October 2008 Quick Links, Part 3

By Eric Goldman

Pornography

* Can you believe this? A 15 year old girl took nude photos of herself using her cellphone and sent the photos to her peers. She is now being prosecuted on child pornography charges. The girl’s behavior sounds more like a cry for help than a criminal act.

* Judges are pushing back against online child porn downloading cases.

* PROTECT Our Children Act (S.1738). If I were a legislator, I would name all of my bills (regardless of substantive topic) “Protect Our Children Act” to ensure passage. Among other things, the law creates a new crime of “child pornography that is an adapted or modified depiction of an identifiable minor” (assuming this survives First Amendment scrutiny, no more photoshopping Miley Cyrus’ face onto a naked woman’s body). The law also modifies existing law to require that websites and Internet access providers who find child porn on their network to forward it and other information to the CyberTipline operated by the National Center for Missing and Exploited Children.

Online Crimes

* Sarah Palin email hack indictment. Orin’s comments.

* HR 5938. Congress amended the Computer Fraud & Abuse Act again to increase the penalties and criminalize conspiracies to violate the law.

* S 431, Keeping the Internet Devoid of Sexual Predators Act of 2008 or the `KIDS Act of 2008′. Wired’s critique. This law requires sex offenders to register their email addresses with a central database and then permits social networking sites to access the database and block registrations from the sex offenders. The most interesting aspect of the law is that it tries to define a social networking site as: “an Internet website (i) that allows users, through the creation of web pages or profiles or by other means, to provide information about themselves that is available to the public or to other users; and (ii) that offers a mechanism for communication with other users where such users are likely to include a substantial number of minors; and (iii) whose primary purpose is to facilitate online social interactions.” Is there any Web 2.0 site that does not qualify? Any wagers about how long it will take Congress to change this law to require social networking sites to block sex offenders’ email addresses rather than making it optional as this law states?

* State v. Ellison, 2008 WL 4531860 (Ohio App. Ct. Oct. 10, 2008). Two childhood friends have a falling out. One posts an allegation on her MySpace page that the other is a child molester. After the district court convicted her of harassment via a telecommunications device, the appellate court overturned the conviction because she lacked sufficient intent to harass.

Miscellaneous

* Ryan Haight Online Pharmacy Consumer Protection Act of 2008, HR 6353. “No controlled substance that is a prescription drug as determined under the Federal Food, Drug, and Cosmetic Act may be delivered, distributed, or dispensed by means of the Internet without a valid prescription.”

* Gotbaum ex rel. Gotbaum v. City of Phoenix, 2008 WL 4628675 (D. Ariz. Oct. 17, 2008). Malicious blog posts in local Phoenix blogs about a lawsuit aren’t enough pre-trial publicity to warrant a change in venue.

* Bursac v. Suozzi, 2008 WL 4830541 (N.Y. Sup. Ct. Oct. 21, 2008). Online shaming of DWI suspects before conviction violates due process. Are you listening, FTC?

* Canadian court: linking to defamatory material is not defamation.

* In an attempt to forestall further movement on the Global Online Freedom Act, the search engines released a high concept statement on how they won’t help repressive regimes.

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