Posted On: April 26, 2010

Authorities Concerned That Child Porn Defendants Seem to Be Getting Younger

As a Fort Lauderdale cyber crime criminal defense attorney, I was interested to see a recent article about a trend in child pornography prosecutions. According to an April 25 article in the San Jose Mercury-News, investigators were disturbed to notice that child pornography defendants are increasingly younger. In particular, law enforcement officers in the article cited an increase in cases of teenaged minors downloading or even creating child pornography. The article suggests that younger offenders might be more common because they are more comfortable with the Internet and technology, which has made it far easier to obtain child pornography despite strict bans on it.

The article quotes Matthew Van Dyke, investigator and group supervisor for U.S. Immigration and Customs Enforcement in the San Jose area. He says no statistics on the ages of child porn defendants are available, but his office started noticing minors and young adults consuming child pornography in 2005. Usually, these were teenagers using their parents’ email addresses. Van Dyke said it’s easy for teens to reach child porn simply by surfing for ordinary pornography, then following links until they find illegal child pornography. San Jose police detective Kendra Nunes added that some kids are making self-produced child porn by performing via webcam for an online audience. The officers said parents should pay close attention to what their kids are doing online.

I agree, but as a Miami-Dade cyber crime criminal defense lawyer, I very much hope that police agencies are treating these younger offenders in a way that takes their age into account. Here in Florida, we have laws that exclude teenagers from prosecution for statutory rape or inclusion on sex offender lists, if both partners consented and they were within a specific age range. In some cases of child pornography, I believe a similar approach is appropriate. In particular, I believe kids who make “self-produced child porn” shouldn’t be charged with making or distributing child pornography, because those laws are inappropriately harsh when there’s no exploitation and no real victim. I also wonder if it might not be age-appropriate for teenaged minors to look at naked pictures of other teenaged minors. And the use of a parent’s email address could get the parent into legal trouble, causing confusion and possibly a wrongful prosecution.

I don’t wish to play down the seriousness of child pornography crimes or the objectionable nature of some of the material mentioned in the article. No matter what your age, exploitation of young children is wrong. But some of the situations described by the law enforcement representatives in this article don’t exactly sound like exploitation. Kids looking at graphic images of kids their age may technically be illegal, but it doesn’t create the same power imbalance that adults exploiting children does. Nor do we usually give teenagers the same level of legal responsibility for their actions that we give adults. And as I have written here many times about “sexting,” it is logically and legally nonsensical to prosecute teenagers for taking sexual pictures of themselves. As a West Palm Beach cyber crime criminal defense attorney, I think doing that is a potentially dangerous mistake, but it’s a shame to ruin the lives of young people for making it.

Posted On: April 23, 2010

Polk County Nets 50 in Child Pornography Sting

Polk County Sheriffs office rounded up 50 individuals and charged them with crimes ranging from possession of child pornography, sexual abuse, to production of child pornography. These charges range in penalties, but carry the designation of sex offender for life. David Seltzer is an experienced attorney when it comes to child pornography and cyber crime cases. All consultations are FREE and we practice throughout the United States. Please call today 24/7 if you or a loved one are facing any cyber crime or child pornography related charges. We can be reached toll free at 1-866-ARRESTED (within Florida), or at 888-THE DEFENSE (888-843-3333). For more information on child pornography or the firm, please visit our website.

Posted On: April 19, 2010

Florida Legislators Consider Standardizing Local Sex Offender Laws

As a Fort Lauderdale sex offender registration violation defense attorney, I work with sex offenders who face a lifetime of restrictions on their movements and activities. This work has given me insight into the effects these laws have on the lives of people who are trying to build new lives while obeying the law, as well as their neighbors. That’s why I was pleased to see that the state Legislature is working to help them by making sex offender restrictions uniform across the state, and removing the most onerous local restrictions on residency. The law would replace a patchwork of 168 local regulations that can create confusion among offenders by setting different residency standards in different cities and counties. It will also make regulations more effective by restricting offenders’ daytime activities.

