(U.S.) INTERNET

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WHO:        ANY person MAY report if s/he has concerns that a child is being exploited online.  [https://www.fbi.gov/scams-and-safety/protecting-your-kids] 

A child MAY self-report (as a victim).  [https://www.missingkids.org/gethelpnow/cybertipline]

For child porn the issue is not the victim’s current age, but whether s/he was a minor at the time the visual depiction was created, adapted, or modified.  [18 U.S.C. § 2256(9)(A)(i)(I)]

U.S.-based electronic service providers (ESPs) MUST report apparent child porn, and MAY report if facts or circumstances indicate child porn is planned or imminent.  [18 U.S.C. § 2258A]

·       STANDARD:  “Child” means under age 18.  [18 U.S.C. § 2256(1)] 

o   For mandatory reports by ESPs (they MUST report): (a) actual knowledge of facts or circumstances indicating (b) apparent child porn by section 2251 (sexual exploitation), 2251A (buying/selling), 2252 (distribution), 2252A (production), 2252B (deceitful domain names), or 2260 (imports).  [18 U.S.C. 2258A(a)(2)(A)]

o   For permissive reports by ESPs (they MAY report): (a) actual knowledge of facts or circumstances indicating that (b) a violation involving child pornography may be planned or imminent.  [18 U.S.C. 2258A(a)(2)(B)] 

(a)      ESP’s MAY also report suspected: (a) online enticement of children for sexual acts; (b) extra-familial child sexual molestation; (c) child sex tourism; (d) child sex trafficking; (e) unsolicited obscene materials sent to a child; (f) misleading domain names; or (g) misleading words or digital images on the internet.  [https://www.missingkids.org/gethelpnow/cybertipline]

o   For other reporters: suspected: (a) online enticement of children for sexual acts; (b) extra-familial child sexual molestation; (c) child pornography; (d) child sex tourism; (e) child sex trafficking; (f) unsolicited obscene materials sent to a child; (g) misleading domain names; or (h) misleading words or digital images on the internet.  [https://www.missingkids.org/gethelpnow/cybertipline]

o   Note: Three CyberTip-reportable abuses (extra-familial sexual molestation, sex tourism, and sex trafficking) may or may not use the Internet. Online examples include grooming, coordinating in-person meetings, and travel arrangements.

·       PRIVILEGE:  Privilege is not addressed in the statutes reviewed.

WHEN:      For U.S. ESP mandatory reports:  AS SOON AS REASONABLY POSSIBLE after obtaining actual knowledge of facts or circumstances for child porn.  [18 U.S.C. § 2258A] 

WHERE & HOW:  To report ONLINE child abuse:

For reports by the public: Call 911 if there is immediate danger. Otherwise call the FBI’s CyberTipline at 800-843-5678 (1-800-THE-LOST) or report at https://report.cybertip.org/ This is run by the National Center for Missing and Exploited Children (NCMEC). 

·        OR, report online exploitation to the Internet Crimes Against Children (ICAC) task force, at this URL: https://www.icactaskforce.org/Pages/ContactsTaskForce.aspx  [https://ovc.ncjrs.gov/faq.aspx?faqid=876]

·        OR, report online exploitation to other federal, local, or state law enforcement personnel. See state and local directory at https://www.usacops.com/ 

·        For reports from ESPs: Report at http://www.CyberTipline.com, using the reporting form (at a hit box, having called in advance to obtain an ID number and password). The report should include:.  [18 U.S.C. § 2258A(a)(1); 28 C.F.R. § 81.12]

(1)      ESPs must preserve and protect the materials in a secure location for 90 days after reporting. [18 U.S.C. § 2258A(h)]  Access by employees must be minimal, and the material destroyed after a request by law enforcement.  [18 U.S.C. § 2258B(c)] 

(2)      The ESP may send the materials by mail, electronically, or other reasonable means to law enforcement, NCMEC (tipline operator), or as necessary to respond to legal process, but this must comply with 18 USC 2702(b).  [18 U.S.C. § 2258A(g)(4)]

