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January 22, 2014

"Court struggles with restitution for child porn"

The title of this post is the headline of this AP report on this morning's SCOTUS oral argument in Paroline v. United States.  The AP article highlights the Justices' difficulties sorting through all the challenging competing issues in a case that regular readers know I find fascinating.

Similarly, Lyle Denniston at SCOTUSblog has an effective summary of today's argument in this new post which starts and ends this way:

The Supreme Court left no doubt on Wednesday that it is willing to do its part to make sure that victims of child pornography get paid money to offset the harm done to them. But it also found itself very much in doubt about just what that part would be. The answer in the case of Paroline v. United States may depend upon how the Court understands two words: “apportion” and “contribution.”...

The hearing ended where it began: in unresolved complexity.

I hope to find time in the next few days to read carefully and comment upon the substance of the argument today, and everyone can find now at this link the full transcript.

A few (of many) prior posts on Paroline and child porn restitution issues:

January 22, 2014 at 02:51 PM | Permalink

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Comments

It is very complex and the argument doesn't seem to lean in the direction of an all out Amy win. It seems a even a compromise will be difficult.

One interesting aside is something Mr. Cassell said at 48:3 when he said there is an estimate of 70,000 people having viewed the "Misty collection," the most widely distributed CP on the Internet. If true, how could CP be a 3 billion dollar a year industry as is so often claimed? Even if every one of those 70,000 paid $ for an image it would cost 3 bil/70,000 = $42,857.00 PER IMAGE. Let's say CP is only a 1 bil/per year industry. 1 bil/70,000 = $14,285.00 per Misty view.

Assuming the Misty collection is in most private collections because of its wide distribution, the only logical conclusion is that the child porn industry is greatly exaggerated. Granted, that doesn't help "Amy" any but it is interesting.

Indeed, I just did a Google search of

child porn industry billion

and there are many, many $billion+ industries attacking our children. There's no hope.

Posted by: George | Jan 22, 2014 4:50:53 PM

"Since 2005, there have been about 2,000 prosecutions in federal court that, like Paroline's, included images of the rapes, for which Amy's uncle spent about 10 years in prison and paid a few thousand dollars for counseling sessions for Amy."

Here is the biggest problem with all of this. Her uncle raped her for years, and he got 10 years in prison and a few thousand in restitution. Someone with pictures of the abuse is most likely spending more time in prison for the pictures and paying much more in restitution than the abuser. She is constantly traumatized by being notified of every person that is arrested with her pictures. Yes, there needs to be punishment and maybe some restitution by each possessor. But the person who actually abused and took the pictures gets less time and less money spent on the counseling that HE caused her to need?

Posted by: Jill | Jan 22, 2014 6:23:43 PM

Jill,

Part of the argument, I am sure, is that anyone stuck with an excessive share of the total would then have the right to go after the uncle (or any other offender who got off light in terms of restitution), but there too you run into lots of problems, I suspect for one that he (the uncle) has no money to pay a bunch of it either.

And say that it is supposed to be up to the various offenders to go after each other, in order to make life easier on Amy. With all of these cases going on simultaneously how is a court (whether judge or jury) possibly to decide what portion of the total one offender owes another?

I also don't know that there actually is a statutory hook for getting into court with such a claim (an offender who got nailed with a judgement for the entire amount going after one who did not, that is).

And all of that is setting aside whether Amy's problem is actually the abuse itself or the people viewing it now. I know the courts have accepted her experts arguments on the matter but that topic seems just about perfect for mercenary experts and I could see a court crediting those experts simply to sock it to a given offender. And even saying that some amount of it is from knowing people are out there viewing the pictures, I have a lot of problems with saying a given offender has to try and recover money for any of the total amount that isn't due strictly to others viewing them. There simply is no common agreement or scheme between all these offenders.

I do think the feds likely have the best of this particular argument, some amount greater than zero but much less than the total she is seeking. Any of the awards from $1000 to $10000 I've seen are very likely reasonable in light of the situation, but not the full amount. And that even though I do suspect that even $1000 is more than the marginal increase in damages due to knowing there is one more viewer out there.

Posted by: Soronel Haetir | Jan 22, 2014 8:00:18 PM

Jill, you totally nailed it. The rapist or photographer gets very little time, but he who has pictures, gets a bundle of time. Most likely a dump truck load for a fine as well.

I never did understand this logic.

Posted by: Midwest Guy | Jan 22, 2014 11:56:30 PM

I think the logic is that as between a harmed person and some sicko who looked at pictures of the harmed person, the law doesn't really care all that much about what's fair to the sicko.

Posted by: federalist | Jan 23, 2014 12:21:03 AM

I don't think the question is should she receive compensation at all, the law specifically provides for it. It's more a question of whether she should receive meaningful compensation. There's a logic to apportionment and causation, but a harm as well. The problem I see with anything but joint and several liability is it creates the odd situation where the more widely a picture is disseminated, the less likely a person is to receive any compensation.

