Borders Conference - Rethinking the Line: The Canada-U.S. Border / Child Pornography on the Internet Session
In order to meet the challenges faced by law enforcement and help combat the sexual exploitation of children, the panellists made the following suggestions.
Cooperation and coordination
Given the international flow of information on the Internet, the panellists indicated that it is crucial to have cooperation and coordination between jurisdictions and agencies involved in the investigation of child pornography and luring of children on the Internet. There appeared to be agreement among the panellists that the International Criminal Police Organization (Interpol), on the international level, and CISC, on the national level, have done a good job in coordinating police efforts. However, the panellists also seemed to feel that both agencies could be more effective if they were given more resources and a stronger role to play.
On the national level, Wayne Harrison suggested that CISC's role be strengthened by giving them a core mandate to oversee all Internet investigations. He suggested that their responsibilities could include: heading up a national task force, which would work proactively to identify victims and offenders, developing and maintaining facial and filename recognition software, coordinating all international investigations – both incoming and outgoing, conducting training across the country using the “train the trainers” model, and establishing and maintaining national offender registries.
Internationally, Max Taylor indicated that Interpol is developing a database of child pornography that could be tapped into by police all over the world. However, he said that for the database to be effective it will require the police to continually contribute new information to it.
In addition, improved cooperation between law enforcement and ISPs was highlighted. CISC has been involved in talks with the Canadian Association of Internet Providers (CAIP) and various other ISP groups. Sgt. Milner pointed out that a number of ISPs were not aware of what is expected of them from law enforcement. Therefore, liasing with ISPs has and will continue to create a greater sharing of information between the industry and law enforcement.
ISP regulation and self-regulation
Panellists indicated that the technology is available for ISPs to better regulate the flow and storage of child pornography on their servers. Dr. Taylor believes that the existence of child pornography on the Internet could be controlled if the ISP industry chose to do so. An example of how to accomplish this was provided by Det.-Sgt. Harrison who advocated that there be provincial and state regulations for ISPs, which would include requiring a physical street location for each IP address assigned to their users in order to assist police in the execution of warrants. Andrew Oosterbaan stated that one of the difficulties noted by ISPs is that illegal material is replaced almost as quickly as the ISP removes it. Thus, he said that it is necessary for there to be a way for ISPs to channel information to the police so that individuals can be prosecuted in order to put an end to this “reposting” process. He indicated that there is some recent legislation in the U.S. requiring ISPs to report potential criminals to law enforcement. The U.S. Department of Justice is currently developing regulations on how this process will work. Oosterbaan stated that, while this legislation may be helpful in dealing with the big ISPs (e.g., AOL), it may not be as effective in dealing with the smaller ones.
Perhaps the most significant way in which ISPs could facilitate cooperation with police and help regulate the flow of illegal material would be through the extended retention and sharing of client log information. Presently, ISPs delete their logs after a very short period of time. Therefore, the panellists suggested the mandatory retention of logs for a minimum of 3 months as a development that would significantly aid police in conducting their investigations.
While it may be costly for ISPs to retain logs, Dr. Taylor argued that ISPs have a duty to exercise social responsibility. In support of his argument he pointed out that it is not acceptable in any other setting for a commercial organization to facilitate the commission of a crime. However, he also noted that some ISPs have used the defence of being a “common carrier” of information, which is a claim used by the mail industry to protect itself from being sanctioned for contributing to the distribution of illegal material. Therefore, Professor Taylor suggested that it would be beneficial if the ISP industry could develop a way to regulate itself, rather than having the state impose regulations.
Training and Education. Internet crime is a relatively new area for policy-makers and legal authorities. Therefore, the panellists stressed the need to train and educate policy-makers, police, prosecutors, and judges. Andrew Oosterbaan discussed the necessity of keeping all these parties informed of advances in the technology because if there is one weak link in the chain (e.g., a prosecutor who does not understand the technology) it may result in difficulties in prosecuting a case. The panellists emphasized that training must be a continual process in order to keep up with the rapid evolution of technology.
