Convicting for Computer Child Pornography Which computer activities lead to liability in the U.S. and the Netherlands
Date: April 2011
Subject: Master Thesis Law and Technology
Faculty: Tilburg Institute of Law, Technology and Society
Author: A.W.J. Dubach
Student number: 425099
University Supervisor: Prof. Dr. E.J. Koops
Convicting for Computer Child Pornography Which computer activities lead to liability in the U.S. and the Netherlands
Preface
In front of you is the Master Thesis that has researched how certain actions with use of a computer can constitute the criminal offense of having possession of – and obtaining access to – child pornography. I have written this Master Thesis to complete my master study of Law & Technology at the Tilburg Institute for Law and Technology.
Criminal law and technology have always fascinated me and have been very lucky that I have found a research topic in which I could combine both aspects of law. Working on this thesis has given me much joy and it was a personal challenge for me to overcome any obstacle that I would encounter when writing this thesis. At times I struggled to make sense of, and had troubles with structuring, the huge amount of data that I had collected. I hope you enjoy reading it as much as I have enjoyed writing it.
Here I would like express my thanks to prof. dr. E.J. Koops, or Bert-Jaap Koops as I have come to know him. He has been of great help guiding me through the writing experience of my master thesis with his excellent and timely feed-back and advice on all my questions, and for steering me on the right track when I was unsure which route to follow. I also want to express my gratitude to Mr. Koops for the way he communicated with me, he was very open and honest and always approachable when I needed guidance, but more over I really enjoyed are conversations and have gained a lot of respect for Bert-Jaap as a person and I have enjoyed having had the chance to work with him.
I also want to express my gratitude to my former girlfriend Monique Jochijms. During the writing of my thesis she has helped me with her love, support and guidance. She was there for me when I needed to someone to talk to and supported me throughout the writing process.
Furthermore, I express my thanks to Menno de Vries who was a real buddy of mine during all the sessions we made in Montesquieu building when working on our master theses. I treasure all the meaningless conversations and free coffees that have distracted me from my thesis.
Also, I would like to express my thanks to Karen Geelhoed for helping me translate the Dutch legislation into proper English terminology. And of course a special thanks to all my friends for all the lovely weekends with tennis and going out and so on, which kept my mind balanced, and my social life very much alive during the writing of my thesis.
Needless to say, a big thanks to my parents who have always believed in me and have helped me to strive for the highest possible education. When I graduate it is also for a big part thanks to your help, guidance, and love.
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Convicting for Computer Child Pornography Which computer activities lead to liability in the U.S. and the Netherlands
Summary
I have written this Master Thesis Law and Technology to complete my Master Law, Technology and Society at Tilburg University. The goal of this Master Thesis was to research what standards are applied to judge how the caching of files, files found in the trashcan/recycle bin, the deleting of files and the saving of files constitute the criminal offense of knowing possession of child pornography in the United States, and intentional possession of child pornography in the Netherlands. Furthermore I have researched which standards are applied to judge the online viewing of child pornography as a the criminal offense of obtaining access to child pornography with intent to view in the United States, and the offense of obtaining access to child pornography in the Netherlands.
A similar research has not yet been conducted so the results that this research has yielded can be used for follow up research on this theme, or as scientific data for whoever is interested in this field of research. Furthermore, the translations that I have provided for the Dutch case-law can be used in other comparative studies with regard to the possession of – and obtaining access to child pornography. Due to the lack of native Dutch speakers around the world this master thesis will add to the current knowledge available in this field.
For my research I have used a desk research concentrating on all relevant literature and case-law that was available. I have also used the comparative legal research method to determine the similarities and differences of possessing and obtaining access to child pornography between the Netherlands and the United States.
I started out by researching each nation’s legal history with regard to the drafting of their respective anti-child pornography legislation to obtain an insight into which behavior relating to child pornography particularly is deemed to be criminal. These results have enabled me to formulate the rationale behind each nation’s anti-child pornography legislation, which I have used to compare the case-law to.
The United States apply different standards to determine whether a person knowingly possessed child pornography depending on where the child pornography is found, and depending on what actions have been performed with the child pornography. In the United States the caching of files is criminal, and so is child pornography found in the trashcan/recycle bin and the deleting of child pornography. The saving of child pornography files is evidently criminal when seen in the light of the standards that are applied in the United States. These standards are extensively discussed in the conclusion of this master thesis. With regard to the criminalization of acquiring access to child pornography with intent to view it is unclear if this is supposed to be seen as a separate criminal offense or that it is used as additional evidence on other offenses relating to child pornography.
The Netherlands also apply different standards to determine whether a person intentionally, or at least conditionally intended to, (have)possess(ed) child pornography depending on where the child
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Convicting for Computer Child Pornography Which computer activities lead to liability in the U.S. and the Netherlands pornography was found, and what actions were performed with the child pornography. In the Netherlands the caching of files, child pornography found in the trashcan/recycle bin as well as the deleting and saving of child pornography are criminal, with certain exemptions that are applied. These exemptions are also explained in the conclusion. With regard to the question what standards are applied to judge whether obtaining access to child pornography is criminal, I cannot provide a conclusive answer as there is no case-law to support a widely accepted conclusion.
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Convicting for Computer Child Pornography Which computer activities lead to liability in the U.S. and the Netherlands
Table of contents
SUMMARY ...... 3 TABLE OF CONTENTS ...... 5 CHAPTER 1. INTRODUCTION ...... 7 CHAPTER 2: ANTI-CHILD PORNOGRAPHY LEGISLATION OF THE UNITED STATES OF AMERICA; A BRIEF HISTORY . 10
§ 2.1. THE FIRST AMENDMENT AND THE OBSCENITY LIMITATION TO THE FREEDOM OF SPEECH ...... 10 2.1.1 The obscenity qualification through the Miller case ...... 11 2.1.2 Goodbye Miller, welcome Ferber! ...... 12 § 2.2. FROM FERBER TO THE CHILD PROTECTION ACT OF 1984 AND FURTHER ...... 12 § 2.3. TOWARDS CRIMINALIZING POSSESSION OF CHILD PORNOGRAPHY ...... 13 § 2.4. KEEPING UP WITH TECHNOLOGY: THE CHILD PORNOGRAPHY PREVENTION ACT 1996 (“CPPA”) ...... 14 § 2.5. CHALLENGES TO THE CPPA ON GROUNDS OF THE FREEDOM OF SPEECH ...... 16 §2.5.1. Free Speech Coalition v. Reno ...... 16 §2.5.2 Ashcroft Attorney General et al. v. Free Speech Coalition et al ...... 18 § 2.6. THE PROTECT ACT 2003 ...... 20 § 2.7. CONCLUSION ...... 22 CHAPTER 3: ANTI-CHILD PORNOGRAPHY LEGISLATION OF THE NETHERLANDS; A BRIEF HISTORY ...... 23
§ 3.1. THE CRIMINALIZATION OF PORNOGRAPHY IN THE DUTCH CRIMINAL CODE IN 1886 ...... 23 § 3.2. CHILD PORNOGRAPHY LEGISLATION IN THE 1960’S AND 1970’S ...... 24 § 3.3. THE CHANGES PROPOSED BY THE “ADVIESCOMISSIE HERZIENING ZEDELIJKHEIDSWETGEVING” AND ITS AFTERMATH ...... 25 § 3.4. THE INTRODUCTION OF THE FIRST REAL ANTI-CHILD PORNOGRAPHY ARTICLE ...... 26 § 3.5. MAKING THE PUNISHMENT FIT THE CRIME ...... 27 § 3.6. A WHOLE NEW PLAYING FIELD ...... 28 § 3.7. THE CONVENTION ON CYBERCRIME ...... 29 § 3.7.1. The implementation of the Cybercrime Convention into the Dutch legislation ...... 30 § 3.8. THE LANZAROTE CONVENTION ...... 31 § 3.8.1. The implementation of the Lanzarote Convention into the Dutch legislation...... 32 § 3.9. CONCLUSION ...... 32 CHAPTER 4. THE RATIONALE BEHIND THE ANTI-CHILD PORNOGRAPHY LEGISLATION IN THE U.S. AND THE NETHERLANDS ...... 34
§ 4.1. THE RATIONALE OF THE U.S. ANTI-CHILD PORNOGRAPHY LEGISLATION...... 34 § 4.2. THE RATIONALE OF THE DUTCH ANTI-CHILD PORNOGRAPHY LEGISLATION ...... 35 § 4.3. CONCLUSION ...... 37 CHAPTER 5. CASE-LAW REVIEW OF THE U.S...... 38
§ 5.1. CONSTRUCTIVE POSSESSION AS A MINIMUM THRESHOLD LEVEL FOR KNOWING POSSESSION ...... 38 § 5.2. KNOWINGLY POSSESSING CHILD PORNOGRAPHY ...... 38 § 5.2.1. When is caching of files considered to be knowing possession of child pornography? ...... 38 §5.2.2. Files found in the trashcan/recycle bin as evidence of knowingly possessing child pornography ...... 43 §5.2.3. Deleted files as evidence of knowing possession of child pornography ...... 44
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Convicting for Computer Child Pornography Which computer activities lead to liability in the U.S. and the Netherlands
§5.2.4. Saved files as evidence of knowing possession of child pornography ...... 47 § 5.3. KNOWINGLY ACCESSING CHILD PORNOGRAPHY WITH INTENT TO VIEW ...... 47 CHAPTER 6. CASE-LAW REVIEW OF THE NETHERLANDS ...... 50
§ 6.1. CONDITIONAL INTENT AS A MINIMAL THRESHOLD LEVEL FOR INTENT ...... 50 § 6.2. POSSESSING CHILD PORNOGRAPHY ...... 51 § 6.2.1. When is child pornography found in the cache /temporary Internet files considered possession of child pornography? ...... 51 § 6.2.2. Files put in the trashcan/recycle bin evidence of possession of child pornography ...... 56 § 6.2.3. How files retrieved from the unallocated cluster can serve as evidence for possession of child pornography ...... 57 § 6.2.4. Saved files as evidence of possession ...... 61 § 6.3. OBTAINING ACCESS TO CHILD PORNOGRAPHY ...... 61 CHAPTER 7. CONCLUSION ...... 63
§ 7.1. RATIONALE OF BOTH NATIONS ANTI-CHILD PORNOGRAPHY LEGISLATION ...... 63 § 7.2. STANDARDS FOR POSSESSING CHILD PORNOGRAPHY FOUND IN THE CACHE FILE ...... 63 § 7.3. STANDARDS FOR POSSESSING CHILD PORNOGRAPHY FOUND IN THE TRASHCAN/RECYCLE BIN ...... 65 § 7.4. STANDARDS FOR POSSESSING CHILD PORNOGRAPHY FOUND IN THE UNALLOCATED CLUSTERS...... 67 § 7.5. IS OBTAINING ACCESS TO CHILD PORNOGRAPHY CRIMINAL? ...... 69 § 7.6. DIFFERENCES BETWEEN THE U.S. AND THE NETHERLANDS ...... 70 BIBLIOGRAPHY ...... 71
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Convicting for Computer Child Pornography Which computer activities lead to liability in the U.S. and the Netherlands
Chapter 1. Introduction
Child pornography has probably existed for as long as the written word.1However, since the upcoming of the Internet era and the development of new technologies, the child pornography landscape has changed considerably. Before the upcoming of the Internet individuals, who wished to view this kind of material, would need to seek it out, have it delivered to their house, and the format of the child pornography were mostly magazines, videos and photographs.2 Such material was difficult to transport without detection, the production of the material was hampered by the need to have the film processed and the equipment for such actions was relatively costly and difficult to use.3Not to mention the high risk of discovery that was involved in obtaining the material, as such material was often sent to a home address or postal box that belonged to a real person which could be identified and prosecuted.
Where originally the distribution of child pornography took place through, real, physical images in print media as described above, in the present day computers and Internet play a predominate role in the distribution of such material. Whereas previously the production was expensive because it had to be processed onto a film, it now had become very inexpensive as new, easy to use, and inexpensive data mediums were developed to store the materials onto. It was now possible to upload the materials onto data mediums such as videotapes, CD-ROM’s, DVD’s, external hard disk drives and USB sticks. Also, the upcoming of these new data carriers made it far easier to spread pornographic material, because now one only needed to connect them to, or insert them into, a computer, upload the material and then spread the content using the Internet in relative anonymity.
The impact and role that the Internet has played, and is still playing, in the production, dissemination and collection of child pornographic material is acknowledged by a number of authors; and according to T. Krone: “The Internet has increased the range, volume, and accessibility of sexually abusive imagery, including child pornography.” 4However, not only have the ways in which child pornography is produced and spread changed considerably, the law also changed considerably to keep its anti-child pornography content in line with these developments.
Internet has made it possible to view movies and pictures of children in sexually explicit conduct from behind your computer without the need to store any of such material. Also, methods are developed to delete and encrypt files on your computer as to give the impression that it was never stored on that computer. Courts in the United States of America and the Netherlands are struggling with cases wherein there is a clear suspicion that a person has perhaps acted against anti-child pornography legislation, but in which the proof of such action is hard to find, deleted or too vague for a successful prosecution of such a suspect.
1 Gillespie, A. Alisdair, Indecent images of children: The ever changing law. Child abuse review 2003, Vol. 14, p.431. 2 Home Office and Scottish Executive, Consulation: On the Possession of Extreme Pornographic Material, 5, 2005 3 J. Clough, Now you see it, now you don’t: Digital images and the meaning of “possession”, in Criminal Law Forum (2008) No. 19, p.205 4 T. Krone, A typology of online child pornography offending, in Trends and Issues in Crime and Criminal Justice 2004, p. 279.
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Convicting for Computer Child Pornography Which computer activities lead to liability in the U.S. and the Netherlands
I have chosen the United States of America and the Netherlands as the focus nations of my comparative study because both nations have an extensive case-law database on the subject matter and both have adapted their laws to deal with the subject matter, which provides me with the insight into the rationales of the anti-child pornography legislation . Also, the Dutch legislation and case-law on child pornography are not available in English. As I am very capable in both languages, this thesis will translate all relevant Dutch material into English so that researcher and/or scholars outside the Netherlands can use this material for follow up research.
The main research question that this thesis aims to answer is; “Which activities with respect to child pornography constitute the offenses of possessing and gaining access to child pornography with use of a computer. “My sub research questions are: 1. How can the caching of files, the deleting of files and the saving of child pornographic files with use of a computer constitute the offenses of possessing and/or gaining access to child pornography under current anti-child pornography legislation in the United States and the Netherlands? 2. What are the main standards that are applied? 3. Are there differences in each nation’s approach? 4. How can a defendant be acquitted of the charges? In order to be able to answer this question I will first research what is to be understood as child pornography as such in each country separately; I will do so by delving into each country’s anti-child pornography legislation. Next, this study will discuss the rationale(s) for criminalizing child pornography legislation. Then this thesis will answer the question how the specific acts of caching, saving and deleting of files with use of a computer are deemed to fall under the scope of the anti-child pornography legislation, and how obtaining access to child pornography or the viewing of child pornography are criminal based on the current anti-child pornography law and by relevant case-law. Finally, on the bases of these insights, this thesis will be able to answer the main research question of how the above mentioned actions constitute the criminal offenses of possessing and/or accessing child pornography and which standards the U.S. and the Netherlands apply in such cases.
I aim to answer these questions through a desk research. My main sources of information for my desk research are the current legislation and legislative history behind the anti-child pornography laws. Also, relevant academic literature and case-law, with regard to possessing and obtaining access to child pornography, will be consulted. I will also be using the comparative legal research method to determine the similarities and differences, of possessing and obtaining access to child pornography, between the Netherlands and the United States.
As explained above, this thesis will start with introducing the legal history behind the enactment of the anti-child pornography legislation in each country in chapter 2 and 3. This is to give an indication of which acts and behavior with regard to child pornography are considered to be illegal, and why they should be prohibited and made criminal under law. Also, this section will then define what is to be understood as child pornography as such. Furthermore, this investigation will also uncover what reasoning led to the drafting of new laws and the amending of existing ones by the legislatures in the U.S. and in the Netherlands. This will provide insight into the rationale(s) for criminalizing child pornography.
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Convicting for Computer Child Pornography Which computer activities lead to liability in the U.S. and the Netherlands
Based upon the answers provided by the chapters 1 and 2, this thesis will then investigate the ratio’s behind each nation’s anti-child pornography legislation in chapter 4, which will be used to analyze what acts done by a person are to be seen as a criminal offense under current anti-child pornography legislation.
These ratio’s will then be used as a frame of reference to interpret case-law dealing with both topics of interest, the possession and acquiring access to child pornography, and will indicate which are the legal requirements for such an act to be covered by the anti-child pornography legislation and to be judged as such by Court. This thesis will use Westlaw as the case-law database for the U.S. research, which will be discussed in chapter 5. Key words in this search are “knowingly possessing child pornography”, “knowing possession child pornography”, “accessing child pornography”, “obtaining access child pornography”, “Caching possession child pornography”, “temporary internet files possession child pornography”, “unallocated clusters possession child pornography”, “deleting possession child pornography”, “recycle bin possession child pornography”, “Trashcan possession child pornography”,and many more similar key words. This search yielded numerous results, so when referring to similar cases this thesis will suffice with referring to that case number only and will not discuss similar cases in detail. For the Netherlands this thesis will use Rechtspraak.nl and Jure.nl as databases for case-law research, these cases will be discussed in chapter 6. Key words for this search are: “temporary internet files bezit kinderporno”, “cache bezit kinderporno”, “unallocated clusters bezit kinderporno”, “lost files bezit kinderporno”, “recycle bin bezit kinderporno”, “Prullenbak bezit kinderporno”, “toegang kinderporno”, “toegang verschaffen kinderporno”, “voorwaardelijke opzet bezit kinderporno”, and many similar key words. This research yielded numerous results, so when referring to similar cases this thesis will suffice with referring to that case number only and will not discuss similar cases in detail. I have used “knowingly” as a key word in my search as it is an element of the penal clause in the U.S. that needs to be fulfilled. A similar term is found in the Netherlands and is called “opzet” or “voorwaardelijke opzet” which requires that the defendant had intentionally sought out child pornographic material. Knowingly also requires intent on behalf of the defendant. It will be interesting to see if there are any differences in interpretation between “knowingly” and “opzettelijk” in the case-law. Case-law published in the U.S. after 20-11-2010 and case-law published in the Netherlands after 15-02-2011 will not be used in this research due to time constraints.
The conclusion will summarize my findings and will briefly discuss these findings topic wise in chapter 7. Here I will also share my point of view on the differences between each nation’s approach to convict defendants for possessing child pornography.
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Convicting for Computer Child Pornography Which computer activities lead to liability in the U.S. and the Netherlands
Chapter 2: Anti-child pornography legislation of the United States of America; a brief history
Child pornography has been a serious concern in the United States, as in the Netherlands. Congress has actively and repeatedly enacted legislation banning the sexual exploitation of children. However, child pornography was originally constitutionally protected by the “freedom of speech” principle laid down in the First Amendment until it was challenged at the Supreme Court level. The Supreme Court introduced several amendments to the extent of the freedom of speech which can be seen as a first attempt of fighting child pornography in all its facets.
This chapter will identify by reference to several subsequent appeal judgments which changes have been made to the extent of the freedom of speech and how they led to the drafting of the Child Pornography Prevention Act (CPPA) of 1996, while also paying attention to all other legislation drafted by Congress until then. This chapter additionally provides the changes in interpretation that have been made to the CPPA by appeal judgments made against this Act and how the outcomes of these appeals were incorporated in the drafting of The Protect Act of 2003. It will also show the reasoning behind why certain amendments were enacted, which could be of use when interpreting new technological developments in the current legislation.
§ 2.1. The First Amendment and the obscenity limitation to the freedom of speech
The First Amendment is a primary part of the U.S. Constitution and it is of great importance when starting to investigate the U.S. anti-child pornography legislation. It was this First Amendment that provided the protection against governmental interference with regard to the possession and spreading of pornographic material depicting children in sexual activity. For anti-child pornography laws to be drafted, it had to be overcome. This section will show how the First Amendment’s reach was to be limited to exclude obscene material, and it will show the aftermath of such a limitation.
The First Amendment of the U.S. constitution states that:
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”5
5 U.S. Const. Am. 1
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Convicting for Computer Child Pornography Which computer activities lead to liability in the U.S. and the Netherlands
The “freedom of speech” is basically understood to be the freedom to speak without censorship or limitation. Moreover, it is also to be understood as the freedom to seek, receive and impart information and ideas, regardless of the medium used. Does this mean that child pornographic material is also governed by this amendment? Well, that depends on how you qualify child pornographic material. First Amendment case-law differentiates between normal and obscene material, with regard to the first the First Amendment provides protection, with regard to the latter it does not according to the Miller case, which will be discussed in the next section.