Posted by: Erik M | Jan 23, 2014 7:31:39 AM

George, there are several errors in your calculation. The biggest one i assuming that every person who has viewed child pornography has viewed the Misty collection. Just because it ranks number 1 does not mean that everybody has seen it; just like not everybody watches the top ranked tv show.

Let's assume for the sake or argument that globally, around 3 million people subscribe to child porn websites or purchase child porn videos (that comes to about 0.05% of the world's population), that would mean that, on average, each of them spends about $1,000 per year or $80 per month on child porn. That per month figure does not seem outrageously high. The question is what is a fair estimate of the number of people globally who are into child porn?

Posted by: tmm | Jan 23, 2014 9:19:53 AM

I want to add an aside that I think needs to be said: I am grateful to Doug Berman's willingness to allow robust--even hostile--commentary on his forum. This may be the /only/ place on the internet where pedophilia can be discussed in a semi-rational way. It's tragic because that it has come to this because public debate should be robust, even at times fierce, but if there is a topic that has become verboten it is that.

So even though I ultimately disagree with Doug both philosophically and practically I remain thankful to him for providing a place where differing voices can be heard.

Posted by: Daniel | Jan 23, 2014 12:30:52 PM

@tmm

The error in your calculations is the idea that people pay for child porn. No one does. I've bitched about this before. The market--that is a market where money is exchanged--for child porn is so tiny as to be invisible. *Adult* porn is having a difficult time making money in an environment where everything is spread around for free as soon as it released. As Doctor Ruth said rhetorically more than five years ago, "people still pay for porn?". And this is adult porn where it is legal to swap money for pictures. How on earth is anyone paying for illegal porn? Not with a credit card, that's for damn sure. Not with cash, because that would require people to meet each other and these is too much a risk of it being a cop. Bitcoin is possible but even that is not genuinely anonymous, it requires a certain amount of technological sophistication, and the market for it remains infinitesimal.

People simply do not pay money for child porn. That is not how the "market" works. So the idea that this issue can be reduced to an economic analysis ignores the blatant truth that money only plays a marginal role in child pornography distribution.

Posted by: Daniel | Jan 23, 2014 12:40:19 PM

What happens when a virus / trojan sends illegal images over millions of computers? Will all those computer owners be subject to prosecution and restitution?

Posted by: Eric Knight | Jan 23, 2014 2:30:04 PM

This has always seemed relatively simple to me: Full amount, joint and several. The statute clearly provides for it, and the attempts to circumvent the plain language of the statute, as well as the intent of Congress, don't strike me as very plausible or sound.

Aside from my read of Section 2259, I think that this conclusion is supported by the logic of Ferber and the other cases that established the basis for criminalization of child pornography. There are basically two ways that child pornography was "intrinsically" related to child sexual abuse justifying criminalization of possession without exception: market demand and permanent record of harm violating the victim's privacy interests. As Daniel rightly notes, there is no significant "monetary market" for child pornography these days and the vast majority of the images that are circulated online appear to be a) disseminated through file sharing and b) older materials. Nevertheless, there is a demand for material that depicts the actual sexual abuse of children and that demand helps generate the production of videos, photographs and other visual depictions that requires the actual sexual abuse of children. The second basis for criminalization that supports "Amy" and other CP victims was identified in Ferber as "permanent record" or "re-victimization," which holds that the permanent record created through the production and the subsequent viewing of the images subjects the victims to continuing harm. Thus, as a matter of law, the Supreme Court recognizes injury that stems from every single act of possession, notwithstanding causality. This is what made the case of "virtual" child pornography addressed in Ashcroft v Free Speech Coalition so different from Ferber.

The only reason that the courts are finding themselves confused is because a) the nature of CP makes the harm very different from some other categories of unprotected conduct (although I think it is most similar to republication of defamatory statements) and b) the federal courts are particularly averse to the specter of "unlimited liability." But unless they discover a new constitutional impediment to restitution here, Congress made the decision and the SC's approach to CP criminalization made injury flow from each violation as a matter of law.

Posted by: Alec | Jan 23, 2014 6:02:53 PM

"Nevertheless, there is a demand for material that depicts the actual sexual abuse of children and that demand helps generate the production of videos, photographs and other visual depictions that requires the actual sexual abuse of children."

It spurs demand for the images that are already there, such as Amy's which are quite old. I don't know what kind of evidence exists for the proposition that it actually spurs creation of new images today.

Posted by: Rex | Jan 23, 2014 8:33:44 PM

Can you imagine living your life constantly wondering whether the creepy look that stranger is giving you is because he recognizes you from viewing your child rape on the Internet? And sometimes actually getting recognized by strangers who watched it? How about dating? What would it be like to meet someone new that you like and wonder whether he's ever seen your child rape on the internet because those images have been shared thousands of times? There are countless ways that the trading of these images affect the victims, most of which I'm sure we non-victims ever consider. Google her victim impact statement and the victim impact statements of others. There is a separate harm caused by the people who view and trade these images. The harm is different from the harm caused by the original abuser.

