Computer underground Digest Wed Jan 21, 1998 Volume 10 : Issue 05
ISSN 1004-042X
Editor: Jim Thomas (cudigest@sun.soci.niu.edu)
News Editor: Gordon Meyer (gmeyer@sun.soci.niu.edu)
Archivist: Brendan Kehoe
Shadow Master: Stanton McCandlish
Shadow-Archivists: Dan Carosone / Paul Southworth
Ralph Sims / Jyrki Kuoppala
Ian Dickinson
Field Agent Extraordinaire: David Smith
Cu Digest Homepage: http://www.soci.niu.edu/~cudigest
CONTENTS, #10.05 (Wed, Jan 21, 1998)
File 1--SEMANTICS AND THE CHILD PORNOGRAPHER (From V.I.P. Newsletter)
File 2--Text of US v. Hockings (Child porn decision / 9th Fed Circ.)
File 3--Text of 18 USC Sec. 2252 (Sexual Exploitation...of Children )
File 4--Law Enforcement Using the Web for "Justice?"
File 5--"Underground", Suelette Dreyfus
File 6--Cu Digest Header Info (unchanged since 7 May, 1997)
CuD ADMINISTRATIVE, EDITORIAL, AND SUBSCRIPTION INFORMATION APPEARS IN
THE CONCLUDING FILE AT THE END OF EACH ISSUE.
---------------------------------------------------------------------
Date: Thu, 15 Jan 1998 20:13:43
From: Charles C.Mann@sun.soci.niu.edu, ccm@crocker.com
Subject: File 1--SEMANTICS AND THE CHILD PORNOGRAPHER (From V.I.P. Newsletter)
I forwarded a copy of a bit from this same newsletter last
month that you seemed to find interesting. Sorry to be doing it
again -- I promise this is the last one -- but this case seemed so
bizarre that I thought CuD might get a chuckle out of it. Although
I suspect civil libertarians might cheer the outcome, the level of
Congressional law-writing incompetence suggested by the court is
depressing to contemplate.
Charles Mann
------- Forwarded Message Follows -------
Date--Wed, 14 Jan 1998 22--52--38 -0500
From--Erick Iriarte <bdpc@mail.dti.net>
To--Multiple recipients of list <cni-copyright@cni.org>
Subject--VIP - 1/12/98
<><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><
V.I.P. (Virtual Intellectual Property) Newsletter
U.S. Intellectual Property & New Media Law Update
Monday, January 12, 1998
Volume II, Issue II
Bazerman & Drangel, P.C.
<><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><
(C) Bazerman & Drangel, P.C. 1998
*********************************************
SEMANTICS AND THE CHILD PORNOGRAPHER
U.S. v. Hockings (Ninth Cir. - Decided- November 21, 1997)
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
The Defendant was charged with one count of possession of eight
computer files containing visual depictions of child pornography in
violation of Section 18 U.S.C. Sec. 2252(a)(4)(B) and one count of
transporting sixteen visual depictions of child pornography in
interstate commerce in violation of 18 U.S.C. Sec. 2252(a)(1).
After a bench trial he was found guilty on both counts.
What is a poor child pornographer to do if he is caught red handed
with the child pornography? Why, attack the statute, what else. The
statute criminalizes the knowing transportation in interstate commerce
by any means including by computer or mail of "visual depictions"
involving minors engaged in sexually explicit conduct or possessing
three such items. On appeal, Defendant maintained that visual
depiction did not include GIF files. The Court noted that it would be
an "absurdity" to find that Congress intended to outlaw the
transportation of pornographic visual depictions of children by
computer, yet concluded that the Congress did not intend to include
GIF files within the definition of visual depiction.
Defendant had a subsidiary argument that the statute was
unconstitutionally vague since it did not clearly indicate to him that
such electronic depictions would be considered visual depictions under
the statute. The Court found the statute clear on its face.
