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Online Vice: Gambling; Pornography; Child Exploitation
The global reach of the Internet makes direct enforcement of local "morality" laws difficult, often leading to control strategies premised on sanctioning secondary enabling activity or third parties, in particular financial intermediaries and internet service providers.
In addition, the lack of "physicality" challenges regulatory regimes based on isolating undesirable activity to certain geographically determined areas (Las Vegas/Atlantic City, red-light/porn districts) and determining tolerance by reference to local community standards.
Easy, anonymous access to pornography, like-minded deviants, and victims has resulted in increased child exploitation activity.
Can online vice be regulated? How?
WIRE WAGER ACT 18 U.S.C. §1084:
(a) Whoever being engaged in the business of betting or wagering knowingly uses a wire communication facility for the transmission in interstate or foreign commerce of bets or wagers or information assisting in the placing of bets or wagers on any sporting event or contest, or for the transmission of a wire communication which entitles the recipient to receive money or credit as a result of bets or wagers, or for information assisting in the placing of bets or wagers, shall be fined under this title or imprisoned not more than two years, or both.
UNLAWFUL INTERNET GAMBLING ENFORCEMENT ACT OF 2006
(enacted as Title VIII of the Security and Accountability For Every Port Act of 2006 or SAFE Port Act, Pub. L. 109-347):
31 USC §5363 (§802 of the SAFE Act). Prohibition on acceptance of any financial instrument for unlawful Internet gambling.
No person engaged in the business of betting or wagering may knowingly accept, in connection with the participation of another person in unlawful Internet gambling--
(1) credit, or the proceeds of credit, extended to or on behalf of such other person (including credit extended through the use of a credit card);
(2) an electronic fund transfer, or funds transmitted by or through a money transmitting business, or the proceeds of an electronic fund transfer or money transmitting service, from or on behalf of such other person;
(3) any check, draft, or similar instrument which is drawn by or on behalf of such other person and is drawn on or payable at or through any financial institution; or
(4) the proceeds of any other form of financial transaction, as the Secretary and the Board of Governors of the Federal Reserve System may jointly prescribe by regulation, which involves a financial institution as a payor or financial intermediary on behalf of or for the benefit of such other person.
AIDING AND ABETTING 18 U.S.C. §2(a):
Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.
ANALYSIS/DISCUSSION OF LEGISLATION:
Unlawful Internet Gambling Funding Prohibition Act and The Internet Gambling Licensing and Regulation Commission Act (First Session On H.R. 21 And H.R. 1223), Hearing Before The Subcommittee On Crime, Terrorism, and Homeland Security of the Committee on the Judiciary, U.S. House of Representatives, 108th Congress (Apr. 29, 2003).
Nelson Rose, Professor of Law, Whittier Law School, Costa Mesa, CA “The Unlawful Internet Gambling Enforcement Act of 2006 Analyzed” (2006).
Congressional Research Service, “Internet Gambling: Two Approaches in the 109th Congress,” RS22418 (Oct. 2, 2006).
PENDING LEGISLATION (2007-2008)
H.R. 2140: Internet Gambling Study Act ("To provide for a study by the National Academy of Sciences to identify the proper response of the United States to the growth of Internet gambling.").
H.R. 2046: Internet Gambling Regulation and Enforcement Act of 2007 ("To amend title 31, United States Code, to provide for the licensing of Internet gambling facilities by the Director of the Financial Crimes Enforcement Network, and for other purposes.").
H.R. 2607: Internet Gambling Regulation and Tax Enforcement Act of 2007 ("To amend the Internal Revenue Code of 1986 to regulate internet gambling.")
US v. COHEN, 260 F.3d 68 (2001) (operator of an Antigua-based sports betting website convicted under Wire Wager Act, 18 U.S.C. 1084).
Jacob Sullum, Abetting Betting: Is Talking about Online Gambling Illegal? Reason Online (Apr. 9, 2004) ("[DOJ sent] a letter to media trade groups warning that their members could be breaking the law by accepting ads for gambling sites. ... a grand jury in St. Louis that is issuing subpoenas to companies that do business with the online gambling industry.").