In addition, Dr. Taylor stated that probation officers and social workers should be educated about the Internet. As part of his research he has found that those working in the social welfare system often do not understand the Internet and therefore, are ill-equipped to adequately supervise offenders. He discovered that these workers are reluctant to get involved because they are worried that the offender is going to know more about the Internet than they do.
Educating parents and children about the possible dangers that may be encountered on the Internet was also promoted by the panellists. Det.-Sgt. Goldschmidt stated that he is shocked to hear that some parents allow their children to meet individuals that they've met on the Internet in public places, however, unsupervised.
Panellists stressed that law enforcement should focus on identifying the victims and give precedence to cases involving those individuals who are victimizing children by producing child pornography. Det.-Sgt. Harrison indicated that this is the only way to prevent children from being victimized. However, panellists noted that investigations of this type can be resource intensive and time consuming. This is illustrated by an investigation conducted by Project “P”, where police interviewed nearly 1,000 victims who had been terrorized by one paedophile over a 30-year period. The investigation took 13 months to complete.
Keeping legislation current
As mentioned, one of the challenges faced by legal authorities is the difficulty they face when trying to apply existing legislation to criminal activities involving new technologies (e.g., the Internet). Therefore, the panellists recommended that policy-makers ensure that legislation is revised in order to be kept up-to-date with the technology.
Panellists indicated that the creation of luring legislation would be a positive development. This legislation is seen as necessary to deal with the unique circumstances surrounding the online enticement of children. Det.-Sgt. Harrison stated that,
[Luring legislation] is a must in order to prevent predators from using the Internet to solicit, lure, and victimize children. Currently, in Canada a child must be victimized in order for an offence to occur. There is no provision in current legislation for an investigator to pose as someone under the age of 18 and therefore investigators cannot be proactive in terms of actually laying a luring offence charge. We have invitation to sexual touching, but it requires the person to actually be under that age and not a person who they believe to be under that age. Complicating this legislation, is the fact that in Canada the age of consent for sexual intercourse is 14 years. This means that any 40-year-old or 50-year-old in Canada can have sex with a 14-year-old child. Unfortunately, any new legislation dealing with a luring offence will have to be framed around this age of consent. I think that the age of consent issue is the subject of discussions right now and I think it's very important that it be modified in some way.
Andrew Oosterbaan added that, while there is legislation in the Untied States that deals with luring, this legislation probably could be strengthened.
In terms of updating legal definitions, Det.-Sgt. Harrison suggested that distribute be defined to include,
“Making available via a computer network that passes through or originates from Canada and is now located outside of Canada.” He also suggested that possession be redefined to include;
"password accessed sites or sites controlled by Canadians, even though the site is located outside the country." ; He stated that there should be provisions built into the Canadian Criminal Code allowing police to possess and send images, which would allow officers to send exhibits and notes through secure servers. This would facilitate the sharing of information during investigations and thus help to identify victims and offenders.
Det.-Sgt. Harrison noted that the enactment of Bill C-40 (the Extradition Act) is a good example of legislation, which recognizes the necessity of not only keeping pace with, but also taking advantage of current technology to help fight crime. The legislation allows witnesses from inside and outside of Canada to give sworn testimony in court via video conferencing. Witnesses can do this from the comfort of their own home locations, allowing them to testify without actually having to bring them to the jurisdiction where the case is being heard. Video conferencing was used recently in Winnipeg to secure testimony from a group of seniors who were victimized by a telemarketing fraud. During the preliminary hearing, ten seniors testified from four different U.S. states using video conferencing technology. They gave sworn testimony, which the judge accepted. The judge also commented on how impressed he was with the use of this technology to bring in this type of evidence. Det.-Sgt. Harrison remarked that the use of video conferencing technology to secure witness testimony is a very cost-efficient way to conduct prosecutions when the witnesses are from other jurisdictions. He also suggested that the next step will be using this technology for taking statements from other police agencies or interviewing other police officers for the purposes of obtaining warrants.
