Pedophiles in Wonderland: Censoring the Sinful in Cyberspace Gabrielle Russell
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Journal of Criminal Law and Criminology Volume 98 Article 7 Issue 4 Summer Summer 2008 Pedophiles in Wonderland: Censoring the Sinful in Cyberspace Gabrielle Russell Follow this and additional works at: https://scholarlycommons.law.northwestern.edu/jclc Part of the Criminal Law Commons, Criminology Commons, and the Criminology and Criminal Justice Commons Recommended Citation Gabrielle Russell, Pedophiles in Wonderland: Censoring the Sinful in Cyberspace, 98 J. Crim. L. & Criminology 1467 (2007-2008) This Comment is brought to you for free and open access by Northwestern University School of Law Scholarly Commons. It has been accepted for inclusion in Journal of Criminal Law and Criminology by an authorized editor of Northwestern University School of Law Scholarly Commons. 0091-4169/08/9804-1467 THE JOURNALOF CRIMINAL LAW & CRIMINOLOGY Vol. 98, No. 4 Copyright © 2008 by Northwestern University, School of Law Printed in U.S.A. PEDOPHILES IN WONDERLAND: CENSORING THE SINFUL IN CYBERSPACE GABRIELLE RUSSELL* No one needs a First Amendment to write about how cute newborn babies are or to publish a recipe for strawberry shortcake. Nobody needs a First Amendment for innocuous or popular points of view. That's point one. Point two is that the majority-you and I-must always protect the right of a minority-even a minority of one-to express the most outrageous and offensive ideas. Only then is total freedom of expression guaranteed. -Lyle Stuart in his introduction to The TurnerDiaries 1 The primary allure of virtual worlds, and no doubt a largepart of their success, derives from the anonymity they afford their denizens. In the real world, people often tailor their behavior according to what they perceive as their society's norms of what is appropriate for people of their age, appearance,job, social skills, or social status. The physical remove of virtual worlds inspires people to speak and move about freely, uninhibited by a fear of real-world repercussions. Recent developments at the intersection of cyberspace and terrestriallaw, however, suggest that not all actions in virtual worlds are consequence-free. This Comment analyzes the widely publicized issue of ageplay in virtual worlds, and discusses the merits of past and present regulations criminalizing such behavior. Congress has made numerous attempts to prevent the possession and distribution of sexually explicit renderings of minors which involved no actual minors in theirproduction. This Comment points out the logical and constitutionalproblems with Congress'sefforts to render this victimless activity criminal under both child pornography law and obscenity law, and concludes that so far as online ageplay is concerned, adults should be allowed to explore their fantasies with other consenting adults without the interference of terrestriallaw. J.D. Candidate, Northwestern University School of Law, May 2009; B.A., New York University, College of Arts and Science, 2004. Special thanks to Professor Andrew Koppelman for providing valuable feedback. I Lyle Stuart, Introduction by the Publisher to ANDREW MACDONALD, THE TURNER DIARIES (2d ed., Barricade Books 1996) (1978). 1467 1468 GABRIELLE RUSSELL [Vol. 98 I. INTRODUCTION In September of 1998, police forces across the world banded together to bring down the Wonderland Club, an online child pornography ring spanning twelve countries.' Club membership was contingent on possession of a digital library containing no less than 10,000 indecent images of minors.3 Members would circulate these photographs throughout the network by sending them from computer to computer as encrypted image files.4 The network eventually collapsed as the result of a worldwide criminal investigation, code-named Operation Cathedral, when over a hundred men suspected of being members were arrested.5 Nearly a decade later, in 2007, two undercover reporters, one German and the other British, independently investigated rumors6 that Wonderland had reemerged and was flourishing as an adult theme park.7 The reporters confirmed these rumors when they returned with graphic footage of the unsavory activities they had witnessed while undercover.8 The new Wonderland, while dedicated to the same cause as the first, was an entirely different beast. It was not a file exchange, but rather a place, with slides and swing sets, schoolrooms and rose-colored bedrooms, and children that moved, spoke, and had sexual relations with adults in real time.9 Report Mainz, a German television news program, aired a segment featuring scenes from journalist Nick Schader's investigative report. 