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Masto: New means secured to fight child pornography
Monday, Aug. 17, 2009 | 2 a.m.
During the 2009 Legislative session, an important step was taken to better protect children with the passage of Assembly Bill 88, a bill that makes two significant changes to Nevada law to combat the problem of child pornography.
This legislation was developed by the Technological Crime Advisory Board, which I chair. AB88 addresses the board’s concern with some of the challenges that exist for law enforcement in areas where the Internet is an integral part of the crime of child pornography.
The bill updates Nevada’s criminal statutes to account for evolving technology that has resulted in the widespread dissemination of child pornography over the Internet. AB88 makes it a felony to intentionally use the Internet to control images of child pornography for the specific purpose of viewing such material. This includes conduct such as searching for and locating Web sites with images of child pornography, opening and navigating such sites, and accessing and browsing child pornography online.
This is important because modern technology eliminates the need to download a file to a local computer for viewing. The Internet provides the ability to control photographic images or streaming video without actually downloading the material. In effect, child pornography can be “viewed” on the Internet without physically possessing an electronic file that produces video or still images.
While Nevada law provides criminal penalties against the production and promotion of child pornography, it is also important to target the audience for this material. Consumers of child pornography on the Internet share culpability in the victimization of the children involved, and now face criminal penalties for their conduct. Moreover, research indicates that as many as 85 percent of child pornography viewers and collectors eventually commit sexual offenses against children.
Computer technology allows law enforcement agencies to locate Internet sites that suspects visit and computer forensic examiners have the ability to determine where and when a suspect has used a computer to seek out, access and view child pornography online. With this new legislation, law enforcement officials can now bring these offenders to justice.
A second issue addressed by AB88 is the establishment of a civil cause of action for victims of child pornography who have suffered personal or psychological injury. This portion of the bill is based on a provision in federal law known as “Masha’s Law,” giving child pornography victims a right to seek civil damages in federally prosecuted cases. Nevada is just the second state to grant similar rights.
This new civil remedy applies to victims who, while under the age of 16, appeared in any film, photograph or other visual presentation engaging in specifically defined explicit “sexual conduct” and suffered personal or psychological injury as a result. This civil remedy allows victims of child pornography to recover damages against any person who promoted, possessed or used the Internet to view any images of the sexual conduct.
Recognizing that actual damages may be difficult to assess, the bill deems the amount of damages to be at least $150,000, plus attorney fees and costs. As with all causes of action, there are elements that must be proven. If they are all proven by a preponderance of the evidence (the evidentiary burden in civil matters), the defendant may be liable for damages.
While monetary damages cannot fully compensate for the trauma to child pornography victims, they can provide some measure of vindication while serving as a strong deterrent to the continued circulation of their childhood images. Further, in consideration of the significant privacy interests involved, a plaintiff may use a pseudonym in all court proceedings and records related to an action brought before the court. Also, it is not a sufficient defense that the defendant did not know the plaintiff or did not engage in the sexual conduct with the plaintiff.
It is often said that a society is judged by how it protects its most vulnerable members, including its children. Protecting children is a top priority of my administration. AB88 is an important step to better protect children in our state from exploitation and victimization in pornography.
Catherine Cortez Masto is Nevada’s attorney general.
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"Consumers of child pornography on the Internet share culpability in the victimization of the children involved, and now face criminal penalties for their conduct ..... law enforcement officials can now bring these offenders to justice."
This bill is far more about job security for attorneys than justice. And you're talking about "conduct" that is purely private and drawn from publicly available sources.
"This new civil remedy applies to victims who, while under the age of 16, appeared in any film, photograph or other visual presentation engaging in specifically defined explicit "sexual conduct" and suffered personal or psychological injury as a result."
For starters these laws and their pushers are assuming injury based solely on age. Since the internet is global and the age of consent varies considerably for what's illegal here is legal elsewhere. A key point is whether the "child" consented to the "crime" or not, something this AG and prosecutors everywhere will ignore and have cleverly worded legislation to be sure it's something they will never have to prove.
In 1877 the U.S. Supreme Court approved the marriage of a 13 year old girl "good and binding notwithstanding the [law requiring parental approval]." Under the common law a girl could marry at that age with parental consent. A strong implication is she was ready for the intimacies of marriage. This brings in Constitutions' unenumerated rights clauses -- why is what was legal for our great-great grandparents now illegal for us? Other than the Herd's current version of morality?
This police state is closing in on us all by ignoring the limitations of the 4th Amendment, our right to be left alone without proper threshold conditions being met. When possession of images alone is sufficient for conviction the State has created a crime out of whole cloth -- harm is presumed without having to prove any actual harm was done.
"It is often said that a society is judged by how it protects its most vulnerable members, including its children. Protecting children is a top priority of my administration. AB88 is an important step to better protect children in our state from exploitation and victimization in pornography."
I wonder if your committee bothered to poll Nevada's actual 16 year olds for how many of them wanted your "protection."
There's the very real possibility this is just another law to do an end-run around privacy and other Constitutional protections.
The threshold still comes down to what the State justifies compelling interest in what an individual does totally in private -- privacy this AG and her ilk swore oaths to protect.
"The legitimate powers of government extend to such acts only as are injurious to others." -- Thomas Jefferson "Notes on the State of Virginia," 1781-2
A well intentioned law that will lead to very bad and at times contradictory results
http://www.reason.com/news/show/133863.h...
http://www.reason.com/blog/show/133292.h...
http://www.reason.com/news/show/120504.h...
http://www.reason.com/news/show/133864.h...
http://www.reason.com/blog/show/132514.h...
Whenever I hear a politician use "child porn" as a justification for anything, my BS detector goes off big-time. "Child porn" is one of the canards our "dear leaders" always use to give themselves greater surveillance powers, more repressive laws, and greater police state control over our lives. They don't care about "protecting" us. It's all a lie, and a pretext for strengthening their ever-growing fascist police state and destroying our privacy and individual rights.
This country is going into totalitarianism very quickly; we will be no freer than North Korea or Stalinist Russia in 10 years.
Patrick_R_ -- excellent links! The second, Radley Balko's "Grandma Arrested for Child Porn," should be an alert to every one of the flamers warming up their modems. All of them show the mentality of the "get 'em" prosecutors nationwide.
BugMeTons -- what you said!
It's now in Nevada and everywhere else. With the attitude the AG has shown us here, and Reason's articles, a 15 year-old girl wearing a bra sending out that phone picture can be considered the victim of whoever she sends the picture to and is guaranteed a minimum of $150,000 by suing "civilly."
Or she can be prosecuted for -- get this -- being her own victim. All to keep prosecutors busy. Now who's exploiting who?
"It is often said that a society is judged by how it protects its most vulnerable members, including its children."
I tend to believe that society should be judged on how it protects the rights and privacy of ALL it's citizens. Too often obtrusions into personal privacy is done under the guise of civil safety and protecting a subset of the population, at the cost of everyone's rights.
So, ditto on Bug's BS detector. That's exactly what was going off while I read this. Time will tell how badly these new laws will be abused by overzealous law enforcement and DAs, and whether it will past judicial muster.
The Herd's strangely quiet about this.
Hopefully someone who matters paid attention to this Discussion.
One last lingering, disturbing point. From Patrick_B's second link, "Grandma Arrested for Child Porn":
""It's a subjective versus objective standard ... You think it's cute. Someone else might think different. That doesn't make it a crime."
Sounds like thoughtcrime. Which makes Orwell a prophet. "1984" is here -- in "the land of the free."