Another Day, Another Sexting “Scandal”

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The latest sexting scandal comes to us from Peters (ha ha!) Middle School outside of Pittsburgh, where police are examining kids’ cell phones for nude photos.

Why.

Like really: Why? It sounds like a giant swath of middle school kids and teens have naked pictures of themselves and others on their phones. Investigating these as if they are crime scenes doesn’t seem to make any more sense than reading kids’ diaries as if they are signed confessions. Can we instead decide that while naked selfies are a bad idea, the police should have nothing to do with investigating or prosecuting them?

The reasoning of Peters Police Chief Harry Frucht is impossible to even understand:

“If the photograph was taken by the individual, male or female between the ages of 12 and under 18, she’s as much a guilty party as the person who received it. She is not a victim in this case or he is not a victim,” he said.

Huh? So are they both perps? Are they going to be registered as sex offenders?

I have no idea if the authorities will go in that awful direction. But the fact that other young people have been prosecuted for the same behavior just means that young people are in danger of ruining their lives NOT because their naked pictures are out there — at some point, even employers won’t care, because these will be so common — but because the cops swooped in and declared the kids deviants.

How about we decide that taking nude selfies is not a crime, nor is possessing them if they were sent to you. Any state legislator with a kid or grandkid should be able to understand that this law will PROTECT rather than ENDANGER their children’s futures. – L.

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I wouldn't do that if I were you! (But I'm not. And you're going to do it anyway, so I will ask the gov't not to act as if you are a child victim or a child pornographer.)

I wouldn’t do that if I were you! (But I’m not. And you’re going to do it anyway, so let’s insist the authorities not act as if you are a child victim OR a child pornographer.)

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85 Responses to Another Day, Another Sexting “Scandal”

  1. BL February 8, 2016 at 10:25 am #

    Kids used to play cops and robbers. Is it now cops and sexters?

  2. AD February 8, 2016 at 10:54 am #

    Or maybe the cops really just wanna see some nekkid pics of teens. Protecting and serving.

  3. James Pollock February 8, 2016 at 11:06 am #

    “How about we decide that taking nude selfies is not a crime, nor is possessing them if they were sent to you.”

    Think about that last one a little bit longer. You don’t think a crime is committed when person A receives a naked selfie of person B, sent by person C? Should person B have any recourse?

    (I’ll skip over trying to list all the possible way that person C can find themselves in possession of naked selfies of person B, that do not involve person B’s permission to send them on the person A.)

  4. m February 8, 2016 at 11:18 am #

    So the person who receives the photo, even if they didn’t ask for it or want it, is as guilty as the person who sent it? The person who sent it consented to having the photo taken (because they took it themselves) is guilty too. Laws regarding teens and sex in the country are crazy.

    Young adults (teens) can go to a doctor or clinic and get a prescription birth control without parental consent.

    But they can’t be trusted to self-administer over-the-counter Midol, and can be punished for having those drugs on school property.

    A sexually active teen couple on a cross-country school trip can be totally okay or charged as a sex offender, depending on the laws within each state, because each state’s “age of consent” varies widely, from 12 to 17.

    Consensual activity can be totally legal, unless you photograph it, then it becomes illegal.

    Think about it.

  5. John February 8, 2016 at 11:21 am #

    Well look, as a man who turned 60-years-old just TODAY, if I have naked pics stored on my cell phone of young teenage kids that I either took or that were KNOWINGLY sent to me, or if I have naked cell phone pics of myself that I sent to a young teenager (I can’t imagine how grossed out a kid would be after receiving pics like that.) let me present to the police my hands for cuffing. Take me to jail and throw away the key because I’m a deviant! But for goodness sakes, if a 14-year-old boy has a nude pic of his 13- or 14-year-old girlfriend that she sent to him, discipline the boy AND the girl accordingly but please please do not ruin their lives!!!!! There is no need for that. They are NOT deviants or any more dangerous than a 92-year-old man who has sexual attractions toward 90-year-old women.

    We really need to overhaul these laws to address these common sense situations. BUT with the witch hunt mentality we have here in America toward pedophiles and the modern day prudishness we display regarding teenagers and sex, I just don’t see anything happening anytime soon.

  6. James Pollock February 8, 2016 at 11:27 am #

    “So the person who receives the photo, even if they didn’t ask for it or want it, is as guilty as the person who sent it?”

    It’s not receiving it that’s illegal, it’s keeping it that’s illegal.

  7. John February 8, 2016 at 11:38 am #

    Well technically speaking James (and m), if I receive a pornographic photo of a minor, I’m suppose to report it and if I just delete it and send back a reply asking the sender to NEVER send a pic like that again, that would NOT be good enough for the police. I’d be arrested and treated as if I was a child pornographer myself. All because I didn’t report it. Typical witch hunt mentality. That’s just label another person a pedophile.

  8. John February 8, 2016 at 11:41 am #

    I mean “LET’S just label another person a pedophile”. English 101!!!

  9. Jill s. February 8, 2016 at 12:20 pm #

    Actually James, receiving can get you more time than possessing… Federal law has a mandatory minimum of 5 years, where as possession has no minimum. And I wouldn’t believe a cop wouldn’t arrest me if I showed them I had received anything and then deleted it. It’s much too easy of a conviction in the witch hunt. Remember, if it saves just one child…..

  10. BL February 8, 2016 at 12:30 pm #

    What counts as “receiving”? If something like that comes to my spam folder and is deleted, sight unseen, am I a felon?

  11. Havva February 8, 2016 at 12:39 pm #

    So, is Frucht going to turn out to be an active pedophile like that Detective Abbott character who tried to have the teen injected so they could prove the teen had “produced and distributed child pornography” by sending nudes of himself to his girlfriend?

  12. James Pollock February 8, 2016 at 1:07 pm #

    “Actually James, receiving can get you more time than possessing… Federal law has a mandatory minimum of 5 years, where as possession has no minimum”

    Actually, Jill, federal law has a safe harbor provision for people who don’t seek to receive illegal materials, and thus has a mandatory minimum of 0 years for receiving.

  13. James Pollock February 8, 2016 at 1:09 pm #

    Oh, and I forgot to note (again) that “pornography” and “nudity” are not interchangeable.

