Internet sexual crime legislation in Michigan - Page 1
|Previous||1 of 17||Next|
small (250x250 max)
medium (500x500 max)
Michigan Legislative Service Bureau Legislative Research Division Research Report Vol. 22 No. 2 Revised August 2003
|Title||Internet sexual crime legislation in Michigan|
|Creator||Connors, Paul G.|
|Contributors||Michigan. Legislative Research Division.|
|Publisher||Michigan Legislative Service Bureau, Legislative Research Division|
KFM4284.5.C65 C662 2003
Internet--Law and legislation--Michigan.
Internet and children--Michigan.
Child sexual abuse--Michigan.
|Description||Rev. Aug. 2003.; Title from PDF cover.; Includes bibliographical references.|
|Format-Extent||1 electronic text : PDF file.|
|PDI.Publisher||Michigan Legislative Service Bureau, Legislative Research Division,|
|Transcript||Michigan Legislative Service Bureau Legislative Research Division Research Report Vol. 22 No. 2 Revised August 2003 THE LEGISLATIVE RESEARCH DIVISION Since 1941, the Legislative Service Bureau has been assisting legislators and their staffs by providing confidential, nonpartisan services. Tracing its origins to the Legislative Reference and Information Department established in 1907, the Bureau derives its mission from Article IV, Section 15 of The Constitution of the State of Michigan of 1963, which specifically calls for the bi- partisan Legislative Council to maintain “ bill drafting, research, and other services for the members of the legislature.” Consisting of an experienced staff, the Legislative Research Division, under the strict conditions of confidentiality, provides timely, relevant, and accurate analysis and information to assist legislators in each step of the legislative process. The Legislative Research Division answers between 4,000 and 5,000 requests annually, prepares a number of research reports and issue briefs, and is responsible for a number of the legislature’s standard booklets. The division legislative analyst drafts between 250 and 300 public policy resolutions annually along with numerous substitutes and amendments. The division also provides legislators with a diverse collection of resource materials through the Research and Reference Collection. In all of its work, the Bureau will not reveal the name of a requesting party or release our work to others without permission. A list of recently released publications by the Legislative Research Division is contained in the inside of the back cover of this report. The Legislative Service Bureau address is 124 West Allegan, 4th Floor, P. O. Box 30036, Lansing, Michigan 48909- 7536. This paper was prepared by Paul G. Connors, Research Analyst, Legislative Research Division, Michigan Legislative Service Bureau. For further information, you may wish to contact the Legislative Research Division at 517- 373- 0472 or contact Paul G. Connors at pconnors@ legislature. mi. gov. Michigan Legislative Service Bureau Legislative Research Division Research Report Volume 22, No. 2 Revised August 2003 TABLE OF CONTENTS Introduction ............................................................................................................. 1 Solicitation of a Person Believed to be a Minor ........................................................................................................ 3 Cyberstalking Law .................................................................................................. 5 Indecent Materials Law........................................................................................... 6 Library Internet Restriction Laws ........................................................................... 8 “ Virtual” Child Pornography Act.......................................................................... 10 Conclusion............................................................................................................. 11 INTRODUCTION New computer technology presents law enforcement agencies with challenging problems. Foremost among these difficulties is protecting children from Internet predators. Whereas historically, child predators found their victims in schoolyards, playgrounds, shopping malls, and other public places, today’s “ cybermolesters” prey on children in online “ chat rooms” from the privacy of their own homes. The sheer number of young people, particularly those between the ages of 9 and 17, using the Internet today makes concerns of online victimization well- founded. In August 2000, 43.6 million U. S. households, or 41.5 percent of all households, had Internet access. This was a 58 percent increase from the 26.2 percent in December 1998. In Michigan, 42.1 percent of the total 3,709,000 households had Internet access. The tremendous growth in Internet use has occurred across all demographic categories, including income and education levels, races, location, and household types. Among the highest users of the Internet are children between the ages of 9 and 17. From December 1998 to August 2000, the national use among this age group increased from 43 percent to 53.4 percent, or from 15.4 million to 19.6 million. 1 Even as the number of U. S. households with Internet access increases, there is scant scientific information on children’s online experiences. 