American Public University System National Security Studies Child Pornography: The Result of Lack of a Global Protocol Jennifer Rivera Gonzalez 4550941 ISSC630 - ADVANCED CYBERCRIME ANALYSIS Introduction Every year, numerous children are sexually abused or exploited around the world in the form of child pornography. According to a report from UNICEF, a child is being prepared for sexual exploitation every 2 minutes . But what is even worse is that these molesters may document this evidence on video and share it on the internet. This can then lead to further blackmail and force the child into submission. Although modern technology in the form of the internet is a gift to us in many ways, its rapid growth and spread across the world has enabled crimes to be committed against children and repeatedly share this evidence of a child’s victimization in the cyber-space. According to recent reports, despite international laws designed to protect the rights of children, the incidents of sexual exploitation of children is on the rise with over 75 million children affected across the world . This goes to show that no country is invulnerable from child exploitation and governments, civil society and law enforcement agencies across the globe will have to take concerted efforts to make sure that the children of this world are protected. In addition to this, it is quite shocking to note that despite such a huge problem, this increase in the number of children being sexually exploited can be attributed to a lack of global legislation that is specific to child pornography. In this assignment, I would attempt to highlight this problem and seek to understand the challenges associated with adopting a global legislation and would like to propose a model legislation that could help solve this crisis. Executive Summary As stated earlier, the internet has provided sexual offenders and people who commit crimes against children, the chance to create illegal images and content of children and share them with like-minded people. The internet has not only made this practice easy and in-expensive, but also made it less risky, more profitable and unrestricted by geographical boundaries. What is even more shocking is that this content is often quite violent, disturbing and graphic. According to the Internet Watch Foundation (IWF), out of all reports received related to child pornography, 53% of the victims were less than 10 years of age and 4% were 2 years or younger . In the report, it was found that about 60% of the child abuse webpages are hosted by Europe, 37% are hosted by North America but in the United Kingdom, there was a tremendous decrease in the number and it currently hosts 0.1% of child abuse webpages. This can be attributed to the strict rules and regulations that the country takes. However, it is important to note the data for the other countries is unavailable. The UNICEF, in their report claim that collecting data on child abuse across the world is quite challenging due to the clandestine nature of these crimes resulting in such crimes being under-reported and under-recognized . On the other hand, it was found that only 40% of the total countries have adopted a suitable legislation to address child pornography and about 35 countries have not defined child pornography. Countries such as the USA, Canada and other member countries of the European Union have led the way by adopting a harmonized legislation, there is an urgent global need to gain a better understanding on the laws and regulations addressing child pornography and to measure where this issue stood on national political agendas. There is a need to increase global awareness and concern for this issue and governments around the world should rise up to the occasion to adopt a much-needed protocol to protect these children. Effects of Child Pornography According to , many children who appear on child pornography content have not been physically abducted or forced to take part in the act but rather know the producer. It could be a relative, family member or just an acquaintance. They are usually manipulated using subtle methods. In any case this can have disturbing social, physical, emotional and psychological effects on the child. However, most of the children felt a pressure to cooperate with the offender and not to report such matters to the law enforcement agencies. Many of the children who were exposed to pornography at a young age were found to have a difficulty in establishing meaningful healthy relationships for the rest of their lives. From the perspective of the user of pornographic content, they access such content only to fulfil their sexual drive and they eventually become increasingly insensitive to the pain and suffering of children. International Law on Child Pornography Child pornography is a multi-cultural and multi-jurisdictional issue which demands a global action. The first step towards achieving this is through a uniform legislation. The different laws in each country only weaken this purpose as the criminals know exactly which country is the best in order to exploit children. Therefore, a holistic and uniform approach is the best way to tackle this problem because – It raises awareness about the problem It enables a consistency in charging, punishing and sentencing criminals The victims will have a wider and larger base of communities, organizations and governments willing to listen to their ordeal and solve their problem. It improves the overall law enforcement energies at a national as well as an international level. Currently, there are three major international legislations that address child pornography- The Optional Protocol to the (UN) Convention on the Rights of the Child, on the Sale of Children, Child Prostitution and Child Pornography. The Council of Europe’s Convention on Cybercrime and The Council of Europe’s Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse. In addition to this, in the year 2013, the member states of the European Union adopted a Directive to fight against the sexual exploitation of children. 