  14. lollipoplover February 8, 2016 at 1:34 pm #

    At my nephew’s middle school, two boys were expelled for receiving topless photos of their classmate (sent to them unsolicited), yet the nude selfie taker is still a student at the school (with a terrible reputation).

    These pictures can ruin lives…and for what?

    “Can we instead decide that while naked selfies are a bad idea, the police should have nothing to do with investigating or prosecuting them?”

    Yes, but sometimes it’s good to let others know when their loved ones make bad decisions and send nudies:

    http://jezebel.com/model-responds-to-unwelcome-dick-pics-by-contacting-sen-1756022915

  15. anonymous mom February 8, 2016 at 1:42 pm #

    There seem to be a good number of police departments where the officers really, really like to check out the nude selfies that teens are sending.

  16. Donna February 8, 2016 at 1:47 pm #

    “It’s not receiving it that’s illegal, it’s keeping it that’s illegal.”

    No it is not. Computers and cell phones are seized, hard drives examined and people prosecuted for images that have been deleted on a daily basis.

  17. FreedomForKids February 8, 2016 at 1:48 pm #

    This is going on at Newtown High School in Newtown, CT. Arrests have been made and more are pending.

  18. anonymous mom February 8, 2016 at 2:03 pm #

    @m, that is the insanity of our culture’s views around sex today. So we have middle schools that hand out condoms to their students, but in that same town the police will prosecute those students for sending each other nude pictures. We have the very same people often believing that 13 year olds are mature enough to make decisions about going on birth control or getting an abortion without any adult involvement, but that 15 year olds are incapable of consenting to sexual activity. And we have Playboy trying to expand to a younger, 20-something audience by having a new cover that is made to look like a Snapchat sext from a teen, while in reality if a 20-something guy received a sext from a teen, he’d be considered a pedophile and land on a sex offender registry.

    Our culture could not, if it tried, be more inconsistent in its views on sex.

  19. Momof8 February 8, 2016 at 2:25 pm #

    Not sure why they have to have their cell phones at school in the first place. Other than it’s easier to cheat on tests. Well, I know why they *want* to have them, they think they need them allofthetime but why is it even allowed? NOT allowing would eliminate this whole problem. And a lot of distractions. And helicopter parenting. (Recently a man with a gun was seen in town – not at a school, just in town – the schools went into soft lockdown and called the parents, and some of the parents went into a panic and called their kids and had to be talked down – by the kids.)

  20. Donna February 8, 2016 at 2:25 pm #

    And let’s not forget the fact that a child of 13-14 can be prosecuted as an adult for sex crimes. So, a 13 year old cannot consent to sex with a willing partner, but can commit child molestation and deserves to prosecuted as an adult for doing so.

  21. RandomH February 8, 2016 at 2:31 pm #

    I am a bit worried about the teen who receives a voluntarily delivered naked selfie and then decides to distribute said selfie to his/her friends, either now or after a breakup (because that’s what teens do). That teen has done something wrong, in my opinion, though not worth a lifetime on the registry.

  22. James Pollock February 8, 2016 at 2:32 pm #

    “No it is not. Computers and cell phones are seized, hard drives examined and people prosecuted for images that have been deleted on a daily basis.”

    And this indicates that the defendants either need to follow the safe-harbor provisions, or they need better defense counsel, or both.

  23. Donna February 8, 2016 at 2:41 pm #

    “And this indicates that the defendants either need to follow the safe-harbor provisions, or they need better defense counsel, or both.”

    No, it indicates that you don’t know what you are talking about.

  24. James Pollock February 8, 2016 at 2:50 pm #

    Donna, do you represent clients accused of violating 18 USC 2252?

    If so, do your clients know that you seem to be utterly unaware of 18 USC 2252(c)?

    Because if it applies, and you aren’t raising it, that’s pretty straightforward malpractice.

  25. marie February 8, 2016 at 2:52 pm #

    What counts as “receiving”?

    This answer applies only to the federal system. (Each state does its own thing.)

    Receiving means you received the image in the mail, through FedEx, by downloading it from a website, in an email, from someone who hands it to you. This crime carries a five-year mandatory minimum sentence.

    Possession means the image is in your pocket, in a box in your closet, on your hard drive, on your phone, in a zip drive. This crime does not have a mandatory sentence. My husband is serving four years for possession.

    Here’s the tricky part. Nowadays, in the internet age, child porn is freely available on the internet. No need to send in a paper order form, no need to meet a acquaintance on a street corner to exchange photos. Virtually ALL child porn is received via the internet. There is really no chance someone possesses an image without receiving it, which makes the two crimes indistinguishable.

    But you barely looked at the photo? You didn’t click the download button? Tough luck…when an image appears in your browser, a temporary copy is stored in your temporary files. You RECEIVED the image. You POSSESS the image.

    You deleted the image immediately? Again, tough luck. Deleted files can be retrieved in a forensic search of your hard drive or your phone. You RECEIVED the image. You POSSESS the image.

    As for the safe harbor, I would not count on it. Of all the dozens of stories i have heard about child porn cases, none included a reference to a safe harbor law.

  26. Chet D February 8, 2016 at 3:02 pm #

    I have to wonder what happens if a kid decides to encrypt their phone and says get a warrant. I would have at least encrypted given how easy it is these days. (At that age, pre-internet, I wanted to be a cryptographer and had a teacher who didn’t know the difference between cryptography and choreography – lead to a bit of embarrassment). Given a lot of kids tend to be rather tech savvy I suspect photo hiding apps and encrypted SMS are probably already in use by at least some. I guess such things would be an alternative given the circumstances. Start teaching your kids basic rights and data hygiene!

    If the same rules apply to the administrators, I’m also surprised none of them have received such texts (even easier to do).

  27. James Pollock February 8, 2016 at 3:08 pm #

    “There is really no chance someone possesses an image without receiving it, which makes the two crimes indistinguishable.”

    You can possess child pornography by creating it yourself, without receiving it.

    “As for the safe harbor, I would not count on it. Of all the dozens of stories i have heard about child porn cases, none included a reference to a safe harbor law.”

