Subject: FW: Child Pornography issue
From: [email-masked]
To: [email-masked]
Date: Tue, 21 Aug 2001 07:58:31 -0700 (PDT)

Let's discuss when we both can talk.  MHC

 -----Original Message-----
From: 	"Notestine, Kerry" <[email-masked]>@ENRON [mailto:IMCEANOTES-+22No[email-masked]] 
Sent:	Friday, August 17, 2001 10:16 AM
To:	Cash, Michelle
Cc:	Zimmermann, Ashley
Subject:	FW: Child Pornography issue

Michelle:

I wanted to follow up with some additional information regarding the child
porn issue.

The consensus seems to be that the company does not need to report the child
porn if it does not want to.  The only exception to this is individuals
engaged in an electronic communication service or a remote computing service
to the public are obligated under 42 U.S.C. 13032 to report child porn to
the Cyber Tip Line at the National Center for Missing and Exploited
Children.  I looked at the definitions of "electronic communication service"
and "remote computing service" and the second does not seem to apply
although the former could apply.  The statute appears to qualify both as
providing those services "to the public" so I would not think an email
system for employees would apply.  The definition of electronic
communication service is pretty broad though.  If you want me to investigate
this further let, me know, but I would think we have a good argument that we
do not provide these services to the public.

The child porn statute, 18 U.S.C. 2252A, covers pornography involving girls
under the age of 18, so much porn could be child porn.  There are enhanced
penalties for certain types of child porn and for child porn involving
children under the age of 12.  There is an affirmative defense under the
statute if the possessor of child porn destroys it or reports it to a law
enforcement agency.  Therefore, it seems the best course of action is to
destroy anything the company has and there does not appear to be a reporting
obligation.  Ashley anonymously called the FBI and the DA and their
responses are indicated below.  The information obtained from the FBI and
DA's office is consistent with my recommendations.

Kerry E Notestine
Littler Mendelson, PC
1900 Chevron Tower
1301 McKinney Street
Houston, Texas 77010
713.652.4748
713.951.9212 (fax)
[email-masked]
www.littler.com

> -----Original Message-----
> From:	Zimmermann, Ashley
> Sent:	Thursday, August 16, 2001 4:00 PM
> To:	Notestine, Kerry
> Subject:	Child Pornography issue
>
> Kerry,
>
> I did a little bit of further research on this issue.  First, as Brian
> King stated, simply downloading or making a copy of child pornography for
> any reason-even to provide it as evidence to law enforcement- is a crime
> in the U.S., so the client should not attempt to copy it.  The client
> should attempt to obtain the URL (Web address) and report that information
> to law enforcement if the client decides to report it.
>
> Second , the statute making it illegal to knowingly receive or distribute
> child pornography through interstate or foreign commerce through any
> means, including by computer, (or receive or distribute child pornography
> that has been received or distributed by someone else through interstate
> or foreign commerce), in the special maritime and territorial jurisdiction
> of the United States, is 18 U.S.C. Section 2252A.
>
> It is not clear whether our client has a duty to report the finding of
> child pornography on its computer system.  42 U.S.C. Section 13032 states
> that whoever, while engaged in providing an electronic communication
> service or a remote computing service to the public, through a facility or
> means of interstate or foreign commerce, obtains knowledge of facts or
> circumstances from which a violation of sections... 2252A, involving child
> pornography, is apparent, shall, as soon as reasonably possible, make a
> report of such facts or circumstances to the Cyber Tip Line at the
> National Center for Missing and Exploited Chidlren.  (The number for the
> Cyber Tip Line is 1-800-843-5678.)
>
> Depending upon how you read the above paragraph, our client might have a
> duty to report its finding child pornography on its computer system to the
> Cyber Tip Line, despite the fact that it has been unable to determine who
> put it on there.  For practical advice, I contacted the FBI and a Harris
> County D.A.  The FBI duty agent I talked to said that if the company does
> not know who put the pornography on there, they do not have a duty to
> report it.  However, he suggested that they contact the Field Office in
> San Juan, Puerto Rico because the office might have certain equipment,
> specialists, etc., that could assist the client in determining who put the
> child pornography on the system and further investigating the issue.  The
> phone number for the FBI in San Juan is:  (787)754-6000, and if the client
> calls he/she should just ask to speak to a duty agent and explain what
> they found and how they found it.  (Note, there is also a special FBI
> Office that handles crimes against children, that office's number is:
> (202)324-3666.)
>
> Additionally, the Harris County D.A. I talked to was not concerned that it
> would be some type of spoliation of evidence to destroy the pornography
> and agreed that it is a crime simply to knowingly receive it, but
> recommended that the client contact the FBI in Puerto Rico so that they
> could decide whether they wanted to pursue it before the client destroyed
> it.
>
> Let me know if you wish me to look into this further.
>
> Ashley
>

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