2.1.1 The obscenity qualification through the Miller case So the First Amendment is not to be understood as a freedom to receive and seek obscene material. Then what material is deemed to be understood as obscene? What material constitutes obscene material was determined in the case of Miller v. California.6This case introduced a three part test, often referred to as the “Miller standard”, to qualify a material as obscene in which all three parts must be satisfied. This test read as follows:
“(a) whether ‘the average person, applying contemporary community standards' would find that the work, taken as a whole, appeals to the prurient interest, . . . (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.”7
If a material was qualified as obscene through the Miller standard it enjoyed no First Amendment protection and granted the government the right to restrict its availability. As a reaction to this ruling, Congress passed the Protection of Children Against Sexual Exploitation Act in 19778. Congress enacted this legislation on the findings that child pornography was both highly organized and profitable and exploited children.9The scope of this Act covered the criminalization of knowingly using a minor younger than the age of sixteen to engage in sexually explicit conduct to produce a visual depiction.10 This depiction needed to be qualified as obscene with use of the Miller standard for it to be able to be prohibited. Also, the trafficking of such materials was now prohibited.11 This Act was a good first attempt by Congress to deal with the problems relating to child pornography, but because it incorporated the Miller standard as a strict qualification method, it was soon hereafter deemed inadequate to fight child pornography successfully by a New York court ruling which will be discussed in the next section.
6 Miller v. California 413 U.S. 15 (1973) 7 Idem note 6 at 39 8 18 U.S.C. §§2251-2253 (2000), the Protection of Children Against Sexual Exploitation Act of 1977 has been incorporated in this text and cannot be found as a loose text anymore 9 S.Rep. No. 95-438 at 5 (1977) 10 18 U.S.C. §§2251-2252 (2000) 11 S. A. Mota, The U.S. Supreme Court Addresses the Child pornography Prevention Act and Child Online Protection Act in Ashcroft v. Free Speech Coalition and Ashcroft v. American Civil Liberties Union, Federal communications law journal 2002, Vol. 55, p. 87
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Convicting for Computer Child Pornography Which computer activities lead to liability in the U.S. and the Netherlands
2.1.2 Goodbye Miller, welcome Ferber! The case of New York v. Ferber12 extended the obscenity exception to include child pornographic material and abandoned the Miller standard as a qualification method for obscene material as it was not a satisfactory solution to the problem of child pornography.13Main difference is that the material discussed in Ferber is to be determined as obscene per se whereas the material discussed in Miller is not. In its judgment the Court stated five reasons why the material had to be qualified as obscene per se:
1. Using children as subjects of pornography could be harmful to their physical and psychological well-being and child-pornography does not fall within the protection of the First Amendment.14 2. The application of the Miller standard for obscenity is not a satisfactory solution to the problem of child pornography.15 3. The advertising and selling of child pornography provide an economic motive for and are thus an integral part of the production of such materials, an activity illegal throughout the Nation.16 4. The value of permitting live performances and photographic reproductions of children engaged in lewd sexual conduct is exceedingly modest, if not de minimis.17 5. The distribution of photographs and films depicting sexual activity by juveniles is intrinsically related to sexual abuse of children and is therefore within the state’s interest and power to prohibit.18 The relevant measure in determining whether any material constitutes child pornography now had become whether a child was physically or psychologically harmed in the creation of the material and so abandoned the need for the material to be obscene in order to constitute child pornography, but instead, qualified the record of the harm done to the child as being obscene in itself.
As a result of the Ferber case, the freedom of speech principle as laid down in the First Amendment should from hereon be understood as not to cover speech relating to child pornography. The Supreme Court ruled that the value of speech in content involving child pornography was outweighed by other significant considerations, including the prevention of sexual exploitation and abuse of children.19 The Ferber case thus provided courts with a solid legal basis to fight the advertising, selling and distribution of child pornography, and was soon hereafter expanded upon, as will be shown in the next section.
§ 2.2. From Ferber to the Child Protection Act of 1984 and further
12 New York v. Ferber 458 U.S. 747 (1982) 13 Idem note 12 at 759 14 Idem note 12 at 762 15 Idem note 12 at 759 16 Idem note 12 at 761 17 Idem note 12 at 762 18 Idem note 12 at 759 19Y. Akdeniz, Internet child pornography and the law: national and international responses, University of Leeds, U.K.: Ashgate, 2008, p.95
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Convicting for Computer Child Pornography Which computer activities lead to liability in the U.S. and the Netherlands
The Ferber ruling set the stage for federal legislative action against child pornography, and so the Child Protection Act of 198420 was drafted. This Act abandoned the Miller standard and expanded upon the Protection of Children Against Sexual Exploitation Act of 1977. This Act raised the minimum age requirement for a minor from sixteen to eighteen years. The Committee appointed to draft this legislation had found that it was extremely difficult for the prosecution to show that the child is under the age of sixteen once the child hit puberty.21Raising the age to eighteen would facilitate the prosecution of child pornography cases and raise the effective age of protection of children from these practices, probably not to eighteen years of age, but perhaps to sixteen.22
This Act was then amended in 1986 by the Child Sexual Abuse and Pornography Act. This Act banned the production and use of advertisements for child pornography and created civil liability for personal injuries to children from the production of child pornography.23Also, it defines the term visual depiction to now also include undeveloped film and videotape.
The next amendment that took place was with the enactment of the Child Protection and Obscenity Enforcement Act of 1988. During the 1980’s the first household computers were being developed and brought onto the market and transformed the child pornography market in a big way. Obviously, Congress had to respond to these changes, and soon hereafter the Child Protection and Obscenity Enforcement Act was drafted as a response. This Act first mentioned the use of computers in transporting, distributing and receiving child pornography and made these acts with use of a computer unlawful.
§ 2.3. Towards criminalizing possession of child pornography
The case of Stanley v. Georgia24 will serve as a starting point for discussing whether possession of obscene material is criminal or not. In Stanley the regional court decided that mere private possession of obscene matter cannot constitutionally be made a crime.25The court argued that:
“It is now well established that the Constitution protects the right to receive information and ideas. This freedom (of speech and press) necessarily protects the right to receive. This right to receive information and ideas, regardless of their social worth, is fundamental to our free society. Moreover, in the context of this case - a prosecution for mere possession of printed or filmed matter in the privacy of a person's own
20 18 U.S.C. §§2251-2253 21 H.R. REP. 98-536, H.R. Rep. No. 536, 98TH Cong., 1ST Sess. 1983, 1984 U.S.C.C.A.N. 492, 1983 WL 25391 at *494 22 Idem note 21 23 S. A. Mota, The U.S. Supreme Court Addresses the Child pornography Prevention Act and Child Online Protection Act in Ashcroft v. Free Speech Coalition and Ashcroft v. American Civil Liberties Union, Federal communications law journal 2002, Vol. 55, p. 87 24 Stanley v. Georgia, 394 U.S. 577 (1969) 25 Idem note 24
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Convicting for Computer Child Pornography Which computer activities lead to liability in the U.S. and the Netherlands home - that right takes on an added dimension. For also fundamental is the right to be free, except in very limited circumstances, from unwanted governmental intrusions into one's privacy.”26
However, the court in Osborne v. Ohio27 disagreed with this view and ruled in line with the Ferber approach. In Osborne the court stressed again the necessity to safeguard the physical and psychological well-being of a minor by protecting them from falling victim to child pornography. In order to do this it is imperative to take away the economic motive to produce such materials. However, this court notes that since the decision in Ferber much of the child pornography market has been driven underground.28 As a result of this, it was now more difficult, if not impossible, to solve the problem of child pornography by solely fighting the production and distribution chains, other methods were necessary to combat these changes in the child pornography scene. They found that penalizing possession of child pornography would be an effective method to dry up the child pornography market. Penalizing possession also had other benefits; first of all it would encourage possessors to destroy the material and so would diminish the continuing harm of the victims.29 Secondly, by encouraging the destruction of the materials people with an interest in child pornography cannot use these materials to seduce other children into sexual activity; evidence suggests that people with an interest in child pornography use this method of grooming.30
As a response to these findings the anti-child pornography law was amended again. The Child Protection Restoration and Penalties Enhancement Act of 1990 now prohibited the knowing possession of visual depictions of a minor in sexually explicit conduct. 31 Congress then again amended the law in 1994 with the Violent Crime Control and Law Enforcement Act to allow restitution to victims of child pornography.
This section has shown how case law established principles for criminalizing possession of pornographic content with regard to children before the technological revolution that started in the late 80’s. This thesis will expand upon the question what acts exactly, with use of modern day technology, are now used to fulfill the possession of child pornography penal clause in the U.S., further on in this thesis. The focus will now shift to the drafting of the Child Pornography Prevention Act of 1996 which was the next step to keep the law in pace with technological developments.
§ 2.4. Keeping up with technology: The Child Pornography Prevention Act 1996 (“CPPA”)
26 Idem note 24 27Osborne v. Ohio, 495 U.S. 103 (1990) 28Idem note 27 29 Often existing obscene materials with regard to the victims resurface after time. Being confronted with these materials or the possibility hereof, contribute to the harm of the victim. Destroying the material means that the risk of the material resurfacing is diminished and this directly positively influences the harm felt by the victim. 30 See Attorney General’s Commission on Pornography: Final Report, Vol.2, Washington D.C: U.S. Government Printing Office, July 1986 (The Meese Commission) 31 18 U.S.C. §2257. Order No. 2765–2005, 70 FR 29619, May 24, 2005
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Convicting for Computer Child Pornography Which computer activities lead to liability in the U.S. and the Netherlands
The CPPA was intentionally drafted to criminalize material that depicts children engaging in sexually explicit conduct whether or not the content in question involved real children.32 It was foremost introduced due to the inability of prior legislation to keep up with new technological developments that purveyors of child pornography were now using to fulfill their need for child pornography. Senator Hatch said this about the need to reformulate the law to include computer-generated images when the CPPA was being introduced:
“Even more shocking than the occurrence of this type of repulsive conduct is the fact, that under current Federal law, those pictures, depicting naked children involved in sex with other children, adults and even animals, would not be prosecutable as child pornography”.33
As said before, pedophiles use images of children engaged in sexual activity to seduce other children into such action. The U.S. Judiciary Committee found that there was no difference between using computer-generated images and photographic images for such activities:
“The effect of computer-generated pornography on a child molester or pedophile using the material to whet his sexual appetites or on a child shown such material as a means of seducing the child into sexual activity, is the same whether the material is photographic or computer-generated depictions of child sexual activity.”34
This emphasizes the need that was felt at the time to update the law as to include computer-generated images (also referred to as virtual child pornography) of child-pornography so that pedophiles will not have a substitute form of ammunition to fulfill their sexual desires and their planned schemes of luring other children into sexual activity. Another problem that surfaced through the use of imaging technology was that it was now even harder for law-enforcement agencies and prosecutors to prove that certain pictures were in fact produced with use of actual children. The use of real children was a requirement at that time to qualify the material as child pornographic in nature, expanding the definition of child pornography to include computer-generated images made the job of the prosecutors somewhat easier. Congress saw eliminating child pornography and the protection of minors against sexual exploitation as a:
“Compelling governmental interest for prohibiting the production, distribution, possession, sale, or viewing of visual depictions of children engaging in sexually explicit conduct, including both photographic images of actual children engaging in such conduct and depictions produced by computer or other means which are virtually indistinguishable to the unsuspecting viewer from photographic images of actual children engaging in such conduct.”35
32 Y. Akdeniz, Internet child pornography and the law: national and international responses, University of Leeds, U.K.: Ashgate, 2008, p.97 33 The Child Pornography Prevention Act 1995, Statements of Introduced Bills and Joint Resolutions, U.S. Senate, 13 September 1995 (104th Congres, 2nd session) 34 See U.S. Senate Committee Report 104-538- Child Pornography Prevention Act of 1996, Congressional Findings, at (8). 35 Idem note 34 at (13)
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As a result of this compelling governmental interest high prison sentences were introduced for producing child pornography as well as for the possession of such material, repeat offenders convicted of sexual abuse of a minor could now even risk life imprisonment.36 This illustrates the severity with which child pornography was now to be fought, and how it was seen as a problem that needed to be dealt with adequately. Also, the definition of child pornography was once again amended, and was now to be understood as:
“Any visual depiction, including any photograph, film, video, picture, drawing or computer or computer- generated image or picture, which is produced by electronic, mechanical or other means, of sexually explicit conduct, where: (1) its production involved the use of a minor engaging in sexually explicit conduct, or; (2) such visual depiction is, or appears to be, of a minor engaging in sexually explicit conduct; (3) such visual depiction has been created, adapted or modified to appear that an identifiable minor” is engaging in sexually explicit conduct.”37
The definition of child pornography in this form would not stand the test of time however. It was soon felt that the definitions over this article were too broad and therefore unconstitutional. The next section will show how case-law influenced the changes made to the definition of what is to be prohibited under the banner of child pornography.
§ 2.5. Challenges to the CPPA on grounds of the freedom of speech
The enactment of this law was a good first effort in defining the anti-child pornography legislation in such a way that it now also covered new technological methods for creating and distributing child pornography.38However, certain citizens of the U.S. found the CPPA to be overbroad and challenged it as being in conflict with the First Amendment. Most notable cases in this matter were the case of Free Speech Coalition v. Reno,39 and the case of Ashcroft Attorney General et al. v. Free Speech Coalition et al. Both cases and their impact on the CPPA will be discussed in this section.
§2.5.1. Free Speech Coalition v. Reno The Free Speech Coalition in this case argued that the CPPA was too broad and vague and interfered with producing works that were protected by the First Amendment, works like books for the education and expression of nudity and artworks including nudity such as paintings and drawings. Their main argument was that the CPPA impermissibly suppresses material that is protected under the First Amendment by defining child pornography as including visual depictions of adults that appear to be minors. In the plaintiffs view this would lead to the banning of “a wide array of sexually explicit, non- obscene material that has literary, artistic, political and scientific value”.40 The District Court held that
36 18 U.S.C. §2251(2000) 37 18 U.S.C. §2256(2000) 38 The promotion of child pornographic material was criminalized in 18 U.S.C. §2256 (8)(D)(2000) 39 The Free Speech Coalition v. Reno, 198 F.3d 1083, 1097 (9th Cir. 1999) 40 Idem note 39
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Convicting for Computer Child Pornography Which computer activities lead to liability in the U.S. and the Netherlands the CPPA was not an improper prior restraint of speech because it is content neutral and clearly advances important compelling governmental interests.41This ruling was, in the view of the District Court, in line with the reasoning behind the drafting of the CPPA as the U.S. Senate Committee Report has shown already. Furthermore the Court held that the CPPA was not too broad, but quite the opposite as it clearly and specifically defines the prohibited conduct and even gives sufficient guidance to a person of reasonable intelligence as to what it prohibits.42
However, a majority of the Court of Appeals for the Ninth Circuit disagreed in part with the arguments made by the District Court and stated that the First Amendment prohibits Congress from enacting a statute which criminalizes the generation of images of children engaged in explicit sexual conduct. The Ninth Circuit held the CPPA to be substantially overbroad as it banned materials that were not obscene under Miller nor found to be produced by exploitation of real children as was the case in Ferber. According to the Court the CPPA:
“sought to stifle the use of technology for evil purposes. This of course was a marked change in the criminal regulatory scheme. Congress had always acted to prevent harm to real children. In the new law, Congress shifted the paradigm from the illegality of child pornography that involved the use of real children in its creation to forbid a ‘visual depiction’ that ‘is, or appears to be, of a minor engaging in sexual explicit conduct”43
The appeals court held that the terms “appears to be (a minor)”44, and “conveys the impression”45 as mentioned in the CPPA were unconstitutional and overbroad and not clear and specific as the District Court reasoned. Furthermore it found the terms vague as the CPPA lacked any clear definitions for these key phrases and feared that its vagueness could permit enforcement in an arbitrary and discriminatory fashion.46The Appeals Court did mention that when these two sentences were to be removed the balance of the CPPA was in line with the Constitution. The Appeals Court held that there was no link between the dissemination of fabricated child pornography and additional acts of real sexual abuse of children although such a link was indicated by The Meese Commission.47They went on to say that although such images are immoral and repulsive, they do not involve actual children and furthermore there is no basis to link computer-generated images with harm to real children as the use of sexual explicit material of actual children to lure others into sexual activity only played a small part in the overall problem of harm done to children. And as there is no such correlation the law does not withstand constitutional scrutiny. Additionally the Court stated that “many innocent things can entice children into immoral or offensive behavior, but that reality does not create a constitutional power in
41 Idem note 39 42Idem note 39 at 2309-10 43 The Free Speech Coalition v. reno, 198 F.3d 1083, 1097 (9th Cir. 1999) 44 18 U.S.C. §2256(8)(B)(2000) 45 Idem note 44 at §2256(8)(D)(2000) 46 The Free Speech Coalition v. reno, 198 F.3d 1083, 1097 (9th Cir. 1999) 47 See Attorney General’s Commission on Pornography: Final Report, Vol.2, Washington D.C: U.S. Government Printing Office, July 1986 (The Meese Commission)
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Convicting for Computer Child Pornography Which computer activities lead to liability in the U.S. and the Netherlands the Congress to regulate otherwise innocent behavior.”48 Although this might seem like naïve reasoning on behalf of the Court it does accurately stipulate the way in which the CPPA was prohibiting certain behavior in the hope of stopping some of the direct consequences.
This ruling severely questioned the necessity and relevance of certain parts of the CPPA, and showed how these parts were in fact unconstitutional. This case in combination with the case that will be discussed in the next subsection led to the drafting of The Protect Act of 2003 that amended the issues that were addressed by these cases.
§2.5.2 Ashcroft Attorney General et al. v. Free Speech Coalition et al The CPPA was challenged again, this time in 2002 with the appeals case of the previously mentioned case of Ashcroft Attorney general v. Free Speech Coalition.49 In which the attorney general Ashcroft filed suit against the ruling of the Ninth Circuit. 50In this case the Supreme Court upheld that the prohibitions provided in sections 2256(8)(B) and 2256(8)(D) were overbroad and unconstitutional.
With regard to the prohibitions allowed under the Ferber ruling these were to be limited to the distribution and sale of child pornography and also the production thereof. These actions are all “intrinsically related” to the sexual abuse of children in two ways:51
“First, a permanent record of a child’s abuse, the continued circulation itself would harm the child who had participated. Second, because the traffic in child pornography was an economic motive for its production, the State had an interest in closing the distribution network.”
The main difference in which kind of speech was protected between the Ferber case, in which speech was prohibited that itself was the record of sexual abuse, and that of the CPPA was that the CPPA was now prohibiting speech that recorded no crime at all and did not create any real victims during its production, namely the computer-generated or virtual images. According to the Supreme Court virtual or computer-generated child pornography did not qualify as being intrinsically related to the sexual abuse of children and the harm did not necessarily follow from the speech. Also, virtual or computer- generated speech could qualify as valuable speech under Ferber and should therefore deserve the protection granted by the First Amendment.52
48 The Free Speech Coalition v. reno, 198 F.3d 1083, 1097 (9th Cir. 1999) citing A-G Report at 649-50 49 Ashcroft v. Free Speech Coalition 535 U.S. 234 (2002) 50 The Free Speech Coalition v. reno, 198 F.3d 1083, 1097 (9th Cir. 1999). 51New York v. Ferber 458 U.S. 747 (1982) at 759 52Idem note 51 at 760 – 764. (cited from the original text) “Here is stipulated how the Ferber standard which states that child pornography cannot be seen as valuable speech suffers from two flaws. First, Ferber’s judgment was based upon how it was made, not what it communicated. The case reaffirmed that where the speech is neither obscene nor the product of sexual abuse, it does not fall outside the First Amendment’s protection. Second, Ferber did not hold that child pornography is by definition without value. It recognized some works in this category might have significant value, but relied on virtual images – the very images protected by the CPPA – as an alternative and permissible means of expression. Because Ferber relied on the distinction between actual and virtual child pornography as supporting its holding, it provides no support for a statute that eliminate the distinction and makes alternative mode criminal as well”
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The Supreme Court also rejected the proposition that pedophiles may use virtual child pornography as a method of seducing children into sexual activity as they found that the speech in question should not be silenced completely in an attempt to shield children from it. They felt that the availability of such material does not necessarily encourage pedophiles to engage in illegal conduct, and the absence of evidence of such a direct connection between speech and imminent illegal conduct does not justify such a broad measure.53
Finally, The Supreme Court stated that the First Amendment was turned “upside down” by the argument that, because it was difficult to distinguish between images made using real children and those produced by computer imaging, both kinds of images must be prohibited.54The overbreadth doctrine prohibits the Government from banning unprotected speech if a substantial amount of protected speech is prohibited or chilled in the process.55Quite the opposite of the better safe than sorry approach that the CPPA had in mind.