10 At one point, the camera captures Schader entering a playground, zooming in 2 Richard Barry, Seven Britons Guilty over Child Porn Ring, ZDNET, Jan. 10, 2001, http://news.zdnet.co.uk/intemet/0, 1000000097,2083614,00.htm; Wickedness of Wonderland, BBC NEWS, Feb. 13, 2001, http://news.bbc.co.uk/1/hi/uk/l 167879.stm. 3 Barry, supra note 2. 4 Id. 5 Lucy Sherriff, Child Porn Ring Smashed: Seven Plead Guilty, THE REGISTER, Jan. 10, 2001, http://www.theregister.co.uk/2001/01/10/child-pomring-smashed/. 6 See, e.g., Posting of William Dobson to Massively, Second Life "Wonderland" Scandal Hits Mainstream Media, http://www.massively.com/2007/10/31/second-life-wonderland- scandal-hits-mainstream-media (Oct. 31, 2007, 07:00). 7 See Report Mainz (ARD television broadcast May 4, 2007), available at http://www.youtube.com/watch?v-Wk8uNWF77gg. (last visited Oct. 22, 2008); Sky News (Sky News television broadcast Oct. 30, 2007), available at http://www.youtube.com/watch ?v=dN jr6xjs9O (last visited Oct. 22, 2008). For an English language transcript of the German-language broadcast, see posting of Eloise Pasteur to Second Life Insider, Transcript of the German Piece About Age Play, http://www.secondlifeinsider.com/2007/05/11 /transcript-of-the-german-piece-about-ageplay (May 11, 2007, 17:55). 8 Report Mainz, supra note 7; Sky News, supra note 7. 9 Report Mainz, supra note 7; Sky News, supra note 7. 10 Report Mainz, supra note 7. 2008] PEDOPHILESIN WONDERLAND 1469 as he approaches a circle of young children seated calmly on the grass. Moments later, he is propositioned by a small girl." The taboo nature of the graphically sexual scenes that follow is paralleled only by those featured in Jason Farrell's Wonderland report for British television channel Sky News, 12 During the course of their undercover investigations, Farrell and Schader discovered a dungeon located in a high school basement where children were bound and tortured, came across a club where children spoke of being held against their will and raped repeatedly, and were permitted to enter a room where adults met to watch and participate in the brutal rape of a teenage girl.' 3 Though this new Wonderland disappeared shortly after the German and American footage 4 was aired, a new clone has already taken its place.' It is a relief to know that the bleak underworld exposed by Schader and Farrell exists only on the Internet. No real minors were subjected to the violence described above-the sexual partners were little more than high- tech puppets manipulated by adults in an entirely computer-generated environment called Second Life.' 5 These online personae, called "avatars," are three-dimensional characters that computer users create to represent themselves in online environments.' 6 While some adults design avatars that look like monsters or celebrities, others prefer to adopt a childlike appearance.' 7 And while some adults make innocent use of their youthful avatars, others favor less socially acceptable activities and use their young counterparts accordingly.' 8 Indeed, "virtual ageplay"' 9-sexual roleplay 11 Id. 12 Sky News, supra note 7. 13Report Mainz, supra note 7; Sky News, supra note 7. 14 Five News (Five News television broadcast Oct. 6, 2008), available at http://news.five.tv/news.php?news=176 (last visited Oct. 22, 2008); Posting of Tateru Nino to Massively, Sky News Targets Sexual Ageplay in Second Life Again, http://www.massively.com/2008/03/03/sky-news-targets-sexual-ageplay-in-second-life- again (Mar. 3, 2008, 22:45) [hereinafter Ageplay in Second Life Again]; Posting of Tateru Nino to Massively, Wonderland Creator Promoting New Grid, http://www.massively.com /2008/03/06/wonderland-creator-promoting-new-grid (Mar. 6, 2008, 21:15). 15Report Mainz, supra note 7; Sky News, supra note 7. 16 This meaning for the word "avatar" did not come into use until the mid-to-late 1980s, and did not come into common use until popularized by Neal Stephenson in his cyberpunk novel, Snow Crash, published in 1992. NEAL STEPHENSON, SNOW CRASH 36 (Bantam Books 2000) (1992) (describing avatars as "the audiovisual bodies that people use to communicate with each other in the Metaverse"); Sean P. Egen, The History of Avatars, IMEDIA CONNECTION, Jun. 20, 2005, http://www.imediaconnection.com/content/6165.asp. 17Report Mainz, supra note 7; Sky News, supra note 7. 1s Daniel Terdiman, Phony Kids, Virtual Sex, CNET NEWS, Apr. 12, 2006, http://news.cnet.com/Phony-kids,-virtual-sex/2100-1043_3-6060132.html. 1470 GABRIELLE RUSSELL [Vol. 98 occurring in a virtual world20 like Second Life, where one avatar appears to be a child and the other an adult-has become a very popular and newsworthy online pastime. This Comment describes the constitutional problems with legally proscribing "virtual ageplay ''21 under either child pornography or obscenity law.22 It will begin with an explanation of virtual ageplay and an overview of the laws that bear on its legal standing, followed by a discussion