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NAAGazette

The Internet, Cybercrime And The Supreme Court

Hedda Litwin, Cybercrime Counsel

Hedda Litwin, NAAG Cybercrime Counsel

With the new U.S. Supreme Court term underway, it seems appropriate to discuss the cases involving cybercrime and Internet issues that have been granted certiorari so far. There are two such cases: one dealing with a federal law on child pornography that was partially struck down and the other addressing more tangentially Internet tobacco sales.

Possession of Child Pornography

We’ll begin with a discussion of U.S. v Williams, as the Supreme Court will once again ponder attempts by Congress to prohibit child pornography. This time, it’s a provision of the Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today (“PROTECT”) Act, which bans the pandering of “any material or purported material” in a way that “reflects the belief” or “is intended to cause another to believe” that the material is child pornography. The Court will have to decide if the Act is overly broad and thus unconstitutional on its face in violation of the First Amendment.

The facts of the case began with an undercover operation by the Secret Service aimed at combating online child exploitation. As part of that operation, Agent Timothy Devine engaged Michael Williams in a private Internet chat, during which Williams sent Devine a computer hyperlink with “good pics of her and me,” referring to Williams’ young daughter. Agents subsequently obtained and executed a search warrant at Williams’ home, which resulted in a finding of child pornography on Williams’ computer hard drives. Williams was charged and convicted on one count of pandering material causing belief that it is child pornography under the PROTECT Act and one count of possession of child pornography. Williams filed a motion to dismiss the pandering charge on the grounds that the provision in the PROTECT Act was unconstitutionally overbroad and vague. While the motion was pending, a plea agreement was reached whereby Williams would plead guilty to both counts but reserve his right to appeal the pandering charge. He was sentenced to 60 months in prison for each charge to be served concurrently.

On appeal, the 11th Circuit found that the pandering provision abridges the freedom to engage in a substantial amount of lawful speech and was thus constitutionally overbroad. It also found that the provision failed to outline its restrictions with sufficient clarity to enable compliance. Williams’ sentence on the pandering count was reversed. The court’s ruling also rendered that provision of the PROTECT Act unenforceable in the 11th Circuit, which covers Florida, Georgia and Alabama.

Oral argument for the case is scheduled for October 30.

Internet Sales and Delivery of Tobacco Products

The other case, Rowe v. New Hampshire Motor Transport Assn., Docket No. 06-0457, deals with Maine’s Tobacco Delivery Law regulating the Internet sales and delivery of tobacco products. That statute, enacted in 2003 to curb cigarette sales to minors, requires retailers to use a carrier that will deliver a package only to the addressee and verify that the person receiving the package is old enough to buy tobacco. Additionally, Section 1555-D of the statute forbids anyone to knowingly deliver tobacco products to a Maine consumer if they came from an unlicensed dealer. Under the law, the person delivering the package is “deemed to know” that it contains tobacco products if the packaging indicates that tobacco products are contained or if the shipper appears on a list of unlicensed tobacco retailers maintained by the Attorney General of Maine.

The New Hampshire Motor Transport Association, representing air and motor carriers, sued the Attorney General of Maine, claiming that the Federal Aviation Administration Authorization Act (FAAAA), which preempts states from enacting laws related to a carrier’s prices, routes or services, preempted Maine’s Tobacco Delivery Law. The Association argued that Maine’s law would impermissibly force carriers to alter their delivery practices in order to verify the age of the recipient. The U.S. District Court for the District of Maine agreed, and Maine appealed. The First Circuit Court of Appeals upheld the ruling, with the exception of the section that forbids carriers to knowingly deliver tobacco products, finding that requiring that carriers not act as knowing accomplices does not cause them to modify their delivery practices.

The issue, then, before the Supreme Court is whether a state government is allowed to require companies that deliver Internet tobacco orders to verify the age of their recipients. Paul Stern, Deputy Attorney General in the Office of the Attorney General of Maine, submitted the brief for petitioners. An amicus brief, on behalf of California and 35 other states, was submitted by Laura Kaplan, Deputy Attorney General in the Office of the Attorney General of California, in support of Maine’s position. No date has been set for oral argument.

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