This provision is not intrinsically related to the protection of children or to the sexual abuse of children, because, by definition, no children are involved in the production of the images. In addition, the statute is defective because it does not incorporate the community standards test of obscenity requiring that the artistic merit of a work be judged considering the work as a whole.Ashcroft v. American Civil Liberties Union, 535 U.S. 564 (2002)The Child Online Protection Act is not unconstitutionally overbroad just because it uses a community standards test to regulate speech on the World Wide Web.United States v. X-Citement Video, Inc., 513 U.S. 64 (1994)The United States Supreme Court held that the statute outlawing the interstate transportation of obscene material depicting minors, 18 U.S.C. §2252, has an implicit requirement that the offender know that the actor depicted is a minor.United States v. Encarnacion-Ruiz, 787 F.3d 581 (1st Cir. 2015)In a child pornography production case, if a defendant is charged with aiding and abetting the production of child porn, a mistake of fact (the child’s age) is a defense.

A forensic analysis of Schales’ computer revealed thousands of images of child pornography downloaded from the Internet, many of whom were under the age of six. See: United States v. Schales, 2008 U.S. App. LEXIS 21872, p. 1-2 (9th Cir. Oct. 20, 2008). A federal grand jury indicted Schales in Count One for receiving or distributing material involving the sexual exploitation of minors under 18 U.S.C. § 2252(a) (2); in Count Two for possessing material involving the sexual exploitation of minors under 18 U.S.C. § 2252(a) (4) (B); and in Count Three for receiving or producing a visual depiction of a minor engaging in sexually explicit conduct that is obscene under 18 U.S.C. § 1466A (a) (1). After a four day trial, a jury found Schales guilty on all three counts and he was sentenced by the federal district court to a term of incarceration of 210 months on Counts One and Three and a concurrent 120 month term on Count Two.

Id. By comparing the California statute of conviction to the definition of child pornography used for purposes of federal law, the Immigration Judge concluded that the essential elements of Cal. Penal Code § 311.11(a) and 18 U.S.C. § 2252(a)(4)(B) are essentially the same. Indeed, the Immigration Judge described the two statutes as so broad as to be “virtually identical….”

enforcement and regulatory agency for antitrust and consumer protection issues—typically headed by commissioners who are antitrust lawyers—that has considerable experience in children’s online consumer privacy, advertising, and similar matters, but no meaningful experience with CSAM issues. Yet the bill would vest the FTC with significant authority over online providers and complainants with limited judicial review. What is more, while the Board would ostensibly be independent, it would be subject to the supervision of the FTC chair, a political appointee and designee of the president. In addition, the FTC chair or the full commission may assign the child protection officers duties beyond those laid out in the bill, potentially injecting broader components of the FTC into the Board’s work.Updates to 18 USC § 2258A: Increased Mandatory Reporting Obligations and Voluntary Reporting ThresholdsSTOP CSAM ActMandates reporting of apparent, planned, or imminent violations of 18 USC §§ 2251, 2252, 2252A, 2252B, or 2260, in addition to apparent CSAM. Reporting planned or imminent violations is currently optional under existing law.Requires online providers to submit CyberTipline reports to NCMEC as soon as reasonably possible, but no later than 60 days after obtaining actual knowledge of the information that triggers a reporting obligation.Creates a new voluntary standard for reporting by permitting providers to submit a CyberTipline report where they have a “reasonable belief” that facts or circumstances indicating an apparent, planned, or imminent violation of §§ 2251, 2251A, 2252, 2252A, 2252B, or 2260 exist.EARN IT ActAdds 18 USC § 1591 (minor sex trafficking) and 18 USC § 2422(b) (persuading a minor to engage in prostitution or “any sexual activity for which any person can be charged with a criminal offense”) to the list of enumerated statutes triggering a reporting obligation.Expressly permits online providers to submit CyberTipline reports when they obtain knowledge of a

Today, the Court affirmed, holding that ERISA’s express pre-emption of “any and all State laws insofar as they may now or hereafter relate to any employee benefit plan,” 29 U.S.C. §1144(a), requires invalidation of the Vermont reporting statute as applied to ERISA plans. The Court's decision is available here.Lockhart v. United States, No. 14-8358: If a defendant is convicted of possessing child pornography under 18 U.S.C. §2252(a)(4), they are then subject to a ten-year mandatory minimum sentence under §2252(b)(2) if they have “a prior conviction . . . under the laws of any State relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward.” Petitioner Avondale Lockhart pleaded guilty to possessing child pornography and was sentenced under the mandatory minimum sentence enhancement due to a prior state-court conviction for first-degree sexual abuse involving his adult girlfriend.

Today, the Court affirmed, holding that ERISA’s express pre-emption of “any and all State laws insofar as they may now or hereafter relate to any employee benefit plan,” 29 U.S.C. §1144(a), requires invalidation of the Vermont reporting statute as applied to ERISA plans.The Court's decision is available here.Lockhart v. United States, No. 14-8358: If a defendant is convicted of possessing child pornography under 18 U.S.C. §2252(a)(4), they are then subject to a ten-year mandatory minimum sentence under §2252(b)(2) if they have “a prior conviction . . . under the laws of any State relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward.” Petitioner Avondale Lockhart pleaded guilty to possessing child pornography and was sentenced under the mandatory minimum sentence enhancement due to a prior state-court conviction for first-degree sexual abuse involving his adult girlfriend.

Lockhart v. United States, USSC No. 14-8358, 2016 WL 782862 (March 1, 2016); affirmingUnited States v. Lockhart, 749 F.3d 148 (2nd Cir. 2014); Scotusblog page (including links to briefs and commentary)Under 18 U.S.C. § 2252(b)(2), a defendant convicted of possessing child pornography must be given a prison term of at least ten years if the defendant “has a prior conviction … under the laws of any State relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward.” Federal courts had disagreed about whether a conviction for “aggravated sexual abuse” or “sexual abuse” had to “involv[e] a minor or ward,” or whether the “minor or ward” language applied only to convictions for “abusive sexual conduct.”

An ensuing search discovered thousands of images and videos of child pornography.IndictmentIn November 2013, Edwards was indicted under 18 U.S.C. §§ 2252(a) (4) (B) and 2252(b) (2) for one count of possessing and five counts of receiving child pornography. His defense counsel filed a motion to suppress the evidence discovered in his home because the search warrant was not supported by probable cause.Motion to Suppress Denied, Child Erotica Supported Probable CauseThe trial court conducted an evidentiary hearing, after which it denied the motion.

Decided: December 2, 2015The Fourth Circuit affirmed the district court’s ruling that there was no Double Jeopardy.This case arose when Michael Schnittker (“Schnittker”) pled to the possession of child pornography under 18 U.S.C. 2252(a)(4) and then was tried and convicted under 18 U.S.C. 2252(a)(2) for the receipt of child pornography. There were two hard drives containing images at issue: the Maxtor hard drive and the Western Digital hard drive.

United States v. X-Citement Video, Inc., 513 U.S. 64 (1994)The United States Supreme Court held that the statute outlawing the interstate transportation of obscene material depicting minors, 18 U.S.C. §2252, has an implicit requirement that the offender know that the actor depicted is a minor.Staples v. United States, 511 U.S. 600 (1994)The National Firearm Act outlaws the possession of a machine gun. There is no explicit scienter requirement in the Act.