Borders Conference - Rethinking the Line: The Canada-U.S. Border / Child Pornography on the Internet Session

Session Proceedings (continued)

Session Proceedings (continued)

Andrew Oosterbaan (Panellist) – Deputy Chief for Litigation, Child Exploitation and Obscenities Section, U.S. Department of Justice

First I would also like to express my appreciation for the invitation. It is a great privilege to be here. This is a tremendous conference at least in ideology, in what it is intending to do. Whether or not it can do it is another question. What it is intending to do is quite an important thing when you consider the kind of offences that we are talking about. I am the American on the panel. I am going to give you what I call the emerging challenges presentation. I think it is particularly appropriate for this conference because one of the greatest challenges that we face in the child exploitation area is the fact that Internet crime is borderless. That's kind of easy to say, it's axiomatic actually. That is not the challenge. The challenge is that it's being conducted amongst the borders, it's being conducted amongst jurisdictions. One of the greatest challenges and complications to the work that we do results from the fact that there are so many jurisdictions all over the world dealing with this borderless problem.

Let me tell you a little bit about myself to put this presentation in perspective. I am a prosecutor. My role is one of litigation and litigation support for child pornography prosecutions all over the United States. We also train law enforcement agents, detectives, and prosecutors all over the country.

Legislative Review of Proposed Statutes

Congress in the United States depends on a number of people and gets their information from a number of sources, but our section is greatly responsible for the drafting of legislation and proposing legislation that is ultimately enacted in the United States, and of course the development of policy for the current administration.

Growth of Federal Child Pornography Cases

Graph 1 : Growth of Federal Child Pornography Cases

Growth of Federal Child Pornography Cases

[Description]

What kind of a problem are we talking about here? It is an immense problem. This graph shows you the growth of the child pornography cases up until 1998, but I can tell you that since 1998 it has grown at a much greater rate.

The CyberTipline

The CyberTipline is operated by the National Centre for Missing and Exploited Children. From July 1998 to October 1, 2000, the CyberTipline has received over 27,000 reports. Child pornography accounted for over 22,000 reports. Online enticement of children for sexual acts accounted for over 3,000 reports – basically what we are talking about here is luring. This is something that we have statutes for. Although we probably could have better statutes, we do have some statutes that take care of it in the U.S. and a great number of our prosecutions are online enticement cases. That again gives you some idea of the extent of the problem. When you've got that many tips coming in on that line, you know it's a big problem.

Why the explosion of Internet crime?

This is an important question when analyzing the challenges we face in handling this problem. There is something very unique about Internet crimes, especially child exploitation crimes. Of course the anonymity offered by the Internet is a big element of this. These folks are sitting at their chairs figuring because of their anonymity that they are pretty safe. There's also the satisfaction that they get online. We often joke amongst law enforcement that if they only knew that at the other end there's frequently a 30 or 40-year-old Federal Bureau of Investigation (FBI) agent, whose online name is Suzi13. In the mind of these folks, they don't care. They are fantasizing about what they are doing. They are fantasizing about who they want it to be, and that's probably about all that matters to them. Now it obviously becomes a crime when it goes beyond that fantasy, and that's of course why we're here.

Critical questions that we face

Can law enforcement keep pace?

Now you've heard a little bit about it already. It's a tremendous problem. It's an immense and very expensive effort. Law enforcement has a hard enough time keeping pace with any criminal effort, but in particular this area, which is driven by technology, which is in fact driven by money.

Will legislation keep pace?

This is a particular problem in the U.S. I think that this is very closely related to the question of whether law enforcement can keep pace. In the U.S. the legislative process is very slow. It's very much driven and affected by the will of society. Of course in America, where people value their freedoms above all else, that can be a problem.

Will prosecutors keep pace?

This again is closely linked to the first question. It's also a resource issue for them. But oftentimes it's more than a resource issue, it's the “can you teach an old dog new tricks” issue. Will the prosecutor take the time to learn the technology so he or she can handle a case of Internet child pornography.

Will society allow it?

Like I said, this is a very important element in the U.S., because we're a society that values our freedom above all else. One of the things that we consider an important aspect of our freedom, is our privacy. It is very difficult sometimes to get the proper legislation passed when it is considered to be legislation that impact upon privacy. There are many, many examples of that. Attempts to enhance our enforcement efforts are very much affected by that last category.

Current Issues

Remote Storage

In child pornography cases, quite often, the material is held in a remote storage area that individuals have free access to and can give free access to others. When you are attempting to issue search warrants on the individual it becomes very difficult when you really can't determine where he or she has this material, or once you do, it may be difficult to attain probable cause to get the search warrant to actually search that area.

ISP Retention Periods

For America Online (AOL), they'll hold new unopened mail for 28 to 30 days. This is fairly current information, but this information changes very quickly because it all depends on the volume. But approximately, mail that has been received and deleted and read mail is only going to be held a couple of days. When AOL members are chatting in AOL chat rooms they can hold that IP addressing information for approximately 90 days. Proxy server IP addresses – that's when you have AOL members going outside of AOL to do their surfing, chatting, and so forth – you will have that information for maybe 7 days. This obviously becomes a major problem for law enforcement. As I'm sure the law enforcement panellists will agree, the ability of law enforcement agents to actually get enough information to start the process in 7 days is pretty tough to do.