The this decision can be seen at:
http://www.vcilp.org/Fed-Ct/Circuit/9th/opinions/9750018.htm
<lots of less relevant stuff snipped out>
%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%
<><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><
The complete set of newsletters can be viewed at:
http://www.ipcounselors.com
If you have any questions or comments regarding any of the above,
please do not hesitate to contact us. IF YOU ARE AWARE OF ANY
INTERESTING RECENT CASE, PARTICULARLY IF THE COMPLAINT OR DECISION IS
ON THE WEB OR YOU CAN SUPPLY US WITH A COPY OF THE PLEADINGS OR
DECISION FOR POSTING, PLEASE LET US KNOW.
If you do not wish to receive the update, send a message to
bdpc@ipcounselors.com with "unsubscribe update" in the body of the
message. If you know of others who wish to subscribe, have them send a
message to bdpc@ipcounselors.com with "subscribe update" in the body
of their message.
Bazerman & Drangel, P.C.
Intellectual Property and New Media Attorneys
60 East 42nd Street
Suite 1158
New York, NY 10165
tel: 212 292 5390
fax: 212 292 5391
e-mail: bdpc@ipcounselors.com
------------------------------
Date: Fri, 16 Jan 1998 12:23:25 -0600
From: jthomas@SUN.SOCI.NIU.EDU(Jim Thomas)
Subject: File 2--Text of US v. Hockings (Child porn decision / 9th Fed Circ.)
From: http://www.vcilp.org/Fed-Ct/Circuit/9th/opinions/9750018.htm
_________________________________________________________________
[IMAGE] This opinion was acquired from the 9th Circuit and enhanced
for distribution on the Internet by
The Villanova Center for Information and Policy.
_________________________________________________________________
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
No. 97-50018
Plaintiff-Appellee,
D.C. No.
v.
CR-95-00556-TJH
MARK STUART HOCKINGS,
OPINION
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Terry J. Hatter, District Judge, Presiding
Argued and Submitted
November 3, 1997--Pasadena, California
Filed November 21, 1997
Before: William C. Canby, Jr. and David R. Thompson,
Circuit Judges, and Donald W. Molloy,* District Judge.
Opinion by Judge Molloy
_________________________________________________________________
SUMMARY
COUNSEL
Richard D. Burda, Deputy Federal Public Defender, Los
Angeles, California, for the defendant-appellant.
David C. Scheper, and Benjamin Jones, Jr., Assistant United
States Attorneys, Los Angeles, California, for the plaintiff-
appellee.
_________________________________________________________________
OPINION
MOLLOY, District Judge:
I. Overview
Mark Stuart Hockings ("Hockings") was charged with one
count of possessing eight computer files containing visual
13999
depictions of child pornography, in violation of 18 U.S.C.
S 2252(a)(4)(B), and one count of transporting sixteen visual
depictions of child pornography in interstate commerce, in
violation of 18 U.S.C. S 2252(a)(1). After a bench trial he was
found guilty on both counts.
On appeal, he claims the computer GIF files from which
pornographic images could be retrieved are not "visual
depictions" as defined in the charging statute. Additionally, he
argues the charging statute did not provide him with fair
warning of the proscribed conduct. We disagree.
The construction or interpretation of a statute is reviewed
de novo. United States v. DeLaCorte, 113 F.3d 154, 155 (9th
Cir. 1997). Whether a statute is void for vagueness is also
reviewed de novo. United States v. Woodley, 9 F.3d 774, 778
(9th Cir. 1993).
II. Discussion
A.
Subsections 2252(a)(1) and (4)(B) criminalize the knowing
transportation in interstate commerce, "by any means includ-
ing by computer or mails," of "visual depictions" involving
minors engaged in sexually explicit conduct, 18 U.S.C.
S 2252(a)(1) (emphasis added). It is also illegal to be in the
knowing possession of three or more "matter[s] which contain
any [such] visual depiction," 18 U.S.C.S 2252(a)(4)(B).
When the offense happened, the applicable statute stated that
" `visual depiction' includes undeveloped film and
videotape." 18 U.S.C. S 2256(5) (Law. Co-op. 1991). It did
not refer to information stored on disc. In 1996, the statutory
definition was expanded to include "data stored on computer
disk or by electronic means which is capable of conversion
into a visual image." 18 U.S.C.S. S 2256(5) (Law. Co-op.