2 One of the few examinations was conducted by the National Center for Missing and Exploited Children ( NCMEC). In its June 2000 report, the NCMEC reported that within the previous year: • Nearly 1 in 5 children in this country had received a sexual solicitation or approach. • One in 33 had received an aggressive sexual solicitation or approach. • One in 4 had an unwanted exposure to pictures of naked people or people having sex. • One in 17 was threatened or harassed. • Less than 10 percent of sexual solicitations and only 3 percent of unwanted exposure episodes were reported to law enforcement authorities, an Internet service provider, or a hotline. • About 25 percent of the youth who encountered a sexual solicitation or approach told a parent. • Almost 40 percent of those reporting an unwanted exposure to sexual material told a parent. 1 United States Department of Commerce, Economics and Statistics Administration and National Telecommunications and Information Administration, Falling Through the Net: Toward Digital Inclusion. A Report on Americans’ Access to Technology Tools, ( October 2000) 2, 22, 42, 51. See http:// search. ntia. doc. gov/ pdf/ fttn00. pdf 2 Journal of the American Medical Association ( JAMA), “ Risk Factors For and Impact of Online Sexual Solicitation of Youth,” ( June 2001) 285: 3011. 2 • Only 17 percent of youth and approximately 10 percent of parents could name a specific authority ( FBI, CyberTipline, or an Internet service provider, etc.) to which they could make a report. 3 With so many youths online and vulnerable to predators, it is extremely important for state statutes to keep pace with technological advances. If not, law enforcement may lack the statutory authority to proceed in cases where substantial evidence exists to prove criminal activity. The Ninetieth Legislature ( 1999- 2000) enacted several laws dealing with high- technology sexual conduct crimes, particularly those involving sexual predators soliciting minors on the Internet. Senator Mike Rogers sponsored 1999 PA 32 ( Senate Bill No. 7). This act amended the Michigan Penal Code ( 1931 PA 328), in part, to prohibit the use of the Internet to communicate with any person for the purpose of committing, attempting to commit, conspiring to commit, or soliciting another to commit any of the following crimes when the victim or intended victim was a minor: • Involvement in child sexually abusive activity or pornographic material. • Stalking or aggravated stalking. • First-, second-, third-, or fourth- degree criminal sexual conduct ( CSC). • Assault with intent to commit CSC. • Solicitation of a child for immoral purposes. • Recruitment or inducement of a minor to commit a felony. • Kidnapping of a child under the age of 14. This measure was tie- barred to 1999 PA 39 ( House Bill No. 4345). Sponsored by Representative Jim Howell, this act, which amended the Code of Criminal Procedure ( 1927 PA 175), stipulated that a first offense was a felony punishable by up to two years imprisonment, and a second or subsequent offense was punishable by up to five years imprisonment. Senator Rogers also sponsored 2000 PA 185 ( Senate Bill No. 894). This act amended the Michigan Penal Code, in part, to revise offenses and penalties for Internet or computer offenses provided for in 1999 PA 32. Under the act, the penalty varies based on the penalty for the underlying crime as shown in Table # 1 ( Table provided by the Senate Fiscal Agency in the relevant bill analysis). 3 NCMEC, Online Victimization: A Report on the Nation’s Youth, ( June 2000) 1- 50. For a related study see JAMA, “ Risk Factors,” 3011- 3014. See http:// www. missingkids. com/ download/ nc62. pdf 3 TABLE # 1 Penalty for Underlying Crime Offense Level Maximum Imprisonment Maximum Fine Less than 1 year Misdemeanor 1 year $ 5,000 1- 2 years Felony 2 years 5,000 2- 4 years Felony 4 years 5,000 4- 10 years Felony 10 years 5,000 10- 15 years Felony 15 years 10,000 15 years— Life Felony 20 years 20,000 Senator William Van Regenmorter sponsored 2000 PA 183 ( Senate Bill No. 1162). This act amended the Code of Criminal Procedure ( 1927 PA 279) to include in the sentencing guidelines the revised penalties in 2000 PA 185. This act established the class and statutory maximum for using a computer to commit those crimes, according to the maximum term of imprisonment applicable to the crime committed, as shown in Table # 2. ( Table provided by the Senate Fiscal Agency in the relevant bill analysis) TABLE # 2 Maximum Term of Crime ( Years) Felony Class At least 1 but less than 2 G At least 2 but less than 4 F At least 4 but less than 10 D At least 10 but less than 20 C At least 20 or life C SOLICITATION OF A PERSON BELIEVED TO BE A MINOR In December 1999, Senator Mike Rogers introduced Senate Bill No. 895. This bill would have amended section 145d of the Michigan Penal Code ( 1931 PA 328), as amended, being MCL § 750.145d, to prohibit a person from using the Internet to solicit a minor or to solicit a person “ believed by that person to be a minor” to commit an illegal act. The bill died in the Senate Committee on Judiciary. Senate Bill No. 895 was introduced to close a loophole in the wake of a highly publicized lawsuit. In 1998, Wayne County established the Cybersheriff Unit, the first state unit designed to target online sexual predators who attempted to arrange sex with young girls. Within the first hour that deputies went into online chat rooms pretending to be young girls, they got 260 responses from men asking how old they were. Only 8 of the men wrote back to say that said girls were too young to continue talking with online. 