The proposed bill in the Florida Senate would establish a 2,500-foot zone around schools and day care centers. Registered sex offenders would not be permitted to live in those zones and must leave them between 10 p.m. and 6 a.m. This is the same distance as restrictions already in place in Miami-Dade, Broward and Palm Beach Counties, but includes fewer places where children may gather. This part of the bill seeks to stop sex offender laws from creating homelessness, the South Florida Sun-Sentinel said April 14. The bill also establishes 300-foot buffer zones around schools, day-care centers, parks and playgrounds. Again, sex offenders may not loiter or “prowl” in those zones, but this restriction applies 24 hours a day. The Florida House version of the bill contains the buffer zones but omits the 2,500-foot residency restriction. It also prohibits offenders from dressing as Santa Claus or clowns, or passing out candy on Halloween. The House will vote April 22 on its measure.

This bill follows on the heels of a Miami-Dade County ordinance establishing buffer zones, and Broward County is considering a similar law. In fact, state lawmakers have been debating such a law for at least three years, since the colony of homeless offenders under the Julia Tuttle Causeway gained national attention. As a West Palm Beach sex offender registration criminal defense lawyer, I am delighted that the state is finally tackling this issue, and in a way that serves both the public interest and the needs of sex offenders trying to build new lives. Supporters say the buffer zones are actually more effective than residency restrictions, because they keep offenders away from kids during the day -- when schools and day-care centers are actually open.

By contrast, residency restrictions allow offenders to legally hang around schools and parks during the day. And as I’ve written here several times, those restrictions also make it very difficult for offenders to find a legal place to live. This helps create homelessness among offenders, who are typically legally barred from living with family members or friends and may not have access to affordable housing anywhere. The lack of a fixed address makes it harder for homeless ex-offenders to find a job, and all of those circumstances help alienate them from the society they should be trying to re-enter. In addition, homelessness makes it harder for law enforcement to track the movements of offenders, one of the stated goals of the original laws. This bill is one step toward taking away those problems.

The Senate version of the bill has attracted criticism from people who believe the 2,500-foot residency restriction is too restrictive and can still cause homelessness. As a Miami sex offender registration criminal defense attorney, I would prefer a smaller residency restriction, or one that’s narrowly targeted according to the circumstances. But even with the 2,500-foot restriction, this bill is still less restrictive than many county ordinances, and that’s something to celebrate. And with the buffer zone, the Legislature may be able to genuinely protect children better while also making Florida an easier place to live for registered sex offenders.

Posted On: April 13, 2010

Court Hears Argument on Whether Spamming Judge Merits Contempt of Court Sentence

As a West Palm Beach cyber crime criminal defense attorney, I sometimes work in areas of the law where there’s little or no precedent, because the law has not yet caught up with technology and the way people use it. That may be the case in an appeal currently pending before the Seventh U.S. Circuit Court of Appeals in Chicago. Kevin Trudeau, an infomercial salesman famous for pitching alternative medicine, is appealing a contempt-of-court ruling by a federal judge who was annoyed that Trudeau asked the public to send the judge email in support of Trudeau. The judge received hundreds of messages, BusinessWeek reported April 8, and responded by holding Trudeau in contempt of court, sentencing him to 30 days in jail and a $50,000 fine. Trudeau appealed that ruling to the Seventh Circuit, which held oral arguments in the case April 7.

The appeal grows out of a Federal Trade Commission lawsuit alleging that Trudeau advertised his weight-loss book deceptively. Trudeau continued running the advertisements after a court order to stop them, prompting a fine from the court. In response, he asked his fans to send the judge email testifying that the weight-loss plan worked. The flood of responses froze the judge’s BlackBerry and prompted enough concern that federal marshals reviewed the messages for threats. Trudeau is out on bail while the case is resolved.

At the oral arguments before the Seventh Circuit, the judge was represented by a court-appointed attorney, Gary Feinerman. He argued that the contempt order was justified because a computer is part of a judge’s tools, just like a gavel. In this case, the actions took place in the judge’s “virtual presence,” and the judge was under attack online. He noted that some of the messages seemed threatening. Trudeau’s attorney, Kimball Anderson, argued that federal law says parties can be held in contempt only for actions that take place in a courtroom, with the judge as a witness, that affect the administration of justice. Anderson also argued that Trudeau didn’t realize he was doing anything wrong, and his followers didn’t shut down a server with their messages.

That last argument implies a comparison of the contempt order to a conviction for hacking, because shutting down a server is the result of one type of online attack. However, as a Miami-Dade cyber crime criminal defense lawyer, I don’t believe hacking is a useful analogy. A contempt of court order is not exactly a crime, but a sanction judges can order for parties who disrupt the case in a meaningful way. I think it’s unclear whether Trudeau did disrupt the case, although he certainly disrupted the judge’s life. I do believe it’s clear that he attempted to influence the judge, which could be considered a disruption -- but again, not one that took place in open court.