1991 & Supp. 1997).
14000
When interpreting a statute, we "look first to the plain lan-
guage of the statute, construing the provisions of the entire
law, including its object and policy, to ascertain the intent of
Congress." Northwest Forest Resource Council v. Glickman,
82 F.3d 825, 830 (9th Cir. 1996). If the statute is unclear, we
look next to the legislative history. Id. at 830-31.
[1] Hockings argues that his conduct is not within the pur-
view of the statute because the definition of "visual depiction"
contained in the former version of section 2256(5), includes
undeveloped film and videotape but not computer data. How-
ever, both subparts of section 2252 under which Hockings
was charged prohibit the transportation by computer of visual
depictions of minors engaging in sexually explicit conduct. It
leads to an absurdity to find that Congress intended to outlaw
the transportation of pornographic visual depictions of chil-
dren by computer, yet conclude that Congress did not intend
to include GIF files within the definition of visual depiction.
[2] The former definition of "visual depiction" is not lim-
ited to undeveloped film and videotape--it "includes" those
items but is not drafted as an exhaustive list of all items that
constitute a "visual depiction." See 18 U.S.C.S. S 2256(5)
(1991). This view is supported by United States v. Smith, 795
F.2d 841 (9th Cir. 1986). Smith construed the pre-1986 ver-
sion of the child pornography statute that contained no defini-
tion of "visual depiction." Smith took photographs of three
teenage girls in various stages of nudity and sent the film for
developing. After developing the film, the photo company
contacted U.S. postal inspectors. Smith was charged with vio-
lations of the federal child pornography statutes and convicted
on all counts. Id. at 844-45.
On appeal, this court rejected Smith's argument that
"unprocessed, undeveloped film does not constitute a `visual
depiction' within the meaning of the statute." Id. at 846.
Accepting that "color film must undergo an elaborate devel-
14001
oping process before any image can be perceived by the
human eye," id., the court concluded:
[T]he exclusion of unprocessed film from the stat-
ute's coverage would impede the child pornography
laws by protecting a necessary intermediate step in
the sexual exploitation of children. The interpreta-
tion urged by Smith would allow unrestricted inter-
state commerce in child pornography so long as the
pornography was still in the form of undeveloped
film. Such a loophole is inconsistent with congres-
sional intent; the undeveloped state of the film does
not eliminate the harm to the child victims in the
film's production or the incentive to produce created
by the film's trafficking. We therefore hold that the
undeveloped film constitutes a "visual depiction"
. . . .
Id. at 846-47.
[3] The same rationale applies to GIF files in relation to the
pre-1996 version of the statute under which Hockings was
charged. GIF files were a means of storage and transportation
of visual depictions of child pornography in this case.
Although a software program was required to de-compress the
GIF file, the contents of the GIF file could be viewed on a
computer screen or printed in hard copy if so desired.
[4] The statute was amended in 1996 to specifically include
computer data such as GIF files. ("[V]isual depiction includes
. . . data stored on computer disk or by electronic means
which is capable of conversion into a visual image"). 18
U.S.C.A. S 2256 (West Supp. 1997). Hockings suggests the
amendment lends support to his argument that the pre-1996
statute did not encompass GIF files. However, "Congress may
amend a statute simply to clarify existing law, to correct a
misinterpretation, or to overrule wrongly decided cases. Thus,
an amendment to a statute does not necessarily indicate that
14002
the unamended statute means the opposite." United States v.
Hawkins, 30 F.3d 1077, 1082 (9th Cir. 1994). We conclude
that computer GIF files are visual depictions within the mean-
ing of the charging statute. The visual image transported in
binary form starts and ends pornographically and that is what
Congress seeks to prohibit.
B.
[5] We also reject Hockings' attack on the statute as void
for vagueness. The Supreme Court outlined the contours of
the vagueness doctrine in United States v. Lanier, 137 L.Ed.
