Borders Conference - Rethinking the Line: The Canada-U.S. Border / Child Pornography on the Internet Session
As part of the conference entitled,
“Rethinking the Line: The Canada-U.S. Border”, the Department of Justice, Research and Statistics Division, in conjunction with the Policy Research Secretariat and the RCMP, assembled a panel of international experts to lead a session on enforcement and research issues surrounding child pornography and luring on the Internet. The panel was comprised of Sergeant Emmett Milner (Criminal Intelligence Service Canada), Detective-Sergeant Wayne Harrison (Winnipeg Police), Detective-Sergeant Frank Goldschmidt (Ontario Provincial Police, Project “P”), Andrew Oosterbaan (U.S. Department of Justice, Child Exploitation and Obscenities Section), and Professor Max Taylor (University College Cork, Ireland). Jacquelyn Nelson of the British Columbia Ministry of the Attorney General acted as the moderator for the session.
The two main conference themes addressed by the panel included safety and the line and the virtual line. Crime committed over the Internet is often envisioned as being borderless, thus presenting some rather unique challenges for policy-makers, researchers, and law enforcement. One area of Internet crime, which has been seen as particularly deserving of attention, is the sexual exploitation of children. Therefore, this panel was assembled to discuss three central issues related to this concern: (1) the scope and nature of child pornography on the Internet; (2) sexual predators using the Internet to lure children; and, (3) the challenges of policing child pornography across borders.
Max Taylor's presentation indicated that there is a great deal of child pornography on the Internet. However, Professor Taylor suggested that we focus more on identifying the number of children who are being abused rather than trying to calculate the volume of child pornography on the Internet. As part of the COPINE project – Combating Paedophile Information Networks in Europe, Professor Taylor's research team has amassed a database of over 60,000 old and new/recent child pornography images. Approximately 43,000 of these images are of girls and 18,000 are of boys. Each week the team collects about 1,000 child pornography images off 60 different Internet newsgroups. The majority of the material that is downloaded is fairly old, consisting mainly of scans from magazines such as Lolita originally produced 30 to 40 years ago. While the database is called upon by police from time to time to help identify children and offenders, it is maintained primarily for research purposes.
According to Professor Taylor's work, he is discovering that approximately 2 new children are appearing in child pornography on the Internet newsgroups each month. He pointed out another trend they are finding is that the children depicted in the images are becoming younger. The research from the COPINE project suggests that the predominant age group is children ages 9 to 12. However, Professor Taylor qualified this figure by pointing out that it becomes very difficult to ascertain the age of children after they reach puberty and therefore, his team does not monitor pictures in this age category. Taylor noted that roughly 10% of female images in the database are of babies and toddlers. He also indicated that the overwhelming majority of images are of Caucasian children. He pointed out that, while it is not difficult to find child pornography on the Internet, the average user is unlikely to stumble across it. Given the fact that so much of this material is available for free over the Internet, Professor Taylor argued that it holds very little market value.
Additionally, Taylor indicated that, although still-pictures are by far the most predominant form of child pornography on the Internet, video clips will likely become more common as the technology advances to allow for faster transmission of large multimedia files.
When researching the sexual exploitation of children, Taylor indicated that it is necessary not only to look at the Internet as a medium for the distribution of child pornography, but also as a place where paedophiles are able to communicate with one another and develop the types of contacts and support that help to sustain their interest in children.
Each of the presentations highlighted a number of challenges faced by legal authorities and policy-makers when attempting to deal with child pornography and luring of children on the Internet. As Det.-Sgt. Wayne Harrison (Winnipeg Police) indicated, it is important to acknowledge that the majority of the challenges faced by law enforcement in this area are also problems that are encountered when dealing with most forms of crime that are now being conducted over the Internet (e.g., fraud, money laundering, illegal gambling). What follows is an overview of some of the main challenges faced by legal authorities.
- Volume of potential investigations
- The presenters indicated that the overwhelming amount of child pornography on the Internet presents a large number of potential investigations. Therefore, police find it necessary to give priority to some cases while postponing others. For example, “Project P” (the anti-pornography unit of the OPP) maintains a backlog of some 35 to 40 cases at any given time. Given the number of cases, Det.-Sgt. Frank Goldschmidt indicated that it is not unusual for them to delay an investigation for 6 to 9 months.
- Resource issues
- Investigations may involve a number of offenders and victims in various parts of the country or the world. Thus, the amount of time that is needed to put a case together, identify and interview the victims and offenders, coordinate with different police agencies, and travel to the different regions can make it difficult to move a case forward. Therefore, before beginning an investigation, police have to take into consideration the large amount of resources that are often required in such cases.