4 From 4 Detroit Free Press, “ Cyber Unit Has Message For Sexual Predators,” November 11, 1998; The Detroit News, “ Sheriff’s Online Sex Sting Stalls, November 22, 1999; Time, “ Sipowicz Goes Cyber: As Internet Crime Proliferates, Local Cops— Most Of Them Young— Pioneer A New Beat On The Web,” April 10, 2000. 4 January 1999 to November 1999, the cyber unit arrested 8 men. However, only one man was convicted and he pleaded guilty to a lesser charge that carried no jail time and three years probation. Moreover, the case against another defendant, who faced 20 years for child sexual abuse and solicitation of criminal sexual conduct and distributing obscene matter to a minor, was dismissed in circuit court. The lower court ruled that each of the charged offenses required the involvement of a minor and that it was legally impossible for the defendant to have committed or to have attempted to commit the charged offenses because no minor was involved. [ bold emphasis added] The prosecution appealed the case to the Michigan Court of Appeals in People v Christopher Thousand. In this case, a Wayne County sheriff deputy, posing as a 14- year old girl named “ Bekka,” was instructed to log onto Internet chat rooms for the purpose of identifying persons using the Internet as a means for engaging in criminal activity. From December 9 through December 16, 1998, Bekka engaged in sexually explicit chat room conversation with the defendant, who identified himself as a 23- year- old male from Warren. The defendant, who also revealed his real name to Bekka and sent her, via the Internet, a photograph of his face and genitalia, agreed to meet “ her” at a local McDonald’s restaurant. At the predetermined time, the defendant was then arrested. Later, his computer was seized from his home. A search of the hard drive revealed electronic logs of Internet conversations matching those of the undercover sheriff deputy. The Michigan Court of Appeals, in People v Christopher Thousand ( 241 Mich App 102), affirmed the lower court’s dismissal of the charges of attempted dissemination of obscene material to a minor. The court opined: Defendant’s conduct at issue is the e- mailing of a picture of his penis to “ Bekka.” Thus, while defendant believed he was sending the picture to a fourteen- year- old girl named Bekka, he in fact was sending it to an adult male named Deputy Liczbinski. We believe that this, too, falls within the area of legal, rather than factual, impossibility. The e- mail was sent to its intended recipient: a person whose chat- room screen name was “ Bekka.” Because “ Bekka” was, in fact, an adult, an essential requirement to the statute was not met: dissemination to a minor. [ bold emphasis added] The Michigan Court of Appeals also affirmed the dismissal of the charges of solicitation to commit third- degree criminal sexual conduct. The court, however, reversed the dismissal of the most serious charge against the defendant, child sexually abusive activity. The court opined: 5 The question before us is whether it makes a difference to the issue of defendant’s guilt that “ Bekka” is, in fact, an adult rather than a fourteen-year- old girl. We conclude that it does not. Because the child sexually abusive activity statute requires only mere preparation, rather than actual abuse activity, we are satisfied that a situation such as the case at bar comes within the provision of the statute [ MCL § 750.145c]. 5 The case was appealed to the Michigan Supreme Court ( 463 Mich 906), which rendered its opinion on July 27, 2001. On the charge that the defendant was guilty of child sexually abusive activity, the Michigan Supreme Court denied defendant’s application for leave to appeal from this portion of the Court of Appeals opinion, and the charge was not brought before the court. The court affirmed the appeals court’s dismissal of the charge of solicitation to commit third- degree criminal sexual conduct. However, the court reversed the appeals court’s dismissal of the charge of attempted dissemination of obscene material to a minor. The court ruled that the state supreme court has never recognized the concept of “ impossibility” as a valid defense to a charge of attempt. It opined: Defendant in this case is not charged with the substantive crime of distributing obscene material to a minor… It is unquestioned that defendant could not be convicted of that crime, because defendant allegedly distributed obscene material not to “ a minor,” but to an adult man. Instead, defendant is charged with the distinct offense of attempt, which requires only that the prosecution prove intention to commit an offense prohibited by law, coupled with conduct toward the commission of the offense. The notion that it would be “ impossible” for the defendant to have committed the completed offense is simply irrelevant to the analysis…[ bold emphasis added] CYBERSTALKING LAW Cyberstalking generally refers to the use of the Internet to place the victim in reasonable fear of death or bodily injury. Although there are no comprehensive statistics on cyberstalking and online harassment, Working to Halt Online Abuse ( WHOA) estimates that in 2000 the organization, and others like it, received a total of 50,000 complaints. Further, law enforcement agencies estimate that between 20 and 40 percent of all stalking cases involve electronic communication. 