The “Crime de Jour” of the 90′s
A Very Brief History of the Internet
The concepts that lead to the development of the Internet can be traced back almost 40 years to academic papers written in the early 1960s on “packet-switching” networks. In 1969 these ideas matured into a working proto-network called the ARPANET. Although this network had only four “nodes” or computers connected together, it was the forerunner of today’s Internet.
By 1971, 15 universities and research institutions were connected together, and the system was
upgraded to handle a seemingly large 64-node network. In 1973 the first European computers
were connected in England and Norway.
Meanwhile the key technologies of Ethernet, telnet, ftp, and Unix were being invented in the early 1970s. Ethernet (invented by Bob Metcalf, who later founded 3Com) would later become the standard for local area networks. Telnet allowed remote interactive access to other computers.FTP (File Transfer Protocol) enabled the transfer of large data files over the network.Unix, invented appropriately enough by the “phone company” (Bell Labs) and enhanced at UCBerkeley, became the software backbone of the Internet. Later Sun Microsystems commercialized Unix.
The dominant use of the Internet in the 1970s was email. In 1979 Usenet was invented to carry discussion forums, a primitive form of today’s chat rooms. This was the beginning of the more public side of the Internet, as contrasted to private email and telnet sessions. Usenet would later grow to its present volume of more 10,000 separate topic areas and more than 10 gigabytes of data – that’s the equivalent information of a small public library – that is accessed every day.Sexual topics quickly became the largest volume single area of Usenet. Communication and discussion of human sexuality has continued to be an important use of the Internet to this day.
Throughout the 1980s and 1990s the Internet grew exponentially: the number of hosts in 1984 was 1000, in 1987 10,000, in 1989 100,000, and in 1992 the number of hosts, or computers with permanent IP addresses, surpassed the one million mark – and this doesn’t even count the millions of people who dial in to the Internet daily via modems.
In 1993, Mosaic, the precursor to the Netscape browser, took the world by storm and gave birth to what is now known as the World Wide Web. And the rest, as they say, is history. Today the Internet links more than 170 countries worldwide, with over 1.5 million domain names, and over 40 million hosts. Underscoring the new central role of the Internet in American life–and indeed the entire world, a three-judge Federal panel in Philadelphia in June of 1996 called the Internet “the most participatory marketplace of mass speech that this country – and indeed the world –has yet seen.” (“A Very Brief History of the Internet” was written courtesy of Dr. Jim Herriot)
Because of the Internet’s participatory nature and society’s interest in sexual topics, the Police and the general public have mistakenly begun to look at the Internet as a vast playground for adults who are attempting to sexually prey on children. While there can be thousands of actual acts of child molestation each day across the nation within the family households, a perceived Internet “molestation” becomes a media circus that ends up terrorizing parents.
These “alleged predators” defy all logic: they are supposed to enter homes over the modem despite all safeguards and precautions. The parents become more afraid of a nameless, faceless phantom than they are of real live family members who statistically pose a greater threat to their children.
This phobia becomes even more irrational when it involves homosexuals. Parents look at their children’s monitor in the bedroom as a means for a “homosexual” to kidnap their child and recruit him/her into the homosexual life style. This form of homophobia is at the heart of the parent’s fear of the Internet–and the hysteria that endangers everyone’s constitutional rights.It is also at the heart of this section.
Criminal Allegations on the Internet
How is it possible to sit at your own computer exercising your 1st amendment rights and be the subject of a police Internet sting operation? Actually, it is quite easy once you understand the law.
Attempted Child Molestation (Penal Code § 664/288(a))
Let’s suppose that the police want to create a sting operation to catch a person who fences (buys and resells) stolen property. The police pretend to be burglars who have “stolen property” to sell. The property is not actually stolen but the police pretend that it is stolen. The “fence” buys the allegedly stolen property from the police. In this scenario it is factually impossible for the “fence” to buy stolen property from the police since the property is not stolen. However, if a person attempts to commit a crime that is factually impossible to commit he is still guilty of “attempt”. The “fence” would therefore be guilty of “attempted receipt of stolen property”.