4.1 The Optional Protocol to the UN Convention This convention protocol aims to ensure a wide range of human rights for children in the areas including economic, social, political and cultural rights but certain terms related to child pornography are: Article 2 (c) gives us the definition of child pornography as “any representation, by whatever means, of a child engaged in either a real or simulated explicit sexual activities or any representation of sexual parts of a child primarily for sexual purposes” Article 3 (1) relates to child pornography to be criminalized, whether it was committed locally or internationally. Article 3 (1) (c) specifies that the country should criminalize anyone found with any possession of content related to child pornography. Article 3 (4) encourages involvement by the industry and mentions that countries need to establish a liability related to child pornography. Article 10 (1) speaks about the need or international cooperation without which offenders can escape from being apprehended or prosecuted. 4.2 The Convention on Cybercrime This convention was held with the hope that there would be a uniform cooperative approach towards solving crimes related to the internet and digital technology. In relation to child pornography, Article 3 lays down the rules and regulations: Article 9 (1): makes it a criminal offence to either produce, distribute or procure content related to child pornography using a computer. Article 9 (3): provides a definition of a “minor” who is below 18 years and a country may consider 16 years or lower in some cases. Article 11: requires legislation to include aiding and abetting and the attempt to commit crimes as well. Article 12 (1): relates to corporate liability and Article 23: stresses on international cooperation 4.3 The Council of Europe’s Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse Currently, 39 member states have ratified this convention and 8 other member states have signed but have not yet ratified. With regard to child pornography, the Convention lays down the following guidelines that are unique to this convention: Article 21 (1): makes a recommendation to member states to form a legislation that criminalizes those to coerce or recruit children to participate in child pornography and knowingly attend child pornography related performances. Article 26 (1): relates to corporate social responsibility and Article 38 (1): addresses the need for international cooperation 4.4 The European Union Directive In 2011, the European Parliament and the Council of the European Union adopted the directive 2011/93/EU and is a major improvement on the previous iterations. It seeks to provide a harmony between various terms like child sexual abuse, child pornography and grooming and significantly increases the minimum punishment. It also identifies the role of the internet and other digital technologies in the spread of child pornography and encourages member states to take necessary measures to prevent such incidents. As of Nov 2015, 26 member states have taken steps to implement these directives. The following are some of the highlights: Article 4, paragraphs 2-4 encourages member states to punish offenders who knowingly make profits by exploiting children. Article 6, paragraph 2 relates to criminalizing intentional conduct; solicitation of children using information technology. Article 11 relates to confiscating instruments of the offenders who engage in child pornography and selling of such instruments to raise money to support various causes. Article 15 provides recommendations regarding the investigation and prosecution of crimes Articles 18 and 19 relates to providing assistance to victims of child pornography. Articles 22, 23 and 24 are regarding intervention and prevention plans and actions. Article 25 relates to measures that need to be taken regarding websites that circulate such content. Findings According to the research by , the following points have come to light: Only 82 countries (40%) have sufficient legislation relating to child pornography There are 35 countries that do not have any legislation relating to child pornography. 60 countries do not define child pornography 26 countries do not provide for computer-related offences 50 countries do not criminalize knowing possession of content related to child pornography. 79 countries have a legislation relating to data retention and preservation. The above guidelines, rules and regulations clearly indicate that steps are being taken by global organizations to harmonize the legislation relating to child pornography. Countries in the European Union, Great Britain, The USA and Canada have come forward with proposal and innovative ways of dealing with this problem. However, there is an urgent need for other countries to adopt this legislation as soon as possible. Proposing a Model Legislation 6.1 Defining a ‘child’ Determining the age at which a person can consent to sexual activity varies from one country to another and is a major challenge towards the goal of a harmonized action on child pornography at the global level. While a person who is under the age of 18 years may be able to freely consent to sexual relations, such a person cannot consent to any form of sexual exploitation which includes child pornography. Moreover, an agreement on a common age of a person to be considered as a “child” becomes crucial when a crime that is committed abroad must also be considered as a crime in the offender’s home country. For this reason, for the purpose of child pornography, a “child” can be defined as someone who is of the age of 18 years. 