Seen as a whole, the CPPA had certain flaws incorporated in its statutes and an update was necessary to keep the anti-child pornography legislation in line with the First Amendment so that it can more effectively combat child pornography in all its forms. Ashcroft et al v Free Speech Coalition et al now provided an escape for defendants caught with child pornographic material in their possession. Common procedure was that they would contend that the material was not that of real children but rather computer generated and thus was constitutionally protected. This way they would avoid prosecution unless the prosecution could content otherwise. The Attorney General’s office foresaw great problems for the protection of children and for the prosecution of pedophiles with this interpretation of the First Amendment because:
“The protection of virtual child pornography by the Supreme Court threatens the de facto protection of all child pornography. In a world in which virtual images are increasingly indistinguishable from reality, prosecutors are now forced to prove that sexually explicit images involving children were in fact produced through the abuse of children, an extremely difficult task in today’s worldwide Internet child pornography market.”56
Due to the arising of these foreseen and probably unwanted problems when fighting child pornography a reaction was needed and was drafted with The Protect Act 2003. This Act was formulated to rewrite certain passages of the CPPA to conform to the changes brought about by the Ashcroft et al v. Free Speech Coalition et al Supreme Court ruling. The Protect Act 2003 will be discussed in the next section.
53Stanley v. Georgia, 394 U.S. 557 (1969), 566 and Brandenburg v. Ohio, 395 U.S. 444 (1969), 447 54 Y. Akdeniz, Internet child pornography and the law: national and international responses, University of Leeds, U.K.: Ashgate, 2008, p. 107 55 Ashcroft, Attorney et al. v. Free Speech Coalition et al. 535 U.S. 234 (U.S. Supreme Court, 2002), 198 F3d 1083, 16 april 2002, No. 00-795 56 Mr. Jeff Miller, Supreme Court ruling threatens our children, House of Representatives, 17 april 2002, p. H1384
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§ 2.6. The Protect Act 2003
The enactment of The Protect Act 2003 was in part a reaction to the Supreme Court decision in the case of Ashcroft et al v. Free Speech Coalition et al. Since the Ashcroft v. Free Speech Coalition decision it was common practice for defendants to raise the defense that the images in question were not those of real children as seen in the previous section. As it is the task of the prosecution to provide evidence that the child in question is real, the prosecution now faces an immense workload in these cases, as they had to find proof in each individual case that the child in the image was a real minor, which was hard to establish. This proof did not have to be delivered by experts only, juries were deemed to be capable of distinguishing between real and virtual images. 57 Also, the prosecution was not required to provide any additional evidence or expert testimony for its burden of proof to be met to in showing whether the images downloaded by the defendant depicted real children and not virtual children.58 Although these proceedings lowered the burden of proof, it was the question whether such interpretation methods could withstand the reasonable doubt criteria. In the U.S. legal system no one may be convicted when there is a reasonable doubt that the defendant has not done the crime he was being tried for. In the case of whether a child pornographic image was that of a real or virtual child, technology had evolved in such a way that it was almost impossible to distinguish between images made with use of real children or with use of computer technology, as was also stated:
“In the absence of congressional action, the difficulties in enforcing the child pornography laws will continue to grow increasingly worse. The mere prospect that the technology exists to create composite or computer-generated depictions that are indistinguishable from depictions of real children will allow defendants who possess images of real children to escape prosecution; for it threatens to create a reasonable doubt in every case of computer images even when a real child was abused. This threatens to render child pornography laws that protect real children unenforceable.”59
It was time for Congress to step up and face these new challenges head on, and so they did. The new Protect Act 2003 was signed by the House and Senate on the 10th of April 2003 and the President signed the bill into law on the 30th of April 2003. The President went on to declare that:
“The new law confronts an evil that is too often the cause of child abuse and abduction in America – the evil of child pornography. In the past, prosecutors have been hindered by not having the tools needed to prosecute criminals who create child pornography. Under the Protect Act, we’ve seen images of children, even those created with technology, will now be illegal, giving prosecutors an important new tool. Obscene images of children, no matter how they are made, incite abuse, raise the dangers to children and will not be tolerated in America.”60
57 U.S. v. Kilmer, 335 F3d 1132, 1142 (10th Cir. 2003) 58 U.S. v. Slania, 313 F3d 891, 2002, U.S. App. LEXIS 24271 (5th Cir. Tex., 2002) 59Idem note 58 §13. 60Y. Akdeniz, Internet child pornography and the law: national and international responses, University of Leeds, U.K.: Ashgate, 2008, p. 118, the old link described there is not working anymore
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So the Protect Act of 2003 now also made the possession and production (amongst other offences) of virtual child pornography illegal.61 Section 502 of the Protect Act of 2003 amended the law as follows:
“Section 2252A of title 18, United States Code, is amended-- (1) in subsection (a)— (A) by striking paragraph (3) and inserting the following: ``(3) knowingly-- ``(A) reproduces any child pornography for distribution through the mails, or in interstate or foreign commerce by any means, including by computer; or ``(B) advertises, promotes, presents, distributes, or solicits through the mails, or in interstate or foreign commerce by any means, including by computer, any material or purported material in a manner that reflects the belief, or that is intended to cause another to believe, that the material or purported material is, or contains-- ``(i) an obscene visual depiction of a minor engaging in sexually explicit conduct; or ``(ii) a visual depiction of an actual minor engaging in sexually explicit conduct;''; (B) in paragraph (4), by striking ``or'' at the end; (C) in paragraph (5), by striking the comma at the end and inserting ``; or''; and (D) by adding after paragraph (5) the following: ``(6) knowingly distributes, offers, sends, or provides to a minor any visual depiction, including any photograph, film, video, picture, or computer generated image or picture, whether made or produced by electronic, mechanical, or other means, where such visual depiction is, or appears to be, of a minor engaging in sexually explicit conduct-- ``(A) that has been mailed, shipped, or transported in interstate or foreign commerce by any means, including by computer; ``(B) that was produced using materials that have been mailed, shipped, or transported in interstate or foreign commerce by any means, including by computer; or ``(C) which distribution, offer, sending, or provision is accomplished using the mails or by transmitting or causing to be transmitted any wire communication in interstate or foreign commerce, including by computer, for purposes of inducing or persuading a minor to participate in any activity that is illegal.''; and (2) in subsection (b)(1), by striking ``paragraphs (1), (2), (3), or (4)'' and inserting ``paragraph (1), (2), (3), (4), or (6)''.”62
This was a major change in the U.S. anti-child pornography legislation as this was the first time that defendants could now successfully be prosecuted for child pornographic materials other than those made with use of real children. According to Congressman Orrin Hatch, the Chairman of the Judiciary Committee, the Protect Act strikes a balance between the First Amendment and the Nation’s interest in protecting children.63 This Act also amended U.S. Code, part 1, chapter 110 sexual exploitation and other
61 All changes made by the Protect Act of 2003 are amended in the U.S.C.18 §§ 2251 -2260A, can be visited at http://www.law.cornell.edu/uscode/18/usc_sup_01_18_10_I_20_110.html. Last visited at 10-10-2010, law up to date to 1st of February 2010. Includes more offences than possession and production of virtual child pornography 62 Protect Act of 2003, at Section 502, can be found at: http://www.gpo.gov/fdsys/pkg/PLAW- 108publ21/html/PLAW-108publ21.htm, last visited at 18-01-2011 63 Mr. Hatch, 13th January 2003, CR S236-237 at: http://thomas.loc.gov/cgi-bin/query/R?r108:FLD001:S00237>, visited at 10-10-2010
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Convicting for Computer Child Pornography Which computer activities lead to liability in the U.S. and the Netherlands abuse of children with these new interpretations, and finalized this chapter, and it remains the same to this day.64
§ 2.7. Conclusion
This chapter has shown how the anti-child pornography legislation in the U.S. has changed and adapted with new developments over the years, sometimes these changes were necessary, and enforced by Supreme Court rulings, to keep the developing legislation in line with the constitutionally protected right of the freedom of speech granted by First Amendment. At other times the legislation was adapted to provide the prosecution the means with which it could effectively fight the ever developing market of child pornography, which was now finding new methods of fulfilling pedophiles and sex offenders’ appetites. It is clear that Congress has always valued the interests of the health and wellbeing of children over the interests of people who have an interest in child pornography. Although some Acts were too ambitious and overbroad, they always valued the protection of children falling victim to sexual abuse most.
This chapter has provided a historical overview of the U.S. anti-child pornography legislation, and has shown the amendments that have been made to the extent of the freedom of speech over the years. The next chapter will focus on the legislative history of the Dutch anti-child pornography legislation.
64U.S.C.18 §§ 2251 -2260A, I found it irrelevant to sum up all of the articles of U.S.C. 18 §§ 2251 -2260A as it consumes a great deal of text. I will discuss in detail some parts of these articles further on in this thesis, and will clarify those chosen parts with relevant case-law
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Chapter 3: Anti-child pornography legislation of the Netherlands; A brief history
Child pornography has been, and still is, a problem that is of great concern to the people in the Netherlands. The invention of photography in 1839 made it possible the portray reality as it is, and not soon hereafter it was already being used for child pornography purposes.65 The Netherlands has always been a very liberal country in which the freedom of expression and freedom of sexuality are seen as rights of the people that need to be held in high regard. These freedoms however do have their boundaries, and one of those boundaries concerns the possession and spreading of child pornography.
This chapter will give an overview of the anti-child pornography legislation that has been enacted and amended in the Netherlands since the introduction of the Dutch Criminal Code in 1886 (Wetboek van Strafrecht) with reference to parliamentary papers and case-law where possible. It will also show the reasoning behind why certain amendments were desirable. This chapter will also address the latest legislative changes brought forth by the Convention on Cybercrime and the Lanzarote Convention. Translations of the Dutch penal clauses into English are unofficial and done by me personally.
§ 3.1. The criminalization of pornography in the Dutch Criminal Code in 1886
When the Dutch Criminal Code was introduced in 1886 the Netherlands it contained one article that dealt with the possession, dissemination and publicly displaying pornography specifically66. Such an article was now desired as the public’s view of what was considered to be decent had changed and now excluded pornography, and as there was a general consensus that such a common view was to be held in high regard the legislature decided to shape public sexual morale with the introduction of, what can be seen as, the first anti-pornography article, which should be interpreted as a negative freedom concept.67 Thus article 240 of the Dutch Criminal Code was enacted, stating at that time:
“He who spreads, publicly displays, fabricates or has in stock, any picture or loose paper for dissemination, which assaults one’s dignity and is objectionable in nature, and of which content he is
65 J.J. Oerlemans, Kinderpornografie op Internet: Dweilen met de kraan open, p.10 with reference to Ferraro & Casey 2005, p.20 66The Dutch Penal Code was introduced on the 1st of September 1886, can be found in the “Staatsblad” in the Netherlands: Stb. 1886, 6 67 R.S.B. Kool, De strafwaardigheid van seksueel misbruik, 1999 p.338.
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Convicting for Computer Child Pornography Which computer activities lead to liability in the U.S. and the Netherlands aware, will be punished with a maximum prison sentence of three months or a monetary fine of three hundred guilders at the most.”
At this time it was not the intention of the legislature to control public sexual morale, but rather to protect the common sense of decency and the vulnerabilities of certain individuals that came with it, against the few persons who would intrusively act against it.68 As a result of the industrialization in the Netherlands a large part of the working-class level citizens fell into poverty and at that time it was feared that the level of decency in this layer would be lowered because of it.69Article 240 was amended to cover not only pictures and leaflets, but also writings and objects. Furthermore, it made it illegal to manufacture such material(s). The reason behind these amendments was to recover the personal decency level to a more acceptable level.70
In 1911 more amendments were done to the law. These amendments included the introduction of two new articles namely Article 240bis and Article 451bis of the Dutch Criminal Code71. Article 240bis made it illegal to offer or provide writing, pictures or objects, which were objectionable in nature, to persons under the age of eighteen.72 Article 451bis forbids any material which was suitable to stimulate the sensuality of the youth.73
The law remained the same for a long period of time until it was being amended in the 1960’s and 1970’s, these amendments will be discussed in the next section.
§ 3.2. Child pornography legislation in the 1960’s and 1970’s
As said before, The Netherlands is known for its liberal politics concerning all kinds of topics. So was the Netherlands in the 1960’s. In the 1960’s people started to embrace their freedoms more and more and found that the law was suffocating them in their urge for freedom. These were the years in which the first birth control medicines were becoming available to the public and in which there was a unknown openness to sexual freedom and expression. This sexual revolution, as one could name it, led to an increase in demand of pornographic material and naturally this material became more readily available than before.74
As a consequence of this liberalism that swept the nation there was a calling for less governmental interference regarding child pornography.75 In the late 1960’s the first amendment to the “zedelijkheidswetgeving” (decency law) was a fact, it was now no longer prohibited to buy anti
68Adviescommisie zedelijkheidswetgeving, Eindrapport, Den Haag, Staatsuitgeverij 1980, p.9 69 J.J. Oerlemans, Kinderpornografie op Internet: Dweilen met de kraan open, p.11 70 Commissie de Melai 1980, p.9 71 These articles are disposed of in the current Dutch Penal Code but are incorporated into the new art. 240b 72.J.J. Oerlemans, Kinderpornografie op Internet: Dweilen met de kraan open, p.11 73 Idem note 72 74 Idem note 72. p.12 75 R.S.B. Kool, De strafwaardigheid van seksueel misbruik, 1999, p. 86
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Convicting for Computer Child Pornography Which computer activities lead to liability in the U.S. and the Netherlands conception products and committing adultery was no longer criminalized.76 It was also no longer forbidden for homosexuals to engage in sexual activity with minors.77 The emphasis had now changed from a negative to a positive concept of freedom, meaning that the government no longer set boundaries to limit or forbid certain behavior but now formulated criteria in which certain behavior was governmentally allowed. The changes in the law that are described above exemplify this transformation.
In 1978 Article 240 was being challenged by the Deep Throat case78. In this case the Hoge Raad (Dutch equivalent of the Supreme Court) was challenged with the questions whether this movie went against one’s honorability and whether it was objectionable in nature. Both claims where dismissed. With regard to the question whether the movie was objectionable in nature the Hoge Raad ruled that of such a thing could hardly be spoken when it concerns adults who totally voluntarily watch a movie with a “exceptional character” when “it may be taken for granted that these persons wanted to see this movie despite its exceptional character and if that is the case these persons are unlikely to experience such a movie and the content thereof as objectionable”79The implication of the Deep Throat case was that it almost made it impossible to successfully invoke Article 240 to prevent a unwanted confrontation with pornography.80
On the 1st of May 1970 an advisory committee was established, named the” Adviescommissie herziening zedelijkheidswetgeving”. This advisory committee’s task was to investigate whether the articles 240 till 249 of the Dutch Criminal Code were still up to date. They finished their report in 1980; the changes brought forth by this committee will be discussed throughout the next section.
§ 3.3. The changes proposed by the “Adviescomissie herziening zedelijkheidswetgeving” and its aftermath
In this section I will go into the changes brought forth by the advisory committee which submitted its final report in 1980. As a vantage point for their considerations the committee chose the proposition that interference by the legislature regarding sexual offenses was only desirable if the sexual freedom of subjects would lead to undesirable expressions and consequences for fellow subjects.81 Seen in general, the rapport’s primary focus was wide and primarily inspired by the changing societal urge that had arisen regarding the need to amend the penal clauses of rape and sexual assault in relations between adults and minors.82
76 Idem note 72, p.12 with reference to the Law of May 6 1971, Stb. 1971, 291 77 Idem note 72, with reference to the Law of April 8 1971, Stb. 1971, 212. 78 Deep Throat, NJ 1979, 93 (1978) 79 Idem note 78 80 J.L. van der Neut, Kinderpornografie. De situatie in Nederland, Delinkt en Delinkwent, 2000 Vol. 2. p.p.109-110 81 H. van der Neut, Het eindrapport van de Adviescommissie Zedelijkheidswetgeving, Delinkt en Delinkwent, 1980, Vol. 11, p.520 82 Idem note 81
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As a reaction to the Deep Throat case and the rapport written by the advisory committee the legislature decided to propose an amendment of Article 240 of the Dutch Criminal Code, and the article should now be read as:
“With a prison sentence of up to 3 months or a monetary fine of six hundred guilders at most will be punished, he who knows or has severe reasons to suspect that an image or object is objectionable to one’s dignity, and publicly displays or offers this image or object on or at a space designed for public transport.”83
The proposed amendments to Article 240 of the Dutch Criminal Code led to a lot of discussion in the Netherlands about the effectiveness of the law in dealing with pornography. At that time it was clear however that the proposed changes were so liberal in character that it in any case would not lead to far stretching criminalization of pornography let alone child pornography, and thus was ineffective at dealing with the matter. The Minister of Justice’s opinion at that time was that “the legislature should not let a common judgment about the contents of expressions prevail above the respectable conceptions of those who would like to take note of the contents of such material”.84 In saying this he clearly was an advocate of the current legislation regarding pornography. He felt that the article was good enough as it was and that the legislature should not have to go as far as to ban pornography or child pornography as a whole.
In parliament his statement led to little resistance at first, but quite suddenly the discussion about the bill stagnated, mainly due to criticism of women.85 Suddenly more critics of the proposal came forth and they addressed their problems with the bill with solid arguments like the fact that pornography is harmful, whereby the harm is expressed in different ways, but also that pornography is insulting, discriminatory and offensive.86 These are arguments that are still being used by anti-child pornography fighters to this day. Due to the tumult brought forth by the proposal a new amendment to the law seemed inevitable, especially because the police in Amsterdam was now raiding sexshops whereby the found child pornography was confiscated.87
At about the same time that the actions in Amsterdam were taking place, the American Congress commission was ,alerted by a Dutch female confidante, depicting the Netherlands as a paradise for child pornography lovers and a producers. Some feared that “this country would be known as the land of pornography” all over the world.88
§ 3.4. The introduction of the first real anti-child pornography article
83 Tweede Kamer 1979-1980, 15 836, 1-3 84 Memorie van Antwoord 15 836, 6, p. 8 85 J.L. van der Neut, Kinderpornografie. De situatie in Nederland, Delinkt en Delinkwent, 2000 Vol. 2. P. 111. 86 Idem note 85 87 Idem note 85, p. 112 88 Idem note 85, p.112 referring to another note: Handelingen Tweede Kamer 1908-1999, 293, 3, p.2
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Convicting for Computer Child Pornography Which computer activities lead to liability in the U.S. and the Netherlands
Due to the sustained pressure of both the societal unrest in the Netherlands and the criticism of the United States the legislature felt it was necessary to amend the law to meet the demands of the opposition. As a result a new Article 240b of the Dutch Criminal Code was formulated and accepted in the bill of 1985.89 The new penal clause was formulated as follows:
“With a prison sentence of three months at most or a monetary fine of the third category will be punished the person who has an image or data carrier containing a depiction of sexual conduct, in which a person who apparently has not reached the age of sixteen years, is involved, either disseminates or publicly displays, or has in stock with the intention to disseminate or to publicly display, produces, imports or carries through or exports such material.”
Although this was a memorable first attempt to criminalize the possession and spreading of child pornography it was not flawless. It lacked a clear age limitations as it incorporated the vague term “apparently has not reached the age of sixteen”. And the preventive effect of this article will not have been very high due to the relatively low penalty maximum. It did incorporate the term data-carrier now, which was in line with developments at the time like the invention of the first personal computers and the video recorder, with which the means of storing data changes considerably. With regard to other forms of pornography the old liberal article remained the guideline.90 The next changes with regard to anti-child pornography legislation were made in 1994, and these changes will be discussed in the next section.