    18 USC 2252(c). You don’t hear about in child porn cases because when it applies, there IS no child porn case.

  28. James Pollock February 8, 2016 at 3:13 pm #

    “I have to wonder what happens if a kid decides to encrypt their phone and says get a warrant.”

    The same thing that happens when anyone else decides to encrypt their phone and says “get a warrant”.
    They get a warrant.

    There was a case where the court was trying to decide if forcing someone to give up their encryption password counts as “testimonial” for fifth-amendment purposes (I think not, but… not a judge) when the issue was mooted… the government broke the encryption.

  29. Andrew Jones February 8, 2016 at 3:30 pm #

    Up here in Canada there is, in fact a legal situation going on that relates to the encryption. It was recently ruled that police did *not* need a warrant to search your cell phone. However, it was also ruled that they did *not* have the right to force you to unlock your phone.

    I say, support RIM! Tell them to stop only targeting government agencies that deal with sensitive data, go after the kids who don’t want people just going through their phones 😛 Not as cool as Iphones, perhaps, but even the Chinese Gov’t hasn’t cracked the Blackberry encryption scheme yet, so I’m not too worried about the local police force pulling it off.

    How *will* the police force respond if some not-too-tech savvy administrators have been sent the images and didn’t even know they had them – prosecute them like the kids? And when some *really* good kids get the files uploaded onto the police servers? Hmm….sounds like the argument I had with someone regarding accelerating the legalization of marijuana….get a model rocket, load it with seeds, and have it detonate over, say, Washington, D.C. Marijuana is a *weed* – it can grow just about ANYWHERE…so when it starts popping up on federal property, the government, as owner, is in violation of the drug laws….wonder how quickly they would get re-written. Hmm…can the government seize it’s *own* properly? (Trying to imagine the FBI taking it’s own building from itself :P)

  30. Donna February 8, 2016 at 3:31 pm #

    James,

    Not sure why you seem to think that all state laws mirror federal law. An incredibly small percentage of criminal prosecutions occur in federal court. Since this is a local police department investigation, THIS case doesn’t involve federal law. Your comment that I quoted did not reference federal law. The person you were replying to did not talk about federal law. Someone brought up federal law AFTER you made your comment.

    That said, 18 USC 2252 (c) states specifically “Affirmative Defense.—It shall be an affirmative defense to a charge of violating PARAGRAPH (4) of subsection (a) that the defendant (emphasis added) —…” Paragraph 4 only involves video tapes, books, magazines, etc. The law surrounding computers (and by extension cell phones) is in paragraph 2. Very basic 1st year of law school statutory construction will tell you that subsection (c) doesn’t apply to paragraph 2 and therefore doesn’t apply to computers.

  31. James Pollock February 8, 2016 at 3:37 pm #

    ” when it starts popping up on federal property, the government, as owner, is in violation of the drug laws….wonder how quickly they would get re-written.”

    There’s this thing called “sovereign immunity” that blows a gigantic hole in your theory. That’s why, for example, when the police officer takes your phone with the kiddie porn on it, the cop isn’t guilty of possessing kiddie porn, despite actively seeking it and knowing full well what it is. To get back to your marijuana growing on federal property theme…

    There’s probably hundreds of grow operations deep in the national forests. I wouldn’t be surprised if BC’s forest areas weren’t also full of them, too. How much of that forestland is owned by the national or provincial governments?

  32. James Pollock February 8, 2016 at 3:40 pm #

    “Not sure why you seem to think that all state laws mirror federal law”

    Since I don’t, and there’s no reason to think that I do… what is this about?

  33. marie February 8, 2016 at 3:41 pm #

    Chet, can you recommend a site that provides good info about how to encrypt? I agree that data hygiene should be taught as routinely as keyboarding is taught.

  34. Donna February 8, 2016 at 4:09 pm #

    “Since I don’t, and there’s no reason to think that I do… what is this about?”

    Considering you were responding to a general comment about this article with what you alleged, completely incorrectly, to be federal law, there is every reason to believe that you do think federal law and state law are one and the same.

    And what is what about?

  35. lele February 8, 2016 at 4:26 pm #

    How is it ok for these officers to search kids phones without parental consent or a warrant or something? Maybe I’m missing something…

  36. BL February 8, 2016 at 4:41 pm #

    @lele
    “How is it ok for these officers to search kids phones without parental consent or a warrant or something? Maybe I’m missing something…”

    They’re the government and they’re here to help

  37. Andrea February 8, 2016 at 4:41 pm #

    None of this is surprising given the militarization of our police over the past two decades. It’s interesting that in the US we look at China or Russia or North Korea and think that they have such oppressive societies, and fail to recognize that for some of our population (mostly poor and/or minority) in the US, it’s just as bad. But now it’s moving up the “hierarchy.”

    “They came for them, now they’re coming for us.”

  38. Michelle February 8, 2016 at 4:54 pm #

    “How is it ok for these officers to search kids phones without parental consent or a warrant or something? Maybe I’m missing something…”

    Unlike some people in this thread, I am not a lawyer, but I’m guessing it goes something like this. If the cops say, “Let me see your phone,” you don’t technically have to let them. You could say no. So if you don’t say no, and you do hand over your phone, that’s giving them permission. Only most people, especially kids, probably think they do have to, so they give up their right to be free from searches without even realizing that’s what they’re doing.

    Or maybe it’s something along the lines of the school administrators being the ones to ask, and maybe they have more authority to make demands like that. Or maybe they don’t, but the kids think they do, same as above.

  39. Donna February 8, 2016 at 5:05 pm #

    “How is it ok for these officers to search kids phones without parental consent or a warrant or something? Maybe I’m missing something…”

    The police can ask anyone to search anything they want to search. It is the individual’s responsibility to assert their rights by saying “no.” Sadly too few people assert their rights. The law surrounding searches at school may also be different than searches outside school. It is in my state.

  40. david zaitzeff February 8, 2016 at 5:07 pm #

    in the 1960s and 1970s, it was believed commonly that so called child porn had to be obscene to be prosecuted. The fed gov and some states figure out a way that might get past the courts and it did get past the courts, on the basis, orginally, that it was going to be OK to criminalize explicit sexual conduct of a minor being photographed, especially given that such explicit sexual conduct as such would probably, allegedly at least, be considered obscene and therefore, it was ok criminalize it without considering the context to determine if the work as a whole containing an alleged bit of obscenity was actually obscene.