6 5 People v Thousand 241 Mich App 102. 6 The Detroit News, “ Stalkers Threaten Web Users,” May 21, 2001; National Conference of State Legislatures ( NCSL), “ State Computer Harassment or ‘ Cyberstalking’ Laws,” December 27, 2002. See http:// www. ncsl. org/ programs/ lis/ cip/ stalk99. htm. For further information on Cyberstalking see U. S. Department of Justice, Stalking and Domestic Violence, Report to Congress, May 2001 at: http:// www. ncjrs. org/ pdffiles1/ ojp/ 186157. pdf 6 As of December 2002, 44 states, including Michigan, have passed laws prohibiting online stalking and harassment. 7 Michigan passed its “ cyberstalking” law in 1999 following the cyberstalking of a Novi woman. In November 1999, the Novi woman sued a former boyfriend over allegations that he used the Internet to stalk her. However, she could not file criminal charges because state stalking laws did not deal specifically with electronic stalking. In response to this situation, 8 Senator Rogers sponsored 1999 PA 235 ( Senate Bill No. 562). This act amended the Michigan Penal Code ( 1931 PA 328), in part, to prohibit the use of the Internet to communicate with any person for the purpose of committing, attempting to commit, conspiring to commit, or soliciting another to commit stalking. In addition, Representative Howell sponsored 2000 PA 475 ( House Bill No. 6052). This act amended the Michigan Penal Code to prohibit the “ posting of a message” without the victim’s consent if the person posting the message knows or has reason to know that the information could cause 2 or more separate noncontinuous acts of repeated, or continuing unconsented contact with the victim. In addition, posting of the message, in part, would have to be intended to cause conduct that would terrorize, frighten, intimidate, threaten, harass, or molest the victim. INDECENT MATERIAL LAWS As of June 2000, at least fifteen states had adopted laws to prohibit sending indecent materials through the computer to minors for the specific purpose of inducing them to engage in sexual acts. For the most part, state efforts to regulate Internet obscenity and child pornography laws have met with virtually no constitutional challenges because obscenity and child pornography are not protected by the First Amendment. However, Michigan and three other states have had difficulty in crafting constitutional legislation prohibiting indecent or harmful speech, which are constitutionally protected. However, such prohibitions are constitutional as long as the state has a “ compelling interest” and if it is the “ least restrictive” means available to solve the problem. 9 Senator Beverly Hammerstrom sponsored 1999 PA 33 ( Senate Bill No. 117). This act, in part, amended 1978 PA 33, which prohibited the dissemination, exhibition, or display of certain sexually explicit matter to minors, to include material made available on the Internet. The act also revised the offense of “ distributing obscene matter to a minor” by referring, instead, to “ disseminating sexually explicit matter to a minor” and making that 7 NCSL, “ State Computer Harassment or ‘ Cyberstalking’ Laws,” December 27, 2002. 8 The Detroit News, “ Novi Woman Files Suit Against Ex- eBay Worker,” November 30, 1999; The Detroit News, “ Online Stalkers Corral[ sic] led,” December 12, 1999. For additional information on Cyberstalking, see United States Department of Justice, Cyberstalking: A New Challenge for Law Enforcement and Industry, A Report from the Attorney General to the Vice President ( August 1999). 9 NCSL, State Legislatures Magazine, “ Children and the Net,” June 2000. The courts also struck down New Mexico, New York, and Virginia Internet indecency acts. See http:// www. ncsl. org/ programs/ pubs/ 600online. htm# kids 7 offense a felony. It also revised the offense of displaying “ obscene” matter to a minor by referring, instead, to “ sexually explicit” matter. According to the Senate Fiscal Agency bill analysis of the package, the dissemination offense does not apply to an Internet or computer network service provider, who, in good faith and without knowledge of the nature of the sexually explicit matter or the status of a minor, provided the medium for disseminating the sexually explicit matter. The offense also does not apply to a person who disseminates sexually explicit matter that is a public document, publication, record, or other material issued by a state, local, or federal official or governmental entity or an accurate republication of that material. In June 1999, Cyberspace Communications and 8 other plaintiffs filed suit to block the implementation of 1999 PA 33. On July 23, 1999, the United States District Court in Detroit granted a preliminary injunction preventing the act from going into effect on August 1, 1999. In its decision, the court, in part, opined that even if the state had a compelling interest to shelter its children from sexually explicit material until maturity, 1999 PA 33 likely violates the First and Fourteenth Amendments because it effectively bans speech that is constitutionally protected for adults. Moreover, it likely violates the Commerce Clause of the United States Constitution because 1999 PA 33 regulates conduct occurring wholly outside the State of Michigan. 