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Convicting for Computer Child Pornography Which Computer Activities Lead to Liability in the U.S

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Convicting for Computer Child Pornography Which Computer Activities Lead to Liability in the U.S 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. Page | 2 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 Page | 3 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. Page | 4 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 ........................................................
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