Congress Uses Fear of Child Pornography to Justify Orwellian Surveillance of Private Internet Usage
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair
Let us be clear at the outset. We love our children as much as anyone. And we believe that they should be protected from sexual predation: either physical sexual abuse or child pornography. But we have become increasingly concerned about a proliferation child protection laws, particularly at the Federal level. Some of which were obviously politically motivated “feel good” legislation intended to broadcast to the voters that congress was getting something done.
The following is a list of many of the laws enacted by Congress over the last three decades regarding child pornography-related offenses:
- Protection of Children Against Exploitation Act of 1978;
- Child Protection Act of 1984;
- Child Sexual Abuse and Pornography Act of 1986;
- Child Abuse Victims’ Rights Act of 1986;
- Child Protection Restoration and Penalties Enhancement Act of 1990;
- Sex Crimes Against Children Prevention Act of 1995;
- Protection of Children from Sexual Predators Act of 1998;
- Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003;
- PROTECT Our Children Act of 2008;
- Providing Resources, Officers, and Technology to Eradicate Cyber Threats to Our Children Act of 2008;
- Keep the Internet Devoid of Sexual Predators Act of 2008; and
- Effective Child Pornography Prosecution Act of 2008.
Below is a sample list of the child exploitation laws that have come out of the Acts and which can be found in Title 18 United States Code:
- § 1462. Importation and Transportation of Obscene Matters;
- § 1465. Transportation of Obscene Matters for Sale or Distribution;
- § 1466. Engaging in the Business of Selling or Transferring Obscene Matter;
- § 1467. Criminal Forfeiture;
- § 1470. Transfer of Obscene Material to Minors;
- § 2241. Aggravated Sexual Abuse;
- § 2251A. Sexual Exploitation of Children;
- § 2251A (a) (b). Selling or Buying of Children;
- § 2252. Certain Activities Relating to Material Involving the Sexual Exploitation of Minors;
- § 2252A. Certain Activities Relating to Material Constituting or Containing Child Pornography;
- § 2253. Criminal Forfeiture;
- § 2254. Civil Forfeiture;
- § Record Keeping Requirements;
- § 2260. Production of Sexually Explicit Depictions of a Minor for Importation into the U.S.;
- § 2421. Transportation Generally;
- § 2422. Coercion and Enticement;
- § 2423(a). Transportation of Minors with Intent to Engage in Criminal Sexual Activity;
- § 2223(b). Interstate Foreign Travel with Intent to Engage in a Sexual Act with a Juvenile;
- § 2225. Use of Interstate Facilities to Transmit Information about a Minor; and
- § 13032. Reporting of Child Pornography by Electronic Communication Service Provider.
And while Congress cannot seem to agree on anything that truly benefits our country, lawmakers have come together in “bipartisan effort” to propose yet another child exploitation law. The Protecting Children From Internet Pornographers Act of 2011 (“Act-2011”) would force internet companies to maintain all the records of its customers for 18 months. This law would have an immediate impact on the vast majority of Americans who do not in any way have anything to do with the exploitation of children. Act-2011 recently secured approval by a 19-10 vote in the House Judiciary Committee and is expected to pass in both the House and Senate. In a June 10, 2012 press release, Judiciary Chairman Lamar Smith (R-Tex.) and Debbie Wasserman Schultz (D-Fla.) tried to scare and shock the general public with “recent estimates” that there are 100,000 sexual predators in the United States whose whereabouts are unknown.
Reps. Smith/Wasserman-Schultz, and their 23 cosponsors of Act-2011, would have us believe that there are 100,000 “sexual predators” lurking in the bushes ready to sexually abuse our children or online actively encouraging the production of child pornography to satisfy their pedophilia fantasies. It is estimated that there are 80,000 reports of child sexual abuse each year in this country. But what Reps. Smith/Wasserman-Schultz, and most other child protectors, do not dwell on is that most of these sexual abuse reports involve in-home predators—father, stepfather, mother, sibling, or other relative—and close-to-home predators, such as friend, neighbor, child care worker, teacher, athletic coach, and, yes, sometimes a stranger. In fact, 90 percent of all juvenile sexual abuse victims in this country know their abuser.