2d 432 (1997). First, an act cannot be so vague that "men of
common intelligence must necessarily guess at its meaning
and differ as to its application." Id. at 442. Second, the rule
of lenity must be applied to restrict criminal statutes to con-
duct clearly covered by those statutes. Id. Third, a court may
interpret the statute to provide the "requisite level" of clarity,
but any such interpretation must not be so "novel " as to
include conduct that "neither the statute or any prior judicial
decision has fairly disclosed to be within its scope." Id. at
442-43.
Hockings argues that the charging statute is constitutionally
vague because it criminalizes "the transportation and posses-
sion of items [GIF files] that clearly are not visual depictions,
on the grounds that they are visual depictions, goes beyond
what a person of common intelligence would infer from read-
ing the statute." We disagree. The statute satisfies the Lanier
standard.
[6] As noted above, GIF files are merely a means of storage
and transportation of visual depictions. The statute proscribes
the transportation of visual depictions of minors engaged in
sexually explicit conduct by any means, including by com-
puter. 18 U.S.C. S 2252(a)(1),(4)(B). While holding other-
wise, even if judicial gloss is required to bring GIF files
within the compass of the statute, such an interpretation is not
14003
novel in view of the case law discussed above. See Smith
supra; see also United States v. Thomas, 74 F.3d 701, 707
(6th Cir. 1996)(holding that GIF files fall within the obscenity
statutes although not specifically proscribed herein because
"the manner in which the images move[ ] does not affect their
ability to be viewed on a computer screen in [a distant loca-
tion] or their ability to be printed out in hard copy in that dis-
tant location"). Hence, Hockings had fair warning that the
transportation of visual depictions by means of computer GIF
files was in violation of the statute.
AFFIRMED.
14004
the end
------------------------------
Date: Sat, 17 Jan 1998 22:33:52 -0600
From: jthomas@VENUS.SOCI.NIU.EDU(Jim Thomas)
Subject: File 3--Text of 18 USC Sec. 2252 (Sexual Exploitation...of Children )
(Source - http://law.house.gov/usc.htm)
18 USC Sec. 2252 01/16/96
TITLE 18 - CRIMES AND CRIMINAL PROCEDURE
PART I - CRIMES
CHAPTER 110 - SEXUAL EXPLOITATION AND OTHER ABUSE OF CHILDREN
Sec. 2252. Certain activities relating to material involving the
sexual exploitation of minors
-STATUTE-
(a) Any person who -
(1) knowingly transports or ships in interstate or foreign
commerce by any means including by computer or mails, any visual
depiction, if -
(A) the producing of such visual depiction involves the use
(B) such visual depiction is of such conduct;
(2) knowingly receives, or distributes, any visual depiction
that has been mailed, or has been shipped or transported in
interstate or foreign commerce, or which contains materials which
have been mailed or so shipped or transported, by any means
including by computer, or knowingly reproduces any visual
depiction for distribution in interstate or foreign commerce or
through the mails, if -
(A) the producing of such visual depiction involves the use
of a minor engaging in sexually explicit conduct; and
(B) such visual depiction is of such conduct;
(3) either -
(A) in the special maritime and territorial jurisdiction of
the United States, or on any land or building owned by, leased
to, or otherwise used by or under the control of the Government
of the United States, or in the Indian country as defined in
section 1151 of this title, knowingly sells or possesses with
intent to sell any visual depiction; or
(B) knowingly sells or possesses with intent to sell any
visual depiction that has been mailed, or has been shipped or
transported in interstate or foreign commerce, or which was
produced using materials which have been mailed or so shipped
or transported, by any means, including by computer, if -
(i) the producing of such visual depiction involves the use
of a minor engaging in sexually explicit conduct; and
(ii) such visual depiction is of such conduct; or
(4) either -
(A) in the special maritime and territorial jurisdiction of
the United States, or on any land or building owned by, leased
to, or otherwise used by or under the control of the Government
of the United States, or in the Indian country as defined in
section 1151 of this title, knowingly possesses 3 or more
books, magazines, periodicals, films, video tapes, or other
matter which contain any visual depiction; or
(B) knowingly possesses 3 or more books, magazines,
periodicals, films, video tapes, or other matter which contain
any visual depiction that has been mailed, or has been shipped
or transported in interstate or foreign commerce, or which was
produced using materials which have been mailed or so shipped
or transported, by any means including by computer, if -
(i) the producing of such visual depiction involves the use
of a minor engaging in sexually explicit conduct; and
(ii) such visual depiction is of such conduct;
shall be punished as provided in subsection (b) of this section.
