[governance] I'm "virtually" baffled - a side-glance at "remote participation"

Fri Feb 24 11:58:52 EST 2012

This is an example where Internet activity can be, and often is, more
regulated by the criminal law than actual in-person conduct.

In the article Aldo links to, the adult male police officer in the small
town in Pennsylvania (age of consent = 16) with apparently nothing local to
work on monitors an internet chat room instead, posing as a 15 year old
girl just a few days or months away from the age of consent in
Pennsylvania.

A reasonable person might think that the chat room verification of age of
at least 18 to enter the site might provide a reasonable doubt as to
intent, but that reasonable person would be wrong (at least in this
case).   A reasonable person might think that fantasy-based words and/or
activity would be less regulated than actual in-person sexual activity, but
that reasonable person would be wrong again, because the existence of
internet servers in multiple states virtually always guarantees that
federal law can be applied under the interstate commerce clause, even where
the two chat participants are physically in the same state.  In general,
persons seeking to conform their sexual conduct to the law specifically on
the internet must apply the most restrictive of all applicable state and
federal laws to their activity, even if they are clearly both in the same
state.

In fact, had actual sexual activity occurred in person, there would be no
"age of consent" issue, because both were, in fact, adults, and the officer
was old enough that this fact would be obviously apparent, along with the
fact that the officer was actually male, not female.

The actual prosecution in this case is under a federal statute that makes
it a crime to use the instruments of interstate commerce (internet,
telephone, etc) to "persuade" "incite" or "coerce" a person under the age
of 18 to engage in sexual activity.

The presence of the web cam on the computer of the accused is held to
remove these kinds of cases from the protection of the First Amendment, on
the grounds that it is CONDUCT that is proscribed, not speech.  The
"conduct" in this case is persuasion or solicitation of a minor for sexual
purposes, and the focus of the statute has been held to be on the
defendant's CONDUCT and intent, not the actual situation of the victim,
which is why adult male police officers can pose as underage girls and
still get away with a prosecution.  From this perspective, it also follows
that arguments that the statute is prohibiting things in the nature of
"thought crimes" will not prevail in court, again on the grounds that it is
the conduct in  furtherance of the illegal intent that is proscribed by the
statute.

The actual defendant in this case was also a former US Marine, and might
reasonably have assumed that the US Code of Military Justice (providing an
age of consent of 16 but also requiring evidence of duress, force or
coercion for ages 13-15) would be the strictest law around given the honor
codes of the Marines, but here again a reasonable Marine would be legally
quite wrong.

A reasonable US citizen might also think that travel abroad would result in
the laws of the country of visitation applying to sexual conduct, and thus
reason that a trip to London and a dalliance with a 16 or 17 year old
Londoner would be legally permissible given the UK age of consent of 16,
but here again US law is h eld to apply to US citizens even in their
activities abroad, so again the most restrictive "applicable law" must be
applied to one's conduct, and US federal law is, surprisingly, applicable
to US citizens worldwide when it comes to sexual conduct.

This extraterritorial application of US law to US citizens is not only a
trap for the unwary participant in sex tourism situations, but also a
potential trap for the US graduate student spending some time abroad and
meeting a 16 or 17 year old in a bar in a country where the drinking age is
lower than in the US or where IDs are either not rigorously checked or fake
IDs are readily available.  With regard to fake IDs, numerous US cases
involving statutory rape (consensual sex with under-age-of-consent person)
have held that "mistake of fact" as to the minor's age is no defense, EVEN
WHEN the minor presents a fake ID appearing to conclusively prove an age
that is perfectly legal for purposes of competent consent.

One other internet-related twist.  Had the defendant web-published his web
cam video of his CONDUCT on a website with appropriate but not foolproof
age verification, and his video happened to be seen by 1 or even 1 hundred
thousand minors (on account of becoming viral somehow), there could be no
prosecution, because the conduct was not directed at persuading, enticing
or encouraging minors.  It is a close question, but probably a broadly
distributed "adults only" video entitled "An Appeal to 15 to 17 year old
Young Ladies" containing contact information at the end stating "you've
seen my video, now call me, for a good time, at 867-5309" would not result
in a *successful* prosecution (though it may result in a prosecution).
Regardless of whether this last example holds true, it is nevertheless the
case that there would be a big internet distinction in terms of criminal
law's applicability based on whether one uses "push" technology like email
or chat, or "pull" technology like websites, so long as the "pull" approach
doesn't target a specific real person that either is a minor, or is a cop
both claiming to be a minor and claiming to be of the opposite sex as well.

