VCP: Because Am I < Protecting our children [5 of 8]

(Blog 5/8)

OK so as you may recall I have discussed the meaning of VCP, the CPPA, Ashcroft and the scholarly response to the Court’s holding in Ashcroft. This section discusses what followed. Originally I planned on talking about the COPPA and the PROTECT Act, but the COPPA actually was not passed and put into legislation. However, the PROTECT Act encompassed the major parts of the COPPA. SO, without further ado…


Shortly after the Court’s holding in Ashcroft, Congress passed the PROTECT Act.  “[T]echnology already exists to disguise depictions of real children to make them unidentifiable and to make depictions of real children appear computer generated. The technology will soon exist, if it does not already, to make depictions of virtual children look real.”  S. 151 § 2(5).  The Senate directly confronted the Ashcroft holding:

There is no substantial evidence that any of the child pornography images being trafficked today were made other than by the abuse of real children. Nevertheless, technological advances since Ferber have led many criminal defendants to suggest that the images of child pornography they possess are not those of real children, insisting that the government prove beyond a reasonable doubt that the images are not computer-generated. Such challenges will likely increase after the Ashcroft v. Free Speech Coalition decision.  S. 151 § 2(7).

Thus, the Legislature felt compelled to address the problems that prosecutors faced after AshcroftSee S. 151 § 2(10) (stating that Congress must act in order to prevent the problem from growing “increasingly worse”).

The PROTECT Act currently states, “[a]ny person who . . . knowingly advertises, promotes, presents, distributes, or solicits . . . any material or purported material in a manner that reflects the belief, or that is intended to cause another to believe, that the material . . . contains . . . an obscene visual depiction of a minor engaging in sexually explicit conduct” is guilty of a crime.  PROTECT Act, 18 U.S.C. § 2252A(a)(3)(B)(i) (2009).  It also bans production and distribution morphed child pornography, as well as distribution to a minor of any child pornography, including VCP.  18 U.S.C. §§ 2252A(a)(6), (7).  Therefore, the PROTECT Act does not explicitly ban distribution of VCP to adults, but it comes close.

By prohibiting distribution to minors of VCP, as well as prohibiting materials that use VCP to advertise “real” children, Congress is suggesting that VCP must be regulated and that VCP is a form of pornography.  To strengthen its position, Congress amended the definition of “sexually explicit” as it applies to child pornography.  Specifically, it includes in the definition “simulated” intercourse, bestiality, masturbation, sado-masochistic abuse, and/or exposure of the genitals.  18 U.S.C. § 2256(2)(B) (2008).  The definition of child pornography itself includes sexually explicit CGI.  18 U.S.C. § 2256(8)(B) (incorporating the “virtually indistinguishable” language discussed infra).  Thus, if the aforementioned sections of the PROTECT Act proscribe child pornography, then VCP is explicitly included in the proscription.

The Court in United States v. Williams, 553 U.S. 285 (2008), held that the PROTECT Act was not overbroad and did not violate Due Process.  However, the case only dealt with §2252A(a)(3)(B).  Thus, the remaining subsections may or may not be held unconstitutional as challenges are made and reach the USSC.  However, § 2252A(a)(3)(B)(i), quoted above, uses the language “obscene visual depiction of a minor” and subsection (ii) uses the phrase “actual minor.”  With the obscenity requirement added to the statutory proscription, the Act passed strict scrutiny. Score 1 for the good guys.

Although the USSC opinion had not been handed down at the time, Treglia suggests that the only real solution to the problem of constitutional legislation may be to retool the internet with appropriate controls. Virtual Child Porn, 3/16/2004 N.Y.L.J. 5, (col.1).  How this would actually happen is beyond me, but by going at the ISPs there may actually be some meat to the suggestion.

So that is where American law stands today. For once, I’ll keep the blog short. Next week I am going to try to get into international law. Happy Vets Day everyone.



~ by hollyufl on November 8, 2010.

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