illegal.

The DOJ actually gives less detail in its own explanation.

 

UK activist proposes various child-protection measures like "delete buttons"; India enforces COPA-like measure on adults

A UK “peer” is calling for all websites allowing users to add content have a “delete” button for those under 18.  She wants rules to make the Internet more suitable and welcoming for “young people”.
  

But most comment systems and social media already allow users to delete their own posts now.  And it’s unclear how she would identify those under 18.

  

The story by Glyn Moody on Ars Technica is here.

  

The “baroness” wants young people to have other digital rights, such as what others can do with their information. But the biggest right should be digital education – to understand that what you put up probably can’t be disappeared.

The story also mentions Google’s polite refusal to extend “the right to be forgotten” to the whole world. One country can’t impose on another one. 

  

Along the lines of memories of COPA, India has suddenly cracked down on porn sites, Washington Post story here.  But the concern isn’t so much with “harmful to minors” as “harmful to the unstable”, as it goes much further than US law would allow with censhorship.

Age verification issue with dating app leading to "sex offender" case in Michigan raises new questions about possible future COPA

A recent case where a teenager was plead out as a sex offender (after brief jail sentence) when his female partner had lied about her age, raises potential questions regarding any possible future COPA-like laws.  The female had told the boy that she was 17 in messaging, when she was actually 14, and she had signed up on the adult section (probably violating terms of service) of the “What’s Hot” dating app.  (I’m not sure which link from Google is correct given the information in news stories; it seems to be a downloadable app for smart phones.) 

  

The natural question is, could the app have verified her age?  We know from all the testimony of the COPA trial (2007) that reliable age verification or adult-id systems were viewed as insufficient at the time.  However, new biometric ID systems are appearing (especially with Windows 10).  It’s logical to ask whether they could be expected for dating sites, and ultimately for sites offering “adult” content and whether this issue could be opened up again. 

Biometric validation could be useful to sites like Facebook, in really ensuring that new users are old enough according to the site's policies.

    

The details of the Michigan case were posted today Aug. 1, 2015 on the TV Reviews blog (with story links).

Update: Sept 21

The judge has vacated the sentence, and it is like the mandatory s.o. registration will be removed.