    So, originally, back in 1977 to 1982, legislatures put forward and courts said OK to criminalizing EXPLICIT SEXUAL CONDUCT, but once the courts gave the exception to the usual obscenity requirements and to Cohen v California’s dictum, then the state legislatures and the US congress started declaring MORE and MORE things to be EXPLICIT SEXUAL CONDUCT if and when done by a minor and photographed, even though many such things are slight and mild and no one would really in fact consider them, under normal circumstances, to be EXPLICIT SEXUAL CONDUCT.

    Now, for example, in Washington state, a girl or boy putting his hand on his butt and that pose being photographed can be and often will be considered EXPLICIT SEXUAL CONDUCT, even if there is no masturbation and even if he or she is clothed and even if there are dozens of other factors that mean that putting a hand on your butt is not sexual conduct.

    What Washington state and dozens of others did was that they put a phrase “for the purpose of the sexual stimulation of the viewer or some other party,” after a variety of otherwise innocent conduct, and VOILA, now they have in effect, criminalized being photographed nude or topless or whatever.

    It is wrong and it needs to be changed, but it probably won’t be by the courts at this point, because of years and years of courts accepting the phrase “for the sexual stimulation of the viewer” as being the same thing as a “lewd pose” or “lewd exhibition of the genitals” and they assumed that the states such as New York would keep their anti-child-porn laws small in scope.

    But the legislatures had an endless drive to expand the prohibitions and anyone who opposes that is considered bad.

    It would take years of social change to get back to sanity and back to the basic criteria of Cohen v California, that the states and fed can’t criminalize various photos and posing unless there is a intolerable violation of substantial privacy interests . . . A girl who takes a nude photo of herself is not violating her own privacy.

    We would need to re-add back into the statues elements of the crime re a intolerable violation of privacy and then also either obscene or the result of sexual abuse of a minor.

    I think the feds have gone so far now as to have criminalized computer generated images that look as if they were of teens, on the basis that such images are obscene, even if no kids were used in the creation of them.

  41. James Pollock February 8, 2016 at 5:24 pm #

    “Considering you were responding to a general comment about this article with what you alleged, completely incorrectly, to be federal law”

    Considering that I referred, specifically, to federal law and then cited the federal law, I would expect a competent attorney to assume I was referring to federal law.

    You, on the other hand, did not.

  42. James Pollock February 8, 2016 at 5:27 pm #

    “How is it ok for these officers to search kids phones without parental consent or a warrant or something? Maybe I’m missing something…”

    There’s nothing here that says they are doing that.

  43. Donald February 8, 2016 at 6:01 pm #

    For centuries, teens play games of ‘You show me yours and I’ll show you mine’. This is nothing new.

    What I think that is really criminal is that some people cannot distinguish between this ‘game’ and true child pornography. I raise the question. Who are the real criminals?

    I wonder if Harry Frucht has a fetish? I think he’s into B & D. I wonder what he looks like in leather while holding a whip? I also wonder is he gets turn on by disciplining minors?
    HE ALSO GETS PAID FOR IT!

  44. Donna February 8, 2016 at 6:09 pm #

    “Considering that I referred, specifically, to federal law and then cited the federal law, I would expect a competent attorney to assume I was referring to federal law.”

    And considering you didn’t mention federal law until AFTER you made the comment I quoted? And when questioned, insisted that you were talking about federal law despite the fact that federal law does not appear to be involved in this case at all?

  45. James Pollock February 8, 2016 at 6:21 pm #

    “And considering you didn’t mention federal law until AFTER you made the comment I quoted?”

    “I referred (explicitly) to federal law at 1:07.
    You quoted me at 1:47.

    Is this some meaning of the word “after” of which I was previously unaware?

    ” And when questioned, insisted that you were talking about federal law despite the fact that federal law does not appear to be involved in this case at all?”

    Again, the hints that should have tipped you off should have been the words “federal law” and, you know, a citation to a federal statute. I’m sorry that these clues were not enough for you to figure out that I was talking about federal law. How can I make it easier for you to follow along, in the future?

  46. anonymous mom February 8, 2016 at 6:31 pm #

    @Donna, a 14yo wouldn’t even have to molest a child to be charged with an adult sex crime; if a 14 or 15 year old were to forcibly rape a 20 year old woman, they could be charged with rape as an adult. If they had sex with the same woman, but she was willing, she’d be a sexual predator and put on a registry.

  47. treemother February 8, 2016 at 7:03 pm #

    @momof8. My kids had cell phones by middle school for my benefit, not theirs. To find out what time they would be home on the bus or to ask them to come home early to babysit for siblings or drive me to work. And no…I am not a helicopter mom. This allowed them freedom while still respecting my unpredictable needs.

  48. James Pollock February 8, 2016 at 7:39 pm #

    “What counts as “receiving”? If something like that comes to my spam folder and is deleted, sight unseen, am I a felon?”

    Well (this part is for Donna) the state laws vary from state to state, and thus, depending on where you are, the state may decide that your are.

    (This part is for everyone) The federal statute doesn’t criminalize “receiving”, it criminalizes “knowingly receiving”. So… if you were expecting someone to send you something, and it’s in your inbox, then yes, you might have some ‘splainin’ to do. But if some jackass just sends you something trying to get you in trouble, then no, probably not.

    AFAIK, the FBI doesn’t actively seek out mere possessors. I mean, yeah, if you do something stupid like take your laptop full of kiddie porn down to the Best Buy to have it fixed, and they call the FBI, the FBI will investigate. But their efforts are targeted at distributors. On the other hand, I know for a fact that the AFOSI actively looks for it on their systems (I went to a security conference where they showed their tools.(pun not intended)). I assume that the other military branches are looking, too.