Now, changing venues, let’s suppose that the police want to create a sting operation to catch a molester, but this time on line. The police go on the Internet and pretend to be thirteen years old. They advertise in their “on-line profile” that they are a minor looking forsex with an adult. They go into sex chat room using this profile and chat with others in the sex room. A suspect then engages the police officer who is pretending to be a minor in sexual chat and eventually a real life meeting is arranged. The suspect is told to bring lubricants and condoms so that they can have a good time. The suspect arrives at a hotel as requested by the police with condoms and lubricant in his possession. At the hotel the suspect is arrested for “attempted child molestation”.It is an attempt because it is factually impossible to be accused of child molestation with a forty-year-old police officer.
How serious is this? In the State of California all “attempt” crimes carry as a sentence one half of the underlying crime. Lewd acts with a minor under the age of fourteen years (Penal Code § 288(a)) carries eight years in prison; therefore, attempted lewd acts with a minor under the age of fourteen carries four years in the state prison. Further, the defendant if convicted must register as a sex offender every time he/she moves and on his/her birthday for the remainder of his/her life.
Harmful Matter (Penal Code § 288.2)
During this “sting chat” with the cyber minor (a police officer) and the Internet user, the cyber minor asks that the user–now a suspect– send him pictures of himself. Suspect sends a picture of himself clothed. This isn’t good enough for “cyber minor” so he asks again for “special pictures”.The suspect sends a nude of himself or of others.
The suspect will now be charged with attempted sending of harmful matter to a minor with the intent to arouse, appeal to or gratify the lusts or passions or sexual desires of the adult or of “cyber minor”. This charge carries with it three years in the state prison or eighteen months for the attempt. Each photograph might also be charged as a separate offense, adding years to the sentence.
Now consider this: what if the adult and “cyber minor” engage in “cyber sex”? Again, the suspect might be charged with “sending” harmful matter (the conversations) to a minor. The law would not make an oral conversation harmful “matter” but the prosecution theory is that the electronic transfer becomes “matter”. There is currently no case law which rules whether a “chat” on the Internet is “matter” as defined in Penal Code § 288.2 or whether it is protected by the 1st Amendment.
|Constitutional Challenge The Law Office of Patrick E. Clancy is currently undertaking the first challenge to the constitutionality of Penal Code § 288.2 in the state of California on the grounds that it violates the 1st Amendment Freedom of Speech Clause of the United States Constitutions and violated the Commerce Clause of the United States Constitution. Those challenges are currently working their way through the courts.|
Child Pornography or Sexual Exploitation of a Child (Penal Code § 311.3)
“Cyber minor” now asks the suspect to send him some more pictures. This time the pictures depict a minor engaged in a sex act or simulated sex act. The suspect is now charged with the Sexual Exploitation of a Minor . This offense carries one year in the county jail on a first offense and three years in state prison if the suspect has a prior offense.
However, if the suspect does not send any child pornography to “cyber minor”, that is not the end of the investigation. When he is arrested for either attempted child molestation or sending harmful matter to a minor, the police get a search warrant for the suspect’s computer. Mixed in with adult with adult sexual matter on the hard drive are several pictures depicting minors engaged in sexual conduct. The suspect is then charged with child pornography or Sexual Exploitation of a Child (Penal Code § 311.3)
How such photos (depicting sexual acts between an adult and a minor) come into the computer is an important consideration. For example, what if the suspect received an e-mail with a child pornography picture attached? According to Penal Code §311.3(f) if the suspect receives unsolicited child pornography over the Internet there is no violation of the law so long as the suspect doesn’t make copies or send copies to others. There is no mention in the law that he must destroy these files. (However, our attorneys recommend that anyone who receives such un-solicited child pornography immediately destroy it. You don’t want to be put in the position of proving that it got on your computer drive unsolicited.)