Posted by: Domino | Jan 23, 2014 9:41:17 PM

@Alec & Rex

"Nevertheless, there is a demand for material that depicts the actual sexual abuse of children and that demand helps generate the production of videos, photographs and other visual depictions that requires the actual sexual abuse of children."

Correct. There are two difficulties with this statement, however. The first is whatever the merit to this claim it is not the basis upon which Congress passed many of its laws regarding the distribution of child pornography. One only needs to recall the Congressional testimony of the Director of the FBI and the Director on the National Center for Missing and Exploited Children on this point: they were clear in their recitation of facts that there was a major "monetary market" for child pornography and Congressional debate on the issue made clear that Congress accepted this fact as true. Congress thought it was regulating buyers of pornography, not swappers. In my view at the time the Directors' testimony was misleading or at least self-serving. So the problem is that the rational basis upon which Congress passed many of its laws was factually incorrect. And to this day there has been no official acknowledgement of this truth. It may be that Congress would have passed these laws anyway. But maybe not. Regardless, Congress deserves to have laws passed based upon full and fair information and much the bureaucracy failed it. People now bitch about Keith Alaxendar but Louis Free was pulling the same tricks long before.

The second problem with that claim is that it leads Congress into a difficult morass. Because once we acknowledge the truth that pedophiles do produce videos for reasons such as status, not money, we are lead into an inquiry into their motives in general. The problem for Congress is that most child abuse, just like it was with the case of Amy, is local. That is to say it is done by relatives. So if the production is local, and there is no money involved, what exactly is Congress' jurisdictional hook? The whole basis for child pornography laws at the national level is based upon the Commerce clause power. No commerce, no power. So if I think that Louis Free was misleading Congress I also think Congress was all to willing to be mislead because it wanted to regulate to show that it was "doing something about the problem" even though there is a strong case that it doesn't have the power to do that when the truth you mention is acknowledged. Notice I only said a strong case because I recognize there are extensive debates about the extent of Congress' Commerce Clause power.

So the problem with the admission that "there is no significant 'monetary market' for child pornography these days" is that both the policy arguments and the legal arguments for Congressional involvement in tackling the problem of child pornography distribution is significantly weakened. That doesn't mean it's non-existent. But it does mean that it's far from obvious that Congress has either the power or if it has the power Congress would have made the same policy choices if it had known the /full/ truth.

Posted by: Daniel | Jan 23, 2014 10:41:19 PM

You should start with the State's objectives. Then figure out what strategies will accomplish them. This case has the cart before the horse.

Posted by: Tom McGee | Jan 26, 2014 9:41:42 AM

@Daniel

While I agree that the legislation was formulated to address what is today a largely nonexistent problem, I am not sure that the early testimony provided by the FBI and NCMEC staff (after its creation) was as far off the mark as it would be today. The growth of the internet is largely responsible for the erosion and virtual elimination of the monetary market, but the initial anti-CP legislation was passed well before the internet was in common use and at that time the market was not only monetary but difficult to access.
Addressing the continuing validity of these laws, the laws themselves are constantly changing, and even if the monetary market no longer exists at all (I think it is virtually nonexistent but probably exists in negligible numbers), I think that most courts would find that the law was justified on the basis of preventing its reemergence. A more difficult analytical problem, at least to me, is that the law on child pornography was being developed at the same time that policymakers were confronting related but distinct moral panics, including Satanic Ritual Abuse. Law enforcement was also relying on extremely flawed methods, including hypnotic regression therapy, to “expose” child sexual abuse. I’m sure many of the people providing testimony or producing research at the time were questionable, to say the least. I think the same is probably true today in some public debates, including recent debates over human trafficking.
While I know that your post contemplates a strong as opposed to rock solid Commerce Clause case, I don’t think that there is any basis for questioning anti-CP legislation on these grounds while Raich remains the law of the land. Even if Raich was to disappear, it seems to me that at least one of the other two grounds for jurisdiction under the Commerce Clause (regulation of the use of interstate channels and regulation of instrumentalities of interstate commerce) easily encompass internet content.

Posted by: Alec | Jan 27, 2014 2:12:17 PM

"....an FBI agent testified in another case, when law enforcement downloads files from Lime Wire, it is not contributing to the global demand for child pornography and not causing any new child pornography to be made because the files already exist and no financial or other incentive is given."

Tr.of Sent’g Hr’g at 31-32, United States v. Bistline, No. 2:09-cr-00085-JLG-TPK (S.D. Ohio Jan. 7, 2010)

...and now everyone's argument pertaining to supply/demand, market, industry, and child pornography is shot down! I alone disproved all of you fools in Congress, SCOTUS, and society!

Posted by: DisprovedEveryone! | Jan 28, 2014 8:12:40 PM

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