Making Internet crime an area of federal jurisdiction was also advocated as a way of making legislation more effective. In order to do this, Det.-Sgt. Harrison suggested that the Controlled Drugs and Substances Act (CDSA) be used as a model. He pointed out that the CDSA was made a federal responsibility due in part to cross-border issues involving the trafficking of drugs. He stated that the number of physical border crossings involving drugs pales in comparison to the number of virtual border crossings made every minute over the Internet. In his opinion, some of the benefits of creating a new and separate Act would include: the specialization of federal crown attorneys to prosecute Internet offences; access to more resources to combat Internet crime; and, the development of modern legal definitions specific to Internet usage for offences such as distribution and possession of child pornography.
Developing software tools to assist in investigations
Panellists suggested the further development of software tools to help law enforcement in their investigations. A major software enhancement would be programs that help to facilitate the identification of children and help to separate new and old child pornography. Det.-Sgt. Harrison indicated that police often spend a great deal of their time identifying images of child pornography, but due to inadequate software, they spend very little time identifying the children in these images or determining when the image was created. Det.-Sgt. Harrison suggested that enhancements be made to filename and facial recognition software to facilitate this process. He suggested that law enforcement could use filename recognition software to identify new images and subsequently use facial recognition software to compare these images to a master file of children who were reported missing (or a similarly maintained database).
The maintenance of a child pornography database is a necessary part of the software-aided identification process. As mentioned previously, Interpol is developing such a database, but it is expected to require much time and input from various international police agencies for it to be effective. Although the database maintained by Dr. Taylor's research team was not created for aiding law enforcement in the identification of abused children it has occasionally been used for this purpose. Dr. Taylor's database does not work on the basis of software recognition, but rather on the use of text-based descriptors. Dr. Taylor stated that he is sceptical of facial recognition software. Therefore, his team meticulously sifts through the images by hand in order to categorize them. Referring to the EXCALIBUR database used by Swedish police, Taylor noted that, while it may be effective, it is not 100% reliable. Therefore, he feels more comfortable relying on visual inspection of images. However, the visual inspection process is not without its drawbacks. Visual inspections are very labour intensive, tedious, and can be psychologically upsetting for the students categorizing the obscene material.
Andrew Oosterbaan stated that any new software enhancements must take into consideration existing law enforcement frameworks. That is, it is important to integrate or adapt any new technologies with traditional law enforcement methods. While it is necessary for software enhancements to fit into the existing framework, it is just as essential for law enforcement to remain somewhat flexible and receptive to the new technologies that may be necessary to assist them in their investigations.
Hotlines and tiplines
The use of hotlines and tiplines for receiving information from the public was also suggested. Oosterbaan indicated that hotlines and tiplines have worked very well in the United States. For example, during a 27-month period the CyberTipline, which is operated by the National Centre for Missing and Exploited Children, received over 22,000 reports of child pornography and 3,000 reports of potential luring cases.
In order to address the problem of child pornography on the Internet and some of the challenges faced by law enforcement in dealing with this problem the panellists made the following recommendations:
- The cross border nature of the Internet will require international cooperation and coordination between jurisdictions and agencies involved in the investigation of child pornography and luring of children on the Internet.
- Collaboration between the Internet industry and law enforcement is also key.
- Some form of ISP regulation and/or self-regulation could help to control illegal activity on the Internet.
- Training for legal professionals is necessary in order to keep pace with advances in technology.
- Laws not only need to be updated to include the new technologies, they also need to be written in such a way as to accommodate for the evolving nature of technology.
- Given the large number of potential child pornography cases it is necessary for police to maintain a child-centred focus by concentrating on the identification of victims and giving priority to cases involving the production of child pornography. Implementing existing software tools and further developing this technology (e.g., child pornography databases, file and facial recognition software) would aid in the victim and offender identification process.
- Public education is required to ensure that parents and children are aware of the potential dangers of the Internet.
- Further implementation of hotlines and tiplines will aid in the reporting of child pornography and potential luring cases.
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