AP, "Internet Gambling Execs Arrested: Founders Of Online Payment Processing Company Neteller Charged With Laundering Billions Of Dollars," CBSnews.com (Jan. 16, 2007) ("[They] were charged in connection with the creation and operation of an Internet payment services company that facilitated the transfer to billions of dollars of illegal gambling proceeds from U.S. citizens to the owners of overseas Internet gambling companies. ... the company acknowledged when it went public that U.S. law prohibits people from promoting certain forms of gambling, including Internet gambling, and transmitting funds that are known to have been derived from criminal activity ... [and] conceded in the company's offering documents that they were risking prosecution by the U.S. government.").
Andrew Sorkin, "Gambling Subpoenas On Wall St.," NY Times (Jan. 22, 2007) (" The Justice Department has issued subpoenas to at least four Wall Street investment banks as part of a widening investigation into the multibillion-dollar online gambling industry .... The subpoenas were issued to firms that had underwritten the initial public offerings of some of the most popular online gambling sites that operate abroad.").
Roy Mark, "Antigua Takes Upper Gambling Hand Over U.S.," InternetNews.com (Jan. 26, 2007) ("... Antigua has won its latest long-shot effort to force the U.S. to open its market to offshore gambling, according to a confidential report issued by the World Trade Organization (WTO).").
K.C. Jones, "U.S. Reps Urge Legislative Solutions To Online Gaming Dispute," Information Week (Nov. 19, 2007) ("Earlier this year, the WTO ruled that the U.S. had violated trade rules by barring Antiguan online gaming operators from the U.S. market. Then, the U.S. withdrew its WTO obligations with regard to free trade in the gaming area. Now, Europe and other countries can demand trade concessions up the size of the entire sector on an annual basis.").
Lorraine Woellert, "WTO Online-Gambling Edict Prompts U.S. Resistance," Bloomberg News (Dec. 17, 2007) ("The U.S. refusal to comply with a World Trade Organization decision on online gambling is threatening to undermine the entire set of rules binding the international trade system.").
"EU and U.S. make deal in WTO Internet gambling dispute," International Herald Tribune (Bloomberg News) (Dec. 17, 2007) ("The European Union and the United States agreed Monday on terms to compensate the Union for the loss of trade stemming from Washington's refusal to lift restrictions on Internet gambling.").
Jonathan Lynn, "Antigua wins modest sanctions in U.S. gambling case," Reuters (Dec. 21, 2007) ("GENEVA (Reuters) - Antigua and Barbuda won compensation from the United States on Friday in a long-running trade dispute about gambling, but the amount was far lower than the tiny Caribbean nation had been seeking.").
"U.S. arrests 8 in online sports betting operation," Reuters (Jan. 7, 2008).
Cindy Skrzycki, "Internet Gaming Rules Face Long Odds," Washington Post (Mar. 8, 2008) ("It's not easy making rules for a U.S. law intended to deter illegal Internet gambling by choking off the flow of funds to offshore sites. That's because no one seems to agree on what the law covers.")
William Tripplet, "Antigua threatens to allow piracy," Variety (Mar. 18, 2008) ("The government of Antigua is likely to abrogate intellectual property treaties with the U.S. by the end of March and authorize wholesale copying of American movies, music and other "soft targets" if the Bush administration fails to respond to proposals for settling a trade dispute between the two counties, according to the lawyer representing the Caribbean island nation.")
To a large extent, the legal tension between online "pornography" legislation and Constitutional challenges in court cases turns on whether there is (or the court imagines?) a viable technical "less restrictive alternative." Note that "when plaintiffs challenge a content-based speech restriction, the Government has the burden to prove that the proposed alternatives will not be as effective as the challenged statute." Ashcroft v. ACLU, 542 U.S. 656 (2004). Query: How does one decide yesterday's cases based on presumptions about tomorrow's technology?
Ginsberg v. New York (1968) ("sale to minors"); F.C.C. v. Pacifica Foundation (1978) ("broadcast exception"); Renton v. Playtime Theaters, Inc. (1986) ("zoning").
MILLER v. CALIFORNIA, 413 U.S. 15 (1973) (Miller Test - community standards; "lacks serious literary, artistic, political, or scientific value").
NEW YORK v. FERBER, 458 U.S. 747 (1982) (child pornography can be banned even if it doesn't meet Miller test for obscene).
