An article in today’s New York Times suggests that there is an “open gate for pedophiles” on YouTube because of the way the video hosting service suggests videos to users.
If you look at one video of a partially clothed child on YouTube, the service’s algorithm will send you to more and more videos that are similar, the Times reports.
That has the effect of turning harmless videos of children into “sexualized imagery.”
A 200-month sentence imposed on a first-time child pornography offender was thrown out by the Second Circuit Court of Appeals on Friday because the judge erroneously assumed that the defendant must have committed a prior sex offense.
The reversal was the second time that the circuit court vacated the sentence imposed on Joseph Vincent Jenkins, who was convicted after trial of transporting child porn on thumb drives and laptops as he traveled to his parents’ vacation home in Canada. The first sentence, 225 months, was too long because there was no basis for Chief Judge Glenn T. Suddaby’s conclusion that Jenkins was at a high risk to re-offend. Jenkins had never been convicted before, was not accused of attempting to harm a child, and “never spoke to, much less approached or touched, a child.”
This time, Judge Suddaby erroneously imposed nearly seventeen years on a first-time, non-violent, child pornography offender by cherry-picking studies that, he said, showed that sex crimes against children are much more common than what is reported. He found that studies show “inconsistent findings concerning the prevalence rate of sex offending by non-production offenders.” Judge Suddaby went on to note features of Jenkins’s personality identified in a competency report, which, he said were correlated with sexually dangerous behavior. Based on this analysis, Judge Suddaby concluded that “it was likely that Jenkins had committed a prior–undetected–sex offense, that he therefore had a high risk of recidivism, that a lengthy sentence was justified.”
Imagine you are met on the tarmac getting off a plane at JFK Terminal Two by armed customs officers. They tell you to come with them. They drive you to a secure area in Terminal Four, where foreigners are “processed” — i.e detained until they are admitted into the U.S. or sent to immigration custody. At Terminal Four, the officers do a normal customs search, then ask you to wait in a windowless room. Plainclothes investigators enter and tell you that they are going to search your cell phone and iPad. “No you are not,” you say. “I have a Fourth Amendment right to be free of unreasonable searches and seizures.” They respond that the “protection of the Fourth Amendment does not apply at the U.S. border.” They give you a “choice” — you can leave, but you have to leave your cell phone and iPad behind to be searched. Or you can give them your passcodes and, if they don’t find anything on your devices, you can be on your way. You give them the passcodes. They find pictures they believe are child pornography — they are not — and take you away in handcuffs.
Is this a “routine” border search, or something else? Have your Fourth and Fifth Amendment rights been violated?
Those are questions that principal attorney Zachary Margulis-Ohnuma will argue tomorrow before a panel of judges at the New York Supreme Court Appellate Division, Second Department. The ACLU and Electronic Frontier Foundation argued in an amicus brief that, under these circumstances, a warrant based on probable cause is required to search the devices. The state believes the search was proper because a federal agent had some vague notion that a house associated with a family member of the defendant was at some point in the past used to download child pornography. We’ll argue that more is needed to justify a search of electronic items at the border, just like a warrant was required to search a cell phone incident to arrest in the 2014 Supreme Court case Riley v. California. Moreover, under these circumstances the provision of the passcodes was not a voluntary act but was the product of coercion, and thus information derived from the passcodes cannot be used against the defendant under the Fifth Amendment.
Starting this month, I have been teaching an innovative new class about computer crime and high-tech government surveillance at the Stevens Institute of Technology in Hoboken. The course covers legal developments over the last two decades that have shaped how the government investigates computer crimes, such as computer hacking and the distribution of child pornography, as well as conventional crimes like drug trafficking and fraud that have become more efficient by using new information technologies. The course syllabus can be found here.
The topics we will cover come directly from our hands-on work for clients at the Law Office of Zachary Margulis-Ohnuma over the past couple of years. They include:
On Monday, the New York Legislature passed a series of reforms that will significantly impact civil lawsuits and criminal prosecutions for sexual abuse of children. Senate Bill S2440, or the Child Victims Act, extends the statutes of limitations to allow victims who are abused before age 18 more time to file lawsuits — and more time for the police and prosecutors to bring criminal charges. Governor Cuomo is expected to sign the measure.
The Child Victims Act affects the law in three major ways:
The U.S. Sentencing Commission kicked off the new year with a comprehensive report analyzing data from federal sex crime cases. The report, which runs 81 pages plus a 62-page appendix of charts and graphs, contains some eye-opening conclusions. The most significant for child pornography cases is this: even though there is “little meaningful distinction between the conduct involved in receipt and possession offenses,” average sentences for receipt are much longer than sentences for possession. The Sentencing Commission has been calling on Congress to “align” the penalties for receipt and possession of child pornography since 2011. The effect on sentencing of the different child pornography offenses is shown in the following chart:
The takeaway is something we clearly already knew: what you plead to matters. Average sentences for possession are lower than sentences for receipt — 26 months lower on average — even though the conduct is the same. Distribution convictions, which carry the same mandatory minimums as receipt, are much higher. Defendants and their attorneys must press prosecutors to permit them to plead to possession and not receipt or distribution. Even though receipt or distribution can be charged in the vast majority of cases, some prosecutors are open to pleas to possession, especially if the defense team can present mitigating circumstances.