  49. JP Merzetti February 8, 2016 at 7:45 pm #

    Hmmm.
    I think our techno-worshipping society has been caught with its pants down. For shame.
    Pandora’s box just happens to be revealing a little too much joy for a little too many kids acting as kids will,
    and suddenly the moral adults go into meltdown.
    We willingly invite the kiddies in on the techno-extravaganza, without thinking a whole lot about what they’re going to do with the invitation.
    Which makes us about as ridiculous a bunch of hypocrites as the average televangical caught in a sex scandal.
    Just one more way we’ve figured out how to criminalize sex.
    And turn it all into the smoking gun, thermonuclear device to blow up yet again a few more young lives.

    If we can’t put Jack back in the box, not a bad idea to come up with a seriously adult solution to the problem.
    (or pretty soon we’ll need another 57 penitentiaries to hold all the sext criminals)

  50. anonymous mom February 8, 2016 at 8:39 pm #

    @James, you are wrong that the FBI doesn’t target “possessors.” It most certainly does. In fact, there was just a lot of news stories about the FBI having taken over a site known to have hosted child porn. Why? Not to go after the people running or hosting the site, but to infect the files that people would go to download with a traceable virus so they could arrest them.

    Many federal child porn arrests are not based on the FBI being tipped off that somebody has child porn, but on the FBI putting traceable child porn on free file-sharing sites and then arresting those who download it.

    I think a very valid question people should be asking is why the FBI puts so much effort into arresting individual men who download child porn from free file-sharing sites and so little effort into removing that material from those sites, or going after those who run sites that host it. As an analogy used by somebody opposing the FBI taking over that one specific site, what they do is like flooding an inner-city neighborhood with crack and then arresting low-level buyers, in an attempt to fight the drug problem. It’s the wrong way to do it, and the question is how many tens (or, in the not-too-distant future, hundreds) of thousands of men will have to be arrested before we realize that, just like we realized, in our “war on drugs,” that going after low-level buyers with harsh penalties did more harm than good.

  51. anonymous mom February 8, 2016 at 8:41 pm #

    And in this case they aren’t even “buyers,” because the porn is free. This is like arresting people and throwing them in prison for 5-10 years because they took crack from somebody giving it away.

  52. James Pollock February 8, 2016 at 9:06 pm #

    “18 USC 2252 (c) states specifically “Affirmative Defense.—It shall be an affirmative defense to a charge of violating PARAGRAPH (4) of subsection (a) that the defendant (emphasis added) —…” Paragraph 4 only involves video tapes, books, magazines, etc. The law surrounding computers (and by extension cell phones) is in paragraph 2. Very basic 1st year of law school statutory construction will tell you that subsection (c) doesn’t apply to paragraph 2 and therefore doesn’t apply to computers.”

    This is pretty thoroughly wrong. Like, malpractice-level wrong. Yikes. Maybe you need to go retake that 1L statutory construction class again?

    I eagerly await your explanation of why it’s my fault that you’re wrong.

  53. James Pollock February 8, 2016 at 9:19 pm #

    “James, you are wrong that the FBI doesn’t target “possessors.” It most certainly does. In fact, there was just a lot of news stories about the FBI having taken over a site known to have hosted child porn. Why? Not to go after the people running or hosting the site, but to infect the files that people would go to download with a traceable virus so they could arrest them.”

    I think you’re misunderstanding what has happened… although it’s very likely that this is because your information source doesn’t understand it, either. The FBI had a very strong interest in cracking TOR. They may or may not have paid for, but certainly received, the help of Carnegie-Mellon University, in executing the hack.
    Finding kiddie-porn fans was a side-effect, not the goal, of the operation. Saying the FBI cracked TOR to target possession of kiddie porn is like saying the United States funded to Apollo project to obtain Tang.

    “I think a very valid question people should be asking is why the FBI puts so much effort into arresting individual men who download child porn from free file-sharing sites and so little effort into removing that material from those sites, or going after those who run sites that host it.”

    The very valid answer is that they don’t.

  54. Warren February 8, 2016 at 9:23 pm #

    Donna,

    Do you happen to know the, if there is, statute of limitations on producing and distributing, and possession of child porn?

    I remember Miguel Ferrer, cousin of George Clooney, talking about how during Aunt Rosemary’s parties, they would steal people’s cameras, and take photos of their privates, and then sneak the camera back to the owner. Joke being they would have a shock photo in their envelope after having them developed at the store.

    James,

    When you are all growed up, and actually become an attorney, then you can take on Donna. Until then all you are doing is entertaining us. It is always fun to watch wannabe’s take on the real thing. You’re a joke.

  55. Donald February 8, 2016 at 10:42 pm #

    “………..James,

    When you are all growed up, and actually become an attorney, then you can take on Donna. Until then all you are doing is entertaining us. It is always fun to watch wannabe’s take on the real thing…..”

    I liked the part when he portrayed that he knew more than the attorney that worked pro bono for Danielle and Alexander Meitiv

  56. LTMG February 8, 2016 at 10:44 pm #

    Wanna have fun? Check everybody’s phone at the school. Teachers, administrators, janitors, etc. Doing so, the cops might actually catch a crook.

  57. Donald February 8, 2016 at 10:49 pm #

    I wonder if he is an armchair quarterback as well? Perhaps the Ravens would have won the Superbowl if they had James as their coach

  58. J.T. Wenting February 9, 2016 at 12:36 am #

    “Or maybe the cops really just wanna see some nekkid pics of teens. Protecting and serving.”

    To protect and perve!

    One massive question though: WHY is someone who gets sent a nude picture (selfie or not) by anyone now a sex offender?
    If they are, it’s ridiculously easy to get millions of people in massive legal trouble. Just do a mass mailing with a nude picture of some child using a spam bot, then anonymously send the list of email addresses used to the police.

  59. sexhysteria February 9, 2016 at 2:51 am #

    The police are guilty of invasion of privacy and child abuse for bothering these kids. The police involved should be prosecuted and their punishment should serve as an example to warn other government employees to leave children alone.

  60. James Pollock February 9, 2016 at 5:41 am #

    “Perhaps the Ravens would have won the Superbowl if they had James as their coach”

    Short memory?
    Ravens 34, 49ers 31.

    “When you are all growed up, and actually become an attorney, then you can take on Donna. Until then all you are doing is entertaining us. It is always fun to watch wannabe’s take on the real thing”

    I suppose first I’d have to “wannabe” one.

