Although pornography on the internet has received widespread attention,
particularly with respect to access by minors, internet child pornography
has been seemingly overlooked. Generally referred to as Lolita sites, in
reference to the book of the same name by author Vladimir Nobakov, child
pornography sites have been appearing everywhere from private hosting
domains to member communities such as GeoCities. U.S. Customs Service
estimates indicate that there are more than 100,000 child pornography sites
worldwide. Robert Grove and Blaise Zerega, TheLolita Problem, The Red
Herring, Jan. 15, 2002, at 48 (2002), available at
http://www.redherring.com/insider/2002/0118/1249.html. Additionally,
revenues, for this illegal industry are estimated to range from $200 million
to over $1 billion each year. Id. at 48.
Taken into context, it is clear how such a publicly despised industry could
be allowed to grow so quickly since the internet's inception. Any effort to
combat Lolita sites encounters three main obstacles: (1) jurisdictional
ambiguity; (2) ineffective means of legal enforcement; and (3) identifying
guilty parties. These obstacles will be addressed briefly in order.
As with any issue involving the internet, jurisdictional questions arise.
While U.S. protections under the U.S. Constitution's 1st Amendment and other
applicable legislation clearly extend to solely domestic conduct, many
Lolita sites are established by overseas parties. Therefore, in the
international context, the approach to solving jurisdictional questions is
no longer Ameri-centric. In this early stage of developing internet law,
many courts have already taken differing approaches to answering the
question of jurisdiction. Italian courts, for example, have extended their
jurisdiction to include defamation cases where the defaming act takes place
beyond Italian borders as long as its effect is felt within Italian borders.
In the Case of "A", Italian Court of Cassation, Section V: penal Ð Closed
Session. Judgment No. 4741, Nov. 17th Ð Dec. 27th, 2000. Conversely, French
courts have only imposed jurisdiction in cases where the act constituting a
violation of French law was directed towards the French population. UEJF et
LICRA v. Yahoo et Yahoo France, [Interim Court Order of Nov. 20, 2000],
Paris Tribunal de Grande Instance, No. RG: 00/05308,
http://www.cdt.org/speech/international/001120yahoofrance.pdf (Feb. 28,
2002). Eventually, states should begin to settle on an international
standard that will address questions of jurisdiction over the internet.
Until that time, this ambiguity will allow many Lolita sites to survive.
While child pornography is generally illegal throughout the world,
enforcement from a US standpoint encounters two problems: (1) determining
whether the content in question is indeed illegal and (2) ineffective
methods of uncovering Lolita sites.
The U.S. Constitution's 1st Amendment protection, while broad and inclusive
of adult pornography, does not extend to child pornography. New York v.
Ferber, 458 U.S. 747, 764 (1982). Therefore, anytime a website's content is
questionable, the webmasters have tried to hide behind the 1st Amendment's
protections by claiming either that the individuals photographed or
otherwise recorded are in fact adults, or that the material is itself art.
Despite the ambiguity under the 1st Amendment, the Child Pornography
Prevention Act of 1996 amended the definition of child pornography under 18
U.S.C. ¤2256 to include not only the depiction of sexual conduct by real
minors but also the depiction of sexual conduct by what appears to be
minors. 18 U.S.C. ¤ 2256 (1996), available at
http://www.adultweblaw.com/laws/childporn.htm (Feb. 28, 2002). This expanded
definition is an optimistic sign of the direction future law in the U.S. is
headed.
The second problem with U.S. enforcement is a simple lack of general
knowledge. Lolita sites have appeared in widely varying places, making them
extremely difficult to consistently locate. Additionally, they often employ
redirect services (routing the user through a series of servers to a web
address containing random characters and numbers) or conceal themselves
within automated and anonymous online communities. Finally, because the
internet is "passive" - a user must actively seek out a Lolita site -
federal agencies charged with stopping child pornography have been forced to
rely on individuals who report Lolita sites. At the forefront of this
digital battle, the U.S. Customs Service offers cash rewards to individuals
who report child pornography; they simply do not have the resources to
actively seek out Lolita sites. See
http://www.customs.ustreas.gov/enforcem/enforcem.htm (Feb. 28, 2002). In
addition to the U.S. Customs Service, many non-profit organizations
including the National Center for Missing and Exploited Children
(http://www.missingkids.com) and CyberAngels.com
(http://www.cyberangels.org), have focused on putting an end to child
pornography on the internet. Many of these organizations, however, also
rely on reporting mechanisms to fight Lolita sites. See
http://www.missingkids.com/html/ncmec_default_ec_chldporn_laws.html (Feb.
28, 2002). While rewards increase the incentive for individual
contribution, this remains merely a tool for slowing Lolita site growth, not
stopping it completely. Until a more effective means of combating child
pornography becomes available through either technological developments or
the legal process, the Lolita site will continue to grow.