10 On November 15, 2000, the United States Court of Appeals for the Sixth Circuit ( No. 99- 2064) affirmed the district court’s order granting the preliminary injunction and remanded this case for further proceedings. 11 In a similar case, in 1996 Congress passed the Communications Decency Act ( CDA), part of the Telecommunications Act ( P. L. 104- 104). The CDA was overturned in American Civil Liberties Union v Reno ( 117 S. Ct. 2329 ( 1997)). In this decision, the United States Supreme Court rejected the government’s contention that the act only prohibited dissemination of indecent messages to minors and therefore did not unconstitutionally prevent communication among adults. In arguing that the CDA does not so diminish adult communication, the Government relies on the incorrect factual premise that prohibiting a transmission whenever it is known that one of its recipients is a minor would not interfere with adult to adult communication. The findings of the District Court make clear that this premise is untenable. Given the size of the potential audience for most messages, in the absence of a viable age verification process, the sender must be charged with knowing that one or more minors will likely view it. Knowledge that, for instance, one or more members of a 100 person chat group will be minor-— and therefore that it would be a crime to send the group an indecent message— would surely burden communication among adults. 10 Cyberspace Communications v. Engler, E. D. Mich 1999, 55 F. Supp. 2d 737. 11 ACLU, “ ACLU v Reno II Victory!,” June 22, 2000. 8 In 1998, Congress responded to the supreme court ruling by enacting the Child Online Protection Act ( COPA) as part of the Omnibus Appropriations Act ( P. L. 105- 277, Title XIV of Division C). The act, which sought to draft the statute narrowly enough to avoid the constitutional problems of the Communications Decency Act ( CDA), limited its scope to commercial web sites content, which is less protected than other speech. It also criminalized the knowing dissemination of material that is “ harmful to minors” that violates “ contemporary community standards,” a phrase Congress borrowed from the supreme court’s test for obscenity. Violations of the law included fines up to $ 100,000 and up to six months in prison. In addition, the law provides that adults are required to use access codes or other means of age verification such as a credit card number before viewing objectionable online material. In June 2000, in ACLU v Reno II ( Civil Action No. 99- 1324), the United States District Court of Appeals for the Third Circuit Court in Philadelphia issued a preliminary injunction against enforcement of COPA. The court blocked the law on the ground that the “ contemporary community standards” reference violated the First Amendment when applied to the worldwide community of the Internet. The court maintained that using a community standard, as opposed to a “ national standard,” gave “ the most puritan of communities” an effective veto power over Internet content. The United States Justice Department appealed the decision to the United States Supreme Court. In May 2002, the supreme court, in Ashcroft v ACLU ( 00- 1293), upheld the law. It ruled that the “ contemporary community standards” reference does not necessarily violate the First Amendment. However, eight of the nine judges, for differing reasons, expressed other free speech concerns and ruled that the law cannot go into effect until the appeals court addresses these concerns. 12 LIBRARY INTERNET RESTRICTION LAWS As of June 2003, twenty states have enacted laws requiring both public libraries and schools to adopt policies that would protect minors from access to harmful materials. However, only Arizona requires public libraries to install Internet filtering software to prevent minors from viewing obscene or sexually explicit material. Similarly, only Arizona and South Dakota require public schools to install Internet filtering software. 13 Currently, Michigan law gives public libraries the option of using filtering software. In 1999, Representative Nancy Cassis sponsored PA 37 ( House Bill No. 4191). This act amended the Library Privacy Act ( 1982 PA 455), in part, to allow public libraries to shield children from exposure to certain Internet material by: 12 Ashcroft v ACLU ( 00- 1293); The Washington Post, “ Justices Partially Back Cyber Pornography Law,” May 14, 2002; The New York Times, “ Justices Give Reprieve to an Internet Pornography Statute,” May 14, 2002. 