    Believe it or not, this one’s not actually that complicated (once you skip over the part of the law that Congress has to add to show their jurisdiction, which IS complicated, but not relevant to understanding how this law works.)
    Read it yourself.
    https://www.law.cornell.edu/uscode/text/18/2252

    18 U.S.C. 2252(a)(1) criminalizes (knowingly) transporting child pornography (in a way that gives the federal government jurisdiction)
    18 U.S.C 2252(a)(2) criminalizes (knowingly) receiving or distributing child pornography (also in a way that gives the federal government jurisdiction )
    18 U.S.C. 2252(a)(3) criminalizes (knowingly) selling child pornography (in a way…)
    18 U.S.C. 2252(a)(4) criminalizes (knowingly) possessing or accessing child pornography (in a way…).

    So, the claim that “The law surrounding computers (and by extension cell phones) is in paragraph 2.” is true, but going on to (condescendingly) claim that (a)(4) doesn’t apply to computers is just wrong, because paragraph 4 covers the Internet. (First rule of condescension: Make sure you’re right first.)
    Assuming that 18 U.S.C 2252(a)(2) is the only one that applies to computers, because it’s the only one with the word “computer” in it, is a mistake I wouldn’t expect a H.S. senior to make, much less a 1L law student. For a practicing attorney to make that mistake? That’s malpractice-level.

    So. What is the ACTUAL difference between 18 U.S.C. 2252(a)(2) and 2252(a)(4)?
    Well, let’s say you’ve clicked on a link that says it’s a link to a video of cute puppies playing in a field, but is actually child porn. Have you violated (a)(2)? No, because you did not knowingly receive child porn. Have you violated (a)(4)? No, because you have not knowingly possessed or accessed (with intent to view) child porn.

    Now, same story, instead of clicking a link, you click to download an MP4 video file. The online description of the file says it’s a video of cute puppies playing in a field, but it’s actually child porn. You click on the link, download the file, and play it in Windows Media Player. The same analysis as above applies… you haven’t KNOWINGLY received or accessed child porn. But… now you possess a video file that you do, in fact, know is child porn. You are NOW knowingly in possession of child porn, and thus, you are in violation of 18 U.S.C. 2252(a)(4). What to do? That’s where 18 U.S.C. 2252(c) shows up. You either immediately delete the file (2252(c)(2)(A)) or you notified a law enforcement agency that there is child pornography at that link, and saved the file for them to use as evidence.

    Who else, besides prosecutors and defense counsel for people who access child porn, needs to know about 2252(c)? IT administrators, that’s who. Why? Because of some variation of this scenario:
    Person A has been accused of accessing improper materials at work or at school. Before proceeding, this accusation must be investigated. Who does the investigating? An IT administrator. The IT administrator is tasked with the job of determining A) which Internet sites did Person A access, and B) which, if any, of those sites were improper? If the impropriety accused is the access of pornographic materials (not illegal, but a termination offense if the employer has a ban on accessing pornographic materials using company resources), then the It administrator is going to have to verify that the content is, in fact, pornographic (not usually a tricky determination). Now… it’s not illegal to possess pornographic materials, so there’s no problem in the employer or school holding copies of the pornographic materials that were accessed, to present at a hearing before taking a personnel action (firing the employee or expelling the student). .But what if it’s not just ordinary porn, but child porn? The IT administrator can’t say “Hey, I was looking for a video of cute puppies in a field, I didn’t know this was porn!” This is not a case of unknowing access with no intent to view. There was definite intent to view. 2252(c) is how you investigate users who access those websites without getting in trouble with the feds yourself.

  61. James Pollock February 9, 2016 at 5:46 am #

    “One massive question though: WHY is someone who gets sent a nude picture (selfie or not) by anyone now a sex offender?”

    The short answer: They aren’t.

    Somewhat longer answer: It’s not the receiving of the image that gets you in trouble. It’s keeping it after you know what it is.

    See my reply to donald above for the long answer.

  62. James Pollock February 9, 2016 at 5:55 am #

    … and one more.

    Watch out for careless use of “nude photo” when one means “child porn”, because the are not interchangeable.

    To use an one reductio ad absurdem example to (hopefully) demolish the false equivalency, when you go into the obstetrics clinic, to have an ultrasound, they’ll give you a picture of the fetus growing inside you or your reproductive partner, and they will focus on the genitalia, so as to identify whether you are growing a tiny male person, a tiny female person, or some combination thereof. That fetus isn’t wearing any clothes.

  63. CrazyCatLady February 9, 2016 at 9:43 am #

    “Now, for example, in Washington state, a girl or boy putting his hand on his butt and that pose being photographed can be and often will be considered EXPLICIT SEXUAL CONDUCT, even if there is no masturbation and even if he or she is clothed and even if there are dozens of other factors that mean that putting a hand on your butt is not sexual conduct.”

    Oh dear God no! You mean those 4 year olds that someone “liked” on Face Book doing Latin dancing are going to get me charged? Because, though they were clothed, and they probably had little idea of what they were doing….the moves were certainly suggestive.

  64. Sam February 9, 2016 at 9:51 am #

    In the majority of states and cities, being topless is completely legal for both males and females, for the reasons of basic equality:
    http://gotopless.org/topless-laws

    Presumably, then, any photos of girls that are only topless cannot possibly be construed as pornographic.

  65. Chet D February 9, 2016 at 11:02 am #

    @James: I am aware of the case a case or three where people were held in contempt for not producing passwords; however I don’t think the law in this area is completely settled. (e.g. SEC vs. Bonan Huang, et al, out of Federal Fifth District (Eastern PA)). That said, (and granted the article is my fact source for this) the article is vague about if this being done to targeted individuals or part of a mass sweep. The only possible basis mentioned is what a student told administrators (no indication said student spoke to police, etc.). Which is brings me to the point of my statement “I have to wonder what happens if a kid decides to encrypt their phone and says get a warrant.” You assume they (police) would get a warrant (which have been issued on even less evidence), while there are plenty of cases out there where school administrators simply say they are a school and don’t need one then turn what is found over to the police. The article doesn’t mention how the one phone they have was acquired.