In addition to difficulties in finding Lolita sites, there is the additional
problem of identifying the parties running the site. While maintaining a
Lolita site and conducting subscription transactions are complicated and
involve many parties, few involved parties, if any, have any idea who the
webmaster of the Lolita site is. For example, although many Lolita sites
obtain service through a web hosting company, the web hoster rarely screens
for content to identify potential Lolita sites. In explaining why many web
hosting companies fail to screen their sites for content, Maureen Richter,
CFO of Cove Software Systems, states "We don't police the sites for
content... We can't. I only have a staff of five. I'm barely making it
financially. With the cost of bandwidth, there is no margin in my prices.
If I raise prices to pay for someone to monitor my site, I lose customers."
Grove and Zerega, supra, at 50, available at
http://www.redherring.com/insider/2002/0118/1249/html. While the bottom line
seems to be that porn pays, should this kind of conscious ignorance go
unpunished?
Other Lolita sites conceal themselves within online member communities.
Many of these sites have automated and completely anonymous registration
processes. Geocities, which is a part of the Yahoo! network, hosts an
online community with virtual anonymity for webmasters; because their basic
service is free, there is no effective check on the identity of customers.
Furthermore, because its service is completely automated, Lolita webmasters
are free to display illicit materials without interference. If lawmakers
force web hosting companies and online member communities to screen for
content, they will risk chilling the growth of businesses in this area.
One party that may be able to identify Lolita webmasters are the online
credit card processors. Subscriptions and multimedia purchases drive the
growth of Lolita sites; and just like any other online transaction, these
subscriptions and purchases are made with the use of credit cards. Credit
card processors act as the conduit for the transactions from the subscriber
to the merchant bank. The merchant bank directs the transaction payment to
the credit card company, and the credit card company then pays the billing
party, in this case, the Lolita webmaster. Many merchant banks and credit
card companies have policies of stopping payments once they know they are
being used illicitly. Like any many other parties inadvertently tied to
Lolita sites, however, they lack the resources to actively seek out illicit
transactions. Furthermore, at the point merchant banks and credit card
companies become involved in the transaction, they are so removed from the
original parties that the purpose of the transaction is unclear. Credit
card processors, on the other hand, generally know the identity of the
Lolita site webmaster and the purpose of the transaction since they have a
direct link Ð they are processing credit cards for the Lolita site.
Furthermore, they are most likely to have knowledge of the purpose of the
transaction since they are most closely connected to it. Grove and Zerega,
supra, at 52, available at
http://www.redherring.com/insider/2002/0118/1249.html.
Even with credit card processors, two potential problems may arise: (1)
Credit card processors may also be very difficult to hale into court and (2)
they may follow the web hosting company's strategy of conscious ignorance.
First, credit card processors may locate themselves in many different
countries, making it potentially more difficult for one country to exercise
jurisdiction over it. IWest, for example, "works out of Russia using the
names Renville and Little Hollywood as its corporate fronts, and like many
Russian sites, filters money through banks in Latvia. The iWest home page,
registered to a company in the British Virgin Islands, meanwhile lists a
phone number in Spain as its point of contact." Grove and Zerega, supra, at
52, available at http://www.redherring.com/insider/2002/0118/1249.html.
Therefore, where any of these companies might be located, have property, or
conduct business could pose any number of jurisdictional problems. Second,
just like any of the other parties a Lolita site deals with, credit card
processors may detach themselves from their customers by requiring less
information from websites. Limitations, as in the web hosting business,
such as profit margins may prevent some credit card processors from actively
investigating the legality of their customers' transactions.
The tremendous barriers to enforcement of child pornography laws, from
jurisdictional issues, to ineffective means of enforcement, indicate that
Lolita sites are not about to disappear. While the internet is no longer in
its infancy, the law applying to it is. As real world law is translated and
applied to the unique characteristics of cyberspace, and developments in
technology allow better identification of the parties involved, governments
will be better able to actively address the Lolita problem.
For more information on combating child pornography on the internet, please visit:
http://www.customs.ustreas.gov/enforcem/enforcem.htm
http://www.redherring.com/insider/2002/0118/1249.html
http://www.cyber-rights.org/reports/child.htm
http://www.pedowatch.org/pedowatch/
http://www.cyberangels.org/
http://www.thecpac.com/stop-it.html
For more information about the laws applying to child pornography on the internet, please visit:
http://www.cyber-rights.org/reports/uscases.htm
http://www.cyber-rights.org/reports/ukcases.htm
http://www.adultweblaw.com/laws/childporn.htm
http://www.missingkids.com/html/ncmec_default_ec_chldporn_laws.html
