Child Pornography: - Center for Problem-Oriented Policing

Another area of legislative action related to child sexual exploitation has been the
transmission of material that is harmful to minors. While not specifically focused on child
pornography the Communications Decency Act of 1996 211 (CDA) prohibited the knowing
transmission of "obscene or indecent" messages via a telecommunications device to a minor.
It also prohibited the knowing use of an interactive computer service to send any communications
that depict or describe in "patently-offensive" terms, as measured by contemporary
community standards, sexual or excretory activities or organs to a specific minor. 212 The CDA
was challenged in Reno v. American Civil Liberties Union. 213 In that case the Supreme Court
ruled that notwithstanding the importance of the government's goal of protecting children
from harmful materials on the Internet, the CDA's "indecent-transmission" and "patently-offensive-display"
provisions violated the First Amendment's right to free speech. 214
The Court, however, expressly preserved the government's right to pursue related obscenity
or child-pornography charges. 215
To remedy the constitutional deficiencies of the CDA, Congress passed the Child Online
Protection Act of 1998 (COPA). 216 COPA requires those who commercially distribute materials
through the world wide web to restrict access by children younger than 17 to materials
that are harmful to minors. 217 COPA has been challenged as presumptively invalid and subject
to strict scrutiny analysis under the First Amendment as a content-based regulation of
nonobscene sexual expression. 218 The court hearing that challenge has issued a preliminary
injunction against enforcement of COPA until the case has been decided on its merits. 219
The Children's Internet Protection Act, which became law in December 2000, 220 is a
further development in the protection of children from harmful materials on the Internet. This
Act limits the availability of certain federal funds and service discounts for schools unless
they implement a policy of Internet safety for children that uses technology-protection measures
such as filters to block access to visual depictions that are obscene, child pornography,
or harmful to minors. 221 They must also have a policy for other (i.e., adult) users prohibiting
access to visual depictions that are obscene or child pornography. 222 The Act contains similar
limitations on funds for libraries.
In addition neighborhood schools and libraries that receive service discounts from telecommunications
carriers must have an Internet safety policy that addresses access by children
to inappropriate material on the Internet and world wide web; the safety and security of children
when using E-mail, chat rooms, or other direct electronic communication; unlawful
activities by minors online including unauthorized access such as hacking; unauthorized
disclosure, use, or dissemination of personal, identifying information about children; and
measures designed to restrict children's access to materials harmful to minors. 223
Based on this evolution of federal child-pornography legislation and the case law interpreting
its provisions, the section below describes federal criminal-child-pornography statutes
as they currently exist.
Federal Child Pornography Statutes
The federal statutes that address criminal child sexual exploitation and child pornography fall
under Title 18, Sections 2251 through 2260 of the United States Code.
The definitions applying to federal child-pornography charges are found in Section 2256.
Most important to the interpretation of the federal statutes, as evidenced by the court challenges
discussed above, are the definitions of
18 - CHILD PORNOGRAPHY: THE CRIMINAL-JUSTICE-SYSTEM RESPONSE