Must the children be sacrificed: the tension between emerging imaging technology, free speech and protecting children.

• Author: Bernstein, Richard

"If we don't believe in freedom of expression for people we despise, we don't believe in it at all." (1)

1. INTRODUCTION

   This Note discusses the tension between the First Amendment of the United States Constitution (ratified over two hundred years ago), modern technologies, and the technologies' impact on statutory prohibitions against child pornography. This Note explores the constitutionality of two recently enacted federal statutes: 1) the Child Pornography Prevention Act of 1996 (the "1996 Act"); (2) and 2) the Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003 (the "PROTECT Act"), (3) which seek to regulate digitally created (4) and morphed (5) images of child pornography. (6) Part II of this Note provides a background of the technologies involved, and Part III provides a history of the general statutory prohibitions against child pornography. Part IV discusses the case law history of pornography in general and child pornography in particular. Parts V and VI consider whether morphed and digital technologies can be constitutionally regulated to prevent child pornography. (7)

   The Constitution's First Amendment provides that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." (8) The First Amendment's ratification occurred when printing and photographic technologies were substantially primitive relative to current technologies. (9) In voting to approve the First Amendment, the ratifiers had no rational conception of how technology would change and how the First Amendment would affect the ability to digitally create and manipulate words and images. This Note addresses whether a legislature can prohibit the creation of either completely digital images or real images that are manipulated by computers that depict child pornography without running afoul of the First Amendment, which was ratified in a much different technological era.

2. BACKGROUND OF THE TECHNOLOGIES

   Digital imaging's history starts over 300 centuries ago when Neanderthal man drew a picture of a bull on the walls of a cave. (10) The bull was drawn with multiple legs to give the bull an animated representation. (11) Digital imaging's modern catalyst is the Walt Disney Company, which in 1928 created the first animated film, Steamboat Willie. (12) This film essentially relied on analog (13) technology in which thousands of images, hand-drawn on clear celluloid material, were flipped rapidly in front of a camera to produce an illusion of movement. (14)

   In 1951, the first videotape recorder captured live images from a television. (15) This emerging technology could convert visual, live images into electrical impulses and archive those electronic impulses onto magnetic tape for subsequent retrieval. (16) In the 1960s, the National Aeronautics and Space Administration (NASA) developed technology allowing the transmission of computerized and enhanced digital images to Earth from a lunar space probe. (17) In 1981, the Sony Corporation marketed their Mavica digital still video camera, the first consumer digital video device. (18)

   The modern age of personal computing permits individuals to manipulate and store digital images in practically any way they desire. (19) A popular digital image manipulation software program, Adobe Photoshop, is available to anyone with a computer for $99. (20) For example, with Adobe Photoshop, an amateur computer user can digitally manipulate a family photograph to remove people who appear in the picture or even add people or individual anatomical parts. (21)

   Visual images can be imported on a computer either by the use of a digital camera or digital video recorder. (22) Additionally, analog images can be scanned into a computer (and converted to digital images) or digital images can be imported on a magnetic disk or simply as a file over the Internet. (23) Alternatively, lifelike images can be created entirely via computer. (24)

   Computer generated images of people have become so lifelike that there is a beauty contest devoted to representations of female computer images. (25) An article on the CNN web site contains a picture of a woman named Kaya, who looks entirely lifelike, but is really a Brazilian artist's digital creation. (26)

   Technology now allows for two different methods of image production. The first is a virtual image that is produced using entirely fictitious computer generated features as demonstrated by Kaya, the digital woman. (27) The second method is a morphed image that starts with a traditional image and manipulates it by switching or adding features to a picture. An amateur can easily do this with Adobe Photoshop (28) digital manipulation software on a home computer. (29) Celebrities Alyssa Milano and Nancy Kerrigan commenced legal action when their heads were morphed by use of digital imaging manipulation onto pictures of nude women and placed on commercial Internet sites to be gawked at by voyeurs. (30)

3. HISTORY OF STATUTORY PROHIBITIONS AGAINST CHILD PORNOGRAPHY

   This Note is concerned primarily with the collision of the First Amendment, statutory prohibitions against child pornography, and technology. A brief history of obscenity laws is helpful to understanding the current legislative posture regarding morphed and digital child pornography.

