cement 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 any fact

We conclude that the Double Jeopardy Clause bars such prosecutorial practices, Grafton v. United States, 206 U.S. 333 (1907), and that the remedy here is dismissal of the two possession specifications that were tried at the successive prosecution. We then remand the single distribution specification for further review by the lower court.In May 2016, Appellant was convicted in the district court on both counts—possession of child pornography and receipt and distribution of the same in violation of 18 U.S.C. §§ 2252A(a)(2), (5). The Government used both the HP laptop and external hard drive to prove that Appellant possessed “material that contains” child pornography.

The panel agreed. The panel said the plain text of 18 U.S.C. § 2252A(a)(5)(B) does not clearly define the appropriate unit of prosecution. Since it includes the ambiguous modifier ‘any’ before the enumerated list of storage materials, the statute creates sufficient ambiguity as to the correct unit of prosecution.

Last week at the Tenth Circuit:"Take prescribed medication as directed"This stock condition of supervised release got the axe last week from the Tenth Circuit in United States v. Malone:We consequently take this opportunity to make it clear that this condition, on its face, is an impermissible infringement into a defendant’s significant liberty interests without the justifying support of particularized findings.* * *Probation offices and courts in this circuit must be precise and discerning in their imposition of such conditions and may only include a broad mandate to ‘take prescribed medication as directed’ when it is accompanied by particularized findings that justify it.Multiplicity of child-pornography chargesIn United States v. Elliott, the Tenth Circuit held that 18 U.S.C. § 2252A(a)(5)(B) (the child-pornography statute) precludes “distinct charges for each electronic device or medium simultaneously possessed.” In other words, five charges for possessing child pornography on five devices, in the same place, at the same time, violates the rule against multiplicity.

The Second Circuit (Walker, Cabranes, Sack) issued a per curiam decision in United States v. Bleau, 18-cr-1574 affirming a sentence based on a conviction for receiving and possessing child pornography, but remanding for further consideration of whether to impose a particular special condition of supervised release.On May 18, 2018, Bleau pled guilty under 18 U.S.C. §§ 2252A(a)(2)(A), (a)(5)(B), (b)(1), and (b)(2) and was sentenced to 78-months of imprisonment, and a 15-year term of supervised release. On appeal, Bleau argued that the sentence of imprisonment was substantively unreasonable, and that the lower court procedurally erred in two regards.

ng Punishment Fit the Most Offensive Crimes”) that the federal sentencing guidelines in child pornography crimes “do not appear to be based on any sort of science and the Court has been unable to locate any particular rationale for them beyond the general revulsion that is associated with child-related offenses.”One of those guidelines referred to by Judge Pratt is Guideline § 2G2.2 which deals with: “Trafficking in Material Involving The Sexual Exploitation of a Minor; Receiving, Transporting, Shipping, or Advertising Material Involving the Sexual Exploitation of a Minor; Possessing Material Involving the Sexual Exploitation of a Minor With Intent to Traffic, Possessing Material Involving the Sexual Exploitation of a Minor.”Federal Sentencing EnhancementsAmended numerous times since its original 1987 enactment, Subsection (b)(3)(F) of § 2G2.2 provides recommended sentencing ranges for a conviction involving the receipt, possession and distribution of child pornography in violation of 18 U.S.C. § 2252A(a)(2)(B) and (a)(5)(B). If the conviction involved distribution, Subsection (b)(3)(F) applies a two-level sentence enhancement if the pornographic depictions entail sadistic or masochistic conduct.

The Commission just issued a report, Mandatory Minimum Penalties for Federal Sex Offenses (2019), with the critical conclusion that “unwarranted sentencing disparities” result from “inconsistent application of the mandatory minimum penalty for receipt offenses.”This is what the Commission is talking about: Under 18 USC § 2252A(b)(1), the statutory mandatory minimum sentence for receiving child pornography is five years in prison. In contrast, the mandatory minimum for possessing child pornography is, well, none.

United States v. Hebert, 2018 WL 1915851 (April 24, 2018) (WY, published): An accused convicted of a child pornography offense under 18 U.S.C. § 2252A can face a mandatory minimum 10 year prison term if he has a prior state conviction ‘relating to’ aggravated sexual abuse, sexual abuse or abusive sexual conduct involving a minor or ward. Using the categorical approach, the panel rules that Georgia’s sexual battery offense 'relates to' sexual abuse as those elements are defined in 18 U.S.C. § 2242.

The FBI presented digital evidence to the federal magistrate judge that Tagg had spent five hours browsing Playpen obviously viewing child pornography. The search of Tagg’s computer discovered more than 20,000 files of child pornography stored there.Motion to Suppress GrantedHowever, the district judge to whom Tagg’s case was assigned after he was indicted under 18 U.S.C. § 2252A(a)(2) and (a)(5)(B) with one count of receiving and one count of possessing child pornography suppressed all evidence seized from Tagg’s home. The judge found that the FBI did not have probable cause to search Tagg’s residence because the warrant did not state that he had viewed any illegal images at his residence.

The panel affirmed. It held that the district court improperly used the modified categorical approach in applying 18 USC 2252A(b)(2) as the Georgia statute involved is indivisible and circuit precedent allowing modified categorical approach for indivisible statues has been undermined by subsequent united states Supreme Court decisions. Using the categorical approach, the panel held Georgia Code 16-6-22.1(b) relates to generic sexual abuse under 2252(b)(2) because both require nonconsensual touching involving intimate body parts which are sexual in nature.