How the Internet Changed the Child Pornography Industry and Law

The Internet is, at its core, a worldwide network of smaller computer networks connected by cable, telephone lines, or satellite links. It is decentralized, timeless, and spaceless. It is impossible to determine the size of the Internet at any moment, as it continuously grows. While the Internet has proved invaluable as a communication and educational tool, particularly in the twenty-first century, this same technological wonder has also proved to be a grave threat to children.

The Internet has served as a major catalyst for the accelerated production, distribution, and purchase of child pornography. Today, pornographic images and films of children have flooded the Internet, and are easily accessible to anyone with access to a computer. The Internet has allowed the distribution of child pornography to be conducted at an extremely low cost, with virtual anonymity, and at extraordinary speed. Additionally, the technology makes constant updating relatively easy (e.g., some distributors claim to update their material bi-weekly or, in some cases, daily). Furthermore, material that is downloaded from the Internet has a unique advantage over other types of media (e.g., film and photographs) in that it does not deteriorate with age or with transfer to other electronic devices. The Internet provides a safe, easily accessible, distribution medium that operates on at least three levels simultaneously (O'Connell, 2001):

  • (1) The technology facilitates the anonymous, rapid dissemination of an immediate and constant supply of illegal child pornography.
  • (2) It enables creation and maintenance of deviant behavior (i.e., the Internet offers a medium through which child pornography consumers can interact at a social organizational level as "colleagues").
  • (3) It provides supportive context in that depictions of sexualized children often appear to be designed to provide a sense of justification (i.e., "the pictures are on a professional-looking website, so it must not be wrong").

Along with easier production and distribution of, and access to, child pornography, the Internet also became a medium through which virtual child pornography (also known as pseudo child pornography) began to flourish. Virtual child pornography refers to simulated representations, as well as computer-generated or morphed images of children engaged in pornographic, sexual, or other lewd acts. This material takes on two forms: (1) computer-generated images in which a child's head is digitally placed onto the body of an adult who is involved in some form of sexually explicit conduct, and (2) depictions of adults over the age of legal sexual consent (18 in the U.S.) who are portrayed as being a minor.

Prior to the heightened popularity and utility of the Internet, the law made no concession for virtual child pornography. Only images of real children engaged in real acts were considered unlawful. The basis for the Osborne ruling, however, partially rested on the assumption that child molesters might use child pornography as a tool to seduce other child victims into engaging in the same acts. As the use of the Internet, coupled with advanced imaging software, began to become a staple in the child pornography industry, new fears arose concerning virtual child pornographic images as being equally damaging vis-a-vis their real image counterparts. This called for swift action that prosecuted the production, distribution, and possession of virtual child pornographic images in the same way that real ones were, thereby eliminating any distinction between the two. The first major court decision to arise in response to the Internet becoming a mechanism for easier access to child pornography was the Child Pornography Protection Act (1996) (CPPA).

The CPPA expanded the federal prohibition of child pornography to include not only real images involving the sexual abuse of children, but also "any visual depiction, including any photograph, film, video, picture, or computer or computergenerated image or picture that is, or appears to be, of a minor engaging in sexually explicit conduct" (18 U.S.C. §2256(8)). Therefore, not only were sexual images involving actual children to be criminalized, but also computer-generated images, the use of adult "body doubles," and sexual images that appeared to be minors or that were advertised as minors, even if minors were not actually involved (Akdeniz, 2013).

CPPA was met with extreme opposition and criticism, namely by individuals and organizations protesting the Act's infringement on constitutional protections. Some opponents, including the American Civil Liberties Union (ACLU), argued that because no actual victim existed in virtual child pornography, and the events in question were not "real events" with actual child endangerment or harm involved, such images should not be criminalized. Furthermore, the ACLU was able to defend its views with the Ferber (1982) decision. Recall that in Ferber, the U.S. Supreme Court decided that sexually abusive child images were not a guaranteed First Amendment protection, on the grounds that such materials were harmful to the physical and psychological well-being of children involved in their production. On this basis, the ACLU argued that it was clear from Ferber that the government's interest was in protecting children from actual harm, not shielding the general public from such images.