We have a problem with “the prevention of child exploitation” supporters like Reps. Smith/Wasserman-Schultz who focus their legislative efforts almost exclusively on “child exploitation” laws whose overriding purpose are related to the sexual abuse of children. This is disturbing because physical child abuse and neglect has reached epidemic proportions in this country. Each year there are 3.3 million reports of child abuse in the United States involving 6 million children. This country has the “worst record” among industrialized nations of protecting its children (and, yes, its elderly) from physical abuse. Five children die each day in our country due to abuse-related causes. Let’s examine the figures associated with this nation’s child abuse epidemic:
- Of the documents cases of child abuse, 78.3 percent involve some form of neglect,
- 17.6 percent involve physical abuse,
- 9.2 percent involve sexual abuse,
- 8.1 percent involve psychological maltreatment, and
- 10.3 percent involve “other” forms of abuse.
While sexual abuse represents less than 10 percent of the child abuse in this country, this abuse garners at least 95 percent of the public and legislative concern. Put simply, Congress seems to believe that it is worse for a stranger to sexually abuses a child than it is for a family member to beat, starve or kill a child—thousands of whom are still in the crib. It’s shocking that 80 percent of the children who die from abuse are under the age of 4.
The reality is that prevention of “child sexual exploitation” has become an industry within the law enforcement community. According to the GAO, the following Federal government agencies are responsible for detecting, investigating and preventing child-related sexual abuse:
- Federal Bureau of Investigation: 313 personnel who primarily investigate: 1) producing child pornography; 2) permitting a minor to be used in child pornography; 3) selling or buying child pornography; and 4) transporting, shipping, receiving, or distributing child pornography by any means, including a computer.
- Office of Juvenile Justice and Delinquency Prevention (OJDP): Department of Justice in 2008 created the Internet Crimes Against Children task force (ICAC) which is funded by OJDP funds and whose primary responsibility is to encourage communities nationwide to develop regional, multijurisdictional, and multiagency responses to Internet crimes against children. Millions of dollars of grant money ICAC are given to task forces at the Federal and state level, to investigate Internet crimes against children. In 2010, ICAC tasks forces investigated 32,300 child exploitation cases and made 5,300 arrests.
- U.S. Immigration and Customs Enforcement (ICE): One of the first federal law enforcement agencies who investigated child sexual exploitation, beginning in the early 1970s. Since 2003, ICE has focused its investigative efforts on trans-border violations and all cases with foreign links. These investigations include: 1) possession, receipt, distribution, advertisement, transportation, and production of child pornography; 2) trafficking of children for sexual purposes; and 3) traveling in foreign commerce to engage in sexually explicit conduct with minors (“sex tourism”). In 2010, ICE had 239 personnel dedicated to these investigations. They conducted 2,622 investigations that resulted in 931 arrests.
- United States Secret Service (USSS): USSS provides forensic and technical assistance in cases involving missing and sexually exploited children. This assistance is provided by the Forensic Investigative and Support Team who respond to any law enforcement agency in the U.S. to perform forensic or technical examinations. Section 105 of the highly controversial Patriot Act required the USSS to develop a “national network” of “electronic task forces” to investigate electronic crimes who work with other federal, state, and local law enforcement agencies in the area of child pornography. In 2010, ICE conducted 188 investigations that resulted in149 arrests.
- United States Postal Service: The U.S. Postal Service created the U.S. Postal Inspection Services (USPIS) to investigate crimes involving the U.S. mail. Postal Inspectors in the agency’s field divisions across the country are specially trained to conduct child exploitation offenses. In 2010, the agency had 26 fulltime and 19 part time personnel who conducted 141 child exploitation investigations that resulted in 115 arrests.
Significantly, however, is the fact none of these law enforcement agencies have “task forces” or financial resources dedicated to investigating the physical abuse and/or neglect of children. This creates a perverse situation where persons who watch child pornography online are often punished more severely than those who actually commit the abuse and more severely than those who torture and kill their own children. The overwhelming majority of federal funding is dedicated to child sexual exploitation which represents the smallest area in the arena of child abuse. For example, last month, according to her website, Rep. Wasserman-Schultz secured an additional $20 million for ICE to “aid in child exploitation investigations.”