(b)(1) Whoever violates, or attempts or conspires to violate,
paragraph (1), (2), or (3) of subsection (a) shall be fined under
this title or imprisoned not more than ten years, or both, but, if
such person has a prior conviction under this chapter or chapter
109A, such person shall be fined under this title and imprisoned
for not less than five years nor more than fifteen years.
(2) Whoever violates, or attempts or conspires to violate,
paragraph (4) of subsection (a) shall be fined under this title or
imprisoned for not more than five years, or both.
------------------------------
Date: Wed, 21 Jan 98 15:57 CST
From: Cu Digest <TK0JUT2@MVS.CSO.NIU.EDU>
Subject: File 4--Law Enforcement Using the Web for "Justice?"
The homepage links between law enforcement and the public became a
bit tighter in the past few weeks. Two homepages, one from a New
York state Attorney General, and the other from an Illinois
citizen, respectively used the Web to oppose the parole of a man
convicted of murdering a child and to publicize the names of sex
offenders.
In New York, the Attorney General used the homepage in an attempt
to sway the decision of the parole board in an upcoming case. This
seems an unacceptable intrusion of politics in what ought to be
independent decision making. The New York Times reported the
story as follows:
Date--Tuesday, December 23, 1997
Source--By Joseph A. Kirby, Tribune Staff Writer.
Dateline--NEW YORK
Copyright Chicago Tribune
OFFICIAL USES WEB TO FIGHT ABUSER'S PAROLE
NEW YORKER'S POSTING PROMPTS HUNDREDS OF REPLIES AGAINST KILLER
In an unusual mingling of government and the Internet,
New York state's attorney general took to cyberspace Monday
to publicize his opposition to a parole petition by a
Manhattan lawyer whose sensational case focused the nation's
attention on domestic abuse a decade ago.
Atty. Gen. Dennis Vacco used his state Web page to alert
New York residents to the upcoming January parole hearing of
Joel Steinberg, who was convicted of killing his illegally
adopted 6-year-old daughter, Lisa, in November 1987.
<<Article describes how Steinberg's lover testified that
he had brutally abused her and their two children for years
and how Stienberg reported smoked cocaine while his oldest
child was dying of a brain hemorrhage>>
"The Parole Board must give full weight to his horrific
and senseless beatings of Lisa," Vacco wrote on the Web
site, which features a picture of Lisa holding her younger
brother. "Joel Steinberg . . . was nothing more than a
despicable monster. He has not yet paid his debt to
society."
<snip>
Vacco's use of the Internet to publicize his decision is
somewhat of a twist because the attorney general, like some other
politicians, is a critic of the information superhighway. In
recent months, the attorney general has said the Internet allows
teenagers easy access to pornography and affords them the ability
to illegally purchase alcohol.
The story provides the ULR as:
www.oag.state.ny.us
In Illinois, an Associated Press report on 3 December '97 provided
a URL of www.chilicothe.com that lists the names and registered
sex offenders in soime Illinois counties. Although the URL was not
responding to several attempts to reach it, similar homepages have
been reported across the country, and the numbers will likely
increase.
Because may states (and the federal government) have enacted
"Megan's Laws" that require convicted sex offenders, especially
with juvenile victims, to
register with police in the town in which they live, such
information is public. However, the legality of publishing the
information makes it no less unacceptable. First, the definition
of "sex offense," even when juveniles are involved, remains too
broad to be meaningful. Second, the lists are not error-proof.
Third, publicity exaggerates a stigma that makes reintegration
into society difficulty. Finally, most offenses with juveniles as
victims occur within the home.
Public dialogue on crime, such as it is, currently contains far
too much heat and too little reason. State officials should bear
in mind that responsible Net use applies to them as well as those
they target: Demagoguery and reducing justice to a game of
passions across the Net may be effective grandstanding, but it
also raises questions about the impartiality of the justice.
