By Duncan Brown, J.D.1

Jurisdiction in child computer pornography cases is usually located in either the home state of the defendant, or the recipient’s state. However, there has been a trend to expand jurisdiction to include the jurisdiction of the Internet Service Provider (ISP).2 Recent cases in New York,3 in addition to several international cases,4 suggest that courts are willing to find an ISP liable for hosting websites that display child pornography, in addition to the defendant who owns the website. This article will discuss three jurisdictional examples. The first example is when the defendant and the recipient are in the same jurisdiction, such as when a defendant sends images to a person in the same state. The second example is when the defendant and the recipient are in different locations, such as when a defendant in California sends illegal images to a person in Virginia. Finally, the liability of the ISP when one of its customers possesses, sends, or creates child pornography using its services will be discussed.

I. Establishing jurisdiction when the defendant and recipient are in the same state

If the defendant and the recipient are both in the same state (State A), State A obviously has jurisdiction over the defendant. Jurisdiction over the defendant is established because the defendant and the media used to store, distribute, or create child pornography are physically in that state. Jurisdiction resides in the place where the computer that stores, sends, or creates the child pornography is located because that is the locale from where the criminal activity originated.

If a search of an individual’s computer reveals child pornography, simple possession in most jurisdictions is a crime in and of itself.5 If enough child pornography is found to suggest distribution, or a search of the defendant’s emails shows that child pornography was sent to others within the state, then the defendant could be charged under the jurisdiction’s distribution statutes. If there is evidence that the defendant created the items, he may be charged under the state’s creation of child pornography laws.

The state can also establish jurisdiction over the defendant if he sends it to another state. The distribution of pornography is generally chargeable under the distribution laws of the defendant’s state. Thus, these types of laws also cover defendants who own and maintain websites within the jurisdiction that sell pornography to clients outside of the state. However, the defendant may also be within the reach of the state to which he sent the illegal images.

II. Establishing jurisdiction when the defendant resides in a different state than the recipient

The above laws also can be used to establish jurisdiction in the state of the recipient (State R), if the defendant sends material from another state (State D). There are two ways to establish jurisdiction. First, and most obviously, if a defendant sends pornographic material from State D to a person in State R, State R may claim jurisdiction over the State D defendant by charging him with a violation for distributing child pornography in State R. This is possible because a person in State R was the recipient of the illegal item, thus completing the defendant’s crime of distribution. This example is common to proactive online investigations. During these operations, law enforcement officers go online and pose as either children or fellow consumers of child pornography in an attempt to get suspects to send them illegal images.

The second method by which a state can establish jurisdiction over an out of state defendant is by charging a defendant from State D with distribution of pornographic images of children simply because the images appear on a website accessed by a computer in State R. In this scenario, it is irrelevant if the computer user in State R is an interested party or not. Thus, this method is especially useful when citizens report finding child pornography while browsing the Internet.

The language of many states’ possession and distribution statutes can be applied to websites that merely appear on computers in that state, State R, by applying the dicta of ACLU v. Reno.6 This case was an appeal by the government of a district court’s injunction preventing the government from enforcing the Child Online Protection Act (COPA).7

The court upheld the injunction because it believed that enforcement of COPA would have required web publishers to place limits that were too restrictive on the content of websites. Because few courts have developed a logical, comprehensive definition of the Internet, the definition adopted by the Court is one that prosecutors should adopt. The Court held that:

[i]t is essential to know that under current technology, Web publishers cannot ‘prevent [their site’s] content from entering any geographic community.’ As such, Web publishers cannot prevent Internet users in certain geographic locales from accessing their site; and in fact the Web publisher will not even know the geographic location of visitors to its site. … Thus, once published on the Web, existing technology does not permit the published material to be restricted to particular states or jurisdictions.8

Essentially, what the Court proposed with this definition is that once a person creates a website and puts images on that site, the site is accessible to every computer connected to the Internet. Therefore, the Court defined the Internet as an entity whose jurisdiction and access cannot be limited or regulated. Furthermore, the Court implied that because of the Internet’s universal accessibility, people placing images on it must know and intend to assent to such universal access. The result is that items placed upon the Internet are subject to the laws of every jurisdiction in which those images are accessed.

With this definition, jurisdiction over a resident of State D may be established because his website, i.e., his property, intentionally entered State R in furtherance of activity prohibited by State R’s laws. Thus, if an investigator sees a pornographic website on a computer in State R, that website is considered to be in State R and the defendant can be considered to have knowingly and intentionally put the images on the website despite their illegality.