§ 3.5. Making the punishment fit the crime
A new bill addressing the child pornography issue was proposed in 1994, it was then ratified in 1995.91The main purpose behind this law was to intensify the fight against the production of child pornography actively. As was said in the deliberations leading to the enactment of this law: “Fighting child pornography crimes is impossible unless all links in the chain of child pornography, which on the one hand depend on the production thereof, and on the other hand contribute to it, are being criminalized. That means that the having in stock of child pornography should be criminalized as such.”92The text of the new Article 240b of the Dutch Criminal Code was now:
“1. With a prison sentence of four years at most or a monetary fine of the fifth category will be punished the person who, is involved, disseminates, publicly displays, produces, imports or carries through, exports or has in stock an image or data carrier containing a depiction of sexual conduct, in which a person who apparently has not reached the age of sixteen years 2. Not punishable is the person, who has such an image in stock of which it is established that it is being used for scientific, educational or therapeutic purposes.
89 Ratified on the 3d of July 1985, Stb. 1985, 385 90 J.L. van der Neut, Kinderpornografie. De situatie in Nederland, Delinkt en Delinkwent, 2000 Vol. 2. P. 113 91 Ratified on the 13th of February 1995, Stb. 1995, 575. Enacted later on the 1st of February 1996 92J .L. van der Neut, Kinderpornografie. De situatie in Nederland, Delinkt en Delinkwent, 2000 Vol. 2. P. 114 referring to another note: Handelingen Tweede Kamer, 23 682 April 6th 1995
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Convicting for Computer Child Pornography Which computer activities lead to liability in the U.S. and the Netherlands
3. With a prison sentence of six years at most or a monetary fine of the fifth category will be punished he who habitually commits one of the crimes, defined in the first paragraph.”
As stated in the previous section, the penalty maximum was so low that it would hardly have any preventive function at all. This new law changed the penalty maximum considerably, instead of a facing a maximum of three months in prison it was raised to a maximum of 4 years. This maximum could now be increased to six years if the violation was habitual. Habitual behavior was to be determined when the suspect had images in stock during an extensive period of time and these images depict minors that are involved in sexual conduct.93 The preventive effect problem of the previous Article 240b of the Dutch Criminal Code was adequately dealt with, and was consequently added weight to with the higher sentence clause. This new article also deleted the intentionality element with regard to the dissemination and making publicly available from the penal clause, which enhanced the scope of the article considerably because now such violations can be more easily established.
In the years to come this legislation was faced with the emergence of the Internet and this opened up a whole new world of possibilities for the production and dissemination of child pornography. The next section will discuss how the Internet changed the anti-child pornography playing field.
§ 3.6. A whole new playing field
The development of the Internet in the 1990’s opened up a whole new array of possibilities in ways to produce and disseminate child pornography. Child pornography was now available to everyone with an Internet connection, and could be transferred from one country to another at the click of a button. Where previously possessors of child pornography had a collection of for example tens and sometimes hundreds of pictures, this soon grew to collections of thousands to tens of thousands images containing child pornography.94 A byproduct of the Internet is that users of child pornography of the Internet can quickly become the producers themselves.95And to make things even worse, the Internet also lends itself for online abuse of children. For example, in 1996, a group of pedophiles, joined together under the name of the Orchid Club, was arrested in the United States. This group of pedophiles used to sexually abuse children in real-time. Their modus operandi was to have one member transmit real-time images of a child being sexually assaulted to other members of the club using a digital camera. The other members could then request certain sexual actions to be performed on the child and could thus direct the abuse.96 Their members lived in the Europe, the United States and Australia.
93 J.J. Oerlemans, Kinderpornografie op Internet: Dweilen met de kraan open, p.14 referring to another note by Lunnemann e.a. 2006, p.80 94 Taylor and Quayle 2003, p.161 95 M. Taylor et al, Child Pornography, the Internet and offending, 2001 96 Idem note 95
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Convicting for Computer Child Pornography Which computer activities lead to liability in the U.S. and the Netherlands
The examples above illustrate how the Internet changed the playing field of child pornography and made it a whole new ballgame. A legislative response to these new forms of child pornography was needed. As child pornography transcended national borders the members of the Council of Europe decided to close the ranks and join together in the form of a treaty that specifically dealt with the issue of child pornography and other computer related crimes. This treaty was called the Convention on Cybercrime.97The next section will discuss how the Council of Europe and their partners tried to fight these new changes through the Convention on Cybercrime.
§ 3.7. The Convention on Cybercrime
The Council of Europe and some nations outside of the Council of Europe joined together in a treaty called the Convention on Cybercrime which was a treaty that was specifically designed to combat crimes committed via the Internet or other computer networks. One of the main principles of this treaty was to pursue a common criminal policy aimed at the protection of society against cybercrime by adopting appropriate legislation and fostering international co-operation.98The Netherlands was one of the nations that ratified this treaty and thus obligated itself to be bound to its contents, with certain limitations installed in the treaty itself.
If was felt that the Convention on Cybercrime was needed as the revolution in information technologies had changed society fundamentally and would probably continue to do so in the near future. 99Although these new technological revolution had given rise to unprecedented economic and social changes, it also had a dark side. New types of crimes emerged and traditional crimes could now be committed with the use of new technologies. Even more important, the consequences of criminal behavior could now be more far-reaching than ever before because geographical location was no longer a restriction for committing a crime across borders.
As such, these new technologies challenged the existing legal concepts. In the words of The Explanatory Report:
“Information and communications flow more easily around the world. Borders are no longer boundaries to this flow. Criminals are increasingly located in places other than where their acts produce their effects. However, domestic laws are generally confined to a specific territory. Thus solutions to the problems posed must be addressed by international law, necessitating the adoption of adequate international
97 Convention on Cybercrime, 23rd of November 2001, Budapest, can be found at: http://conventions.coe.int/Treaty/EN/Treaties/Html/185.htm last visited on October 26, 2010 98Idem note 97 99 In the introduction of the Explanatory Report of the Convention on Cybercrime more detailed information can be found on how technology changed society. This information can be found at: http://conventions.coe.int/Treaty/en/Reports/Html/185.htm, last visited on October 29, 2010 2010
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Convicting for Computer Child Pornography Which computer activities lead to liability in the U.S. and the Netherlands legal instruments. The present Convention aims to meet this challenge, with due respect to human rights in the new Information Society.”100
Title 3 of the Convention on Cybercrime dealt with content-related offences, and article 9 of this title dealt with the issue of child pornography specifically.101 This article was formulated to strengthen protective measures for children, including their protection against sexual exploitation, by modernizing criminal law provisions to more effectively circumscribe the use of computer systems in the commission of sexual offences against children.102This article specifically criminalizes several aspects of the electronic production, possession and distribution of child pornographic material. At the time most States already had criminalized the traditional methods of producing and distributing child pornography, but due to the increasing use of Internet as medium for trading these materials, it was strongly felt that new provision, dealing specifically with these new forms of sexual exploitation and endangerment of children, needed to be adopted as an international legal instrument to combat these dangers.
The scope of Article 9 of the Convention on Cybercrime was to establish certain actions regarding child pornography as criminal offenses under domestic law. These actions will be summed up in short here, but will be discussed as to what is to be understood under these actions, and why they were formulated as such in chapter 4, where the rationale behind each nation’s anti-child pornography legislation is discussed. Actions now criminalized included actions like producing, producing for distribution, offering or making available, and distributing or transmitting child pornography through a computer system.103 It also criminalized procuring child pornography for oneself or someone else and criminalized the possession of child pornography in a computer system or on a computer-data storage medium.104 The treaty however reserved the right for Parties to the treaty to incorporate in domestic law, in whole or in part, paragraphs 1, sub-paragraphs d and e, meaning that with regard to the procuring and possession of child pornography each country was free to incorporate these statutes as they deemed fit, or not at all.105
§ 3.7.1. The implementation of the Cybercrime Convention into the Dutch legislation On basis of this Treaty the Netherlands made an amendment to the legislation in 2002.106The amendment of 2002 concerns multiple revisions and modernizations. Article 240b of the Dutch Criminal Code was expanded upon to now also include virtual child pornography. Furthermore, the element of having such material in stock was abandoned and replaced by the element of having in its possession.107 Virtual child pornography was added because the new technological developments made it possible to create life like images of children without the involvement of real children, for an effective approach in
100 Idem note 99, at number 6 101Convention on Cybercrime. p.6 102 Idem note 97, at number 91 103 Idem note 101, p.6. Under Article 9 paragraph 1sub-paragraph a to c 104 Idem note 101, p.6. Under Article 9 paragraph 1 sub-paragraph d and e 105 Idem note 101, p.7, Under Article 9 paragraph 4 106 Law of July 23th, Stb. 2002, 388 107 Idem note 106, at Artikel 1 C
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Convicting for Computer Child Pornography Which computer activities lead to liability in the U.S. and the Netherlands fighting child pornography, especially on the Internet, it might be needed to act against seemingly real child pornography.108 The age limit for all conducts named in Article 240b of the Dutch Criminal Code was raised from sixteen to eighteen years.109Also the exception in Article 240b paragraph 2, for scientific, educational and therapeutic purposes, was abandoned.110
In this section all changes brought forth by the implementation of the Convention on Cybercrime are mentioned. Soon hereafter in 2007 another convention was agreed upon in Lanzarote, appropriately named the Lanzarote Convention. This thesis will discuss this convention and its consequences in the next section.
§ 3.8. The Lanzarote Convention
Following up on the Convention on Cybercrime the Council of Europe and several other nations met again in Lanzarote in 2007, hence the name the Lanzarote Convention, with the aim to achieve a greater unity between its members. This unity was needed as the sexual exploitation of and sexual abuse of children had grown to worrying proportions at both national and international level, in particular as regards the increased use by both children and perpetrators of information and communication technologies, and that preventing and combating such sexual exploitation and sexual abuse of children requires international co-operation.111 According to the Explanatory Report of the Lanzarote Convention amendments to the law was needed because:
“Children in Europe are not sufficiently protected against sexual exploitation and abuse. In particular the Committee underlines the lack of exhaustive national criminal legislation in this field in the State Parties, especially as concerns trafficking of children, “sex tourism” and child pornography, the lack of a clearly defined minimum age for consenting sexual relations and lack of protection for children against abuse on the Internet. It has, for example, recommended that States develop an effective system of reporting and investigation, within a child-sensitive inquiry and judicial procedure, avoiding repeated interviews of child victims, in order to ensure better protection of child victims, including the protection of their right to privacy.”112
108 Lunnemann et al, Kinderen beschermd tegen seksueel misbruik: Evaluatie van de partiële wijziging in de zedelijkheidswetgeving, mei 2006, p.21 109 Idem note 108, p.p. 21 -22 110 Idem note 108, p.22 111 Preamble of the Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse, Lanzarote 25-10-2007. Also known as the Lanzarote Convention, can be found at http://conventions.coe.int/Treaty/Commun/QueVoulezVous.asp?NT=201&CM=1&DF=&CL=ENG last visited on October 26th 2010. 112 Explanatory Report of the Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse, at point 7, can be found at: http://conventions.coe.int/Treaty/EN/Reports/Html/201.htm, last visited at November 29, 2010.
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Convicting for Computer Child Pornography Which computer activities lead to liability in the U.S. and the Netherlands
The Lanzarote convention expanded upon the current anti-child pornography legislation by introducing a new penal clause. Under Article 20 paragraph 1 sub-paragraph f of the treaty it was now criminal to “knowingly obtain access, through information and communication technologies, to child pornography.” Also in Article 23 of this treaty “grooming” was now made criminal.
§ 3.8.1. The implementation of the Lanzarote Convention into the Dutch legislation The Netherlands has incorporated the articles of the Lanzarote Convention into the Dutch Criminal Code by law of November 26 th 2009.113 However on the 12th of June 2009 there was another amendment that needs to be mentioned first. This amendment raised the maximum length of the prison sentence for habitual offenders from six to eight years.114
The incorporation of the Lanzarote Convention made some changes to Article 240b of the Dutch Criminal Code. The sentence: “disseminates, imports, carries through, exports or has in its possession”, was replaced by: “disseminates, offers, publicly displays, produces, imports, carries through, exports, acquires, possesses or obtains access through information and communication technologies.”115 Also, the Lanzarote Convention proposed some alterations such as that the maximum prison sentence can be raised with a third if the act is committed by two or more joint persons; 116or if the perpetrator has committed the act against his own child, a child over who he has custody, a child who he nurtures or raises as belonging to his family, his pupil, or a minor, minor servant or inferior entrusted to him for his care, education or watchfulness.117These alterations have not yet been incorporated into the Dutch Penal Code article 240b.
§ 3.9. Conclusion
So on basis of all amendments till now the current text of Article 240b of the Dutch Criminal Code is as follows:118
“1. With a prison sentence of four years at most or a monetary fine of the fifth category will be punished the person who disseminates, offers, publicly displays, produces, imports, carries through, exports, acquires, possesses an image or data carrier containing a depiction of sexual conduct, in which a person who apparently has not reached the age of eighteen years, is involved or seemingly is involved, or obtains access thereto with use of an automated work or with use of a communication service. has
113 Law of November 26th, 2009, Stb. 2009, 544 114 Law of June 12th 2009, Stb. 2009, 245 115 Law of November 26th, 2009, Stb. 2009, 544, Artikel 1 at A 116 Idem note 115, at Artikel 1 Aa 1 117 Idem note 115 at Artikel 1 Aa 2 118 Article 240b of the Dutch Criminal Code 2011
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Convicting for Computer Child Pornography Which computer activities lead to liability in the U.S. and the Netherlands
2. With a prison sentence of eight years at most or a monetary fine of the fifth category will be punished he who habitually or as a profession commits one of the crimes, defined in the first paragraph.”
This chapter has provided an overview of all the amendments that have been made to the Dutch anti- child pornography legislation and why the legislator has chosen to do so. The Dutch legislation has come a long way to develop an elaborate anti-child pornography penal clause. It went from the early liberal, and therefore criticized viewpoint and legislation, to a tightly formulated and strict penal clause with adequate punishments set in foresight. But as the child pornography scene is ever developing the Dutch legislator will have to keep up with future changes and has shown the intent to do so by ratifying and incorporating treaties like the Convention on Cybercrime and the Lanzarote Convention.
With this chapter an end has come to the legal history of both countries anti-child pornography legislation.
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Convicting for Computer Child Pornography Which computer activities lead to liability in the U.S. and the Netherlands
Chapter 4. The rationale behind the anti- child pornography legislation in the U.S. and the Netherlands
This chapter will provide insight into the rationales behind the drafting of the anti-child pornography legislation in both nations. This information provides insight into what behavioral aspects with regard to child pornography are deemed to be criminal and why this is so. This chapter will first address the rationales of the U.S. and after that the rationales of the Netherlands.
§ 4.1. The rationale of the U.S. anti-child pornography legislation
After researching the U.S. anti-child pornography legislation I have discovered that three arguments are used as the foundation on which the anti-child pornography legislation is built. These will be discussed in this section. All arguments can be found in the Child Pornography Prevention Act of 1996.
The first argument is that it must be prevented that children are psychologically or physically being harmed by sexual abuse. Children that are being used in the production of child pornography such as photographs, movies, computer images etcetera are being exposed to the chance that they will experience physical or psychological harm. This harm must be prevented at all costs and is one of the principal reasons behind the legislation. Harm can manifest itself in two ways; first there is the immediate harm when making child pornographic material such as the actual abuse and the traumas following that abuse. Secondly there is a form of continuing harm that I will now explain. Child pornography is often a permanent record of the victim’s abuse that continues to exist and that can resurface after time, for the victims of that material it means that they are at risk of having to relive that experience and accompanying harm again when confronted with the recording of their abuse. The risk of that happening is unacceptable and is also part of the first reason behind the drafting of the anti-child pornography legislation. Congress puts it in these words: “the creation and distribution of child pornography which includes an image of a recognizable minor invades the child’s privacy and reputational interests, since images that are created showing a child’s face or other identifiable feature on a body engaging in sexually explicit conduct can haunt the minor for years to come”.119
The second argument is that it must be prevented that children are being seduced into sexual activity by confronting them with material of other children engaged in sexual activity. When a child is not as forthcoming as the abuser would like, the abuser will often send pictures or other material to the unforthcoming child depicting other children engaging in sexual activity, or posing for pictures, in which those depicted children are having fun in doing the activity. Often the sending of such material will
119 Child Pornography Prevention Act of 1996
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Convicting for Computer Child Pornography Which computer activities lead to liability in the U.S. and the Netherlands persuade the child to also take part in such activity. This method of seducing children into sexual abuse is a grave danger to the children and needs to be stopped. Congress therefore enacted several statutes in the anti-child pornography legislation of the U.S. to put an end to such behavior by people interested in child pornography.
The third argument relates to the users of child pornographic material. People with interest in child pornography often use that material to whet their own sexual appetites, and as a model for sexually acting out with children. A person that uses child pornography for those reasons can get desensitized that person to the pathology of sexual abuse of children. He or she can even get so desensitized that the behavior portrayed in child pornography becomes acceptable and even preferred by that person. Such sexualization and eroticization of children through any form of child pornography will lead to encouraging a shift in the societal perception of children. Children will then be seen as sexual objects and such a view of children will probably lead to further abuse and exploitation of children. This creates an unwholesome environment for children which will affect their psychological, mental and emotional development and such an environment will also undermine the attempts of parents and other family to encourage the sound mental, moral and emotional development of children.
An additional benefit of the anti-child pornography legislation, but not a separate argument for such legislation, is the fact that by prohibiting the possession and viewing of child pornography it will encourage the possessors of that material to get rid of it. This will help to protect the victims of child pornography and will help to eliminate the market that thrives on the sexual exploitation of children.
The above mentioned rationales when drafting the CPPA were based on court rulings that preceded the drafting of the CPPA. In the Ferber case it was decided that the prevention of sexual exploitation and abuse of children constitutes a government objective of surpassing importance, for the most part with referral to the above mentioned rationales.120 The Osborne case went on to state that this governmental interest extends to stamping out the vice of child pornography at all levels in the distribution chain. In light of these decisions the government thus has a compelling interest in ensuring that the criminal prohibitions against child pornography remain enforceable and effective.121
§ 4.2. The rationale of the Dutch anti-child pornography legislation
After exploring the Dutch rationales I have discovered that the rationales underlying the U.S. anti-child pornography legislation are mainly the same rationales that are applied in the Netherlands. This section will now discuss the rationales that state the importance of the Dutch anti-child pornography legislation.
The historic overview has shown us how the rationale of the Dutch legislator has changed over the years with regard to the criminalization of child pornography. In 1886 it was the intention of the legislator to
120 New York v. Ferber 485 U.S. 747, 1982 121 Osborne v. Ohio, 495 U.S. 103 1990
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Convicting for Computer Child Pornography Which computer activities lead to liability in the U.S. and the Netherlands protect the common sense of decency that had shifted and thus moved the legislator to amend to law. In the 1960’s and 1970’s there was another shift in the rationale, sexual freedom was now to be held in high regard and as a consequence of such a view, legal actions should only be undertaken when it was absolutely necessary for the protection of the physical and spiritual integrity.122 The western civilization experienced a period of sexual freedom in which sexual interaction between adults and children was not bluntly rejected.123Even the question arose whether the penal action after sexual interaction between adults and children was not more harmful than the interaction in itself.124
Gradually the apprehension crept in that the sexual freedom of one could lead to sexual oppression and even to an infringement of the physical integrity for others, especially women and children.125 This new understanding led to the changes brought forth by the changes in the decency law, which have been addressed earlier on in this thesis. In the years hereafter the law was amended multiple times based on the idea that protection of people and children should supersede the right of sexual freedom.
The ways in which children can fall victim to child pornography is diverse because the way in which children are being used for child-pornographic purposes knows many forms, and besides the material that is without a doubt child pornographic in nature, there exist other form of so called “child erotica” which are not covered by the scope of the penal clause of 240b of the Dutch Penal Code, but which certainly fall within the principle of the protect worthiness of children.126
With this principle it is meant that children must be protected against images that suggest sexual abuse, against behavior that can be used to encourage or seduce children to take part in sexual behavior and against behavior that can be seen as taking part in a subculture that stimulates children into sexual abuse.127 These are the exact same three rationales that are also used in the U.S. These three rationales are not explained further in documents found in the Netherlands, but are addressed in the original text of the Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse128, which is ratified by the Netherlands and incorporated into its legislation.