13 NCSL, “ Children and the Internet: Laws Relating to Filtering, Blocking and Usage Policies in Schools and Libraries,” June 30, 2003. See http:// www. ncsl. org/ programs/ lis/ CIP/ filterlaws. htm. 9 • Making available to people of any age computer terminals that are restricted from receiving obscene or sexually explicit matter that is harmful to minors; or • Reserving to people 18 years of age or older, or to people under 18 who are accompanied by a parent or guardian, one or more terminals that are not restricted from receiving any material. According to the Senate Fiscal Agency, some people believed that this act was too permissive because it allowed libraries to voluntarily restrict Internet access to minors instead of requiring restricted access. 14 Subsequently, Senator Mike Rogers sponsored 2000 PA 212 ( Senate Bill No. 936). This act amended the Library Privacy Act ( 1982 PA 455) to require public libraries to adopt both of the restrictions permitted under 1999 PA 37 or use filtering software designed to prevent a minor from viewing obscene or sexually explicit matter that is harmful to minors. PA 212 of 2000 is similar to the federal Children’s Internet Protection Act ( CIPA), P. L. 106- 554, which Congress passed in December 2000. Public libraries and schools receive two sources of federal financial assistance that assist them in providing their patrons with Internet access. First, the E- rate program requires telecommunication carriers to discount the rate they charge libraries and schools based on the low- income population they serve. In fiscal year 2002, the E- rate program provided libraries with $ 58 million in discounted rates. Second, the Library Services and Technology Act ( LSTA) in fiscal year 2002 provided $ 149 million in direct grants to link libraries and schools to the Internet. In Michigan, about half of the state’s 387 libraries shared $ 6 million in federal assistance in 2002. Because individual libraries apply for grants, the amounts vary according to community needs. For example, whereas Ann Arbor and Canton Township did not apply for federal funding, Plymouth received $ 4,200 and Detroit $ 187,000. These discounts and grants are controversial because it is estimated that there are more than 100,000 pornographic Web sites that can be accessed for free and without providing any registration information and tens of thousands of these Web sites contain child pornography. Congress was so concerned that the E- rate and LSTA programs were facilitating access to illegal obscenity and harmful pornography that it passed CIPA. This act bars both public schools and libraries from receiving federal assistance for Internet access unless they install software to block obscene or pornographic images and prevent minors from accessing material harmful to them. 15 In March 2001, the American Library Association ( ALA) ( in ALA v United States, Civil Action No. 01- 1303 ED Pa.) sued the Federal Communications Commission ( FCC) to overturn CIPA. A similar challenge was filed in Multnomah County Library v United States ( Civil Action No. 01- 1322 ED Pa.). The two cases have been consolidated and the U. S. District Court in Philadelphia issued its ruling in May 2002. In its defense of CIPA, the Justice Department argued that Internet pornography was so pervasive that 14 Senate Fiscal Agency, Senate Bill No. 936: Enrolled Analysis, January 31, 2001. 15 The Washington Post, “ Supreme Court Upholds Internet Filters,” June 23, 2003; Foxnews. com, “ Librarians Debate Internet Filters,” March 31, 2002; The Detroit News, “ Metro Libraries Weigh Fed Cash or Web Filters,” July 18, 2003. 10 protections are necessary to keep it away from children, and that the law simply calls for libraries to use the same care in selecting online content that they use for books and magazines. If libraries want to provide unfiltered web access, they can refuse federal spending. Plaintiffs argued that computer programs cannot make distinctions between protected and unprotected speech. By forcing public libraries to install filtering technology, the law suppresses material that is protected under the First Amendment. For example, the law inadvertently blocks out legitimate Web sites that provide information about breast cancer and individuals whose names are erroneously but inextricably associated with sex ( i. e. Revolutionary War hero John Hancock). The plaintiffs also argued that the law preempts community control over libraries and the judgment of local librarians. 16 In a unanimous decision, the court overturned the law, ruling in part that public libraries that carry out CIPA block access to Web sites that contain protected speech. The court opined that although the federal government had a compelling interest in preventing the dissemination of obscenity, child pornography, or, in the case of minors, material harmful to minors, it likened library Internet terminals to a “ designated public forum” such as sidewalks and parks. In doing so, the court deemed filtering software a “ content- based restriction” that violated the First Amendment principles associated with a public forum. The court added, “ We find it currently impossible, given the Internet’s size, rate of growth, rate of change, and architecture, and given the state of the art of automated classification systems, to develop a filter that neither underblocks nor overblocks a substantial amount of speech.” The court was also worried that library patrons who wanted to view sites blocked by filters may be embarrassed or lose their right to remain anonymous because they would have to ask permission to have the sites unblocked. The appellate court’s decision addressed only the provisions of the law affecting libraries; public schools were still subject to the law’s provisions. The decision was then appealed to the United States Supreme Court. 