    @marie: Complete encryption has a lot of parts to it – each device / service will have its own method. A lot (most) phones have built in encryption and activating it varies with the operating system. Do an internet search for “phone encryption” – www,howtogeek.com has some moderately detailed instructions with lots of pictures for Android phones and it came up quickly. This only deals with data stored on your phone. When you send messages, email, use cloud storage, etc, you are using someone else’s computer, thus requiring the data to be encrypted. Encrypted SMS exists, but the versions I have tried require both parties to use the same app as well as some initial exchange (handshake) – YMMV. Email is its own nightmare; Outlook has started integrating it and there are other browser extensions, third party servers, etc. Drive encryption has changed a bit – most people I know used Truecrypt (obsolete with the end of Win XP support) and then migrated to Bitlocker (a Microsoft product built into higher end Win 7+, has hardware requirements). DiskCrypter and VeraCrypt (the latter an updated form of Truecrypt, both use similar encryption algorithms) work well for stand alone drives and my favorite for cloud drives and USB sticks. In the end you will have to do some research to find what works for you – I don’t know of any one place that explains it all. Different methods have pros and cons; read what each has to say – a lot of them are open source. In the end, encryption is kind of like using a condom in that it usually works, can become outdated and small holes can lead to big problems, especially if everyone involved isn’t using it correctly. Good luck.

    @Andrew Jones: Marijuana is already all over the Midwest (a.k.a. ditch weed). While growing up there were plants outside the front door of the local police station resulting from dropped seeds – it resulted in a novelty filler picture in the local paper. That was over 20 years ago.

  66. Jeff_Birt February 9, 2016 at 11:05 am #

    The inmates are truly running the asylum. Yes, a child can be persecuted for someone sending them a photo that they never asked for, even if they delete it. (And yes I meant persecuted.)

    I work at a university and so I am a ‘mandatory reporter’ according to the state. I’m supposed to report any suspected situation of a sexual nature that might be illegal. Even if I am off work, off university property and just overhear two young people talking about something which might sounds like it ‘might’ be something of a sexual nature that ‘might’ be illegal. If I do not report then I get in trouble and possibly fired or charged with a crime. So now I have to be an expert on all of these silly laws, know every university student, faculty, staff member by sight and eavesdrop on their conversations so I know if I need to report them or not and know who I need to report. Given the ever changing slang used by young people the odds are even if I overhear them I will have no clue what they are talking about.

    The heck of it is this does not really help the kids at all, but it can ruin their lives even if they have done nothing wrong.

  67. Donna February 9, 2016 at 11:59 am #

    “18 U.S.C 2252(a)(2) criminalizes (knowingly) receiving child pornography”

    Which clearly covers RECEIVING child pornography. The crime is over the second you receive the image (receive does mean viewing the actual image and not just getting random spam email that you never open). What you do after that has no bearing whatsoever on whether you violated this statute or not. If you look at it briefly and then delete it, you have still received it.

    You can certainly argue to a jury that you did not know that the item was child pornography when you opened it, as I have, but that is a fact question for a jury and you would not be entitled to a directed verdict by simply showing that the item had been deleted.

    So, while subsection (c) may (and that is a may) give you a defense if you are charged under subsection 4, it does absolutely nothing whatsoever to stop the FBI from seizing your hard drive, accessing the deleted items and charging you under subsection 2. Something that is done every single day.

    “Well, let’s say you’ve clicked on a link that says it’s a link to a video of cute puppies playing in a field, but is actually child porn. Have you violated (a)(2)? No”

    Never claimed otherwise. Simple mens rea issue. Bait-and-switch, mistake of fact, being duped, etc. is a defense to just about every crime out there (except stat rape). However, nobody here is talking about high school classmates sending child porn to each other claiming that it is pictures of puppies playing in a field.

    We are talking about teenagers sexting with each other. There is no requirement that the recipient solicited the photo or even desired the photo before receiving it. There is no requirement that the recipient retained the photo. If your underage girlfriend sends you a topless picture completely out of the blue, deleting the picture immediately thereafter is not going to necessarily win the day for you. It may, but many other facts are going to come into play and knowledge may ultimately be a fact issue to be decided by a jury (or judge if in juvenile court). Same if a classmate sends you a topless picture of his ex-girlfriend to get back at her. Or you receive that topless picture of Suzy Cheerleader taken at the homecoming party circulating around the school. Many things go into the criminality of this situation and deletion vs retention are just one.

  68. James Pollock February 9, 2016 at 12:33 pm #

    “So, while subsection (c) may (and that is a may) give you a defense if you are charged under subsection 4,”

    I can only assume that this is your way of confessing that you were wrong before, when you said that subsection 4 was irrelevant.

    ” There is no requirement that the recipient solicited the photo or even desired the photo before receiving it.”
    There is a requirement that they knowingly received it. Soliciting it settles that question pretty good.

    ” There is no requirement that the recipient retained the photo.”
    Depends on which section they’re charged with. Keeping a photo after viewing it once again settles the “knowingly” question.

  69. James Pollock February 9, 2016 at 1:10 pm #

    ” other facts are going to come into play and knowledge may ultimately be a fact issue to be decided by a jury (or judge if in juvenile court). ”

    Is there such a thing as federal juvenile court? Or are you mixing up state and federal again?

    ” However, nobody here is talking about high school classmates sending child porn to each other claiming that it is pictures of puppies playing in a field. ”
    Here is a picture of puppies playing in a field:
    http://www.loveyourridgeback.com/Puppies.html

  70. anonymous mom February 9, 2016 at 1:11 pm #

    “Presumably, then, any photos of girls that are only topless cannot possibly be construed as pornographic.”

    I would strongly advise against putting that theory to the test. 😉

  71. James Pollock February 9, 2016 at 1:23 pm #

    “‘Presumably, then, any photos of girls that are only topless cannot possibly be construed as pornographic.’
    I would strongly advise against putting that theory to the test”

    Under the federal definition (found at 18 U.S.C. 2256(2)(B)(I), see the definitions generally at 18 U.S.C. 2256) the breast of any person can be pornographic. (Not “is”, but “can be”. Several conditions apply.). However, most cases would seem to be covered under 18 U.S.C. 2256(s)(B)(iii), which excludes breasts.