RENO v. ACLU, 521 U.S. 844 (1997) (see First Amendment Center resources) (Communications Decency Act of 1996 unconstitutional because it was not narrowly tailored to serve a compelling governmental interest and because less restrictive alternatives were available).
ASHCROFT v. FREE SPEECH COALITION, 535 U.S. 234 (2002) (LII) ("By prohibiting child pornography that does not depict an actual child ["virtual porn"], the statute goes beyon [Ferber], which distinguishes child pornography from other sexually explicit speech because of the State's interest in protecting the children exploited by the production process.").
ASHCROFT v ACLU, 542 U.S. 656 (2004) (LII) (upholding injunction preventing enforcement of the Child Online Protection Act (COPA), 47 U.S. C. §231, which, among other things, imposes a $50,000 fine and 6 months in prison for the knowing posting, for “commercial purposes,” of World Wide Web content that is “harmful to minors,” but provides an affirmative defense to commercial Web speakers who restrict access to prohibited materials by “requiring use of a credit card” or “any other reasonable measures that are feasible under available technology,” §231(c)(1). ... "respondents propose that blocking and filtering software is a less restrictive alternative, and the Government had not shown it would be likely to disprove that contention at trial. Filters impose selective restrictions on speech at the receiving end, not universal restrictions at the source.").
U.S. v. AMERICAN LIBRARY ASSOC., 539 U.S. 194 (2003) (LII) (upholding Children’s Internet Protection Act (CIPA), which forbids public libraries to receive federal assistance for Internet access unless they install software to block obscene or pornographic images and to prevent minors from accessing material harmful to them).
FIRST AMENDMENT, U.S. CONSTITUTION (BILL OF RIGHTS):
"Congress shall make no law ... abridging the freedom of speech, or of the press ..."
Communications Decency Act of 1996 (Title V of the Telecommunications Act of 1996).
Child Online Protection Act (COPA) of 1998 (47 U.S.C. 231). (Cf. Children's Online Privacy Protection Act of 1998 (COPPA) 16 USC 6501-6506).
Children's Internet Protection Act (CIPA) of 2000 Children’s Internet Protection Act (CIPA), Pub. L. No. 106-551, Div. B., Tit. XVII, 114 Stat. 2763A-335 (2000).
Child Protection and Obscenity Enforcement Act of 1988 (Pub. L. 100690, title VII, subtitle N (§7501 et seq.), Nov. 18, 1988, 102 Stat. 4485, 18 U.S.C. § 2251 et seq.) (enforced through "2257 Regs" guidelines, 28 CFR 75).
Brian Krebs, Substitute Teacher Faces Jail Time Over Spyware, Security Fix: Brian Krebs on Computer Security, washingtonpost.com (Jan. 25, 2007) ("A ... substitute teacher ... is facing prison time following her conviction for endangering students by exposing them to pornographic material displayed on a classroom computer ... [a] computer expert ... testified for the defense that the images were the result of incessant pop-up ads served by spyware on the classroom computer.")
Brian Krebs, Missed Software Upgrade Blamed for Conn. Porn Case, Security Fix: Brian Krebs on Computer Security, washingtonpost.com (Jan. 25, 2007) ("the school district's information technology supervisor says the whole mess [see previous article] might never have happened had he renewed the school's license for its content filtering software").
Teacher's porn conviction sparks tech debate, CNN.com (Feb. 13, 2007) ("[Teacher] convicted last month of exposing seventh-grade students to pornography on her classroom computer ... contended the images were inadvertently thrust onto the screen by pornographers' unseen spyware and adware programs. Prosecutors dispute that.").
Associated Press, Austrian Officials Uncover Major Child-Porn Ring, Wall Street Journal (Feb. 7, 2007) ("Austrian authorities ... have busted a major international child-pornography ring involving more than 2,360 suspects from 77 countries who paid to view videos depicting infants and young children being sexually abused. ... videos ... included images that showed "the worst kind of child sexual abuse. ... Girls could be seen being raped, and you could also hear screams," ... No suspects were yet in custody, but Austrian authorities said they were sharing their information with law enforcement in other countries in hopes that suspects could be investigated and charged.").