In the end, as with so many other legal issues, this issue may turn on the wording of the applicable federal law. If that’s the case, Congress should consider whether the law’s wording still achieves the law’s intended goal. State legislatures might also consider whether to update their own contempt of court statutes or rules. I am not sure whether this is the first test of whether contempt of court applies to online actions, but as a Fort Lauderdale cyber crime criminal defense attorney, I suspect it won’t be the last. The Internet is an important part of people’s lives, and the justice system needs to catch up quickly if it wants to avoid injustices.

Posted On: April 8, 2010

Cyber Crime Attorney Quoted in Article on Law Enforcement Use of Social Networking

I'm proud to announce that I was quoted in an article published today on CNNMoney.com. Lawbreakers foiled by Facebook is really about law enforcement agencies using social networking to gather clues about people being investigated in a crime. I wrote about this last week, and I'm glad to see that the issue is getting more press coverage. As I told the reporter, I advise clients to take down their social networking profiles right away, just because you never know who might be looking or whether your "friend" is really an officer.

If you believe you are under investigation for any crime and you'd like to speak with an experienced Miami cyber crime criminal defense attorney, you can call my office any time -- 24 hours a day and seven days a week -- at 1-866-ARRESTED or send me a message online.

Posted On: April 5, 2010

Appeals Court Overturns 30 Year Ban on Computer Use for Sex Offender

My work as a Miami cyber crime criminal defense attorney gives me a firsthand look at the way our society’s restrictions on sex offenders affect their lives and their ability to move on in life. So I was pleased to see a ruling from a federal appeals court that recognized that one sentence went too far. The U.S. Court of Appeals for the District of Columbia ruled April 2 that the trial court may not sentence Mark Wayne Russell, 50, to 30 years without the use of a computer for any reason. Wired’s Threat Level blog reported that the majority in the ruling called the ban “substantively unreasonable” and said it “aggressively interferes with the goal of rehabilitation.” It sent the case back to lower court with orders to, at a minimum, give Russell’s probation officer flexibility.

Russell’s sentence also included 46 months in federal prison for trying to meet a 13-year-old girl (really an undercover officer) in person for sex, after chatting with her online. Before his arrest, he worked as an applied systems engineer for Johns Hopkins University. The computer ban would certainly keep him from pursuing a job in a technical field like this, the majority wrote. The opinion also noted that computers are now a necessity in many blue-collar jobs. In fact, it said, Russell was unable to apply for or take retail and fast-food jobs because of the computer ban. This directly conflicts with rehabilitation, a goal of sentencing, and also conflicts with Russell’s right to be deprived of no more liberty than necessary to achieve sentencing goals. A separate concurring opinion by Judge Karen LeCraft Henderson disagreed that the ban was a substantial burden on Russell’s liberty or that it would keep him from getting a job.

In making this ruling, the D.C. Circuit joined the Third U.S. Circuit Court of Appeals, which overturned a lifetime ban on the Internet for a sex offender in January. Those two circuits have now split with the Eleventh Circuit, which upheld a similar ban in August. As a Fort Lauderdale cyber crime criminal defense lawyer, I am glad the D.C. Circuit is in the majority. As the opinion said, even jobs that don’t require daylong computer use often still require computers for administrative tasks. For a white-collar worker like Russell, a total ban on computer use would mean giving up his career and training. Increasingly, such a ban also means giving up participation in certain aspects of society. Technically, computers are all around us -- in ATMs, cars, cash registers and cell phones. Applied as literally as possible, the computer ban could have made it difficult for Russell to function outside of Amish country.

Some sentencing orders are sensible restrictions intended to keep the defendant away from opportunities to repeat the crime. For example, I think most Americans would support a ban on driving for a repeat drunk driver with an unaddressed alcohol abuse problem. But as this case shows, other restrictions can overreach, banning activities not closely related to the crime or assuming a likelihood of recidivism that the defendant hasn’t shown. As a West Palm Beach cyber crime criminal defense attorney, I have noticed that sex crimes are among the few crimes that generate this sort of harsh, overreaching sentencing. Not surprisingly, they are also among the most emotionally charged crimes. Until our politicians and courts can resist making decisions based on emotion or appeal to voters, offenders like Russell will continue showing up in appeals courts.