6.2 Child Pornography Defined In a general sense, the term “child pornography” refers to conventional pornography with child subjects and includes any representation of a child who is engaged in either real or simulated sexual activities or the representation of the child’s sexual parts for sexual purposes. 6.3 Offences Child Pornography offences should be incorporated in the penal code- It was found that in all the legislations, there was a lack of detail when it came to specifying criminal offences and punishments. Child pornography must be recognized as a crime and the punishment should be enhanced and mere banning it will do no help to the cause. People who knowingly view, download or acquire content related to child pornography should be punished- It becomes imperative to also mention the kind of technology being used to commit this offence. Criminalizing the knowing possession of content relating to child pornography will not only curb the growth of this industry, it will also prevent further incidents of sexual exploitation. Parents/legal guardians who consent to their child’s participation in child pornography should be punished – Just as a parent or a guardian cannot consent to the child driving a motor vehicle or drink alcohol or commit any other crime, there should not be any consent given by the parent for the child to enter into the pornographic industry. This should be regarded as a breach of trust, parental responsibility and duty and should not go unpunished. Grooming offences must be criminalized – Grooming here refers to the use of either the internet or other electronic or digital technology to facilitate a contact with a person who is under the age of 18 years . According to the report, sexual offenders use online sources such as social networking sites, email or chat rooms to gain a child’s trust and possibly to arrange a face to face meeting. Gaining the trust of the child is the most important step and efforts need to be made here in order to reduce instances of sexual exploitation against children. Once the trust of the child is gained, the offender uses various techniques to reduce their inhibitions and encourage them to participate in the offence. Therefore, there should be more stringent legislation regarding online grooming. 6.4 Compulsory Reporting People who suspect child pornography such as parents, teachers and professionals should compulsorily report it to the relevant law enforcement agency – Any person, community or organization that comes into contact with children on a day to day basis are the best people who can develop well-informed suspicions about potential child victims and should report such instances. In addition to this, financial companies such as banks can be of immense help as most of the sexual offenders use financial instruments such as credit cards, money transfers and other payment methods in order to purchase child pornography content. However, the most important cog in the wheel are the wheel are the Internet Service Providers (ISP’s). Most of the law enforcement agencies would be unaware of the crime unless it is reported by the ISP. They are in the most ideal position to report such suspicious activity through their reports. The legislation should allow ISP’s to therefore report such activities. Creating Complaint Sites or Hotlines – ISP’s should set up hotlines where users should report any illegal activities taking place. These companies could either deal with the issue like creating appropriate filters to browsers or search engines or can report these instances to the appropriate authorities for action. Self-regulation by the Computer Industry – As explained earlier, the role of ISP’s are crucial to control this menace. It should be noted that the child pornography industry is a very lucrative one and also growing very fast every year. According to recent reports, the industry grows at a rate of $3 billion every year . Regulating remailers – Remailers are a new concept and they refer to servers that remove the identification of the sender and then forward the emails. Much tighter regulations are necessary and many have argued that the remailer administrators be held accountable for knowingly forwarding such emails . Escrowed Encryption – This is becoming one of the major challenges for the law enforcement agencies where offenders encrypt pornographic content before circulating it on the internet. The proper identification and monitoring of agencies that sell such encrypting software is needed as well as development in the field of code-breaking software is essential. 