According to the Council of Europe, the sexual exploitation of children and in particular referring to child pornography, and all other forms of sexual abuse of children, are destructive to the health of children
122 Richtlijn Kinderpornografie, 1-5-2007, can be found at http://www.om.nl/organisatie/beleidsregels/overzicht/zeden/@155136/richtlijn/, last visited on the 30th March 2011 123 Idem note 122 124 Idem note 122 125 Idem note 122 126 Aanwijzing Kinderpornografie, 1-1-2011, can be found at http://www.om.nl/organisatie/beleidsregels/overzicht/zeden/@155181/aanwijzing/, last visited on the 30th of March 2011 127 Idem note 126 128 Preamble of the Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse, Lanzarote 25-10-2007. Also known as the Lanzarote Convention, can be found at http://conventions.coe.int/Treaty/Commun/QueVoulezVous.asp?NT=201&CM=1&DF=&CL=ENG last visited on October 26th 2010
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Convicting for Computer Child Pornography Which computer activities lead to liability in the U.S. and the Netherlands and their psychological and social development.129 This is the same rationale as is discussed as the first rationale of the U.S. It is only logical that preventing harm to children done by the child pornography industry would be the leading rationale in the Netherlands too.
With the investigation and prosecution of child pornography the focus needs to be aimed primarily at the identification of the victims, perpetrators of sexual abuse and the production of child-pornographic imagery. 130Possession of child pornography (and child erotica) can serve as an indicator for an investigation of possible abuse and production
§ 4.3. Conclusion
This chapter has shown that the rationales for criminalizing child pornography offenses are similar in both nations. Both nations apply the same three rationales for criminalizing child pornography.
1. Physical, psychological or emotional harm done to children by sexual exploitation needs to be forbidden. 2. It must be prevented that children are seduced into sexual exploitation by using material that depicts other children engaged in sexual activity or posing for pictures. 3. A subculture in which sexual abuse of children is accepted must be prevented. The next chapters will explore the case-law in the U.S. and the Netherlands with regard to the possession, and viewing (U.S.)/ gaining access to (the Netherlands), of child pornography through certain acts performed with a computer. This chapter has provided the main reasons for criminalizing acts relating to child pornography and certain aspects of these rationales will be used by the courts as a foundation upon which to build a conviction.
129 Idem note 128 130 Idem note 126
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Convicting for Computer Child Pornography Which computer activities lead to liability in the U.S. and the Netherlands
Chapter 5. Case-law review of the U.S.
This chapter will discuss the case-law of the U.S. dealing with the knowing possession of – and knowingly obtaining access to- child pornography. This thesis will first explain how constructive possession is being used as a minimal threshold level for establishing knowing possession. Next this thesis will explore how the definition of knowingly is being defined and construed in the case-law in the U.S. and will distill what the main standards are for establishing knowing possession of child pornography. Possession of child pornography is an offence that in essence takes two forms. The first is simple possession; this is a form of possession where the possession alone is sufficient to constitute an offence.131 The second is possession accompanied by an additional intent, such as an intention to sell or supply.132This chapter will use case-law based on the current meaning of the articles §2252 and §2252A of the U.S.C; case-law based on the older versions of these articles will be left out of this search and analysis. Furthermore, case-law after 20-11-2010 will not be taken into account due to time constraints.
The main focus of this chapter is to investigate how the caching of websites, files found in the trashcan/recycle bin and the saving and deleting of images and online viewing of child pornography and constitute to knowingly possessing child pornography and knowingly obtaining access to child pornography.
§ 5.1. Constructive possession as a minimum threshold level for knowing possession Possession can be established in two ways. Possession can be actual possession which means that a person has direct physical control of something on or around his person.133 A person who is not in actual possession, but who has both the power and the intention to exercise control over something is in constructive possession of it.134
§ 5.2. Knowingly possessing child pornography
§ 5.2.1. When is caching of files considered to be knowing possession of child pornography? These days knowing possession of child pornography can be assumed by looking through one’s cache file on a person’s computer. To understand how one can be convicted on basis of what is in your cache file it important to understand what a cache file is exactly. So what is this cache file exactly? A cache file
131 U.S.C. §2252(4) and §2252A (5) 132 U.S.C. §2252(3) and §2252A (4) 133 Definition acquired from http://cyb3rcrim3.blogspot.com/2008/12/constructive-possession.html, last visited at 31-03-2011 134 Idem note 133
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Convicting for Computer Child Pornography Which computer activities lead to liability in the U.S. and the Netherlands is a storage mechanism that improves performance by transparently storing data such that future requests for that data can be served faster.135 The data that is stored within a cache might be values that have been computed earlier or can be duplicates of original values that are stored elsewhere.136 So when you or I view a webpage the web browser stores a copy of the page you are visiting on your computer’s hard drive in a folder or directory. That specific folder or directory is designated as the cache, and each individual file within that cache is known as a temporary Internet file.
In the U.S. there are numerous cases in which defendants are convicted for knowingly possessing child pornography on the basis of finding child pornography in their cache file. The Supreme Court in the United States v. Tucker in 2002 can be considered to be the leading case as it is the only case in which the U.S. Supreme Court ruled on this issue.137 In this case Tucker states that he did not possess the child pornography but only viewed it on his web browser. He does concede that he knew that when he visited the web page, the images on the web page would be sent to his browser cache file and thus saved on his hard drive.138 However, Tucker states that he had no desire to save the images onto his hard drive and deleted the images from his hard drive after each session.139
The Supreme Court interprets the definition of possession as the holding or having something (material or immaterial) as one’s own, or in one’s control. Tucker’s counter argument against having control over the child pornographic material was that he did not personally save or download the images to his hard drive and therefore had no control over them. The Supreme Court followed the District’s Court ruling that Tucker did have control over the material because he made a habit of manually deleting the images from the cache files which thus established that he exercised control over the material.140 This district court also rejected Tucker’s argument that he did not voluntarily possessed the child pornographic material on the grounds that Tucker visited the Web sites for the purpose of viewing child pornography and that the images would not have been stored in his cache file if he had not voluntarily sought out this material. 141Furthermore, the district court concluded that his possession was knowingly because he purposefully visited web sites which portray child pornography knowing that the images would be stored on the hard drive of his computer.142
The fact that Tucker did have control over the material is exemplified by the testimony of Customs Agent Daufenbach which can be found in the Supreme Court decision. He states that an individual could access an image in a cache file and could then do numerous acts with it such as send it by e-mail, post it on a newsgroup, place it on a Web site, or print a hard copy of it.143 This testimony conclusively
135 Definition acquired from Wikipedia, found at: http://en.wikipedia.org/wiki/Caching, last visited at 22-11-2010 136 Idem note 135 137 U.S. v. Tucker 305 F.3d 1193 C.A.10, 2002 138 Idem note 137 139 Idem note 137 140 Idem note 137 141 Idem note 137 142 Idem note 137 143 Idem note 137
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Convicting for Computer Child Pornography Which computer activities lead to liability in the U.S. and the Netherlands demonstrated Tucker’s control over the images stored in his cache file, and thus how he possessed them according to the Supreme Court.
The Supreme Court also followed the reasoning of the district court with regard to the assumption that Tucker knowingly possessed child pornography. The Supreme Court repeated the reasoning of the district court that Tucker intentionally sought out and viewed child pornography knowing that the images he viewed would be saved on his computer. Furthermore, he continued viewing child pornography even when he knew that the pornography was being saved, if only temporarily, on his computer. These circumstances made it so that his possession was voluntary, and thus each time he intentionally sought out and viewed child pornography with his Web browser, he knowingly acquired and possessed the images.
The case above mentioned one way in which knowing possession of child pornography in the cache file on a computer can be established. The first standard that can be established is that if one intentionally views child pornography when knowing that images of what he is viewing are being stored on his computer one knowingly possesses child pornography.
A case quite similar to the Tucker case was the case of U.S. v. Bass.144 In this case Bass also viewed child pornography online but argued that he did not know that the images he viewed online were automatically being saved to the cache file on his computer. He claimed that a computer virus caused his browser to save child pornography. So how did the district court construe knowing possession of child pornography? In this case the criterion formulated by the Tucker decision were applied successfully again. Bass used two software programs, History Kill and Window Washer, to remove the child pornography from the computer. These attempts to remove the images were sufficient evidence to conclude that Bass did know that when he was viewing child pornography these images were being stored onto his computer. The main difference with the Tucker case is that where Tucker admitted to know that the images were being saved onto his computer in the cache directory and thus was convicted upon this prior knowledge Bass did not admit to know this. Therefore, his knowledge of this fact needed to be proven, and this was done by interpreting his attempts to remove the images from the cache directory as his knowledge of the fact that the images were indeed being stored onto his computer.
In a dissenting opinion in the Bass case of Judge Kelly she shows why proving knowledge of the existence of the cache directory is needed as it would otherwise lead to unwanted consequences:
“Knowing possession of pornography cannot be established merely by demonstrating that Mr. Bass was ignorant, negligent or foolish not to have known that downloading files is easy, and material is saved in temporary internet files… the court’s leap from viewing child pornography to knowingly possessing it based solely on a computer default operation without any proof the defendant knew about such operations establishes a precedent that mere negligence suffices for criminal liability.”145
144 U.S. v. Bass, 411 F.3d 1198, 2005 145 Idem note 144
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Convicting for Computer Child Pornography Which computer activities lead to liability in the U.S. and the Netherlands
This opinion illustrates the Tucker criteria that knowledge of the storing in the cache directory of the child pornographic images is required. Actions such as viewing, copying and enlarging and deleting images from this cache directory demonstrate that one has such knowledge and thus knowingly possesses these images.
Another case where the question arose whether a defendant can be convicted of knowing possessing of child pornography in the cache file was in the case of U.S. v. Romm.146When Romm was visiting Las Vegas he was watching child pornography websites in his hotel room on his computer. Romm contends that he was merely knowingly viewing child pornography but did not knowingly possess it.147 The district court disagreed with Romm’s argument and stated that in the electronic context a person can possess child pornography without downloading it if this person seeks it out and exercises dominion and control over it.148 In this case the district court assumed that:” To possess the images in the cache, the defendant must, at a minimum, know that the unlawful images are stored on a disk or other tangible material in his possession.”149 In this case Romm’s control over the child pornographic material in his cache was established by him enlarging the images on his screen, and saving them there for five minutes before deleting them.150 Also, while the images were displayed on his screen and simultaneously saved onto his computer’s hard drive, he had the ability to copy, print or email the images to others and then delete the images from his cache directory. This reasoning is in line with the control criterion that was established in the Tucker case and according to the detective that investigated the case; Romm did perform these actions and thus knowingly possessed the child pornographic material.
In the case of State v Mobley the court stated how knowing possession in the context of computer images needs to be interpreted. 151The standard here again is that the defendant: “reached out for and exercised dominion and control” over the images. This case illustrates that the criteria for knowingly possessing images portraying actual minors and images portraying computer images of minors engaged in sexual explicit conduct are the same, the requirements are that one intentionally seeks out such materials and exercises control over it.
In conclusion the standards for knowingly possessing child pornographic material in the cache directory on a computer are 1. That the defendant intentionally seeks out this material and 2. That the defendant exercises dominion or control over the material. This reasoning is upheld in the cases shown above, but
146 U.S. v. Romm 455 F.3d 990, 2006 147 Idem note 146 148 Idem note 146 149 Idem note 146 150 Idem note 146 151 State v. Mobley, 118 P.3d 413, 2005
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Convicting for Computer Child Pornography Which computer activities lead to liability in the U.S. and the Netherlands also in the cases of Com v. Simone152, State v. Lindgren153, Kromer v. Commonwealth154, Ward v. State155, State v. Mercer156, People v. Kent157and many other cases.158
So what if someone knowingly views child pornography but is unaware that images of what he is viewing are being stored onto the hard drive of his computer?
This question is answered in the case of U.S. v. Stulock.159 In this case Stulock was charged with knowingly possessing child pornography amongst other charges. In this case the possession charge was also based on images found in Stulock’s browser cache like in the Tucker case. In this case however, Stulock was acquitted from the knowingly possession of child pornography charge. The district court explained that: “One cannot be guilty of possession for simply having viewed an image on a website, thereby causing the image to be automatically stored in the browser’s cache, without having purposely saved or downloaded the image”.160 The difference with Tucker is thus that Stulock wasn’t aware of the fact that the child pornography he was viewing was being stored in his browsers cache whereas Tucker was aware of this and regardless of this kept on viewing child pornography.
In the case of U.S. v. Kuchinski a similar verdict was given.161 The appeals court in this case ruled that Kuchinski did not knowingly possess images found in his computer’s cache directory. In this case they refer to the Romm case as comparison material. In the Romm case the evidence demonstrated that Romm knew about the cache file and took steps to access the material herein and tried to delete them, this was sufficient to prove dominion and control over the material. Whereas Romm had knowledge and access to the material this is disputed in this case. Important in this ruling was the perception of the cache directory as system-protected area and that it takes a sophisticated user to know that such a cache directory exists, let alone be able to access it.162The appeals court states that: “In the case at hand, there was no evidence that Kuchinski was sophisticated, that he tries to gain access to the cache files, or that he even knew of the existence of the cache files.”163Under number 18 in the document, the appeals court went on to state that:
“Where a defendant lacks knowledge about the cache files, and concomitantly lacks access to and control over those files, it is not proper to charge him with possession and control of the child pornography images located in those files, without some other indication of dominion and control over
152 Com v. Simone, Not Reported in S.E.2d, 2003 WL 22994245, 2003 153 State v. Lindgren Wis. 2d 85, 2004 154 Kromer v. Commonwealth, 613 S.E. 2d 871, 2005 155 Ward v. State, 994 So.2d 293, 2007 156 State v. Mercer, Wis 2d 506, 2010 157 People v. Kent, N.Y.S. 2d. WL 4008735, 2010 158 Amongst others: Com v. Diodoro, 932 A.2d 172 , 2007; Assousa v. State, S.W. 3d. 2009 WL1416759, 2009; People v. Josephitis, 394 Ill.App.3d 293, 2009; and many more 159 U.S. v. Stulock, 308F.3d 922. 2002 160 Idem note 159 161 U.S. v. Kuchinski, 469 F.3d 853, 2006 162 Idem note 161 163 Idem note 161
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Convicting for Computer Child Pornography Which computer activities lead to liability in the U.S. and the Netherlands the images. To do so turns abysmal ignorance into knowledge and a less than valetudinarian grasp into dominion and control.”164
Another case in which the evidence was insufficient for a conviction on the basis of knowingly possessing child pornography was in the case of Barton v. State.165 In this case it was argued that Barton did not know that a cache directory existed or that he knew that images were stored there automatically according to the testimony of agent Murray.166 In other words, Barton was not deemed to be a user who was sophisticated enough to know that a cache directory existed, and thus had no knowledge of how to use it which leads to him being unable to exercise dominion or control over the material. This lack of knowledge of the existence of the cache directory as mentioned above is not assumed easily according to the case-law. Most of the time knowledge is easily established as is shown in the previous section.
In conclusion the standards for knowingly possessing child pornographic material in the cache directory on a computer are 1. That the defendant intentionally seeks out this material and 2. That the defendant exercises dominion or control over the material. 3. The defendant must be aware of the existence of the cache directory.
§5.2.2. Files found in the trashcan/recycle bin as evidence of knowingly possessing child pornography This section will discuss how files put in the trashcan/recycle bin can be used as evidence in child pornography possession cases. Although child pornography put in the trashcan/recycle bin is removed it still remains on the hard drive of a computer and can be - very easily and without any specialized computer software or specific computer knowledge –made accessible again to the computer user. This section will discuss case-law dealing with child pornography found in the trashcan/recycle bin found in the U.S.
According to the People v. Girard case, the prosecution has to show more than just the presence of child sexually abusive material in a temporary Internet file or a computer recycle bin to prove that defendant knowingly possessed the material.167 The question arises what is meant with “to show more” to fulfill the knowingly possession requirement.
This question is partially answered in the case of U.S. v. Clark.168 In this case Clark was convicted for knowingly possessing child pornography in the allocated files on his computer, more specifically child pornography found in the recycle bin on his computer. The defendant was convicted on the grounds that he knew that the child pornography was on his computer and that he had the ability to access and possess these material. This reasoning of the court seems to be in line with the standards formulated for having knowing possession of child pornography found in the cache directory/temporary Internet
164 Idem note 161 at 18 165 Barton v. State, 286 Ga. App. 49, 648 S.E. 2d 660, 2007 166 Idem note 165 at 52 167 People v. Girard, 269 Mich.App. 15, 709 N.W. 2d 229, 2005 168 U.S. v. Clark, F.Supp. 2d, WL 259256, 2011
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Convicting for Computer Child Pornography Which computer activities lead to liability in the U.S. and the Netherlands files. Here too Clark was aware of the fact that he had child pornography on his computer albeit in the recycle bin, and he was able to access it and thus exercise control or dominion over that material.
Another case in which child pornography was found in the recycle bin of the defendant was the case of People v. Coleman.169 In this case Coleman was convicted for knowing possession of child pornography that was found in his recycle bin. In this case evidence for his conviction was found in the fact that his neighbor saw him downloading child pornography onto his computer and that Coleman joked about this to him, and that the defendant admitted to the police that he had child pornography on his computer and that he used Kazaa to seek out and download child pornography. This case illustrates that the court used the standard of intentionally seeking out child pornography to come to a conviction on the knowing possession charge.
In most cases relating to child pornography found in the recycle bin there is usually more child pornography found in either the unallocated clusters or in the temporary Internet files on that computer. Therefore judges seldomly answer the question whether child pornography found in the recycle bin can constitute knowing possession of child pornography on its own but rather focus on the overall question of whether there is knowing possession of child pornography based on all available evidence. The question of whether child pornography found in the recycle bin can constitute that offense on its own is therefore hardly ever answered. The cases mentioned above do refer to possession of child pornography found in the recycle bin as an individual charge of knowing possession. The standards that I have derived from these cases are the following: 1. The defendant must be aware of the fact that child pornography is located in his recycle bin; 2. The defendant was able to exercise control or dominion over this material due to the ease of accessibility of the recycle bin; 3. The defendant intentionally sought out the material.
§5.2.3. Deleted files as evidence of knowing possession of child pornography In the U.S. there have been cases in which a defendant had deleted child pornographic material but was still found guilty of knowingly possessing child pornography. This thesis will discuss in this section how the courts established knowing possession on the basis of deleted material and what the main criteria are to establish that the defendant in fact knowingly possessed child pornography. But first of all it is necessary to understand what deleting actually is so that you can understand why in certain cases it can be used to establish knowing possession.
Deleting does not actually remove the desired material for all eternity, but instead it notifies the file allocation table that the space previously used by the deleted file can now be used by another file.170 Until another file overwrites the space used by the deleted file, those files or file, or at least those portions that not have been overwritten, can be recovered.171Furthermore, the time period of
169 People v. Coleman, N.W.2d. 2006 WL 3246261, 2006 170 Aspatore, Tactics for defending computer pornography charges, 2008 WL 5689422, 2008. 171 Idem note 170
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Convicting for Computer Child Pornography Which computer activities lead to liability in the U.S. and the Netherlands possession does not end when a user deletes the image because the image is only marked for deletion – it still physically exists on the computer, albeit in a different format.172
The case of U.S. v. Angle states why deleted material can still constitute the offense of knowing possession of child pornography. 173The decisive factor is whether the defendant has knowledge of how to recover the deleted material, as is shown by the following passage of the ruling of the appeals court in which they briefly commented on the evidence relating to the deleted child pornography files:
“The government put forth testimony, through McDonnell, that a computer utilities program can recover deleted information on a diskette that has not been overwritten with new information. The specialized utility program, in effect, decodes the deleted information (here images) in order to render it viewable to the naked eye. In this sense, the government claims that the pornographic images always existed on the confiscated diskettes and zip disks. While admitting that the diskettes once contained child pornography, Angle insists that he had no knowledge on how to recover the deleted files or images. When queried by the court, however, Angle testified (rather convincingly) about his familiarity with computers such that the court (here, the fact finder) could have disbelieved his assertion that he did not know how to recover the deleted files on the diskettes and zip disks found at his residence. In the circumstances of this case, the government asserted a plausible theory that Angle merely deleted the files in order to “safe harbor” his collection of child pornography. The import of this theory being that Angle possessed, with the requisite knowledge, pornography (though deleted but recoverable) on the confiscated diskettes and zip disks. That said, however, it is unnecessary to reach the question of whether this evidence standing alone (or in combination with the confiscated child pornography videotape) is sufficient to support the conviction.”174
The knowledge of how to recover the deleted files in combination with the ability to still be able to recover the data (thus the data is not overwritten)are the requirements to establish knowing possession of child pornography when the data is deleted. The possibility to recover the data is seen as a form of ability to control or show dominion over the material, and is in line with the reasoning seen in the cases dealing with knowing possession of child pornography in the cache directory. This form of possession is also knows as possession ex nunc. In most cases the deleting of child pornographic material is one of the factors that establish knowing possession, and not the sole factor for such an assumption. In the Romm case the deleting of child pornographic material was also mentioned and established, but since it were only two images in that case (whereas the minimum requirement is three images for someone to be convicted) it was not enough to support a conviction.