Encryption

I think it's fair to say with regard to encryption, at least in the U.S., in the average case it's not going to be breakable. By the average case I mean a case that doesn't have national priority or a national security interest. If it isn't at that level in the U.S. you're probably not going to break it. That means that law enforcement in the U.S. has to work very hard in a case involving encryption, which is becoming more and more prevalent. For almost every aspect of these kinds of investigations, you need to know right up front that encryption might be an issue and you will need to do an investigation around that. In other words, you may have to find out a way to get passwords up front, especially if you've executed a search warrant and you're talking to the individual you may have to take that opportunity to find out what the passwords are.

Anonymous and Web-based e-mails

These are becoming more and more problematic with respect to investigations because there are companies out there such as “hushmail” and “freedom” who will fully encrypt the e-mail first of all, and then they go through these anonymous re-mailers which makes it very difficult to trace because they'll “scrub clean” the information as it goes from one place to the other. So by the time you see it, you have a very difficult time trying to trace where that particular piece of e-mail actually came from. Hotmail is not an anonymous re-mailer system, but we all could create an account completely anonymously within minutes, with completely bogus information, and we'd be up and running and it would make it more difficult for law enforcement to find out who “owns” the account.

Cable connections

This may be more of an issue in the U.S., than in other countries. The issue here is the connectivity. You are always connected when you have a cable Internet connection. In cases where you are trying to nail down “who connected and when”, it becomes tough because they are always connected. Additionally, with regular (phone-line) ISPs we can subpoena information from them without them ever letting the bad guy know that we've done it. Unfortunately with cable law it's different. The ISP has to tell the individual Internet user that we've subpoenaed information from them. Obviously that affects our ability to do things.

Court Decisions

We are a two-part system in the U.S. We have state laws and of course these laws may differ from state to state for each of the 50 states, and then we have federal laws that cover all of the 50 states. In order to be a federal crime there has to be some interstate commerce nexus. Obviously, when you're dealing with computers and the Internet, there's a kind of built-in interstate commerce nexus, but sometimes in a possession case all you have is possession of the material, so where's your interstate commerce nexus? Well, the courts have come down in different ways on this. In some districts in the U.S. it becomes more difficult than in others to prove that element.

Proof of the victim's identity

can become an issue for us. Despite Congress' best efforts to make images of child pornography not involving a real child (such as morphed child pornography images) illegal, there's at least one Circuit in the U.S., the ninth Circuit where California resides, that has said that for an image to be considered illegal it must involve a real child. Therefore, we still, in many cases, must prove that a real person was involved. Again this refers strictly to a child pornography case.

Proof of victim's age

What we are talking about here is proof that the photograph was of a minor.

Sentencing issues

We have good sentencing statutes, but they frequently rely on enhancements that have to be proven. Sometimes that becomes very difficult to do. The courts have come down differently with respect to how an enhancement is proved or whether it applies. Of course, as I told you, the state versus federal becomes very difficult. States have their own laws and their own courts, and they do things a lot differently. So when we talk about border problems, we do not only have different federal state jurisdictions, we also have 50 state jurisdictions to deal with and they all can be different. We are trying to coordinate and cooperate amongst law enforcement, which is a critical issue in this area. It is not only complicated amongst the international community it is also complicated within the communities in the United Sates.

Meeting the challenges

Staying abreast of technology

is an obvious problem. That's not just among law enforcement as I said before, it's also among prosecutors and judges. As hard as we might try to put a case together and bringing it to court, if we have not done a good job of educating that judge, on the record, as to how this all works then we can't hope that the courts on appeal are ever going to figure out why they should come down a certain way with respect to the offence that was committed. So it's very important for all legal authorities to stay abreast of the technology.

Developing software tools

What I'm referring to here is the development of software tools that will help law enforcement. When it comes to Integrating the technology with traditional methods of law enforcement, unfortunately, we have a law enforcement framework that's pretty much set. It's important to integrate or adapt the technology that we have for those methods.

Keep legislation current

is very important

Mutual assistance and cooperation among countries

I can't emphasis that enough, and of course that's why this conference is so important. It is critical when you have offenders who can be all over the world, when they can pass information through points all over the world, when there are different laws in different countries, it is very, very important that we find a way to work with one another. In our lifetime we won't see an international police force that will be effective in the way that it would need to be effective to deal with this issue. Interpol does a very good job. My section has been very involved with Interpol and the G-8, but I'm sure that law enforcement will tell you story after story where they tried to rely on Interpol and they couldn't for one reason or another, so we have a long way to go. One of the things that the U.S. Department of Justice does is conduct training programs in foreign countries and I think that's one good way to make this as close to one effort as possible.

Hotlines and tiplines

have worked very well in the U.S. and I believe they can work very well in other countries as well.

Training

as I mentioned is very important.

Raising an awareness

of the child pornography problem among Internet users can also help.

I've put some of the U.S. criminal statutes on the slides in case you are interested and because I think that they are probably different than Canada's (see Appendix II). There is some current legislation requiring ISPs to report potential criminals to law enforcement and we are working out the regulations right now as to how that will be done.

Jacquelyn Nelson

Thank you Andrew. You certainly raise some interesting questions when you pose questions such as, can law enforcement, legislation, and prosecutors keep pace? This is something that we all are facing no matter what country we are in and I have to say that it's mind boggling to look at all the different legislative frameworks that you are working with in the U.S. At this point I would like to invite Professor Taylor to make some comments on the research.