Child Pornography—“Epidemic”

A couple of weeks ago, we noted that there seemed to be an enormous increase in the number of child pornography and child exploitation cases being filed in the United States. We first noticed an increased interest in child pornography on January 19, when most media sources completely misunderstood the subpoena of Google’s search records in an action related to the litigation involving the Child Online Protection Act. That law involves age verification systems, not child porn, yet that didn’t stop reporters and the populace from discussing child porn.^[1] There is a reason for this, as will be seen in a moment. Yesterday, Attorney General Alberto Gonzales confirmed our suspicions when he spoke at the National Center for Missing and Exploited Children, saying that the US in “in the midst of an epidemic in the production and trafficking of movies and images depicting the sexual abuse of children.”^[2]

According to Atty. Gen. Gonzales, there is a “frighteningly real” and “widespread” threat of “pedophiles preying on children online, or abusing kids and sending images of the abuse around the world through the internet.”^[3] This threat, he states, “is growing rapidly, and it must be stopped.”^[4]

His speech focused on “two categories of cases: sexual enticement of minors, and child pornography.”^[5] Enticement, when analyzed through the lens of the internet, is where “predators contact kids in chat rooms or through networking sites and arrange to meet in person with the purpose of making sexual contact.”^[6] This is the type of behavior that Brian Doyle is accused of engaging in. While this category of child exploitation is “especially critical,” it is child pornography that Atty. Gen. Gonzales is “most concerned” about.^[7] This is because “it used to be that child porn was tightly contained by law enforcement, with isolated pornographers relegated to small black markets in underground book stores or secret mailings”; with the growth of the internet, however, these people allegedly “have found a community,” where they “can bond with each other, and the Internet acts as a tool for legitimizing and validating their behavior in their minds.”^[8]

According to Atty. Gen. Gonzales, there is only one way to respond to purveyors of child pornography: they will be a “primary target” of law enforcement.^[9] That’s not all, though, and as we hinted at earlier, the Google subpoena has turned out to be broader than it was supposed to be. While it was supposed to be about collecting a database documenting how easy it is for minors to access sexually explicit material, it seems the real impetus behind subpoenaing search records is to get at “evidence that is often in the hands of Internet service providers.”^[10] These ISPs often keep data for only a limited amount of time, and Atty. Gen. Gonzales has proposed legislation that will prevent that from happening. Unfortunately, it also amounts to nothing less than privatized warrantless searches. As we have seen with the announcement that AT&T created special rooms which diverted all internet traffic to the National Security Agency,^[11] the federal government is reaching out to telecommunications providers to gather information on their customers without bothering with warrants; the customers have no right of recourse because “providers of wire or electronic communication services … are authorized to provide [the] information.”^[12]

Likewise, Atty. Gen. Gonzales and President Bush have proposed “a new piece of legislation, the Child Pornography and Obscenity Prevention Amendments of 2006,” which requires telecommunications providers to report the presence of child pornography on their systems, and enhancing criminal penalties for failing to report it.^[13] This will, in effect, require ISPs to monitor and filter through all internet traffic in real-time, and to hand over evidence to the authorities in the absence of a court order. And because no politician wants to be seen as being in favor of child pornography, the law is sure to pass.

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[1] See, e.g., Howard Mintz, Feds After Google Data, The Mercury News, Jan. 19, 2006; Who’s Looking In on Your Google Searches? N.Y. Times, Jan. 30, 2006.
[2] Alberto Gonzales, Transcript of Attorney General Alberto R. Gonzales’ Address to the Employees at the National Center for Missing and Exploited Children, Apr. 20, 2006.
[3] Id.
[4] Id.
[5] Id.
[6] Id.
[7] Id.
[8] Id.
[9] Id.
[10] Id.
[11] See Ryan Singel, AT&T Seeks to Hide Spy Docs, Apr. 12, 2006; David Kravets, AT&T Gave NSA Access to Network, Suit Alleges, Associated Press (via Baltimore Sun), Apr.
[12] See 18 U.S.C. § 2511(2)(a)(ii).
[13] Gonzales, supra note 2.