In the Tucker case the deleting of images from the cache directory was also discussed, the court reasoned that Tucker’s habit of manually deleting images from the cache directory established that he exercised control over them.175The court in Tucker goes on to state that logically one cannot destroy
172 E. Howard, Don’t Cache Out Your Case: Prosecuting Child Pornography Laws Based on Images Located in Temporary Internet Files, 2004, 19 Berkely Tech Law Journal 1227, 1234 at 22 173 U.S. v. Angle, 234 F.3d 326, 2000, at 340 174 Idem note 173 175 U.S. v. Tucker, 305 F.3d 1193 C.A.10 (Utah), 2002
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Convicting for Computer Child Pornography Which computer activities lead to liability in the U.S. and the Netherlands what one does not possess and control.176Indeed, the ability to destroy is definitive evidence of control.177
The issue of having had control over the deleted images, possession ex tunc, was discussed in Carter v. State.178 In this case Carter was convicted by a district court of possessing child pornography on four counts. In his case before the district court Carter testified that upon opening three pictures simultaneously he deleted these images when he realized they contained child pornography, however he saved another child pornographic image to his My Documents folder on his computer. The forensic expert in this case found evidence that the three images he opened simultaneously were first saved to his My Documents folder and were then deleted that same date and were not retrievable without special software. However, one of them was first renamed from “Suck Dad with Sis Watching” to “Dc20”, which would show his control over the material.
In the appeal case Carter asserted that the evidence is legally and factually insufficient to establish appellant knowingly or intentionally possessed the images.179 He asserted that the State failed to prove he had actual care, custody, control or management over these images because he deleted the files immediately when he realized they contained pornographic images of children.180 In his oral argumentation he also contended that the evidence was insufficient to prove knowing possession of the images because the State did not offer any evidence of the amount of time that the images were on his computer before they were deleted. 181
The state asserted that Carter had control over the images because he had renamed them and chose to save them in his My Documents directory before he deleted them. With regard to his argument that the State had to prove the length of time the images were stored on his computer to establish knowing possession the appeals court stated that “possession is a voluntary act if the possessor knowingly obtains or receives the thing possessed or is aware of his control of the thing for a sufficient time to terminate his control”.182 As Carter was able to exercise control over the images, shown by him saving the images in his My Documents directory, the time period during which he had the images on his computer had become irrelevant, and was thus left unanswered.
When reviewing the case-law dealing with the question whether the deleting of material from your computer can lead to knowing possession of child pornography it has become clear that the answer to this question is evidently yes. The standards that are applied to establish knowing possession of child pornography in your cache directory are also applied here. Having control over the material seems to be the decider in these cases. The way in which control is established is different however. The Angle case states that when a person is able to recover the material and has knowledge of how to do this, these
176 Idem note 175 177 Idem note 175 178 Carter v. State, 2006 WL3628889, 2006 179 Idem note 178 180 Idem note 178 181 Idem note 178 182 Idem note 178
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Convicting for Computer Child Pornography Which computer activities lead to liability in the U.S. and the Netherlands actions satisfy the control standard, and so possession ex nunc is established. The Tucker case states that one cannot destroy what one does not possess, which is a reasoning that is upheld in the case-law discussed above although not in those precise words. Deleting can be seen as destroying of what one possesses and, as is the case with caching, can be seen as an act of control over the material and thus a knowing act of possession. Control can also be established from altering the file- or image names of the material before deleting the material as is illustrated by the Carter case. In short, the standard of control over the material is also the decisive factor in cases where the material is deleted. Once control is established the outcome is that there is, or was, knowing possession of child pornographic material, and thus that there was possession ex tunc. Also acts done with the material during this time period which show his ability to exercise control or dominion are indications that possession was intended.
§5.2.4. Saved files as evidence of knowing possession of child pornography As is seen above, the standards for judgments based on deleted images is whether one had control over the material. Evidently, when one knowingly saves child pornographic material onto one’s computer this criterion of control or dominion over the material is met.
The case of U.S. v. McNealy this reasoning is upheld.183In this case the defendant was convicted for knowing receipt and possession of child pornography based on the evidence that he “searched online using terms that included “pre-teen girls” and “preteen girls Russian” and created bookmarks to save the addresses of favorite websites including one whose name contained “LOLITA young preteen,” that the defendant accessed multiple commercial child-pornography websites and viewed and saved images from them.” 184 On McNealy’s computer more than 9000 images of child pornography were found. McNealy was convicted for knowingly possessing child pornography on these grounds. The fact that the defendant saved the material onto his computer and thus knowingly possessed the child pornography is not explained in detail in the conviction. Evidently it is seen as a known fact that when one saves child pornographic material onto a computer he or she knowingly possesses that material.
§ 5.3. Knowingly accessing child pornography with intent to view
This section will discuss if and how the online viewing of child pornography can constitute the offence of knowingly accessing child pornography with intent to view. There are many ways to access child pornography through information and communication technologies; it is possible to gain access to child pornography when visiting sites that demand payment to gain access to child pornography, by using webcams to see “live” abuse etc.
The case of U.S. v. Cruikshank is one of the few cases in which the defendant was convicted for knowingly accessing with intent to view child pornography.185In this case Cruikshank paid for online access to child pornography on the computer he used during his work. On one occasion he paid $49,95
183 U.S. v. McNealy, 625 F.3d 858, 2010 184 Idem note 183 185 U.S. v. Cruikshank, 667 F.Supp.2d 697, 2009
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Convicting for Computer Child Pornography Which computer activities lead to liability in the U.S. and the Netherlands for 30 days access and on another he paid $94,95.186He also viewed child pornography by using a free online search engine. The images he viewed depicted very young children, some even under ten years of age. Notably, however, Mr. Cruikshank did not save these images to the hard drive of his computer.187 He did not email them, distribute them via peer-to-peer software, upload them, trade them, or otherwise show them to anyone else.188
The court, in its verdict, explains why paying for access needs to be punished. According to the court it is a serious offense, because by paying for images of child pornography, Cruikshank supported the creation and distribution of images depicting sexual abuse of children by driving up the demand for such material, and by rewarding those who create them.189 This reasoning is in accordance with the rationale discussed in chapter four and therefore a valid argument for this judgment. For these reasons Cruikshank was found guilty of accessing child pornography with intent to view. However, a ruling by a different court in a similar case led to a different outcome, namely that such behavior constitutes possession of child pornography instead of knowingly obtaining access.
In the People v. Flick case the court reasoned why a defendant’s claim that viewing child pornography through buying access to that material does not constitute possession but rather constitutes the criminal offence of knowingly obtaining access to child pornography with intent to view, is incorrect. 190According to the court possession includes both actual and constructive possession, and they conclude that a defendant constructively possesses “any child sexual abusive material” when that person knowingly has the power and intention at any given time to exercise dominion and control over the contraband either directly or through another person or persons.191For constructive possession the same reasoning is applied that is used to come to possession ex tunc. If a defendant was able at any time to exercise control or dominion over the material then that is seen as constructive possession, here the court saw the viewing as a constructive method of having possession over the material. When possession is viewed in this light, defendant’s arguments that he only viewed, rather than knowingly possessed child pornography are untenable.192 The court states that:
“It is undisputed that each defendant purposely operated his computer to locate websites containing child sexually abusive material and voluntarily used his credit card to purchase access to websites with depictions of such material. Upon subscribing to these websites and intentionally accessing the depictions of child sexually abusive material contained there, defendants knowingly had the power and the intention at a given time to exercise control or dominion over the contraband depictions of child sexually abusive material that appeared as either “electronic visual images” or “computer images” on their computer screens. Defendants' insistence that they merely viewed child sexually abusive material is a chimerical distinction that ignores defendants' intention and power to exercise control or dominion over the depictions of child sexually abusive material displayed on their computer screens-material that defendants sought and paid for the right to access. Indeed, the many intentional affirmative steps taken
186 Idem note 185 187 Idem note 185 188 Idem note 185185 189 Idem note 185 190 People v. Flick, 487 Mich.1, 790. N.W.2d 295, 2010 191 Idem note 190 192 Idem note 190
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Convicting for Computer Child Pornography Which computer activities lead to liability in the U.S. and the Netherlands by defendants to gain access and control over child sexually abusive material belie their claims that they merely viewed the depictions.”193
In most cases intentionally accessing child pornography with intent to view demonstrates control or dominion over the material and consequently constitutes constructive possession of child pornography. The main standard for establishing constructive possession of child pornography seems to be that the person who is viewing the child pornography online needs to have gained access to the material through payment. This reasoning is upheld in a ruling of the Oregon Supreme Court. This court ruled on the same subject matter as the Flick case, but came to a different outcome. 194In this case the Oregon Supreme Court held that the defendant’s act of accessing Internet websites that contained digital images of child sexual abuse, which access caused images to be displayed on his computer, without more was insufficient to establish that defendant possessed or controlled digital images. 195The Oregon Supreme Court held that there was no constructive possession, and so chose to not criminalize the act of viewing child pornography unless that act was accompanied by paying, exchanging, or giving anything of value.196
The case-law regarding accessing child pornography with intent to view suggests that this criminal act since its introduction in 2008 is mostly used as additional evidence to support convictions for possession, receiving and other violations of Section 2252A of title 18 of the United States Code. In almost all cases discussed in the section about knowing possession of child pornography the accessing and viewing of child pornography were used as an indication of the intent of the defendant to possess child pornographic material. As seen above, accessing child pornography with intent to view is easily accepted as that person having and wanting to exercise control or dominion over that material, so that the claim falls within the scope of the criminal charge of knowingly possessing child pornography. If accessing child pornography with intent to view is to be seen as having control over or dominion over that material, than the accessing with intent to view itself has no real worth as a separate criminal offence. In my view this criminal offence is created to convict persons on possession charges in which there is a lack of evidence to support the conviction on the initial findings. The accessing with intent to view child pornography can then be used to construe constructive possession so that the defendant can still be convicted for the possession charge.
193 Idem note 190 194 State v. Barger, 2011 WL 31786, 2011 195 Idem note 194 196 Idem note 194
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Convicting for Computer Child Pornography Which computer activities lead to liability in the U.S. and the Netherlands
Chapter 6. Case-law review of the Netherlands
This chapter will discuss the case-law of the Netherlands dealing with the knowing possession of – and knowingly obtaining access with intent to view - child pornography with use of information and communication technologies. This chapter will first explore what kind of intent is required for an action to be criminal. Next this thesis will explore how a person can knowingly possess child pornography when having child pornography in the cache file of a computer. The case law regarding this topic will be discussed and the criteria for establishing knowing possession will be distilled out of these cases. Next this chapter will research how the deleting of files, or researching the deleted files, on a computer can be used to construe criminal possession of child pornography. Here too this thesis aims to find certain criteria that the courts in the Netherlands apply to establish knowing possession of child pornography. With regard to the knowing possession of child pornography the final research topic will concern how saving child pornographic material onto a computer or other data carrier can lead to knowing possession of child pornography.
After having completed the research questions above, the focus will then shift to research questions relating to knowingly obtaining access to child pornography with intent to view child pornographic material. This thesis aims to find the answer to the question whether it is being used as a violation on its own, or as additional evidence in possession cases.
The research regarding the knowing possession of child pornography will be based on the work “Opzet op de harde schijf: criteria voor opzettelijk bezit van kinderporno” (“Intent on the hard disk: standards for intentional possession of child pornography”) written by L. Stevens and B.J. Koops, who have explored the case-law in the Netherlands regarding this topic in great detail. This chapter will expand upon that knowledge by introducing relevant new case-law that was not available at that time. Case-law after 15-02-2011 will not be used in this research due to time constraints.
§ 6.1. Conditional intent as a minimal threshold level for intent In the Netherlands conditional intent is used as a minimal threshold level for establishing intent of a defendant on a certain criminal offense. This thesis will now explain what is meant with conditional intent and will show how it is established with help of some examples.
The doctrine of conditional intent was developed out of the necessity to formulate a new standard for establishing intent for certain severe criminal acts in which normal intent could not be proven. Normal intent is established when a person knowingly and willingly accepts the consequences of his action. Conditional intent is established when three criteria are met. First of all it needs to be proven that the perpetrator wanted to commit his action. Secondly, the perpetrator knew or could have known what
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Convicting for Computer Child Pornography Which computer activities lead to liability in the U.S. and the Netherlands the consequences of his actions would be. And the third requirement is that the perpetrator accepted the substantial chance that these consequences would actually manifest themselves.
One example in which conditional intent was established was the so called “Hoornse pie” case.197 In this case someone had poisoned a pie with rat poison and had send this pie to its chosen victim in Hoorn. The wife of the chosen victim had eaten from the pie and died as a result of the poisoning. The court ruled that the defendant had accepted the substantial chance that the wife would also eat from the pie and thus had conditional intent on the death of the women.
A second case in which conditional intent was established was the case “Enkhuizer manslaughter” case198 In his attempt to escape from the police the drunk driver in this case drove at a high speed without his lights on in a populated area of Enkhuizen killing two cyclists and wounding a third. Here again the defendant accepted the substantial chance that by driving drunk and without lighting at a high speed he could kill people.
Conditional intent is also applied to establish possession of child pornography in cases in which normal intent is difficult to prove as will be shown throughout this chapter.
§ 6.2. Possessing child pornography As stated above, this section will explore how files found in the cache file of a computer can constitute criminal possession of child pornography, and after that the other methods of constructing criminal possession of child pornography will be discussed, each in a separate sub section.
§ 6.2.1. When is child pornography found in the cache /temporary Internet files considered possession of child pornography? As was said in §5.1.1. a cache file is a storage mechanism that improves performance by transparently storing data that such that future requests for that data can be served faster.199 See §5.1.1. for the explanation of how the cache works. The question that needs to be answered is when is child pornographic material found in the temporary Internet files considered to be knowing possession of child pornography?; And what are the main standards for knowing possession in such a case?
In a ruling by the appeals court (Gerechtshof) of Leeuwarden in 2005 the question arose whether the defendant, by whom child pornography was found in his temporary Internet files, had knowing possession of the material.200 The court stated that in order to come to a judicial finding of fact of “having in possession” of the concerned images it must be determined that the defendant was aware of the presence of these images on his computer.201 The child pornographic images in this case were found in the defendant’s temporary Internet files. As mentioned before, the Internet browser automatically
197 Hoge Raad, W 9203, 19-06-1911 198 Hoge Raad, NJ 2001, 327, 23-01-2001 199 Definition acquired from Wikipedia, found at: http://en.wikipedia.org/wiki/Caching, last visited at 22-11-2010 200 Gerechtshof Leeuwarden, LJN AT6636, 22-03-2005 201 Idem note 200
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Convicting for Computer Child Pornography Which computer activities lead to liability in the U.S. and the Netherlands saves images viewed via Internet in the temporary Internet files, no special act from the computer user is required to perform this data storage. The defendant also stated that he was not aware of the fact that the computer stored images he viewed on websites in his temporary Internet files. Furthermore, it appeared that the defendant had no special knowledge of software technical aspects of Internet programs in general, and of the application of temporary Internet files specifically. In the light of these findings the court ruled that the defendant was not guilty of knowing possession of child pornography. The court did state that somewhere in the future the judgment regarding the knowledge of how the temporary Internet files work might be interpreted as general knowledge for regular Internet users, and that an Internet user must have been aware of the circumstance that the searched after images of child pornography on websites by him will be automatically stored onto his computer and temporarily remain there.202
The advocate general of the Supreme Court (Hoge Raad) also ruled on this question in his conclusion in 2006.203 He stated that:
“The ability to exercise control and the requirement that the act is intentional are, certainly when it is related to proving “possession”, not to be seen separately. The ability to control in the digital world is especially knowledge. The person who has knowledge of computers can make more files visible than an uninitiated user. The person who has knowledge of computers will also know, sooner than the average user that folders are being generated automatically in which unwantedly and unintentionally data is being stored. Therefore, the intent on the presence of child pornographic material in the hidden files of such a person will be easier assumed than if it were an average user. The opposite is also true. Intention on the presence of child pornographic material in automatically generated files may not be easily assumed regarding the average computer user.”204
In a 2009 case brought before the district court (Rechtbank) of Middelburg the defendant was acquitted of the charge of having possession of child pornography in his temporary Internet file.205 Here the defendant acknowledged that he sought out, and viewed, pornographic material of girls under the age of 18, but claimed that he was unaware that the images were being saved in his temporary Internet files while he was viewing these images on the websites. The court in this case agreed with the reasoning of the court in the case brought before the Gerechtshof Leeuwarden that has been previously discussed. The court stressed that the mere viewing of an image that is child pornographic in nature cannot be deemed to possession thereof in the meaning of Art. 240b of the Dutch Criminal Code, not even when this image is deliberately brought onto the computer screen through the Internet.206 In order for it to be possession this image must be stored onto the computer in a particular way.207 The court then repeats the reasoning of the Gerechtshof that for judicial finding of fact of “having in possession” of the concerned images it must be determined that the defendant was aware of the presence of these images
202 Idem note 200 203 Hoge Raad, LJN AU9104, 28-02-2006 204 Idem note 203 at 16 205 Rechtbank Middelburg, LJN BL6580, 16-12-2009 206 Idem note 205 207 Idem note 205
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Convicting for Computer Child Pornography Which computer activities lead to liability in the U.S. and the Netherlands on his computer and that the defendant must have had knowledge of the fact that the child pornographic material was being stored onto his computer. Where the Gerechtshof stated that in future cases this method of automatically storing images in the temporary Internet files might be seen as general knowledge, the court in this case disagrees with that assumption, and, in my view, shares the view of the Hoge Raad ruling of 2006 on this topic. The Rechtbank states that: Although the fact that computer usage today is fully integrated in our society as well as in education it may not be expected that this technical knowledge is to be judged as present day common knowledge amongst internet users.208 With regard to this topic it cannot presumed to be as a fact of common knowledge. The court acquitted the defendant of the charge of knowing possession of child pornography because, in their view, it was not proven that the defendant was aware of the fact that the images were being stored, and thus were present, in his temporary Internet files. The key element in these rulings is that the defendant had no specialized knowledge of the software technical aspects of Internet programs in general, and of the application of Temporary Internet Files especially. The defendant is thus to be seen as an average computer user, and according to the Hoge Raad, intention on the presence of child pornographic material in automatically generated files may not be easily assumed regarding the average computer user. Clearly the court in its ruling upheld this reasoning of the Hoge Raad.
The same reasoning is upheld in the cases of Rechtbank Utrecht from 12-05-2010209, 31-05-2010210, 07- 10-2010211 and 24-09-2010.212
According to the case-law in the Netherlands it seems hard to prove that a person possessed child pornography based on solely finding child pornographic material in the temporary Internet files. It seems that something more is needed to prove that the possession was wanted. What this “something more” is, that is needed to construe criminal possession will be addressed in the case-law below.
So what if a defendant has the knowledge that child pornographic images are being stored in his temporary Internet files but tries to remove them immediately, or has specialized software to remove child pornography from his temporary Internet files and uses this. Will that constitute the offence of knowing possession of child pornography?
This question is partially answered in the case brought before the Rechtbank Breda in 2006.213 The defendant, in this case, stated at trial that he viewed child pornographic images on websites but that he never saved them.214 He downloaded the images so that he could view them, and after having viewed them he immediately erased them; the defendant also stated that the history settings of the temporary Internet files were standardly set at 0 days, meaning that the images were never stored longer than 24 hours on his computer. The defendant also regularly cleaned the temporary Internet files manually.
208 Idem note 205 209 Rechtbank Utrecht, LJN BN1466, 12-05-2010 210 Rechtbank Utrecht, LJN BM9249, 31-05-2010 211 Rechtbank Utrecht, LJN BO2816, 07-10-2010 212 Rechtbank Utrecht, LJN BO1677, 24-09-2010 213 Rechtbank Breda, LJN AV2996, 22-02-2006 214 Idem note 213
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Convicting for Computer Child Pornography Which computer activities lead to liability in the U.S. and the Netherlands
From this the court reasoned that it had never been the intention of the defendant to save the images and thus possess those images. The time period in which the images were “saved” on the defendants computer was deemed too short to be considered possession of child pornography, and should be seen as the mere viewing of child pornography which was not covered by Art.240b of the Dutch Criminal Code at that time.