OTHER ASPECTS

·       REPORT DETAILS: From ESPs MUST include: (1) the ESP’s mailing address, phone number, fax number, & email address AND (2) facts and circumstances leading to the report. The choice of details is discretionary but MAY include any of: (a) the suspected individual’s email, IP address, URL, payment info (which may be personally identifiable), and/or self-reported identifying info; (b) historical reference as to when and how a customer or subscriber uploaded, transmitted, or received the suspect content, and when and how the ESP learned of it, with a date, time stamp, and time zone; (c) geographic location of the suspected individual or website, which may include the IP address or verified address or (if those aren’t readily available) an area code or zip code provided by the user or stored or obtained by the ESP; (d) any visual depiction of the apparent child porn or other suspect content; and (e) the complete communication, any data or information about its transmission, and any visual depictions, data, or other digital files contained in it. The statute does not state whether the complete communication is from a customer, subscriber, or ESP.  [18 U.S.C. §§ 2258A(a)(1),(b); 28 C.F.R. § 81.12]

·       REPORT DETAILS: From the public: the CyberTipline website does not list specific information that it desires, but callers should aim to provide the facts and circumstances leading to the report, including: (a) how the contact was received or offensive material was observed; (b) copy of any visual depiction if requested; and (c) the complete unwanted communication and attachments if requested.

·       REPORTER PROTECTION:  (1) The federal statutes reviewed require an ESP to identify itself in the report; they do not require others to identify themselves; (2) Reports by ESPs are disclosed only for use by law enforcement, legal process by an ESP (but the ESP is not given visual depictions), or by court order; the federal statutes reviewed do not address disclosure of reports by others.  [18 U.S.C. §§ 2258A(d)(5),(g)(2)]  (3a) ESPs who report in good faith compliance are immune from civil and criminal liability for it; and (3b) any individual who reports child abuse or neglect in good faith to appropriate authorities is immune from civil and criminal liability for it under any federal law, and good faith is presumed.  [18 U.S.C. § 2258B(a)]; 34 U.S.C. § 20342]

WHY:        An ESP that knowingly, willingly fails to report as required will be fined < $150,000 for the first failure, and < $300,000 for each additional failure.  [18 U.S.C. § 2258A(e)]

WHAT:      Reportable online-related abuses are: enticement, extra-familial molestation, child porn, sex tourism, child sex trafficking, unsolicited obscene materials, & misleading domain names / words / digital images.  [https://www.missingkids.org/gethelpnow/cybertipline#overview]

Initial Screening Criteria: (1) whether a geographic jurisdiction of abuse can be identified; (2) understanding the type of abuse; and (3) prioritizing the risk. The highest priority is where a child is in imminent danger.  Assessment of child porn includes whether an image is of an actual child, is new or has been reviewed before, or can be tied to a ring of offenders by email, web, or other information.  [p. 21-22 of Combatting Child Pornography, GAO, 3/2011 at https://www.gao.gov/assets/320/317321.pdf]

Reportable: anyone for acts related to online facilitation of: enticement, extra-familial molestation, child porn, sex tourism, child sex trafficking, unsolicited obscene materials, misleading domain name, or misleading words or digital images.

“Online Enticement of Children for Sexual Acts” is a combination phrase. Some words in it are not defined by a federal statute for this purpose.

(A)     The term enticement can mean recruiting children for exploitation by sex trafficking (forced sex), prostitution (paid sex), or porn production.  [18 U.S.C. § 2422(b)]

(B)     The term enticement is sometimes used synonymously with the term “grooming,” where a sexual predator wins a child’s trust and begins discussing sexual activity, and meeting in person for sexual purposes. Sometimes the predator poses as another child. It may occur in online platforms, gaming, messaging, chat rooms, etc.  [https://www.americanbar.org/groups/public_interest/child_law/resources/child_law_practiceonline/child_law_practice/vol-34/november-2015/understanding-sexual-grooming-in-child-abuse-cases/]

“Extra-familial Child Sexual Molestation” is a combination phrase. Some words in it are not defined by a federal statute for this purpose.  

(A)     “Extra-familial” refers to abuse by someone outside the child’s family. (It is used especially by federal Family Advocacy Programs (FAPs), e.g., in the military.) 

(B)     “Sexual molestation” involves sexual assault or abuse; it may be violent.

(C)     “Child” as used in federal sexual abuse statutes generally means under age 18.