One historian has commented that historical treatments on age of consent
issues are amongst the most fascinating proof that historians are very
commonly unable to escape the cultural mores and biases of their own times
and specific culture (discussing the uncritical reviews in various ages of
both very low and very high ages of consent, together with related
variations historically scene in the law of competency to engage in sexual
activity or fantasy)

Salanieta suggests some consideration of verification requirements for
remote participation.  To the very best of my knowledge, IGF remote
participation involves zero sexual activity, so laws like these would not
apply.  But if I misapprehend the full scope of activity via IGF remote
participation (ha ha) and it did include sexual fantasy or conduct or
solicitation (as opposed to merely viewing videos generally published) then
all the verification anyone might dream of doing will still not guarantee
the freedom of willing participants to consent to the same, because even a
known adult person aged 45 or so can legitimately gain entry to remote
participation and then lie and say they are a 15, 16 or 17 year old minor,
and suddenly the whole universe of the law changes radically, even though
reasonable people can easily reason that it doesn't, or shouldn't.

Finally, despite the conviction in the case below, I am not convinced, as
Aldo at least appears to be, that the person needs "psychological help"
given his most intentional act was selecting a chat site dedicated
specifically to adults, and thus could have reasonably assumed that the
person on the other end was engaging in pure fantasy in stating "she" was
15, which "fantasy" was, indeed, actually not real.  It seems a much
stronger case for the kind of perversion or at least strangeness that can
lead to calls for others to get "psychological help" can be made for the
small town male cop posing as a 15 year old girl in a chat room, which is a
more unusual (shall we say) sexual activity than is the phone or
"video-phone" sex that the person was convicted for.

Here we have a case where the basically honest, intelligent person who
selects an adults-only chat room is essentially entrapped by a dishonest
cop lying wildly about both age and gender, and no actual minor was either
involved or even arguably harmed, and yet for some reason this is ONLY
unseemly for the defendant Mr. Ritter?   It seems to me that the
overbreadth of the law in this area is also shameful and embarrassing, the
fact that internet speech/conduct is more regulated than actual physical
sexual contact is shameful and embarrassing, and (if you read a legal case
in this area) the kind of legal gymnastic acrobatics that too many courts
engage in so as to ensure the punishment of defendants like Mr. Ritter who
have not created a single actual victim is shameful and embarrassing and
also a form of (legal) obscenity and abuses and degrades the law in a way
that is metaphorically pornographic.

Paul Lehto, J.D.

PS  For US citizens (at least) on the internet, there is a phrase more
powerful than "No" or "Stop" in "meat space".  That phrase is "I am under
18 years old".  THis phrase is especially powerful because it does not even
need to be true!  Amazing.
On Thu, Feb 23, 2012 at 11:33 AM, Aldo Matteucci
<aldo.matteucci at gmail.com>wrote:

> Opening the NYT Magazine this morning, I was baffled by a long article
> describing a “virtual reality” crime with real "prison time" consequences.
> Read my consideration first, though.
> http://www.nytimes.com/2012/02/26/magazine/scott-ritter.html
>
> Pared to the barest bones, the event is as follows. A man on the web
> enters an “adult chat-room” (i.e. self-declaration >18y) and anonymously
> engages is explicit conversation with another person there. At one point
> the chat-partner tells him she is under age. He has no way of verifying the
> statement. He then proceeds to masturbate in front of his web-camera.
>
> It so happened that the chat-partner was an under-cover policeman. The man
> was eventually sentenced to a minimum of 18 month and up to 5.5 years in
> jail.
>
> That the man needs psychological help is undisputed. Whether 18 months in
> jail will persuade him “*to take responsibility” *for what he’s done – so
> the Judge – is open to debate.
>
> Let’s look at the circumstances of the case, however: the whole thing took
> place in a virtual loop. The man was in no position to verify with whom he
> chatted. For all he knew, no one was watching what he did, nor was the
> person forced to watch what he was doing. He did not propose a face to face
> encounter. The baffling question to me is: was there a crime to begin with?
>
> I see a wider connection to “remote participation” – to what extent might
> one be liable for passive or active “remote participation”, or even simply
> being on a list?
>
> What makes the matter poignant – yet distracting – is that the man was
> Scott RITTER, who looked in vain for WMD in IRAQ is the run-up to the war
> and warned that there weren’t any. That’s the human angle – and what
> accounts for the 9 pages.
>  Aldo
>
> --
> Aldo Matteucci
> 65, Pourtalèsstr.
> CH 3074 MURI b. Bern
> Switzerland
> aldo.matteucci at gmail.com
>
>
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-- 
Paul R Lehto, J.D.
P.O. Box 1
Ishpeming, MI  49849
lehto.paul at gmail.com
906-204-4026 (cell)
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