We agree with what the American Civil Liberties Union (ACLU) had to say about Act-2011: “Sexual abuse of children is deeply evil, not to mention criminal. It harms children to an almost unfathomable degree. Child pornography commercially exploits that harm, exacerbating the initial crime. Unfortunately, terrible crimes can sometimes lead to law enforcement excesses in battling them.”
That’s exactly what Act-2011is—a dangerous law enforcement excess. As we pointed out above, there are enough laws on the books to combat child exploitation crimes. Act-2011 demands more hard-to-come-by resources: increase in government expenditures, new investigators, new retirement packages, new offices and support personnel, new computers for tracking and detecting child exploitation, new “expense accounts”, etc. While the law sounds and feels good in an election year, it is simply not needed. In fact, its danger far exceeds its benefits. As the ACLU explained:
“This is a serious threat to our privacy. The ACLU has long been concerned about companies that follow us around the web and track our viewing habits for purposes of advertising. They use this tracking to build personal profiles about us that can be widely shared. Forcing companies to retain data for long periods would bolster this practice. It would also make it much easier for the government to track everything we do online. No company would be able to promise not to record your visit – that would be barred by law. Respect for your anonymity online would be a thing of the past.
“This legislation applies to a broad swath of internet sites and services. It would include all email providers (Gmail, Yahoo, Hotmail), all cloud computing services (Google-web based services like Picasa and Google Docs), all social networking sites and a whole lot more. In layman’s terms, the bill applies to every site that allows you to communicate with others or stores or processes your data – almost everybody.”
Is this the kind of Orwellian society we want? Are we willing to sacrifice our personal privacy to combat an evil which already has sufficient laws to detect and prevent? As the ACLU pointed out, “existing laws allow law enforcement to require indefinite retention of specific records if they might relate to child pornography. One key fix would be for the Department of Justice to create a system for speeding up the processing of child pornography investigations so that these records could be sought in a more timely manner.”
We all want to protect children, just as we want to hold accountable all those responsible for sexually exploiting them. But not at the expense of other abused children whose needs demand equal government attention, especially law enforcement protection, and at the expense of our daily privacy. It is time for Congress to stop the “political grandstanding” when it comes to child exploitation laws. Act-2011 assists the government’s expanding surveillance network by placing what is essentially a virtual GPS tracking device in every nook and cranny in the internet. “Big Brother” is indeed watching—and it is scary to think about where all this government surveillance will lead. As Rep. James Sensenbrenner (R-Wisc.) said of Act-2011: “It poses numerous risks that well outweigh any benefits, and I am not convinced it will contribute in a significant way to protecting children.”
We agree with Conor Friedersdorf, writing in an August 2011 edition of The Atlantic, who said Act-2011 mirrors the practices of police states. Friedersdorf explained: “In Communist countries, where the ruling class routinely dug up embarrassing information on citizens as a bulwark against dissent, the secret police never dreamed of an information trove as perfect for targeting innocent people as a full Internet history. Phrases I’ve Googled in the course of researching this item include ‘more panic about child pornography’ and ‘blackmailing enemies with Internet history.’ For most people, it’s easy enough to recall terms you’ve searched that could be taken out of context, and of course there are lots of Americans who do things online that are perfectly legal, but would be embarrassing if made public even with context: medical problems and adult pornography are only the beginning. How clueless do you have to be to mandate the creation of a huge database that includes the sort of information, especially in the age of Anonymous and Wikileaks? How naïve to you have to be to give government unfettered access to it? Have the bill’s 25 cosponsors never heard of J. Edgar Hoover?”
Here’s something to think about, folks: If a parent concerned about his/her child being exposed to sexually explicit material through the internet decides to research the danger on that same internet, that parent could become, without any probable cause, the subject of a law enforcement investigation and perhaps end up on some government “watch list.” And let’s say Anonymous hacked into the government’s “watch list” database and “wikileaked”all the names on it. What would your family, friends, and neighbors think about you then?
We can only warn the general public about the inherent dangers of Act-2011. We urge you to tell Reps. Smith/Wasserman-Schultz, and the bill’s other 23 cosponsors, to stay out of our law-abiding personal lives and leave our individual privacy alone. Enough is enough!