The U.S. Judiciary Committee rejected the ACLU's arguments, maintaining that the U.S. government also had a compelling interest in prohibiting computer-generated images due to the potential of future harm to children. Research on the issue has shown that exposure to virtual child pornography results in viewers being more likely to associate sex and sexuality with non-sexual depictions of minors (Paul & Linz, 2008). In other words, researchers were able to detect an association between viewing "barely legal" pornography and the attribution of sexuality to legal photos of real children. What is unknown, however, is whether viewing virtual child pornography whets the appetite for actual child pornography and child exploitation. It is possible that those viewing virtual child pornography may create a cognitive schema of children that people find disturbing, and thus, work hard to avoid making similar associations in the future.

Ultimately, the provisions under CPPA were overthrown by the U.S. Supreme Court in 2002 in Ashcroft v. Free Speech Coalition. The Free Speech Coalition initially challenged CPPA on the grounds that it was unconstitutionally vague and in violation of First Amendment protections. In the first case, The Free Speech Coalition v. Reno (1997), the plaintiffs charged that the CPPA "impermissibly suppresses material that is protected under the First Amendment" (U.S. Dist. LEXIS 12212, No C 97-0281). The District Court, however, continued to reaffirm that CPPA was neither vague, nor overly broad—that the law had been passed to suppress the secondary effects of child molesting and the broader child pornography industry. The Free Speech Coalition appealed the decision.

The decision of the District Court was reversed by the Ninth Circuit U.S. Court of Appeals. The Court held that the government could not prohibit forms of speech that had the potential to persuade consumers to commit illegal acts. It was determined that not only did the government ban materials that were not obscene (as defined under Miller v. California), but also materials that did not involve the sexual exploitation of real children (as set under New York v. Ferber). The Court also found that certain phrases, such as "appears to be a minor" and "conveys the impression that the depiction portrays a minor," were too vague and subjective (Free Speech Coalition v. Reno (1999)). Specifically, the Court stated:

The two phrases in question are highly subjective. There is no explicit standard as to what the phrases mean. The phrases provide no measure to guide an ordinarily intelligent person about prohibited conduct and any such person could not be reasonably certain about whose perspective defines the appearance of a minor.

(198 F3d 1083, 1097 (9th Cir. 1999))

Burke (1997) noted that words that advocate illegal activity are protected as long as they fall short of incitement. Therefore, virtual child pornography—although it may encourage, promote, persuade or influence child molesters to engage in illegal activity with children—is unlikely to incite sex offenders to abuse and molest children. It may "validate their illegal activity, and it may assist in their illegal activity, but the conduct is neither sufficiently imminent nor impelling to constitute incitement" (Burke, 1997 p. 461). In Ashcroft v. Free Speech Coalition (2002), the Court commented how digitally-created images that involved no real minor(s) did not have a victim and, therefore, produced no record of the crime.

The Ashcroft decision was arguably the most substantial setback for anti-child pornography law in the U.S. This decision meant that prosecutors of child pornography cases had to prove, beyond a reasonable doubt, that the sexually explicit material presented as evidence was indeed a real image of a minor, as opposed to one that was computer-generated. In response to this decision, President George W. Bush signed into effect the Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today (PROTECT) Act (Pub.L. 108-21, 117 Stat. 650, S. 151) in 2003. Among many other provisions, the PROTECT Act criminalized the visual depiction (of any kind) of minors engaged in sexually explicit conduct or obscenity. These depictions were not limited to films or photographs, but also drawings, cartoons, paintings, sculptures and comic strips.

Since the passage of the PROTECT Act, there have been successful (albeit rare) prosecutions of individuals possessing animated media (including comic books and cartoons) that have depicted minors in sexually obscene situations. United States v. Whorley (4th Cir. 2008) involved the prosecution of a man who received sexually explicit Manga (Japanese comic books). In 2006, Dwight Whorley was arrested for using computers at the Virginia Employment Commission, a public resource, to download Manga depicting children in sexually-explicit situations. He was charged with knowingly receiving child pornography for printing out two comics and viewing others. Whorley was found guilty and sentenced under the same guidelines governing actual images of child pornography.

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