- Remote storage
- Some Internet Service Providers (ISPs) store their clients' identifying information and logs (record of their activity) in locations other than their immediate premises. Additionally, Internet users may choose an ISP that is in a different geographical location. Information can be stored virtually anywhere in the world as long as the country is connected to the Internet, which nearly every country is. This complicates matters when police are attempting to obtain search warrants and collect client information from the ISPs. Further complicating the investigation process is reality that other jurisdictions often have different laws or may simply be uncooperative in assisting foreign police.
- ISP retention of logs
- ISPs are not legally obligated to retain client logs. Logs are useful for investigations as they contain such things as when the client logged onto the Internet, client activity while on the Internet, and Internet Protocol (IP) addresses to aid in the identification of the user. Since it is costly to store these logs, ISPs usually delete this information after a fairly short period of time. America Online (AOL), for example, will hold new unopened mail for 28 to 30 days. When AOL members go outside of AOL to do their surfing, chatting, posting, etc., they may preserve that information for about 7 days. The retention period for AOL is actually considered good in comparison to some ISPs who delete most of the log information daily. This becomes a problem for police because it is difficult for them to get enough information to start the investigation process (e.g., warrants, information from foreign police agencies) in such a short period of time. Therefore, the suspect's log information may be lost before police are able to obtain the legal authorization necessary to examine this important source of potential evidence.
- Legal definitions
- Current legal definitions did not envision the Internet and the implications it would have on future understandings of possession and distribution of child pornography. For instance, legal definitions do not adequately accommodate the borderless nature of the Internet. This has had implications for investigations involving electronic child pornography stored by Canadians in other countries, and child pornography that has been stored in Canada by individuals from outside the country. The lack of a common international definition of child pornography also makes it difficult for police to coordinate and obtain cooperation during cross-border investigations. Additionally, officers have no expressed legal authority to possess child pornography, which may also hinder investigations
- Court decisions
- The Supreme Court case of R. v. Sharpe, which challenged provisions within Canada's child pornography legislation, was seen by Canadian police as a potential cause for concern. At the centre of their concern was the possible loss of the possession offence. Sgt. Emmett Milner described the possession offence as a foot-in-the-door for law enforcement when they are developing a case on an individual who may be involved in more serious forms of child abuse. However, he noted that if the possession offence was lost, the introduction of a luring offence might help to compensate for this loss. Another concern police had in regards to the outcome of the Sharpe case was the potential for redefining child pornography, as it would affect how they conduct their investigations.
- Unlike Canada, the U.S. has a two-part court system with laws varying not only by federal and state jurisdiction, but also from state to state for each of the 50 states. Therefore, court decisions can vary from state to state and district to district, resulting in a number of different interpretations of federal laws such as possession of child pornography.
- Additionally, wholly computer-generated child pornography and morphed child pornography becomes an issue in court decisions as there may be no real child actually depicted in the images. Some courts in the U.S. have ruled that, in order for the image to be considered illegal, it must involve a real child. Proof that the photograph is of a minor may also become an issue in some cases.
- Encryption allows users to “scramble” their files into unreadable computer code, which can only be deciphered using the proper passwords. Andrew Oosterbaan (U.S. Department of Justice) indicated that encryption is becoming more prevalent. He pointed out that, if law enforcement obtains an encrypted file they will only devote resources to the case if it is considered a national priority or a national security interest given the amount of time it may take to access the encrypted file. He recommended, if police foresee encryption to be an issue in a case, that they be proactive in attempting to acquire the passwords ahead of time, possibly during the execution of a search warrant.
- Anonymous and web-based e-mail
- Anonymous and web-based e-mail makes it difficult for police to trace an e-mail back to the original sender. Companies such as “hushmail” and “freedom” fully encrypt their users' e-mail and then use a re-mailing system, which deletes any “surface” information that may connect the e-mail to the sender. Web-based e-mail, such as hotmail, allows users to create an anonymous account using false user information (e.g., name, address).
- Cable connections
- Cable modems maintain a constant connection to the Internet, which can be a problem for police if they need to identify who connected and when they connected. Additionally, with dial-up accounts (using phone lines) in the U.S., police can subpoena information from an Internet company about a client's account without the client ever knowing it happened. The opposite is true for cable law in the U.S., which dictates that the Internet company must inform their client when police subpoena information from them regarding that client's account.
 A few months after this conference was held the Supreme Court delivered its decision in R. v. Sharpe (January 26, 2001). While the consequences of the verdict are still being reviewed, it would appear that the decision will not significantly alter the existing possession offence.
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