III. Establishing jurisdiction over an ISP

A state may not establish jurisdiction over an ISP merely because the ISP was the conduit through which pornography was transmitted. This level of immunity was established with the passage of 47 U.S.C. § 230, the Communications Decency Act of 1996 (CDA). Under the CDA, jurisdiction is statutorily limited to certain parties who knowingly distribute offensive or defamatory material.9 By using the standard of knowingly, the statute creates liability only if a distributor actively edits, restricts or revises material for content purposes. Thus, under the CDA if a distributor, such as a library or bookstore, has a policy of not reviewing the materials they offer, the distributor is exempt from liability if it unknowingly distributes defamatory or offensive material.10

Courts have recognized that the role of the ISP is that of a distributor;11 therefore, an ISP usually is not liable for the content of material produced by a third party that is distributed by the ISP.12 Thus, immunity is granted to ISPs who do not attempt to edit, revise, or regulate the content of what they distribute.13 However, a recent court case has limited the protection of the CDA by holding that an ISP is criminally liable for continuing to knowingly distribute illegal material if the ISP had been informed of the offensive content, but did nothing to remove it.

As part of a larger investigation,14 police posing as students repeatedly sent messages to BuffNET, a Buffalo, New York-based ISP, complaining of a website, “Pedo University.”15 After several months of investigation, the police arrested the creator of the website, its clients, and the owners of BuffNET on the theory that the ISP had been on notice of the illegal website, and its inaction made it an accessory to the crime. In a February 16, 2001 plea agreement, BuffNET was convicted of fourth-degree criminal facilitation for failing to remove a website featuring child pornography after repeated complaints.16

V. Conclusion

Jurisdiction can be established over a defendant in the defendant’s state or the recipient’s state. Generally, ISPs are excepted from this jurisdictional coverage unless they know of the offensive material and do nothing to remove it or prohibit its availability. However, with this recent court decision involving child pornography on the Internet in New York, it is important to also consider the ISP’s potential liability.17

1 Senior Attorney, APRI’s National Center for Prosecution of Child Abuse.
2 Internet service providers are most commonly companies that offer access and services on the Internet to customers. Common examples of ISPs are American Online (AOL), Compuserve, Prodigy, and Juno. ISPs also offer services online such as email mailboxes, chat rooms, and web site hosts.
3 The New York case was a criminal case involving an ISP, Buffnet, headquartered in Buffalo, New York. There is also a civil case from Florida finding the ISP exempt under the CDA, however it has been appealed to the Supreme Court, Doe v. American Online, 2001 Fla.LEXIS 449.
4 ISPs have been found liable for hosting websites containing child pornography in England, Norway, and Turkey.
5 The possible charging considerations are not state specific in these examples; in order to properly determine what crimes are chargeable to each defendant, the investigator and prosecutor should tailor this article to their state’s laws.
6 ACLU v. Reno, 217 F.3d 162 (3rd Cir., June 22, 2000).
7 47 U.S.C.S. §231 (2001).
8 ACLU v. Reno, 217 F.3d at 178; quoting ACLU v. Reno, 315 F.Supp. 2d 473, 483 (E.D. Pa., 1999); American Booksellers Association v. Pataki, 969 F. Supp. 160, 171 (S.D.N.Y, 1997).
9 See Doe v. American Online, 2001 Fla. LEXIS 449 at 10. In this case the Supreme Court of Florida held that an ISP is not civilly liable for images posted by its members under the CDA, however the holding has been appealed to the Supreme Court.
10 See Zeran v. AOL, 129 F.3d 327 (4th Cir., 1997).
11 Cubby Inc. v. CompuServe, Inc., 776 F.Supp. 135 (S.D.N.Y. 1991).
12 See Cubby Inc. v. CompuServe, Inc., 776 F.Supp. 135; Zeran v. AOL, 129 F.3d 327.
13 For a thorough discussion of the responsibilities of ISPs to respond to subscribers’ complaints, see Doe v. American Online, 2001 Fla. LEXIS 449.
14 The investigation involved two other New York based ISPs; one removed the offensive materials, the other did not. The case against the other offending ISP, Dreamscape Online, is still ongoing.
15 Pedo University was a notorious website because a great number of child pornography collectors accessed it and the website was updated with new images of child pornography weekly.
16 There was no formal decision; for more details of this case see “Plea Deal for Online Service in Child Pornography Case,” New York Times, February 15th, 2001, A15.
17 For more information on this subject, or state specific statutes, please contact Duncan Brown at 703-519-1690.