Propriety of Internet restrictions for sex offenders convicted of possession of child pornography: should we protect their virtual liberty at the expense of the safety of our children?

• Author: Ramirez, Jessica A.

Introduction

The Internet has become an indispensable tool in today's society; so much so, that it is almost impossible to imagine what life would be without it. We depend on the Internet to pay our bills and keep track of our financial records, keep in touch with friends and family, find our way around certain locations, and stay connected with what is going on in the world. With the Internet making information readily accessible, while at the same time providing its users with anonymity, it is not hard to imagine how some individuals can abuse its power and use it to harm others. With such a powerful tool comes responsibility and anyone who exploits the Internet at the expense of others should forfeit the privilege of being able to use it.

This is the reality plaguing many sex offenders convicted of using the Internet to receive and distribute pornographic images involving children. The propriety of conditions restricting a convicted sex offender's Internet and computer use, imposed as a condition of supervised release or a conditional release, is a topic of controversy among the federal courts of appeals, which are currently split on this issue. On one end, certain circuits have held that the Internet is such an integral part of our lives that it is unreasonable to impose Internet and computer restrictions on sex offenders convicted of merely possessing child pornography, as opposed to those offenders who use the Internet to prey on children; whereas, other circuits consider these restrictions to be an appropriate measure of protecting the public by preventing sex offenders from using the Internet to perpetuate the victimization of children.

This Note takes the position that Internet restrictions are necessary to fulfill the purpose of the Sentencing Guidelines to protect children from victimization, and to deter convicted sex offenders from engaging in similar conduct during the term of supervised release imposed by the court, but proposes that these restrictions be tailored to the offender's particular circumstances through the use of technology.

Part I provides a historical overview of child pornography, the attempt of the United States to eradicate its proliferation by enacting specific legislation, and the role the Internet plays in promoting it.

Part II discusses the psychological, physical, and social effects that the production and dissemination of these materials have on the victims of child pornography. Part II also discusses the correlation between viewing child pornography and the perpetration of sex-related crimes against children beyond viewing the pornography.

Part III describes the relevant sections of the Sentencing Guidelines that courts rely on to determine the length of a convicted sex offender's sentence and the conditions of probation or supervised release the judges are allowed to impose.

Part IV discusses the different approaches taken by the federal courts of appeals and illustrates the current split among jurisdictions.

Part V addresses the implication of imposing a total restriction on a convicted sex offender's access to the Internet in a world that heavily relies on technology and the Internet to carry out their daily activities. In addition, Part V examines the consequences of a partial Internet ban in the context of the Fourth Amendment.

Lastly, Part VI explains the current surveillance software available for law enforcement personnel to monitor the online activity of sex offenders and discusses which software best serves the goals of the Guidelines.

1. CHILD PORNOGRAPHY

   1. Historical Overview of Child Pornography

      "Child pornography is a form of child sexual exploitation." (1) The sexual objectification of children is a problem that has persisted throughout the years, along with the production and dissemination of sexually suggestive materials involving children. (2) However, it was not until the mid-nineteenth century, as a result of the invention of the camera and photography that we began to see an emergence of the production, collection, and exchange of pornographic material depicting children. (3) Even with the invention of the camera, producing and reproducing child pornography continued to be censored through most of the twentieth century as these images were usually produced at the local level, were costly and of poor quality, and were difficult to acquire. (4) By the 1960's, censorship standards became relaxed leading to an increase in the accessibility of child pornography. (5) By 1977, there were approximately 250 magazines circulating in the United States that depicted pornographic images of children. (6)

      Up until the spring of 1977, only six states had specific provisions criminalizing the portrayal of children in erotic material. (7) In 1978, the first federal law to address the issue of child pornography was enacted. (8) Later, the law was amended in 1988 to incorporate the use of computers to promote child pornography. (9) As it stands today, child pornography is defined under federal law as:

      [A]ny visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct, where--(A) the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct; (B) such visual depiction is a digital image, computer image, or computer-generated image that is, or is indistinguishable from, that of a minor engaging in sexually explicit conduct; or (C) such visual depiction has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct. (10) Most states have addressed the issue of child pornography by enacting their own specific legislation, "allowing state police to join federal agencies in the fight against child pornography." (11) However, defining who is considered to be a child and which materials qualify as pornographic in nature differs significantly from state to state. (12) Therefore, for research purposes, "child pornography is often defined broadly as any record of sexual activity involving a prepubescent person." (13)

   2. The Role of the Internet in Promoting Child Pornography

      By the mid-1980's, a series of successful anti-child pornography operations conducted by law enforcement in the United States left the child pornography industry on the brink of extinction. (14) During this time, the production and reproduction of child pornography was problematic and costly. (15) Pedophiles found it challenging to find and interact with other pedophiles, (16) and obtaining child pornography "required a measure of physical exposure of the person involved to being identified, in that a visit to a specialised sex shop was required, or a name and address had to be given to a mail order organisation." (17) Individuals also privately exchanged images with one another, but the danger of being recognized was still present. (18) Not only was it difficult to find sources of child pornography, it was also expensive to acquire because even if it was not prohibited, any indication of a sexual attraction to children was not socially accepted, and vendors used this to their advantage by charging large sums of money for their merchandise. (19)

      Circumstances have changed drastically due to the development of the Internet and advanced digital technology, which has greatly increased the availability of child pornography. (20) The Internet has been instrumental in facilitating the creation, access, and transfer of child pornography worldwide without requiring much effort. (21) Today, pornographic images of children are readily available through every Internet forum imaginable including websites, email, newsgroups, chat rooms and bulletin boards, and social networking sites such as Facebook and MySpace. (22) Specifically, the Internet:

      * Permits access to vast quantities of pornographic images from around the world[;]

      * Makes pornography instantly available at any time or place[;]

      * Allows pornography to be accessed (apparently) anonymously and privately[;]

      * Facilitates direct communication and image sharing among users[;]

      * Delivers pornography relatively inexpensively[;]

      * Provides images that are of high digital quality, do not deteriorate, and can be conveniently stored[;]

      * Provides for a variety of formats (pictures, videos, sound), as well as the potential for real-time and interactive experiences[;]

      * Permits access to digital images that have been modified to create composite or virtual images (morphing)[.] (23)

      Sex offenders in search of child pornography can easily use the Internet to connect to networks and forums to discuss their interests and experiences abusing children in addition to selling and exchanging images. (24) Furthermore, online forums have made it easier for child pornographers to communicate with each other, "both normalizing their interest in children and desensitizing them to the physical and psychological damages inflicted on child victims." (25) These online communities also pose a great risk because they may attract or encourage new individuals to become engrossed in the sexual manipulation of children. (26)

2. IMPACT OF CHILD PORNOGRAPHY

   1. Effects of Child Pornography on the Children Depicted

      Victimization of children involved in child pornography cases can have damaging "physical, social, and psychological effects" on the children portrayed in these materials. (27) While the anguish and sexual abuse of the children depicted in some of these pornographic images is undeniable, other images may portray children that appear unfazed by the acts being perpetrated against them. (28) However, the apparent complacency of a child in the material portrayed does not negate the occurrence of sexual abuse. (29) Most unfortunate is the fact that sexual abuse in cases of child pornography rarely occurs once, but in fact tends to...