    Your state may have other ideas, however. Consult a licensed attorney in your state before soliciting teen boobie pics.

  72. Roger the Shrubber February 9, 2016 at 1:39 pm #

    Jeff_Birt February 9, 2016 at 11:05 am #
    The inmates are truly running the asylum.

    James only thinks he is. It’s best to ignore him.

  73. Warren February 9, 2016 at 1:41 pm #

    Lenore,

    Is there anyway to install a scoreboard on this site, to track the number of times that James has been schooled by Donna?

    James is the walking talking poster boy of what happens when you bring a knife to a gunfight.

  74. marie February 9, 2016 at 2:32 pm #

    In a dream world:
    Prosecutor: Your Honor, this man had child porn on his hard drive.
    Defense attorney :
    Your Honor, the image came to him in an email and it was labeled cutepuppies123.jpg. He didn’t ask for that file and had no intention of looking at child porn.
    Judge: Oh, okay then. Case dismissed. The defendant is free to go.

    In the real world:
    Prosecutor: We are charging you with possession of cp.
    Defendant: I never intended to download cp and i had no idea what cutepuppies123.jpg really was. I am taking this to trial.
    Prosecutor: Take it to trial if you want but now we are going to charge you with possession AND receipt AND distribution. Plus, we are going to see if we can find someone willing to claim you molested their children when you coached Little League. We will start that investigation after you show up in the headlines as a perve who jerks off to images of toddlers. If you are convicted, and how else do you see this ending, you will be looking at 4 for possession, at least 5 for receipt, at least 5 for distribution. That is at least 14, and we will ask for extra because you aren’t taking responsibility for your crime. So do you want to plead to possession and come back to your family after 4 years or take your chances and get somewhere around 20? Oh, and remember that some judges will make you serve those sentences sequentially.

    THAT is the real world. Because the prosecution can pin the defendant between their “generous” offer and the mandatory minimums plus, only a TINY percentage of criminal cases ever go to trial where they can use a clever defense.

  75. Beth February 9, 2016 at 2:44 pm #

    @Warren, setting aside the whole idea of allowing one poster to dominate and derail most threads, how about an ignore button? Many forums/message boards with less sophistication than this one have those.

  76. JdL February 9, 2016 at 2:51 pm #

    Let’s not mince words: the adults who are going digging for nude photos of teens are sick individuals, who should not have contact with teens, much less power over them.

  77. Papilio February 9, 2016 at 2:53 pm #

    @Beth: Even a comment section in which you can comment on another comment (so they’re grouped together) would help.

  78. Donald February 9, 2016 at 5:14 pm #

    Kids play, “I’ll show you mine if you show me yours”. This is not a new thing. I would like to question what is more criminal.
    1. Playing doctor
    or
    2. Destroying a person’s life by lumping this in the same category as lewd photos

    I wonder if Chief Harry has a fetish? Furthermore, I wonder if he enjoys punishing children.

  79. Donald February 9, 2016 at 7:14 pm #

    “Short memory?
    Ravens 34, 49ers 31.”

    Wow! that comeback really put me in my place! Er-actually, it would have if I stated that the Raven never won a Superbowl. I didn’t. I commented about your know it all attitude and said that perhaps the Ravens would have defeated the Broncos if you were there to coach them

    What I have said several times before is that you argue for the sake of argument. You seem to be addicted to it like a junkie and heroine. Your comment that The Ravens won a Superbowl against the 49ers only strengthens my claim.

  80. James Pollock February 9, 2016 at 8:06 pm #

    “What I have said several times before is that you argue for the sake of argument.”

    Whereas you, of course, would never.

    “perhaps the Ravens would have defeated the Broncos if you were there to coach them ”
    Not that it’s relevant, but I’m pretty sure that the Ravens will never defeat the Broncos in the Super Bowl. Ever.

  81. Jeff February 10, 2016 at 1:40 pm #

    Sadly, the law hasn’t caught up with the technology and social reality. These laws were made for a world before smartphones and before teens and tweens started exchanging nude pictures with their boyfriends and girlfriends. Criminal sanctions should not be levied against kids who send these pictures to other kids. That said, I question the wisdom of parents’ giving children this age a smartphone. A basic cell phone for emergencies is one thing, but does any 12-year-old need access to the Internet and a camera at all times?

  82. andy February 11, 2016 at 3:58 am #

    @Jeff Phones without internet and cameras are rare these days. Plus, lets not overblown fear of internet and cameras. Bad things can happen, but they are not guaranteed to happen. Most kids with internet and cameras on the phone grow up without life changing scandals and sexting charges. It is awful when it happens, but also rare enough for people not to fear too much.

  83. Richaed February 11, 2016 at 11:56 am #

    How can they legally seach anyone’s phone without probable cause or a warrent? Do minors not come under Constitutional protections from unlawful searches? Have these minors or their parents consented to giving up their 4th and 5th amendment rights while at school? This is a bigger deal then just some kids fooling around with nude photos. Have they no expectation of privacy? This is Big Brother at it’s worst. If there is a complaint then it should be referred to parents and in turn law enforcement if deemed appropriate. To seek out problems and then take action is a horrible practice.

  84. James Pollock February 11, 2016 at 12:20 pm #

    “How can they legally seach anyone’s phone without probable cause or a warrent?”

    By asking “hey, parent, can we search your kid’s phone?”

    There’s approximately zero suggestions in the story here that police are searching phones unlawfully.

  85. MattB February 11, 2016 at 1:16 pm #

    My 5 year old has an old phone that isn’t connected to 4G, but is connected to our WiFi, and network hard drive. He likes to build with Legos, and this allows him a convenient way to maintain a portfolio of what he’s done. This allows him to look over and improve on designs, as well as see his progression over time.

    Over WiFi he can also call his grandparents on Skype.

    Often these gadgets can be used as productivity tools, or tools to stay in touch with family, so the attitude they shouldn’t have them is just as limiting.

    He’s also set up on email so he can send pictures to his grandparents (with appropriate parental controls on).