“Child Pornography” is any visual depiction of sexually explicit conduct, including any photo, film, video, picture, or computer- or computer-generated image or picture, whether made or produced electronically, mechanically, or otherwise, where:  [18 U.S.C. § 2256(8)]

(A)     The depiction’s production involves use of a minor in sexually explicit conduct;

(B)     The depiction is a digital image, computer-, or computer-generated image that is (or indistinguishable from) that of a minor engaging in sexually explicit conduct; or

(C)    The depiction has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct. 

“Sex Tourism” is an informal term for traveling to another place to take advantage of less restrictive laws on sexual activity. The United States bars both traveling out of the U.S. with this intent, and traveling into the U.S. with this intent. In particular, the law applies to sex with a minor, whether paid for or not, and applies to production of child porn.  [18 U.S.C. § 2423(b),(f)]

“Child Sex Trafficking” (as a federal violation) means:  [18 U.S.C. § 1591]

(A)     Recruiting, enticing, harboring, transporting, providing, obtaining, advertising, maintaining, patronizing, or by any means soliciting a child; to

(B)     engage in a paid sex act; where

(C)    the offender knows or has reckless disregard of the fact that (1) s/he is under 18 years old, or (2) that force, threats of force, fraud, coercion, or any combination will be used; and where

(D)    the offender acts knowingly within – or affects – interstate or foreign commerce OR acts within the special maritime and territorial jurisdiction of the United States [defined below].

NOTE #1: That statute does not require proof that either the defendant or victim crossed state or national borders. And child victims who are prostituted in the U.S. are protected regardless of whether they are U.S. citizens, other U.S. residents, or foreign nationals.  [18 U.S.C. § 1591]

NOTE #2: The states and territories likewise bar these activities (see their sections in this Digest). The federal rule applies to special cases such as travel and federal areas. Federal “special maritime and territorial jurisdiction” means all U.S. jurisdiction over: oceans, islands, dockyards, Great Lakes, St. Lawrence River, and U.S. and citizen vessels (aircraft, spacecraft, watercraft) above or at seas and U.S. waters, etc.  [18 U.S.C. § 7]  Also, see the “Air, Waters, Foreign” section of this Digest.

NOTE #3: Child sex trafficking may also include transporting or arranging (for profit) to transport a child or adult across state or national borders for child prostitution, unlawful child sex, or sexual abuse of a child. [18 U.S.C. § 2423]

“Unsolicited Obscene Materials Sent to a Child”:

(A)     Obscene materials are harmful to minors; see Misleading Domain Name below.

(B)     Transferring – or attempting to transfer – obscene matter by any means of interstate or foreign commerce to a child, while knowing that s/he is under age 16, is forbidden.  [18 U.S.C. § 1470]

(C)     Commercial communication via the Internet that includes obscenity and is available to any minor under age 17 is forbidden.  [47 U.S.C. § 231]

(D)     Knowingly using interactive computer services to display obscenity in a way that makes it available to a minor under age 18 is forbidden.  [47 U.S.C. § 233(d)]

“Misleading Domain Name” means an Internet domain name (URL) that contains neither the terms “sex” or “porn” but is used knowingly with the intent to deceive someone into viewing obscene material.  [18 U.S.C. § 2252B]

(A)     Doing it with intent to deceive minors into viewing material harmful to them means:

(1)   Nudity, sex, and excretion AND

(a)   (Sex here means masturbation, intercourse, physical contact with genitals, or the condition of male or female genitals when stimulated or aroused)

(2)   The material taken as a whole in context predominantly appeals to a prurient interest of minors; AND

(3)   The material is patently offensive to prevailing standards in the adult community as a whole regarding what is suitable material for minors; AND

(4)   The mat’l lacks serious literary, artistic, political, or scientific value for minors.

“Misleading Words or Digital Images on the Internet” means words or digital images knowingly embedded into a website’s source code with the intent to deceive someone into viewing obscene material:  [18 U.S.C. § 2252C]

(A)     Misleading words or images do not display a warning word such as “sex” or “porn”.

(B)     Doing this with intent to deceive minors into viewing material harmful to them means the same as it does in the context of misleading domain names:

Gap-filling: both incest and the age of consent are defined by the child’s state or territory, under the federal gap-filling provisions of 18 U.S.C. § 13. See this Digest’s relevant state or territory section.