Gina Passarella, "'Text-Only' Web Obscenity Case Attracts National Attention," Law.com (Feb. 5, 2008) ("Motions to dismiss said obscenity laws should not be applied to text where no pictures were involved").
Elinor Mills, "State worker cleared on child porn charges that were due to malware," CNET (Jun. 17, 2008) ("A fired Massachusetts state worker has been exonerated of a charge of possessing child pornography after computer forensics showed that his work laptop was infected with malicious software that was surreptitiously visiting illegal Web sites.")
SOCIAL EFFECTS OF ONLINE PORNOGRAPHY:
Storm A. King, "Internet Gambling and Pornography: Illustrative Examples of the Psychological Consequences of Communication Anarchy," CyberPsychology & Behavior Vol. 2(3): 175-193 (1999).
Megan Rosenfeld, "The Trouble With Smut: An aggressive skin trade and an ethos of exhibitionism are hurting us all," Washington Post (Nov. 13, 2005).
Nick Gillespie, "Porn in the Age of Instant Access," ReasonOnline (Jan. 27, 2006) ("What are the social effects of fast, cheap & stigma-free viewing? Audio and video of the Smith Foundation debate.").
"Four-fold increase in serious child abuse on Web," Reuters (Apr. 17, 2007) ("Images of child abuse posted and sold online are rapidly becoming more graphic and more sadistic and involving younger children").
US v Poehlman, 217 F.3d 692 (2000) ("Mark Poehlman, a cross-dresser and foot-fetishist, sought the company of like-minded adults on the Internet. What he found, instead, were federal agents looking to catch child molesters. We consider whether the government's actions amount to entrapment.").
Carl S. Kaplan, Court Says Agents Went Too Far in Online Sting, Cyber Law Journal (2000).
Dru Stevenson, Entrapment by Numbers, 16 U. Fla. J.L. & Pub. Policy 1 (2005).
Martin G. Weinberg, et al., COVER STORY: INTERNET SEXUAL ENTRAPMENT: THE USES & MISUSES OF 18 U.S.C. 2423(B), 26 Champion 12 (Aug. 2002).
HR 3791, Securing Adolescents From Exploitation-Online Act of 2007 ("SAFE Act") (passed US House by vote of 409-2, Dec. 5, 2007).
David Needle, "New Bill Demands ISPs Report Online Child Exploitation," Internetnews.com (Dec. 7, 2007) ("The U.S. House ... this week passed a new bill putting ISPs on notice they face big penalties for not reporting child pornography and other illegal exploitation of children online. *** Under the legislation, service providers are required to report the illegal activity ... .").
Declan McCullagh, "House vote on illegal images sweeps in Wi-Fi, Web sites," CNET News (Dec. 5, 2007) ("... the SAFE Act requires: Anyone providing an "electronic communication service" or "remote computing service" to the public who learns about the transmission or storage of information about certain illegal activities or an illegal image must (a) register their name, mailing address, phone number, and fax number with the National Center for Missing and Exploited Children's "CyberTipline" and (b) "make a report" to the CyberTipline that (c) must include any information about the person or Internet address behind the suspect activity and (d) the illegal images themselves.").
Declan McCullagh, "Wi-Fi 'illegal images' politician defends legislation," CNET News (Dec. 6, 2007) ("It is NOT the intent of the SAFE Act to target Wi-Fi providers but rather the entities that provide the internet to those conduits." ).
Jerry Markon, "Crackdown on Child Pornography: Federal Action, Focused on Internet, Sets Off a Debate," Washington Post (Dec. 15, 2007) ("Cybercrime, the majority of which involves child pornography, is now the FBI's third-highest priority, behind counterterrorism and counterintelligence. ... the nature of the images alarms law enforcement officials, who say Internet child pornography is increasingly sadistic and depicts young children whose victimization fuels a growing market. ... 'We're not talking about a 16-year-old who looks like she could be 19. We're seeing prepubescent children who are being raped, babies, toddlers being tied up.' ").