   Congress enacted the first federal statute containing specific prohibitions against child pornography, the Protection of Children Against Sexual Exploitation Act of 1977 ("1977 Act"). (31) The 1977 Act made it a crime, punishable by a maximum fine of $15,000 or fifteen years in jail, for anyone to induce a minor to engage in sexually explicit conduct for the commercial purposes of producing any "visual or print medium." (32) Moreover, the 1977 Act criminalized the distribution of these offending materials. (33)

   Congress subsequently passed the Child Protection Act of 1984 ("1984 Act"). (34) This legislation was a direct response to a United States Supreme Court case, New York v. Ferber, (35) which upheld the constitutionality of a New York State statute that prohibited child pornography even if the depictions contained within the visual or print medium were not obscene. (36) The 1984 Act eliminated the requirement that the image be obscene, and raised the age of minority from sixteen to eighteen years old. (37)

   In 1986, then United States Attorney General, Edwin Meese, III, (38) released a report concerning pornography entitled "Attorney General's Commission on Pornography: Suggestions for Citizen and Community Action and Corporate Responsibility." (39) In direct legislative response to the Attorney General's report, Congress enacted a statute requiring producers of pornographic films to create and maintain records of the identities and ages of all performers to aid law enforcement in combating child pornography. (40) Currently, most adult websites display notices and disclaimers on their home page stating that their website complies with this statute. (41)

   In another direct legislative response to a United States Supreme Court decision, Osborne v. Ohio, (42) Congress passed the Child Protection Restoration and Penalties Enhancement Act of 1990 ("1990 Act"). (43) The 1990 Act made the possession of "3 or more books, magazines, periodicals, films, video tapes, or other matter which contain any visual depiction ... of a minor engaging in sexually explicit conduct" a crime punishable by incarceration of up to fifteen years. (44) The 1990 Act specifically excluded as a punishable offense the possession of materials containing words and not visual depictions. (45)

   The 1977, 1984, and 1990 Acts all involved obscenity prohibitions related to real children. (46) In 1996, the United States Senate held hearings on the reformation of obscenity laws in light of new technology. (47) Their findings resulted in the passage of the 1996 Act. (48) The Senate found that new computer technologies allowed fake visual depictions to be made of child pornography that were indistinguishable from actual child pornography ("digital child pornography"). (49) Additionally, the Senate found that images of real children, even in non-pornographic settings, could be altered so that it appeared that the children were engaged in sexual acts ("morphed pornography"). (50)

   The Senate found these digitally created and morphed images worthy of regulation and prohibition for several reasons, including: 1) morphed or digital pornography could be used to seduce real children into sexual activity; 2) morphed or digital pornography could be "used by pedophiles and child sexual abusers to stimulate and whet their own sexual appetites"; 3) morphed and digital images would make the enforcement of child pornography laws very difficult because law enforcement personnel would be unable to distinguish between fake/altered images and real images of child pornography; and 4) morphed and digital images are used in trade for real images of child pornography, thereby supporting the marketplace for actual child pornography. (51)

   In light of these findings, Congress passed the 1996 Act, which prohibited child pornography where "such visual depiction is, or appears to be, of a minor engaging in sexually explicit conduct" (52) and "has been created, adapted, or modified to appear (53) that an identifiable minor is engaging in sexually explicit conduct." (54) These new provisions effectively prohibited both morphed and digital images of child pornography under threat of steep jail sentences of up to ten years for possession and thirty years for distribution. (55)

   The 1996 Act's provisions prohibiting digital pornography were effectively held to be unconstitutional in the United States Supreme Court decision (56) Ashcroft v. The Free Speech Coalition...