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 To--Multiple recipients of list 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 %%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%% <><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><>< 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 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. <
> "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." 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: 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 Subject: File 6--Cu Digest Header Info (unchanged since 7 May, 1997) Cu-Digest is a weekly electronic journal/newsletter. 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