17 In June 2003, the United States Supreme Court ( 02- 361), in a 6 to 3 decision, for the first time upheld a law restricting Internet pornography by ruling that CIPA did not violate the First Amendment. 18 The court opined that designated public forum status, which has “ immemorially been held in trust for the use of the public and, … been used for purposes of assembly, communication of thoughts between citizens, and discussing public questions,” did not apply to library Internet terminals. The court reasoned that the mass 16 Ibid.; The National Law Journal, “ Lawyers Prepare to Challenge Federal Net Filter Law,” March 12, 2002. See http:// www. law. com/ jsp/ printerfriendly. jsp? c= LawArticle& t= PrinterFriendlyArticle& cid= 1019508857183 17 The Washington Post, “ Judges Strike Down Internet Porn Filters,” May 31, 2002; The New York Times,” June 1, 2002; NCSL, " Children and the Internet: Laws Relating to Filtering, Blocking and Usage Policies in Schools and Libraries," December 27, 2002. See http:// www. ncsl. org/ programs/ lis/ cip/ filterlaws. htm 18 American Bar Association Journal, E Report, “ Net Porn As A Funding Issue: Anti- Porn Act Survived Because It Wasn’t Criminal Law, Experts Say.” June 27, 2003. See http:// www. abanet. org/ journal/ ereport/ j27ala. html 11 medium did not exist until quite recently and that public libraries did not acquire said terminals to “ create a public forum for Web publishers to express themselves, any more than it collects books in order to provide a public forum for the authors of books to speak.” Instead, libraries provide Internet access and other library resources to “ facilitate research, learning, and recreational pursuits by furnishing materials of requisite and appropriate quality.” In regard to web filtering software’s tendency to erroneously block protected speech, the court reasoned that embarrassed patrons may simply request that the software be disabled. “[ T] he Constitution does not guarantee the right to acquire information at a public library without any risk of embarrassment.” Justice Anthony Kennedy, in a concurring judgment, also stated: There are, of course, substantial Government interests at stake here. The interest in protecting user from material inappropriate for minors is legitimate, and even compelling, as all Members of the Court appear to agree. Given this interest, and the failure to show that the ability of adult library users to have access to the material is burdened in any significant degree, the statute is not unconstitutional on its face. “ VIRTUAL” CHILD PORNOGRAPHY ACT In 1996, Congress passed the Child Pornography Prevention Act ( CPPA), which expanded the definition of illegal child pornography to include “ virtual” depictions that “ are or appear” to be a minor engaging in sexually explicit conduct. The law was supposed to counter then- emerging computer technology that allowed the alteration of innocent images of real children or the creation from scratch of simulated children posing in sexual acts. Proponents argued that such depictions are intrinsically related to the sexual abuse of real children. While no real children may be actually harmed in creating the material, real children were nevertheless harmed by sustaining the market for such pornography and by feeding the prurient appetites of pedophiles or child molesters. The act carried a 15- year prison term for possession of virtual child pornography and up to 30 years for creating or distributing such images. In 1999, the United States Court of Appeals for the Ninth Circuit in San Francisco ruled that the CPPA, in part, violated the First Amendment. It ruled that the government did not show a convincing connection between computer- generated child pornography and the exploitation of actual children. It opined that if CPPA were deemed constitutional in the name of protecting children, all visual messages of adolescent sexuality would be forever barred regardless of their scientific, artistic or educational value. The court, however, did not strike down the provision that banned the use of real children in computer- altered sexual images. In October of 2001, the Bush administration, in Ashcroft v The Free Speech Coalition ( No. 00- 795) defended the law before the United States Supreme Court. On April 16, 2002, the court, in a 6 to 3 decision, upheld the federal circuit court ruling that the First Amendment protects pornography or other sexual images that only appear to depict real children engaged in sex. In contrast, the dissenters argued that increasing technological sophistication of sexual images make it too easy for pornographers to avoid liability by claiming that their material did not depict real children. Some 19 states, not 12 including Michigan, have enacted virtual child pornography laws that are now presumably unconstitutional. 