Child pornography and the Internet in the U.S.

In the case of electronic or computer transmission, it is a federal offense to knowingly receive child pornography, including the use of computers. However up until 1996, pseudo photographs (pictures created by computers and don’t use real children) are exempt from child pornography laws. These pseudo photographs are still subject to the Miller test and proving that children were not used is the responsibility of the creator of the image. The Child Pornography Prevention Act of 1996 recognizes a broader range of harms including its use in the seduction of children. It also adds pseudo photographs of child pornography to the definition of child pornography by eliminating the “use of a minor” statement in the relevant law. The Child Protection Prevention Act was passed with the Omnibus Act of 1996.

In summary, U.S. laws on obscenity and child pornography have remained applicable to the new medium of the Internet. With amendments to the child pornography laws, the range of material and methods of distribution covered have been increased. The more difficult area has not been with the obscene or child pornography (neither of which are subject to First Amendment protection), but rather the prevention of minors viewing the more vague and protected indecent material. Minors have no right to view indecent material, but for adults it is part of protected speech. The CDA failed to balance these competing interests and was therefore ruled unconstitutional. However it is unlikely that the U.S. government will not attempt to pass more focused legislation restricting minors Internet access. Once this happens, more challenges and precedents will be set, particularly in regards to the status of ISP’s as common carriers and the application of the zoning rationale to the Internet. In the meantime, the most offensive of the material remains illegal in the United States, and problems with this material on the Internet remain a matter of enforcement rather than a matter of legality.

See also…

Criminal Law Matters

Internet Law – Forum