The effect of statutory mandatory minimums is especially significant because the U.S. Sentencing Guidelines, which used to be binding on sentencing judges, are now merely advisory. As a result, judges increasingly impose below-Guidelines sentences in child pornography cases, which is illustrated in the following chart from the Commission’s report:
Under the Sex Offender Registration Act, registered sex offenders must tell New York State about all “internet accounts with internet access providers” and “internet identifiers that such offender uses.” Does that mean you have to disclose your social media accounts?
Most police and the the State Division of Criminal Justice Services would have said yes. Police agencies routinely scour the internet looking for sex offenders who are on social media but have not properly disclosed their presence. People always thought hiding a social media account was a felony — failure to register under Corrections Law Sec. 168-t.
Turns out it is not.
Under the regulations implementing New York’s Sex Offender registration act, a person who “has a history of drug or alcohol abuse” is considered at higher risk for re-offense, and can be assessed with points that lead to a higher risk level. In People v. Weber the defendant was found with bags of marijuana at the time of his arrest and on a prior occasion. The hearing court assessed him points in the drug abuse category, pushing him over the line into Level Two. Level Two requires publication of an offenders information on the internet and lifetime registration.
But in an opinion handed down yesterday, the First Department Appellate Division, disagreed. The People had to show that either that the defendant had a history of abuse or that the drugs were somehow connected to the crime at issue. The Appellate Division reversed the Level Two adjudication because “even assuming [the defendant] could be found to have been a marijuana user, such use was not established to be more than occasional social use, and thus would not warrant the assessment of points under the risk factor for drug abuse.” That put the defendant down to Level One, requiring twenty years of registration, but no internet notification.
Former Congressman Anthony Weiner was just sentenced to 21 months in prison for sexting with a 15-year-old. At sentencing, his lawyer asked that he be sent to FCI Schuylkill in Pennsylvania. That seems to have been a mistake: Schuylkill is a medium-security prison, filled with violent offenders and replete with restrictive rules. Schuylkill has a satellite camp, but as a sex offender, Weiner is not eligible (he gets the “Sex Offender Public Safety Factor” and therefore must go to a secure facility). There are low-security federal prisons that would be far more pleasant and conducive to the year-and-a-half or so of introspective atonement that Weiner will endure while he waits to go to a halfway house. The New York Times wrote about Weiner’s placement in federal prison, but, unfortunately, just about everything in their story was wrong.
The bottom line is that “designation” to a particular federal prison is a complicated process with far-reaching consequences. Experiences in federal prison vary widely. Camps like the ones at Schuylkill and Otisville are unsecured and generally not unpleasant places to be. Contrast that with the “ADX” at Florence, Colorado, which is reserved for the most dangerous criminals in the United States and drives many of its residents mad. The Bureau of Prisons decides where you will go in the weeks after sentencing at a central facility in Grand Prairie, Texas. They rely on the Presentence Investigation Report (known as the PSR) for facts about you and plug those into a formula that determines your security level. It is essential that the information in the PSR is accurate as any mistake could change which facility you end up in. There is a small industry of experts who keep up with the daily changes in conditions within the Bureau of Prisons and can advocate for a particular designation. The process is laid out in this 108-page BOP policy.
The New York Times missed most of this in talking about Weiner, whose situation is not too different from many first-time federal offenders, including people convicted of child pornography. Being a former congressman and pledging himself to “a rigorous curriculum of rehabilitation and therapy” probably make no difference at all. Whatever his lawyer may have believed (and it does not seem like they thought about it beforehand), there is zero chance he would have been assigned to a prison in New York City: the three federal jails in New York are reserved for inmates who are awaiting sentencing or witnesses for the government, plus a small cadre of trusted inmates near the end of their terms who work in the local jails.
Two huge illicit markets operating on the Dark Web, AlphaBay and Hansa, were shut down today after being infiltrated by the government for the past several weeks. The sites had claimed up to 200,000 users, 40,000 vendors and 350,000 listings for illegal drugs, stolen credit card information, hacked computer code, counterfeit goods and other illegal items. A Canadian citizen based in Thailand was arrested last month in connection with AlphaBay.
The Dark Web consists of websites accessible only though the Tor network, an easy-to-use, technically sophisticated way to communicate anonymously over the internet. The technology, much to the dismay of governments around the world, has become popular with political dissidents as well as criminals hiding their activities from law enforcement. The Dark Web is home to numerous high-traffic online marketplaces with few limits on what can be bought or sold. These businesses conduct transactions in BitCoin, Ethereum and other cryptocurrencies.
According to the Department of Justice press releasee, AlphaBay users bought and sold “deadly illegal drugs, stolen and fraudulent identification documents and access devices, counterfeit goods, malware and other computer hacking tools, firearms, and toxic chemicals throughout the world.”
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