19 CONCLUSION In August 2000, 42.1 percent of 3,709,000 Michigan households had Internet access. Among the highest users of the Internet are children between the ages of 9 and 17. According to a 2000 report by the National Center for Missing and Exploited Children, nearly 20 percent of children that use the Internet had received a sexual solicitation or approach. Moreover, 25 percent had an unwanted exposure to pictures of naked people or people having sex. With so many children online and vulnerable to “ cybermolesters” it is important for state statutes to keep pace with technological advances. If not, law enforcement may lack the statutory authority to proceed in cases where substantial evidence exists to prove criminal activity. Consequently, the Ninetieth Legislature ( 1999- 2000) enacted several important laws dealing with high- technology sexual conduct crimes, particularly those involving sexual predators soliciting minors on the Internet. One of these laws ( 1999 PA 33) is being challenged in court. On November 2000, the United States Court of Appeals for the Sixth Circuit affirmed a lower court preliminary injunction of 1999 PA 33, which amended the Disseminating, Exhibiting, or Displaying Sexually Explicit Matter to Minors Act ( 1978 PA 33). The appeals court ruled that the state law likely violates the First and Fourteenth Amendments and remanded the case for further proceedings. 1999 PA 33 is similar to the 1998 federal Child Online Protection Act ( COPA). The constitutionality of this federal act was challenged in the United States Supreme Court. In May 2002, the high court, in Ashcroft v ACLU, partially upheld the law. It ruled that the “ contemporary community standards” reference does not necessarily violate free speech protections. However, the law cannot go into effect until the appeals court addresses other free speech concerns. In 2000, the Michigan Legislature passed PA 212, which amended the Library Privacy Act ( 1982 PA 455). This act required public libraries that install Internet filtering software to prevent minors from viewing obscene or sexually explicit material. This act is similar to the federal Children’s Internet Protection Act ( CIPA), which the United States Supreme Court ruled constitutional in June 2003. 19 NCSL, “ Children and the Net,” 33; The New York Times, “ Virtual Child Pornography Ban Overturned,” April 17, 2002; The Washington Post, “ Law Aimed at ‘ Virtual’ Porn Overturned,” April 17, 2002. Legislative Service Bureau’s Legislative Research Division Publications The following is a list of recently released publications by the Legislative Research Division. If you would like a copy of the following reports, please contact us at 517- 373- 0472 or write to us at P. O. Box 30036, Lansing, Michigan, 48909- 7536. • A Citizen’s Guide to State Government, Standard Booklet, June 2003. • Blood Alcohol Concentration Debate, Research Report, Vol. 21, No. 8, Revised December 2002. • Capital Punishment, Research Report, Vol. 4, No. 6, Revised September 2002. • Casino Gaming and the Role of the Michigan Legislature, Research Report, Vol. 16, No. 1, Revised October 2001. • Compensation of Michigan Legislators, Research Report, Vol. 12, No. 5, Revised December 2002. • Forensic DNA Databases: Ramifications for Michigan, Research Report, Vol. 22, No. 3, July 2002. • Historical Districts in Michigan: Enabling Legislation & Appeals Process, Research Report, Vol. 23, No. 4, June 2003. • Internet Sexual Crime Legislation in Michigan, Research Report, Vol. 22, No. 2, Revised August 2003. • Michigan's Apportionment Puzzle, Research Report, Vol. 19, No. 2, January 2003. • Michigan's Certificate of Need: A Legislative History, Research Report, Vol. 22, No. 4, August 2002. • Michigan's Drinking Age, Legislative Topic, No. 15, February 2002. • Michigan’s Shall- Issue Carrying Concealed Weapons ( CCW) Law, Research Report, Vol. 21, No. 1, Revised October 2002. • Motor Fuel Taxation and the Road Funding Debate in Michigan, Research Report, Vol. 22, No. 5, Revised December 2002. • Popular Public Acts, Research Brief, No. 11, Revised January 2003. • Predatory Lending, Research Report, Volume 23, No. 5, July 2003. • Racial Profiling in Michigan, Legislative Topic, No. 24, January 2003. • Repeat Drunken Driver Laws in Michigan, Research Report, Vol. 18, No. 4, Revised December 2002. • Reports in Statutes: Regular Reports to the Legislative Branch Required in Statutes, Research Report, Volume 23, No. 6, August 2003. • Same- Sex Marriages and Civil Unions, Research Report, Vol. 23, No. 1, Revised January 2003. • Seat Belts on School Buses, Legislative Topic, No. 22, November 2002. • Summaries of the Public Acts of 1983- 84, 1985, 1986, 1987, 1988, 1989, 1990, 1991, 1992, 1993, 1994, 1995, 1996, 1997, 1998, 1999, 2000, and 2001 of the Michigan Legislature. • The Beverage Container Law in Michigan, Research Report, Vol. 22, No. 6, December 2002. • The Collection of Catalog and Internet Sales and Use Taxes in Michigan, Research Report, Vol. 21, No. 5, Revised December 2002.|