1993 John Marshall National Moot Court Competition in Information and Privacy Law

Sysop, User And Programmer Liability: The Constitutionality Of Computer Generated Child Pornography

Byline:

Timothy R. Rabel

Issue:

VOL. XII • Spring 1994 • NO. 4 (table of contents)

Order this issue

Abstract:

Plaintiff, Dede Domingo, is fifteen years old and lives with her parents in the city of Melrose in the State of Marshall. Defendant, George Gress, owns and operates a photography studio in the City of Melrose. Gress is also a skilled amateur computer programmer who, as a hobby, is the operator or "Sysop" of an electronic bulletin board system (BBS) which can be accessed through the Internet. Domingo was photographed by the defendant George Gress in February, 1993.

Gress had been commissioned to photograph children for summer catalogues. The photographs displayed children in summer clothes, underwear and beach attire. Gress used Dede's photographs in a software program he developed which he made available on his BBS. The program was an interactive sex program entitled "Kid Stuff." This program permits the user to create scenarios that depict fallatio, sodomy, masturbation, cunnilingus and a variety of other aspects of foreplay and sexual intercourse. In July, 1993, sixteen-year-old Johnny Sawyer, informed Dede that her image was being used on the internet depicting sexual acts.

Plaintiffs, Dede's parents, filed a complaint against Gress in the Melrose County Circuit Court. In the complaint the plaintiff's claimed that Gress' conduct violated Marshall's pornography laws, specifically chapter 45, §III, paragraphs A (Child Pornography defined) through D (Civil Action by Parent or Guardian).

The issues presented were whether the Marshall Statute, which prohibits the creation or dissemination of sexually explicit material, is constitutional and whether the defendant can be held liable for the creation and dissemination of the prohibited material. The Supreme Court in 1982, held that any advertising or selling of child pornography receives no First Amendment protection. In 1985, the Attorney General's Pornography Commission Reported evidence that photographs of children engaged in sexual activity are used as tools for further molestation of other children. However, a recent FCC regulation provides a defense to "dial-a-porn" services charged under the Communications Act for the dissemination of indecent telephone messages to minors. The regulation sets up a procedure to prevent minors from accessing the services, which will operate as an honest as an honest mistake or good faith attempt defense if followed. 47 C.F.R.§64.201 (1993).

The threshold issue of the problem is whether computer-generated scenarios involving images of children engaged in sexual conduct can constitute child pornography. In addressing this issue, the defendant should argue that the images do not constitute child pornography because no real child ever was used in the depictions of sexual acts. The plaintiffs should argue that the traditional child pornography should be extended to cover computer-generated child pornography, relying on arguments of the harm of dissemination of child pornography.

The second issue involves the defendant's liability for the creation and dissemination of prohibited material. The defendant should argue the he merely provided the tools by which a user could create the sexual depiction. The plaintiff should argue that defendant is directly liable for the creation and dissemination of the material and failed to adequately prevent minors from accessing his BBS program.

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