------------------------------
Date: Tue, 13 Jan 1998 10:17:06 -0800
From: <Rob.Slade@sprint.ca>
Subject: File 5--"Underground", Suelette Dreyfus
BKNDRGND.RVW 970723
"Underground", Suelette Dreyfus, 1997, 1-86330-595-5, A$19.95
%A Suelette Dreyfus
%C 35 Cotham Road, Kew 3101, Australia
%D 1997
%G 1-86330-595-5
%I Reed Books/Mandarin/Random House Australia
%O A$19.95 +61-2-9550-9207 fax: +61-2-9560-0334
%O debbie@iaccess.com.au
%P 475
%T "Underground"
This book is yet another gee-whiz look at teenage mutant wannabe-high-
tech-bandits. The stories revolve around a number of individuals with
loose links to one particular bulletin board in Melbourne, Australia,
all engaged in system intrusions and phone phreaking.
An immediate annoyance is the insistence of the author in referring to
system breaking as "hacking." ("Cracking" seems to be reserved for
breaking copy protection on games and other commercial software.) If
any actual hacking takes place--creative, or otherwise sophisticated,
use of the technology--it isn't apparent in the book. The
descriptions of activities are vague, but generally appear to be
simple "cookbook" uses of known security loopholes. This may not
accurately reflect the events as they transpired, since the author
also betrays no depth of technical knowledge, and seems to be willing
to accept boasting as fact. The bibliography is impressively long
until you realize that a number of the articles are never used or
referenced. At which point, you wonder how much material has even
been read.
The structure and organization of the book is abrupt and sometimes
difficult. Social or psychological observations are arbitrarily
plunked into the middle of descriptions of system exploration, and,
even though the paucity of dates makes it difficult to be sure, they
don't appear to be in any chronological sequence, either. Those who
have studied in the security field will recognize some names and even
"handles," but the conceit of using only handles for members of the
"underground" makes it difficult to know how much of the material to
trust.
Early chapters foreshadow dire events to overtake "Craig Bowen" and
Stuart Gill: Bowen never gets mentioned again, and Gill is only
mentioned twice, peripherally. (In combination with frequent
allusions to ignorance on the part of law enforcement agencies, one
might suspect that a kind of Australian version of "The Hacker
Crackdown" [cf. BKHKCRCK.RVW] was planned, but, if so, it didn't come
off.)
The book's attitude is also oddly inconsistent. In places, the
crackers and phreaks are lauded as brilliant, anti-establishment
heroes; but, by and large, they are portrayed as unsocialized,
paranoid, spineless non-entities, who have no life skills beyond a few
pieces of pseudo-technical knowledge used for playing vicious pranks.
So thorough is this characterization, that it comes as a total shock
to find, in the afterword, that not only do these people survive their
court convictions, but also become important contributing members of
society.
The author seems to feel quite free to point fingers in all
directions. The absurdity of giving "look-see" intruders larger
prison sentences than thieves or spies is pointed out, but not the
difficulty of legally proving intent. After repeatedly hinting at
police incompetence, brutality, and even corruption, the book ends
with a rather weak statement implying that the situation is getting
better. The common cracker assertion that if sysadmins don't want
intruders, then they should secure their systems better, is followed
up with no discussion of surveys showing only one full-time security
person per five thousand employees, and only passing mention, by one
of the ex-intruders, of the extreme difficulty in doing so. Poor
family situations are used so frequently to justify illegal activities
that one feels the need to point out that *most* products of "broken"
homes do *not* become obsessive, paranoid loner criminals!
It is interesting to see a book written about a non-US scene, and from
a non-American perspective. Technically and journalistically,
however, it has numerous problems.
copyright Robert M. Slade, 1997 BKNDRGND.RVW 970723
------------------------------
Date: Thu, 7 May 1997 22:51:01 CST
From: CuD Moderators <cudigest@sun.soci.niu.edu>
Subject: File 6--Cu Digest Header Info (unchanged since 7 May, 1997)
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------------------------------
End of Computer Underground Digest #10.05
************************************