2H 2019 and Q1 2020 Quick Links, Part 6 (Pornography/CSAM)

May 1, 2020 · by · in Content Regulation

* People v. Austin, 2019 IL 123910 (Ill. Sup. Ct. Oct. 18, 2019). Illinois Supreme Court upholds a sui generis anti-NCP law as constitutional:

  •  “the sharing of a private sexual image in a personal and direct communication with an intended recipient does not demonstrate that the transmission was never intended to remain private.”
  • “section 11-23.5(b) implicates the freedom of speech and that the targeted speech does not fit into any first amendment categorical exception. Therefore, first amendment scrutiny is warranted.”

So far so good. Then….

  • “We conclude that section 11-23.5(b) is subject to an intermediate level of scrutiny for two independent reasons. First, the statute is a content-neutral time, place, and manner restriction. Second, the statute regulates a purely private matter.”

😲😲😲

  • “the substantial government interest of protecting Illinois residents from nonconsensual dissemination of private sexual images would be achieved less effectively absent section 11-23.5”
  • “section 11-23.5(b) is not overbroad. The statute prohibits a certain and limited category of knowing conduct that involves the unauthorized and intentional dissemination of an intensely personal image of another person. It encompasses only an image of a private and sexual nature, which the disseminator must know or understand is to remain private and which is disclosed without the consent of the person depicted in the image. Given the narrowly focused scope of section 11-23.5(b), we conclude that the statute does not prohibit a substantial amount of protected speech when judged in relation to the statute’s legitimate sweep. “

* State v. Casillas, 2019 WL 7042804 (Minn. Ct. App. Dec. 23, 2019). Minnesota’s sui generis anti-NCP law is struck down as unconstitutional:

  • “Minn. Stat. § 617.261 covers a wide range of expressive conduct. It covers the dissemination of a sexual image with knowledge that the person depicted in the image did not consent to the dissemination and that the image was obtained or created under circumstances in which the person depicted had a reasonable expectation of privacy. But it also covers the dissemination of a sexual image even if the disseminator did not know that the subject of the image did not consent to the dissemination, did not know that the image was obtained or created under circumstances indicating that the person depicted had a reasonable expectation of privacy, and did not cause or intend to cause a specified harm.”
  • “Even though some images subject to regulation under Minn. Stat. § 617.261 might satisfy the definition of obscenity and therefore may be proscribed consistent with the First Amendment, we cannot say, as a matter of law, that every image subject to regulation under the statute portrays sexual conduct in a patently offensive way and is therefore beyond First Amendment protection….we cannot say, as a matter of law, that every dissemination regulated under Minn. Stat. § 617.261 is beyond the protection of the First Amendment as an invasion of privacy”
  • “Although Minn. Stat. § 617.261 has a legitimate harm-preventing purpose, its lack of a specific-intent requirement and use of a negligence mens rea allows it to reach protected First Amendment expression that neither causes nor is intended to cause a specified harm.”
  • “Minn. Stat. § 617.261’s negligence mens rea is problematic. The statute does not define or explain the circumstances that should cause someone who observes an image described in Minn. Stat. § 617.261 to reasonably know that the person depicted in the image did not
    consent to its dissemination or that the image was obtained or created under circumstances in which the person depicted had a reasonable expectation of privacy. Depending on one’s sensibilities and tolerance of sexual images on publicly available mediums, reasonable people could reach different conclusions regarding the privacy expectations associated with such images, rendering the reasonable knowledge standard highly subjective. “

* In re S.K.,  Case No. 08-J-17-000023 (Md. Ct. App. Aug. 28, 2019): “can a minor legally engaged in consensual sexual activity be his or her own pornographer through the act of sexting?” Yes.

* United States v. Bosyk, 2019 WL 3483181 (4th Cir. Aug. 1, 2019)

Bosyk and his amicus (the Electronic Frontier Foundation, or “EFF”) argue that the facts recounted in Agent Eyler’s affidavit didn’t give the government probable cause to search Bosyk’s house for evidence of child pornography. They argue that the government obtained its warrant based on a “single click” of a URL, which, they say, cannot support a search of somebody’s home. We disagree. The facts in the affidavit support a reasonable inference that someone using Bosyk’s IP address clicked the link knowing that it contained child pornography. This in turn makes it fairly probable that criminal evidence would have been found at Bosyk’s address.

The “critical fact” in this case, as the district court observed, is the timing. On the very day that someone clicked the link, it appeared on a website whose purpose was to advertise and distribute child pornography to its limited membership. And it appeared in a post containing text and images that unequivocally identified its contents as child pornography. The close timing between the link’s appearance on Bulletin Board A and the click by a user’s IP address is highly relevant: because the link was accessed on the same day it appeared on Bulletin Board A, it is at least reasonably probable that the user clicked the link having encountered it on that website.

With this fair assumption, several inferences drop into place to support the magistrate judge’s decision to issue the warrant. If one assumes, given the close timing, that the user accessed the link after seeing it on Bulletin Board A, it’s fair to conclude that the user also knew it contained child pornography, as that much was explicit from the posting. On top of that, one can fairly conclude that the same person typed the password posted on Bulletin Board A, downloaded the content, and viewed the video contained at that URL. For why else would someone who had seen the pornographic stills and read the description on Bulletin Board A click the link if not to access its contents? Thus, if we suppose that someone accessed the link through Bulletin Board A, it’s fairly probable that the same person downloaded or viewed child-pornographic images.

* BBC: UK’s controversial ‘porn blocker’ plan dropped