The previously mentioned ruling of the Hoge Raad in 2006 also addressed the question what elements constitute the possession of child pornography in digital context in point 15. The first two elements are, that it needs to be recorded data and that the defendant at least had conditional intent on the possession of child pornographic material. The Hoge Raad ruling of 2006 expands upon these elements by introducing a new element: the ability to exercise control over the material.
“The ability to exercise control forms the basis of the intentionality claim. Because the defendant has the ability to dispose of the subject he can be blamed for having the subject in his presence. For the penal clause of Art. 240b of the Dutch Criminal Code criminalized possession a similar requirement applies. For the simple fact that one knows that the neighbor has recorded child pornography, does not bring forth that one possesses that child pornography himself. It is at least required that the person who committed the crime is the owner or possessor, or factually has that computer at his disposal. But that is not all. It is also required that the defendant has control over his computer in such a way that he is able to make the, in files or documents recorded child pornography, visible. If it concerns hidden files, which can only be accessed and made visible again by experts (such as forensic investigators) with use of specialized software, then in a general rule there is no “possession” of child pornography. In general: obviously not excluding the possibility that the defendant possesses the required specialized knowledge, either in person, or in the form of assistance available to him.”215
In 2008 a similar case as that of the Rechtbank Breda in 2006, was brought before court in Amsterdam.216 The difference with the previously discussed case was that here not the Internet browser but the Windows Media Player automatically stored the data in a cache file, called the Art Cache under the sub map Local MLS. The defendant in this case viewed child pornographic movies with use of Windows Media Player, Windows Media Player then made an automatic snapshot/image of the movie, so that that same movie could be more easily accessed for future use by clicking on that snapshot/image. It was argued by an expert witness brought before the court that the defendant had used a cleanup program called BC-Wipe to remove the child pornography because the child pornography was not found on his computer’s hard drive, but the snapshot/images were still visible in the Windows Media Player. The action performed by the defendant to erase the child pornographic material were an indication that the defendant had knowledge of the fact that child pornographic material was automatically being saved onto his computer. The using of clean-up software to cover his tracks was evidence of this knowledge. The Court therefore concluded that the defendant was guilty of possession of child pornography. This reasoning of the court is in line with the standards of the Hoge Raad.
215 Hoge Raad, LJN AU9104, 28-02-2006 216 Rechtbank Amsterdam, LJN BD2286, 15-04-2008
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Convicting for Computer Child Pornography Which computer activities lead to liability in the U.S. and the Netherlands
The usage of specialized software to remove child pornography from the temporary files on the computer was also addressed in the case brought before the Rechtbank Zwolle in 2009.217 Here the defendant admitted that he intentionally searched the Internet for child pornography and looked at images in the process, he also stated that he did not download child pornography. What was important in this case was that the defendant testified that he knew that the child pornographic images he was viewing would be stored in the temporary Internet files. This testimony convinced the court that defendant possessed a more than average knowledge of computer knowhow and thus that his possession was probably intentional. The decisive factors were however that the defendant had two computer programs, the so called Kremlin program and Eusing Window Washer, on his computer that he used to encrypt files and that he used to clean his computer. The cleaning program was set on manual, which meant that the defendant could clean his computer when he deemed necessary. The court considered that, in the light of the above mentioned arguments, the defendant had, from the moment he viewed the images until the moment he ordered his computer to clean-up the hard drive, control over the files concerned, in such a way that it fulfilled the requirements of possession as is required by Art.240b of the Dutch Criminal Code.218 The standard of having possession over the material during a definable period of time was also addressed in the ruling of Rechtbank Assen.219 In this case the court ruled that there was no evidence of possession of child pornography during a period of time due to the lack of additional evidence, such as more than average knowledge of computers or that there was control over the material, to support a conviction. This exact same reasoning was also upheld in a case brought before the Rechtbank Utrecht in 2010.220
Additional evidence of possessing child pornography in the Temporary Internet files can be that the defendant viewed websites with child pornographic webcam material of persons between twelve and sixteen years of age.221 Also paying for access to child pornography websites can figure as additional evidence, and indeed is used as such.222
According to the case-law mentioned above, the standards for establishing ,at least conditional intent of ,possession of child pornography found in the temporary Internet files are that the defendant: 1. Has a more than average knowledge of the fact that the child pornography was being stored in the temporary Internet files and 2. Had control over the material stored there by deleting it or by performing other actions which showed his control over the material 3. Had control over the material during a period of time.
217 Rechtbank Zwolle, LJN BK7258, 28-10-2009 218 Idem note 217 219 Rechtbank Assen, LJN BO0534, 15-10-2010 220 Rechtbank Utrecht, LJN BO3818, 09-11-2010 221 Rechtbank Roermond, LJN BI0763, 10-04-2009 222 Rechtbank Roermond, LJN AX9921, 07-07-2006. Paying for access is also used as additional evidence for establishing intent on possession with regard to child pornography found in the unallocated clusters of a computer
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§ 6.2.2. Files put in the trashcan/recycle bin evidence of possession of child pornography This section will discuss how files put in the trashcan/recycle bin can used as evidence in child pornography possession cases. Although child pornography put in the trashcan/recycle bin is removed it still remains on the hard drive of a computer and can be - very easily and without any specialized computer software or specific computer knowledge –made accessible again to the computer user. This section will focus on how courts in the Netherlands construe intentional possession of child pornography when it is found in the trashcan/recycle bin on a person’s computer; and will investigate what the main criteria are that the courts use to convict a defendant or to find him innocent on basis of finding child pornography in the trashcan/recycle bin.
The court in the case brought before the Rechtbank Arnhem in 2004 ruled on the question whether the defendant had possession of one image of child pornography through a file he placed in the recycle bin on his computer.223 The court stated that there were no indications that the defendant had placed the file in the recycle bin with no other intention than to remove these so that it was plausible that the defendant did not want to have child pornography in his possession. This reasoning of the court is strengthened by the arguments that the defendant did not have the intention to use the recycle bin as storage area for child pornography, the main indicator for this assumption was the fact that defendant had not opened the files again after he had placed them in the recycle bin.
It is clear that the court in this case ruled that the defendant had no intention to possess child pornography as he did not view the material after having deleted it. The same reasoning is upheld and applied in the case brought before the Rechtbank Zwolle in 2005.224 Not re-opening or re-accessing the files in the trashcan or recycle bin are indicators of intent of a defendant, in cases where there is no evidence of this there is no intent of the defendant on having possession of the child pornography and, as such, there cannot be knowing criminal possession of child pornography. The court also attached much value to the fact that the defendant had notified his parents and neighbors immediately upon discovering the child pornography, which indicated that he had no intention to possess the material.
So when do files found in the trashcan or recycle bin lead to knowing possession of child pornography? And what are the criteria that judges apply to construct presumed intent on possession?
The first case in which a defendant was successfully prosecuted for possessing child pornography through files found in his trashcan was the case brought before the Rechtbank Maastricht in 2008.225 In this case two files of child pornography were found in the trashcan on defendant’s computer. The defendant declared that had worked as a system manager at the Tax Authorities and that he was into finding out how computer programs work and how data are protected. In light of the defendant’s employment history and his knowledge of computers, it was no problem for the defendant to re-access or retrieve files that were located in the trashcan of the computer. This meant that the defendant had a
223 Rechtbank Arnhem, LJN AR3696, 13-10- 2004 224 Rechtbank Zwolle, LJN AU1861, 01-09-2005 225 Rechtbank Maastricht, LJN BD4797, 23-05-2008
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Convicting for Computer Child Pornography Which computer activities lead to liability in the U.S. and the Netherlands certain amount of control over those files and thus had possession over the child pornography that those files contained.
The main standard that is used in this case is that the material was “easily accessible” for the defendant, which was being associated with his ability to exercise control over the material. When putting these standards for criminal possession of child pornography together it can be determined that, the accessibility of the trashcan is coupled to the possibility that the defendant can exercise control over the material stored therein, this supposition leads to the fact that conditional intent on the possession of child pornography can be established. This construction for establishing the intent on the possession of child pornography when it is put in the trashcan is also applied in other case-law, as is illustrated by the case brought before the Rechtbank ‘s-Hertogenbosch in 2008.226 When answering the question whether the defendant was or was not in possession of child pornographic material that he had deleted, it was necessary to ascertain if the defendant could exercise control over the material. Secondly, it needed to be established to what degree intent on the possession of the files could be determined form the acts performed by the defendant. In its guilty verdict the court attached particular value to the fact that the files were located in the “Recycler” and were easily accessible for the hard disk user. Again, the ease of accessibility is associated with his ability to exercise control over the material. The courts imply that when the files are easily accessible there is a factor of control over the materials because they can still access and look at it when they like, this combination leads to conditional intent on the possession of child pornography. The same construction is upheld in other cases.227 One might wonder why the Rechtbank Arnhem in its ruling in 2004 ruled differently, this is perhaps due to the change in viewpoint regarding the possession of child pornography or due to the fact that the defendant only possessed one image of child pornography where in most cases more material is found.
In general it can be concluded that putting files in the trashcan/recycle bin constitutes conditional intent on the possession of child pornography. According to the courts, the accessibility of the child pornography files in the trashcan/recycle bin opens up the possibility to exercise control over the material and thus constitutes conditional intent on the possession of that material unless it is proven otherwise. The exemption that the possession was unintentional can be assumed if it is shown that the defendant had not accepted the substantial chance that the child pornography would remain on the hard drive of the computer, the courts in Zwolle and Arnhem employed such exceptions to the rule.
§ 6.2.3. How files retrieved from the unallocated cluster can serve as evidence for possession of child pornography In most cases in the Netherlands where intentional possession of child pornography is being contested, the child pornography is found in the “unallocated clusters” on the hard drive (or similar places, such as “lost folders”).228 § 5.1.3. mentioned what these unallocated clusters are and how they come to be. While the computer itself cannot find the files independently anymore, it is possible to retrieve the data
226 Rechtbank ’s-Hertogenbosch, LJN BG9125, 24-12-2008 227 Rechtbank Assen, LJN BJ8750, 29-09-2009, Rechtbank Assen, LJN BO0534,15-10- 2010 228 L. Stevens, B.J. Koops, “Opzet op de harde schijf; criteria voor opzettelijk bezit van kinderporno”, Delikt & Delinkwent 39, p 4
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Convicting for Computer Child Pornography Which computer activities lead to liability in the U.S. and the Netherlands with specialized forensic software. In most cases, after a forensic investigation has taken place, child pornography can still be found on a person’s hard drive while that person was sure that those materials were permanently removed. This fact raises the question whether defendants in such cases actually had intentional possession over the child pornography before it was deleted. This section aims to investigate when that is the case, and what criteria the courts use to determine that the possession was, in fact, intentional. First will be discussed the cases in which the defendant was found innocent of possession of child pornography found in the unallocated clusters, why they were found innocent and what the decisive factor was in those cases. Next, the cases in which the defendant was found guilty will be discussed and why this was the case and what in those cases the decisive factors were.
A first quick scan of the case-law regarding the question whether possession of child pornography can be established when it is found in the unallocated clusters shows that the ruling of the Hoge Raad of 2006 and the standards that were determined to establish, at least conditional intent of, criminal possession of child pornography are also valid in these cases. Those standards are also applied to the case-law discussed here as a check list to determine whether or not the possession was intentional and thus criminal. Therefore there must be at least: conditional intent on the possession, the data needs to be recorded and the defendant must be able or had to be able to exercise control over the material.
The first case that deserves our attention is the case brought before the Rechtbank Groningen in 2008.229 On the computer of the defendant films and pictures containing child pornographic material were found. The pictures were found in the folders “lost files” and “unallocated clusters”. According to the official statement of an investigative officer in this case the contents of these folders consists of deleted files and is only accessible with use of specialized software, which defendant did not have in his possession. On the basis of these considerations the court ruled that it was not shown that defendant had intentional possession of the images, because it lacked the requirement of intentional documentation, and thus the defendant was found innocent of the possession charge relating to the child pornography found in the unallocated clusters.
It is a general consensus amongst courts in the Netherlands that if a defendant does not have specialized software in his possession to recover the child pornography from the unallocated clusters there is no ground to convict him for possessing child pornography. Numerous cases illustrate this view.230 The element of having control over the material is also a necessity in determining whether the possession was intentional, if control is not established it can lead to acquittal.231 The time period in which a defendant had, or could have had, control over the material is a point that is essential in some cases. The courts do not only look at possession as having it in possession at this moment, possession ex nunc, but also consider it to reach as far as to having had possession over child pornographic material, thus possession ex tunc. Possession ex tunc can be established if it is proven that the defendant at one time had access to the files containing child pornography and that those files were on his hard drive
229 Rechtbank Groningen, LJN BC3529, 28-01-2008 230 Gerechtshof ‘s-Gravenhage, LJN AV2588, 23-02-2006, Rechtbank Leeuwarden, LJN BK2796, 10-11-2009, Rechtbank Arnhem, LJN BL9892, 02-04-2010, Gerechtshof ‘s-Hertogenbosch LJN BM6289, 16-04-2010, Rechtbank ‘s-Gravenhage, LJN BO5184, 26-11-2010, Rechtbank ‘s-Gravenhage, LJN BO5163, 26-11-2010 231 Rechtbank ’s-Hertogenbosch, LJN BH0895, 27-01-2009
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Convicting for Computer Child Pornography Which computer activities lead to liability in the U.S. and the Netherlands before they ended up in the unallocated clusters. That could be the case if the defendant had downloaded those files onto the hard drive of his computer, subsequently put them in the trashcan and then deleted them, which made those files end up in the unallocated files. Some courts easily establish possession ex tunc, by stating that files containing child pornography found in the unallocated clusters were once in the allocated clusters and thus accessible.232 However, this reasoning is more the exception than the rule.
The Gerechtshof ‘s-Hertogenbosch also found a defendant guilty of having had possession of child pornography found in his unallocated clusters in 2007.233 In this case the appeal court ruled that defendant had, during a certain period of time, possession of child pornographic material. In its judgment the appeal court states that it would be different if the defendant, or a third party, had accidently downloaded the material onto his computer or placed it there in another way, and that the defendant immediately after discovering the child pornography had deleted the material. In this case neither exemption seemed to apply to the defendant.
Most courts determine whether there was possession on the basis of two standards: 1. If there ever was intentional recording (so not by accident) of child pornography or; 2. If the defendant did everything he could to remove the child pornography from his computer as soon as possible upon discovering it.
The first standard that is established is that the recording needs to be intentional. For the recording to be intentional it is required that the defendant intentionally saved -or was aware of the fact that - the child pornography was being automatically saved onto his computer.234 Other factors can be relevant in assuming that the recording was intentional. If the defendant has a more than average knowledge of computers this assumption is more likely to be established.235 If it is evident that a defendant has used a pay-site to gain access to child pornography or,236 if a defendant has shown that he possesses certain computer skills, such as the altering of child pornographic images with a computer program,237then that are strong indications that the recording was intentional.
If a defendant has been making a habit of collecting child pornography over a substantial period of time, than that is also an indication that he had knowledge of the fact that he was obtaining child pornography.238 If at other accessible areas of the hard disk child pornography has also been saved then the courts will also assume possession of the child pornography found in inaccessible areas of that hard
232 Rechtbank Zutphen, LJN AU1918, 02-09-2005, this reasoning is upheld by the appeal court in the same case, Gerechtshof Arnhem, LJN AV2184, 22-02-2006 233 Gerechtshof ’s-Hertogenbosch, LJN AZ8027, 25-01-2007 234 For example, Rechtbank ’s-Hertogenbosch, LJN BH0895, 27-01-2009, according to this court a defendant that is lacking this knowledge than can be acquitted of having had possession of child pornography 235 Hoge Raad, LJN AU9104, 28-02-2006 236 Rechtbank Roermond, LJN AX9921, 07-07-2006 237 Gerechtshof ’s-Hertogenbosch, LJN AZ8027, 25-01-2007 238 Rechtbank Breda, LJN AY5686, 04-08-2006, Gerechtshof ‘s-Hertogenbosch, LJN AZ8027, 25-01-2007, Rechtbank Assen, LJN BG9649, 25-11-2008, Rechtbank Arnhem, LJN BL7418, 15-03-2010
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Convicting for Computer Child Pornography Which computer activities lead to liability in the U.S. and the Netherlands drive.239An indication for not having wanted possession of child pornography can be that the defendant did not have an own folder structure in which he stored child pornography.240
The second standard that is used is the question whether the defendant had removed the child pornography from his computer as soon as possible upon discovering said material. If it is already decided that the defendant had intentionally recorded child pornography then this standard will not be applied. However the standard is relevant in those cases in which it is decided that the defendant was not intentionally recording child pornography241, or in those cases in which the question whether the defendant had intentionally recorded child pornography is not being addressed. The standard is formulated in the case brought before the Gerechtshof Arnhem in 2005: “The material had passed him by at a certain moment and he rid himself of the material in the most effective method available to a average computer user.”242 A special effort done by the defendant is not required to fulfill the most effective method requirement, at least not if he is an average computer user. Removing the child pornography from the trashcan is deemed sufficient by the courts in the Netherlands.
An element that is associated with determining whether or not a defendant had removed child pornography from his computer is time. If the defendant immediately after discovering that he had obtained child pornography removed this material from his computer, then that is an indication that the defendant wanted to effectively remove the material.243 If it is unclear how much time had passed between the recording and the deleting of the child pornography that can be explained in the benefit of the defendant.244 The opposite is also possible, as is shown by the case brought before the Gerechtshof ‘s-Hertogenbosch in 2007245. It can be negatively explained if the defendant states that he had not immediately removed the material when a time period is being addressed that is sufficient enough to speak of possession and in which the defendant had committed acts (such as making new folders and altering images) that show an active relationship with child pornography.246 Other courts make a similar assumption.247 Removing the child pornography on the same day can be a reason to assume that there was possession of child pornography if it is shown that the defendant had accepted the chance that he would gain possession of child pornographic material.248 That a defendant accepted this chance can be assumed if a defendant has intentionally sought out child and found child pornography before with certain search keywords and that the defendant had not altered these search keywords.249
239 Rechtbank Breda, LJN AY5686, 04-08-2006, Rechtbank Roermond, LJN AX9921, 07-07-2006, Gerechtshof ’s- Hertogenbosch, LJN BI9150, 23-06-2009, Rechtbank ’s-Hertogenbosch, LJN BL6800, 10-03-2010, Rechtbank Arnhem, LJN BL7418, 15-03-2010 240 Rechtbank Dordrecht, LJN AV0150, 19-01-2006 241 Idem note 234 242 Idem note 234 243 Rechtbank Breda, LJN AV2996, 22-02-2006 244 Gerechtshof ’s-Gravenhage, LJN AV2588, 23-02-2006 245 Gerechtshof ‘s-Hertogenbosch, LJN AZ8027, 25-01-2007 246 Idem note 245 247 Rechtbank ’s-Hertogenbosch, LJN BL6800, 10-03-2010, Rechtbank ’s-Gravenhage, LJN BP1920, 06-01-2011 248 Rechtbank Assen, LJN BG9649, 25-11-2008 249 Idem note 248
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In general it can be concluded that child pornography found in the unallocated clusters can lead to possession ex nunc if the defendant has used specialized software to retrieve the material. Child pornography can also be in a person’s possession ex tunc. The decisive factor is then whether or not the defendant had the intent on acquiring child pornography at that time. His intent is distilled out of his active relationship with child pornography. If a defendant has performed actions such as paying for access to child pornography sites, altering images, or actively sought out child pornography, those actions show his intent on acquiring child pornography, and thus make the claim that he intended to have possession over that material more plausible. If a defendant lacks the intent on acquiring and has showed that he immediately and effectively tried to remove child pornography upon discovering that material, then that shows that the defendant had no intention to possess child pornography and that defendant will be acquitted of having had possession of child pornography.
§ 6.2.4. Saved files as evidence of possession The advocate general in his conclusion in the Hoge Raad ruling of 2010 specified the criteria for determining whether or not a person possessed child pornography.250 An essential element of possession is seen in the ability to exercise control over the material. Having in possession of an electronic file that contains, or is, an image that is child pornographic in nature, assumes the possibility to determine where the file is located and with that the possibility to dispose of that file. In case that file is recorded on a data carrier, the ability to exercise control over that data carrier includes/implies the ability to exercise control over the data recorded onto it.