David Kravets, "Kazaa User Appeals Feds' Novel Use of Child Porn Law to Supreme Court," Wired (Jan. 28, 2008) ("At issue is a new interpretation of [18 USC 2251(d)] ... intended to curb child-porn advertising by imposing a mandatory 15-year prison term on anyone convicted of publishing "notice" offering to distribute kid porn across state lines. ... [Defense lawyer concedes client ] is guilty of distributing child pornography, which normally carries a five-year sentence. But ... argues that sharing such files over Kazaa shouldn't qualify as advertising under the law, and therefore shouldn't be subject to the mandatory 15 years.") (Kazaa "descriptive fields" as advertising, see also
VIRTUAL CHILD EXPLOITATION:
Daniel Terdiman, "Phony kids, virtual sex," CNET News (Apr. 12, 2006).
Kate Connolly, "Second Life in virtual child sex scandal," The Guardian (May 9, 2007) ("German prosecutors have launched an investigation to find anonymous participants of the online computer game Second Life, who are reportedly buying sex with other players posing as children, as well as offering child pornography for sale.").
NETWORK ACCESS TO VICTIMS:
"Reno Man Used Craigslist To Lure Boys," Associated Press (Nov. 11, 2007) ("... man was arrested on suspicion of using the Internet bulletin board Craigslist.org to lure two teenage boys to his home, where he was accused of sexually assaulting one of them ... the suspect met the two boys, 13 and 15, through Craigslist under the ruse he was a 20-year-old woman).
Michael Grabell, "Victim's parents sue MySpace after suicide, assault by Celina man," Dallas Morning News (Dec. 12, 2007) ("The parents of a [14 year-old] California teenager who committed suicide after being sexually assaulted by a [30 year-old] man she met through MySpace are suing the popular social-networking Web site").
BRAD STONE, "Report Calls Online Threats to Children Overblown," NY Times (Jan. 13, 2009) ("A task force created by 49 state attorneys general to look into the problem of sexual solicitation of children online has concluded that there really is not a significant problem.").
Carrie Antlfinger, "Teen accused of sex assaults in Facebook scam," Associated Press (Feb. 05, 2009) ("An 18-year-old male student is accused of posing as a girl on Facebook, tricking at least 31 male classmates into sending him naked photos of themselves and then blackmailing some for sex acts.")
"New Jersey law restricts some sex offenders from surfing the Web," Internationl Herald Tribune (AP) (Dec. 27, 2007) ("Convicted sex offenders who used the Internet to help them commit their crimes will be banned from using the Internet under a measure signed into law Thursday").
"NYC may ban sex predators from online social sites," Reuters (Feb. 12, 2008) ("New York City prosecutors on Tuesday endorsed the United States' first proposed law to ban registered sex offenders from social networking sites like Facebook and MySpace").
MARLON A. WALKER, "MySpace: 90,000 sex offenders removed from site," Associated Press (Feb. 04, 2009) ("... MySpace executives said they were confident in the technology they use to find, remove and block registered sex offenders. The company uses Sentinel SAFE, a database it created in 2006 with the names, physical descriptions and other identifiable characteristics of sex offenders that cross-references against MySpace members. ...")
"Sex Offender Busted for Using MySpace," WOAI (Feb. 04, 2009) ("The Texas Board of Pardons and Paroles frequently prohibits paroled sex offenders from using the Internet. Despite that prohibition, investigators with the Office of the Attorney General discovered that Scott established an online MySpace account.")
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Course Outline/Class Units
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- Overview, What is Cybercrime?
- Computer Intrusions and Attacks (Unauthorized Access)
- Computer Viruses, Time Bombs, Trojans, Malicious Code (Malware)
- Online Fraud and Identity Theft; Intellectual Property Theft; Virtual Crime
- Online Vice: Gambling; Pornography; Child Exploitation
- International Aspects and Jurisdiction
- Infrastructure and Information Security; Risk Management
- Investigating Cybercrime: Digital Evidence and Computer Forensics
- Interception, Search and Seizure, and Surveillance
- Information Warfare, Cyberterrorism, and Hacktivism
- Terrorism, Radicalization, and The War of Ideas
- Trade Secret Theft and Economic Espionage
- National Security
- Case Study: CALEA, VoIP
- PAPER RESEARCH
- USEFUL LINKS FOR DEFINING TECHNICAL TERMS
- COURSE SUBTEXT AND OPTIONAL BACKGROUND MATERIAL
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