6.5 Data Retention and Preservation For law enforcement agencies to effectively track, investigate and punish the sexual offenders who view, download or distribute pornographic content, they need access to computer data. However, in most of the cases, the data might’ve been already deleted, which makes it more difficult to prosecute the perpetrator . However, Internet Service Providers have the ability as well as the capacity to preserve the users’ data in order to make it available for criminal prosecution. In this context, the data can be of two types- Content related data, which can include information such as the text or email that the offender sent the child or an image or video that was shared with the child. Non-content data, on the other hand, includes data such as the subscriber information, the traffic data, the location data and the time, size and duration of a certain communication . According to the International Association of Chiefs of Police, the inability of Internet Service Providers to retain and preserve both content and non-content data for a reasonable amount of time has become a huge obstacle in investigations. Internet service providers should be legally obligated to retain computer data for a certain period of time. Currently, guidelines related to the type of data that is collected, data retention, preservation vary from one country to another and should be streamlined. Over the past few years, the concepts of data retention and preservation have been increasingly discussed in international forums and there is an increasing international awareness about these topics. For example, The Council of the United States Europe Convention on Cybercrime has adopted some recommendations for the type of data and the duration for which such data has to be retained and preserved. In the United States, data retention has been made compulsory and in Canada, ISP’s are obliged to provide law enforcement agencies about any incidents involving child pornography and they are required to preserve such data for a period of 21 days from the day of notification . In addition to this, there are certain good practices that have come to the frontline and are discussed in the table given below: Data Retention Data Preservation The retention of subscriber information, location and traffic information should be retained for a minimum of 6 months. ISP’s should have a proper process to immediately respond to subpoenas or any requests from the law enforcement agencies To support the execution of a legal framework to limit the application and the scope of data retention. ISP’s should respond to orders for preservation as soon as possible To encourage differentiation in terms of the data that has to be collected The requested data should be preserved for at least 3 months with the possibility of getting an extension. To guarantee against the unlawful access and use of sensitive data. 6.6 Sanctions and Sentencing Addressing the criminal liability of the child – The current legislation does not explicitly address the criminal liability of the child involved in pornography and it should be clearly stated. The criminal liability should solely focus on the offender, who is an adult and is responsible for the sexual exploitation of the child. In addition to this, legal provisions need to be made to protect the child when he/she is a witness and creating other guidelines in the courtroom. Increase the penalty for repeat offenders – Mere fines or charges are not enough and all violations and repeat offenders should be strictly punished. According to other reports, terrorists have been using child pornography to send concealed information and data and organized gangs use child pornography to generate additional revenue . Such repeat offenders should be severely dealt with. Forfeit the assets of the offender – The convicted offenders should be subjected to the forfeiture of their assets that were used in the action of child pornography and the funds raised from the sale of such assets should be used to support programs or organizations which are dedicated towards the rehabilitation of the victims of child pornography. 6.7 Education and Training The unique and special nature of these offences pose challenges that include the offenders who commit these crimes which are rarely in public. Therefore, educating the general public or those who have a considerable influence on public opinion can help in the prevention of child pornography. The media can play a major role by regulating the manner in which children are portrayed in the press. 6.8 Conduct Additional Research It has been said time and again that conducting research in this field is quite challenging due to the nature of the crime. While we know the short term impact of pornography on children, very little is known about the long term consequences of exposing a child to pornography. There is scarce research on the treatment programs for the victim of these crimes. Without a good understanding and evaluation of the proper child welfare activities, law enforcement initiatives, the judicial system cannot accurately determine the causes, effects, scope and treatment of crimes related to child pornography. Conclusion Over the past few years, one can observe that progress is being made in a slow and steady pace regarding the issue of child pornography. Various international legal guidelines are set up which are raising awareness about the urgency and importance of this issue at hand. We have seen how the incidents of child pornography have substantially increased and therefore more countries need to adopt these legislations and need to take some action in order to curb this menace and secure the future of our children. While fighting against child pornography is a difficult task, especially with new inventions in the internet and technology, there is hope that this issue can only be solved through international cooperation and harmonizing the laws.