Moreover, possession assumes intent, which in this case means:
1. Knowledge of the existence of the data carrier and the file; 2. Knowledge of the ability to exercise control over that material; 3. Knowledge of the child pornographic nature of the specific image. Conditional intent is, constantly, sufficient. The downloading of files that contain images of which the name of that image says a great deal about the character of that image, is an intentional exposure to the substantial chance that one obtains child pornographic material.
In light of the above mentioned standard it is evident that when a person intentionally saves child pornography onto the hard drive of his computer he intentionally possesses that material.
§ 6.3. Obtaining access to child pornography Obtaining access to child pornography has been criminalized in the Netherlands since the first of January 2010. This section will investigate whether there are any court rulings on this subject matter since and, if so, what standards are applied to determine that a defendant accessed child pornography.
Unfortunately, no case-law dealing solely with the legal question whether a defendant obtained access to child pornography is currently available in the Netherlands. Gaining access to child pornography via
250 Hoge Raad, LJN BO1713, 26-10-2010
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Convicting for Computer Child Pornography Which computer activities lead to liability in the U.S. and the Netherlands pay-sites that offer child pornography is used in case-law in the Netherlands as additional evidence for (conditional) intent on possession on behalf of a defendant.
A case that is remarkable is the case brought before the Rechtbank ‘s-Gravenhage in 2010.251 In this case the defendant was acquitted of the charge of possessing child pornography, but the court stressed that the dossier in this case contained “important indications that defendant had obtained access to child pornography”. What the courts consider to be “important indications” is unclear, but the court most probably refers to the fact that the defendant admitted that he visited websites containing child pornography and that defendant viewed images on those websites.
251 Rechtbank ‘s-Gravenhage, LJN BO5184, 26-11-2010
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Convicting for Computer Child Pornography Which computer activities lead to liability in the U.S. and the Netherlands
Chapter 7. Conclusion
This thesis has researched how the caching, the deleting, and the downloading of files, images and videos, and the online viewing of child pornography can constitute the offenses of possessing and obtaining access to child pornography in both the U.S. and the Netherlands. My research has given insight into the relationship between the rationales behind the anti-child pornography legislation of both nations and their standards to judge whether possession or obtaining access to child pornography was intended. This chapter will answer the main research questions and will explain the differences and similarities that exist between both nations model for criminalizing possessing and obtaining access to child pornography.
§ 7.1. Rationale of both nations anti-child pornography legislation When looking at the rationale behind both nations anti-child pornography legislation it is evident that similar effects of the child pornography market are used as a reason for drafting the legislation and its amendments. Three factors stand out as the main rationales for criminalizing the possession of and obtaining access to child pornography.
The first is that the use of children in the production of child pornography is a form of sexual abuse which can result in physical or psychological harm or both to the children involved. This harm needs to be prevented at all costs and is the main reason for criminalizing offenses relating to child pornography.
The second rationale for criminalizing child pornography in both nations is that child pornographic material is being used to encourage or seduce unforthcoming children into sexual exploitation.
The third rationale is found in the view of the legislators that exposing oneself to child pornography may desensitize the viewer for child pornography. This can go so far that it child pornography becomes acceptable and desirable which could lead to a subculture in which the sexual exploitation of children is accepted and encouraged. The forming of such a subculture needs to be prevented and was one of the main reasons for widening the scope of the anti-child pornography legislation in both nations.
Now that we know that the same rationales are applied, and thus can assume that the same behavior is criminalized, it will be interesting to see if the acts of the caching of files, the deleting of files and the downloading of child pornographic material lead will to a conviction based on similar standards in both nations.
§ 7.2. Standards for possessing child pornography found in the cache file With regard to the question whether the caching of files/files found in the temporary Internet files can constitute possession of child pornography the U.S. and the Dutch courts apply similar standards. In the U.S. it is required that a defendant meets three requirements for the possession to be knowing and thus criminal.
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Convicting for Computer Child Pornography Which computer activities lead to liability in the U.S. and the Netherlands
First, the defendant needs to have intentionally sought out the child pornographic material. Intentionally seeking out child pornographic material is often distilled out of the search behavior of defendants. If a defendant uses key words such as “preteen” or “Lolita” in search engines in combination with other key words such as “sex”, it is obvious that that person was intentionally seeking out material containing child pornography.
Secondly it must be proven that the defendant could exercise dominion or control over the child pornographic material. Dominion or control will be established if the defendant copied, enlarged or deleted the material or performed other actions which showed his ability to exercise control over the material.
The third requirement is that the defendant must have been aware of the existence of the cache directory/temporary Internet files. A defendant who is not aware of the existence of the cache directory/temporary Internet files shall not be convicted of knowingly possessing child pornography. This awareness of often derived from the fact that the defendant had exercised control over the material, because deleting child pornography from the cache directory/temporary Internet files implies knowledge of the existence of that cache directory/temporary Internet files. If a defendant is unaware of the existence of the cache file/temporary Internet files and can prove this than that is often reason enough to acquit the defendant from all charges.
In the Netherlands other standards are applied in judging whether a person intentionally possessed child pornography through files found in his cache directory/temporary Internet files. Courts in the Netherlands have decided that, for the possession of child pornography to be criminal, there must be at least conditional intent on the possession of that material. Conditional intent is established when a defendant has consciously accepted a significant chance that a certain consequence of his actions would follow, in this case that he had consciously accepted the significant chance that he would possess child pornography.
A first standard that is applied in judging whether there was at least conditional intent on the possession of child pornography found in the cache directory/temporary Internet files, is establishing whether the defendant had a more than average knowledge of computers and thus of the fact that the child pornography was being stored in the cache directory/temporary Internet files. A more than average knowledge of computers can be established if a defendant, for example, has admitted that he knew that child pornography would be automatically stored in the cache file/temporary Internet files or that he deleted material from the cache directory/temporary Internet files showing that he knew that the cache directory/temporary Internet files existed.
The second standard that is applied is standard that is similar to the second standard applied in the U.S., namely that the defendant had control over the child pornography found in the cache directory/temporary Internet files. Control can be established if a defendant has deleted material from the cache directory/temporary Internet files or when the defendant has used specialized software to rid himself of child pornographic material. This second standard is closely related to the first standard in such a way that control over the material in the cache directory/temporary Internet files is used to
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Convicting for Computer Child Pornography Which computer activities lead to liability in the U.S. and the Netherlands construe a more than average knowledge of computers and thus also knowledge of the existence of the cache directory/temporary Internet files on behalf of the defendant. When that knowledge is construed, in combination with his ability to exercise control over said material, the standards for at least conditional intent on the possession of child pornography are established.
The third standard that is applied is that the defendant must have had possession over the child pornography located in the cache directory/temporary Internet files during a definable period of time. If the time period in which the files were saved in the cache directory/temporary Internet files was deemed to be too short, then there was no possession of child pornography and it is seen as mere viewing of child pornography which is not criminal. However, if a defendant had, from the moment he viewed the material until the moment he ordered his computer to clean up the hard drive, control over the files concerned than that is deemed to be possession of child pornography. This is seen as having had possession ex tunc over the files in the cache directory/temporary Internet files. Using special software to delete the child pornography from the cache directory/temporary Internet files are an indication of his intent to at least possess the material until he decided to use the specialized software to delete the material.
In case-law dealing with child pornography found in the cache directory/temporary Internet files, in both the U.S. and the Netherlands, there are some factors that may acquit a defendant from the possession charge. In the U.S. most acquittals are based on the fact that the defendant was an unsophisticated computer user and thus lacked the knowledge of the existence of the cache directory/temporary Internet files which made his possession not knowingly. In the Netherlands a similar construction is upheld, namely that the defendant must have a more than average computer knowledge for the defendant to have knowledge of the existence of the cache directory/temporary Internet files. If such knowledge is not established then there is no intent on the possession of child pornography. Also, if a defendant in the Netherlands immediately after discovering the child pornography on his computer deleted that material, than the time period in which he had that material on his computer is considered to be too short for it to be intentional possession of child pornography ex tunc. The immediate removal of the child pornography shows that he had had no intention to possess the child pornography.
§ 7.3. Standards for possessing child pornography found in the trashcan/recycle bin The next research question was how files found in the trashcan/recycle bin of a defendant can constitute the criminal possession of child pornography.
In the U.S. there are not many cases that deal solely with the question whether files found in the trashcan/recycle bin can constitute knowing possession of child pornography. In most cases child pornography that is found in the trashcan/recycle bin is part of the other evidence that is found, such as child pornography found in the unallocated clusters or cache directory/temporary Internet files, and is therefore used as additional evidence to establish knowing possession of child pornography. The few
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Convicting for Computer Child Pornography Which computer activities lead to liability in the U.S. and the Netherlands cases that do deal with the topic of how child pornography in the trashcan/recycle bin can be criminal possession offer a few standards to deem that possession knowingly. The first standard is that the defendant must be aware of the fact that child pornography is located in the trashcan/recycle bin. The second standard is that the defendant must be able to access the material and thus exercise dominion or control over the material. The last standard is that the defendant must have actively sought out child pornography.
Whereas in the U.S. there is little case-law to be found on the matter of possession of child pornography found in the trashcan/recycle bin, this is much different in the Netherlands. In the Netherlands numerous cases deal with this research question which have led to the drafting of clear standards that are applied in deciding whether or not the child pornography found in the trashcan/recycle bin was at least conditionally intended. In the U.S. this is not so much the case.
The standards that are applied in the U.S. are that, first of all, the defendant must at least be aware of the fact that he had child pornography on his computer although that it was located in the trashcan/recycle bin. Knowledge of the presence of child pornography is thus required.
Secondly, because the child pornography is located in the trashcan/recycle bin it is still easily accessible which means that the defendant can still exercise control or dominion over the child pornography located there. As long as the material is still easily accessible control or dominion over that material is assumed.
A third possible standard seems to be that the defendant must have intentionally sought out the child pornography in order for the possession to be knowingly. This was brought up in the Coleman case as evidence, although I am not quite sure that it therefore should be seen as a separate standard. I think that I will be mostly used as additional evidence to show the mindset of the defendant on acquiring the child pornography and thus on his intent to possess said material.
The main standard that is being applied in the Netherlands is whether the child pornography was still easily accessible. If the material is still easily accessible, then that is coupled to the ability of the defendant to exercise control over the child pornographic material. According to the courts, the accessibility of the child pornography files in the trashcan/recycle bin opens up the possibility to exercise control over the material and thus constitutes conditional intent on the possession of that material unless it is proven otherwise. With proven otherwise it is meant that if a defendant can show that he or she did not accept the substantial chance that he or she would possess child pornography then there is no criminal possession of child pornography. Not re-opening or re-accessing the material are indications for the defendant not having wanted possession over the material. Also notifying others of the fact that you have downloaded child pornography can weigh in the court’s decision to find the possession to be unintentional.
The ease of accessibility and the ability to exercise control over the child pornography are, in both nations, essential standards in determining whether possession was intended when it is found in the trashcan/recycle bin. The difference between both nations is that in the Netherlands, it seems that
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Convicting for Computer Child Pornography Which computer activities lead to liability in the U.S. and the Netherlands individual prosecutions for having possession in the trashcan/recycle bin are more frequently employed. In the U.S. it is mostly used as additional evidence in possession cases and not so much as an individual violation.
§ 7.4. Standards for possessing child pornography found in the unallocated clusters Child pornography found in the unallocated clusters on a computer is a theme that is frequently investigated in both nations’ case-law. In cases dealing with child pornography found in the unallocated clusters the possession is divided into having had possession of child pornography, possession ex tunc, and still being able to have access to child pornography, possession ex nunc.
In the U.S. the standards for possession ex nunc are the following. First of all the standards that are applied to construe knowing possession of child pornography found in the cache directory are also applied in these cases. What is important in these cases is that the defendant must have knowledge of how to recover the deleted files. This knowledge is assumed if the defendant has specialized software to retrieve the files from the unallocated clusters, or if the defendant admits to have that knowledge.
It is also required that the defendant is still able to recover the data. The ability to still be able to recover the data is seen as a form of ability to exercise control or show dominion over the material. Having control over the child pornography is often the deciding standard in these cases.
With regard to possession ex tunc of child pornography found in the unallocated clusters similar standards are applicable. Besides the required standard of having intentionally sought out the material the standard of having had control over the material is the decider in case when it needs to be proven that at one time the defendant had possession of child pornography. Time is a factor in these cases. As the Carter case has explained: possession is a voluntary act if the possessor knowingly obtains or receives the thing possessed or is aware of his control of the thing for a sufficient time to terminate his control. So if a person keeps the child pornography on his computer for a period of time, maybe alters the file names or does any other act that shows that he is aware that the material concerned is child pornography, and then after that time deletes them, then that behavior is deemed to be knowing possession of child pornography ex tunc. His acts during the time that the child pornography was on his computer show his control over that material, which is then the decisive standard for assuming knowing possession of child pornography.
In the Netherlands the standards for possession ex nunc of child pornography in the unallocated clusters are as follows. Again at least conditional intent is required for the possession to be criminal, the data needs to be intentionally recorded and the defendant must be able to exercise control over the material.
The first standard is that the recording needs to be intentional. For the recording to be intentional it is required that the defendant purposely saved, or was aware of the fact that, the child pornography was
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Convicting for Computer Child Pornography Which computer activities lead to liability in the U.S. and the Netherlands being automatically saved onto his computer. If a defendant has shown that he has an active relationship with child pornography then that is a strong indication that the recording was intentional.
The ability to exercise control, as is required for possession ex nunc, can be established if the defendant has used specialized software to retrieve the child pornography from the unallocated clusters. The usage of specialized software indicates that the defendant can still exercise control over the material which is sufficient to establish at least conditional intent on the possession of that child pornographic material.
With regard to the possession ex tunc, the above mentioned standards also apply. However, the decisive factor is then whether or not the defendant had the intent on acquiring child pornography at that time. Again, the active relationship with child pornography is important. If a defendant has performed actions such as paying for access to child pornography sites, altering images, or actively sought out child pornography, those actions show his intent on acquiring child pornography, and thus make the claim that he intended to have possession over that material more plausible. Also, the time period in which the material still remained on the computer, and the actions performed with the material in that time period, before it was deleted are important. If in that time period the defendant had exercised control over the material by storing it in new folders or by altering images, then that shows that at that time he had intended to possess that material. If the former is the case, then intentional possession ex tunc can easily be established.
A defendant can be acquitted from knowingly possessing child pornography found in the unallocated clusters of a computer in the U.S. if the defendant does not have any knowledge of how to retrieve the child pornography from the unallocated clusters and if one does not have any specialized software installed on his computer to retrieve the child pornography from the unallocated clusters. Similar exemptions are also applied in the Netherlands. The lack of any specialized software on the defendant’s computer that can be used to retrieve the child pornography from the unallocated clusters is an indication that the defendant had no intention to possess that child pornography and is a ground that is often successfully used to be acquitted of the possession of child pornography charge. Another factor that can be decisive in the possession ex tunc cases is the fact whether or not the defendant had immediately after discovering the child pornography deleted that material. If so, that is a strong indication that defendant had no intention to possess child pornography.
When answering the research question whether the saving of child pornography onto one’s computer will constitute the offense of knowing possession in the U.S; or intentional possession of child pornography in the Netherlands. Both nations immediately deem this as criminal possession of child pornography.
In the U.S. the saving of child pornography meets all the standards. It indicates that one intentionally sought out such materials and had control over that material. Possession in cases where a person deliberately saves child pornography onto his computer are seen as knowing possession per se, and are accepted as knowing possession in case-law without any further explanation as to why this is so. It is generally seen as a known fact that when one saves child pornography onto his computer’s hard drive that person knowingly possesses that child pornography.
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Convicting for Computer Child Pornography Which computer activities lead to liability in the U.S. and the Netherlands
The Dutch courts also assumes that when a defendant intentionally saves child pornography onto the hard drive of his computer then that is considered to be intentional possession of child pornography. The intentional downloading and saving shows that the defendant had knowledge of the existence of the data carrier and the file; knowledge of the ability to exercise control over that material and knowledge of the child pornographic nature of that material. It thus meets all the requirement set forth by the A-G of the Hoge Raad in 2010, and therefore it is evident that when a person intentionally saves child pornography onto the hard drive of his computer he intentionally possesses that material.
§ 7.5. Is obtaining access to child pornography criminal? With regard to the question whether obtaining access to child pornography with intent to view in the U.S. it is clear that is mostly used as additional evidence to support a conviction on the basis of knowing possession, receiving and other violations relating to child pornography. This is not a complete surprise as it has only been introduced in the United States Code since 2008. In almost all cases discussed in the section about knowing possession of child pornography the accessing and viewing of child pornography were used as an indication for the intent of the defendant on possessing child pornography material. Accessing child pornography with intent to view is easily accepted as that person having and wanting to exercise control or dominion over that material, so that the claim falls within the scope of the criminal charge of knowingly possessing child pornography. If accessing child pornography with intent to view is to be seen as having control over or dominion over that material, then the accessing with intent to view itself has no real worth as a separate criminal offence. In my view this criminal offence is created to convict persons on possession charges in which there is a lack of evidence to support the conviction on the initial findings. The accessing with intent to view child pornography can then be used to construe constructive possession of child pornography.
However, I have found one case in which a defendant was convicted solely for accessing child pornography with intent to view. In this case the defendant had paid for access to child pornography and viewed the child pornography online without saving any of it. A standard that can be derived from this case is that the defendant actively sought out child pornography and thus helped maintain the child pornography industry. According to the rationales behind the U.S. anti-child pornography legislation harm done to the children as a result of sexual exploitation of those children needs to be prevented. By paying money to view child pornography one stimulates the child pornography industry into producing more material, and so this person contributes to the harm done to the children that fall victim to the child pornography industry. That is naturally a worthy reason for criminalizing accessing child pornography with intent to view. However, it is not a standard for finding that behavior to be criminal, although the court in that case did convict the defendant on the above mentioned rationale. In my view, one case in which a defendant was successfully convicted on the ground of a rationale is insufficient to speak of a general standard that can be applied. For it to be a standard more case-law should incorporate this reasoning, and due to the lack of any other case-law on this subject matter I think it is premature to speak of a standard.
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Convicting for Computer Child Pornography Which computer activities lead to liability in the U.S. and the Netherlands
In the Netherlands obtaining access to child pornography has only recently, since the first of January 2010, been adopted in the Dutch Criminal Code. Unfortunately I was unable to find any case-law dealing with the legal question whether obtaining access to child pornography was criminal or not. Gaining access to child pornography is used as additional evidence in a lot of cases relating to the possession of child pornography on the hard disk prior to the introduction of the new penal clause. Gaining access to child pornography via pay-sites is then used to construe intent on the possession of child pornography on behalf of the defendant. In the future there will probably be more case-law dealing with convictions based on gaining access to child pornography as the legislation is changing to deal with the new technological developments in the child pornography scene. New technical developments will probably focus on avoiding having child pornography in one’s possession to view it and will probably shift to more online viewing in closed circuits, or scrambled connections. If such developments would occur then the penal clause of gaining access to child pornography will have more weight as a penal clause on its own on which to base convictions rather than being used as additional evidence in possession cases which is the current trend.
§ 7.6. Differences between the approach of the U.S. and the Netherlands Although the U.S. and the Netherlands apply similar standards for convicting defendants for possessing child pornography with the specific acts done with a computer mentioned above, I do feel that there are some differences in each nation’s approach to come to a successful conviction. In the U.S. possession of child pornography is more easily established due to the way in which the courts construe the evidence to fit the possession of child pornography charge. I have noticed in numerous cases that the courts in the U.S. seem to prefer to convict a defendant on the possession charge rather than on other grounds such as accessing child pornography with intent to view. I have seen numerous cases in which there was sufficient evidence that the defendant had accessed child pornography with intent to view that material, but in which this evidence was used to construe criminal possession of child pornography. It occurs to me that courts in the U.S. aim for the highest possible sentence when dealing with charges relating to child pornography, therefore they usually interpret all available evidence to fit the possession charge in order to get the highest possible sentence. In the Netherlands this is not so much the case.
Another difference that struck me is the fact that possession of child pornography is more easily assumed in the U.S. This is for the most part due to the above mentioned approach that the main focus of the courts in the U.S. is to come to a successful conviction for possessing child pornography. In the Netherlands possession of child pornography is also easily established, but for instance the possession of one image of child pornography is insufficient to come to a successful conviction. In the U.S. in such a case they will probably seek out additional evidence to support a conviction on the basis of possessing one image of child pornography, because the main focus is to successfully prosecute each defendant that is charged with a violation of the anti-child pornography legislation.
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Convicting for Computer Child Pornography Which computer activities lead to liability in the U.S. and the Netherlands
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