12-22-2008 Virginia:
RICHMOND, Va. — Child pornography is illegal even if the pictures are drawn, a federal appeals panel said in affirming the nation's first conviction under a 2003 federal law against such cartoons.
Dwight Whorley of Richmond is serving 20 years in prison, convicted in 2005 of using a public computer for jobseekers at the Virginia Employment Commission to receive 20 Japanese cartoons, called anime, illustrating young girls being forced to have sex with men. Whorley also received digital photographs of actual children engaging in sexual conduct and sent and received e-mails graphically describing parents sexually molesting their children.
A three-judge panel of the 4th U.S. Circuit Court of Appeals on Dec. 18 upheld his conviction.
Among the arguments in his appeal was that cartoons are protected under the First Amendment because they do not depict real children. He also claimed the statute was unconstitutional because text-only e-mails cannot be obscene.
Two judges rejected those arguments in U.S. v. Whorley. A third agreed with Whorley on those issues but joined the majority in affirming his convictions on the counts pertaining to photographs.
Judge Paul V. Niemeyer noted in the majority opinion that the statute under which Whorley was convicted, the PROTECT Act of 2003, clearly states that "it is not a required element of any offense under this section that the minor depicted actually exists."
Rob Wagner, the federal public defender who represented Whorley, said he was "very disappointed" with the ruling and that he would ask the full appeals court to reconsider. If that failed, Wagner said he would petition the U.S. Supreme Court to review the case.
A Virginia jury convicted Whorley of 74 counts including receiving obscene materials, receiving obscene visual representations of the sexual abuse of children, receiving child pornography and sending and receiving obscene e-mails describing the sexual abuse of children.
Whorley, 55, is serving his sentence at the Gilmer Federal Correction Institution in Glenville, W.Va.
He previously was sentenced to 46 months in prison for a 1999 child-pornography conviction. ..News Source.. by AP
December 22, 2008
VA- 4th Circuit upholds law against cartoon child porn
December 21, 2008
MI- In Howell, a teacher's e-mail center of dispute
12-21-2008 Michigan:
When does a seemingly private communication become a subject for public discussion? That's one question at the heart of an ongoing dispute between Howell teachers and a school board member.
In October, Howell school board Trustee Wendy Day reprinted a teacher's e-mail to members of a listserv, an online bulletin board, run by the Howell Education Association.
The post offered the teacher's thoughts on the possibility of a teacher strike next year in light of the coming school board elections. Teachers and the board member have been at odds ever since over the propriety of publicizing the comment and freedom of speech.
"We created this forum because e-mail at school isn't an appropriate place for discussions or commentary," said Karen Langer, a teacher at Howell High School and president of the Howell Education Association. "We'd like our members to be able to express their opinions."
The 100-member listserv is open to members of the HEA; it's unclear how Day gained access.
"It could be viewed as interference in union business," Langer said. "We felt it was extremely inappropriate. Posting those comments weren't productive, except to make that member feel embarrassed or humiliated."
Langer said a teachers union lawyer sent a cease and desist letter to Day, who responded by demanding, through her blog, an apology from union officials, who say they see no need for one.
Day could not be reached for comment. According to her blog, she also complained to the American Civil Liberties Union and the Michigan Civil Rights Commission.
The principle of freedom of speech trumps privacy rights, said Wayne State University constitutional law professor Robert Sedler.
"She has the First Amendment right to comment to other people," Sedler said. "If the lawyer would try to get a court order to stop her from circulating this, the court would refuse to intervene."
Writings published on a private listserv aren't protected from disclosure, Sedler said.
"The listserv is public enough. It was circulated," he said. "The First Amendment encourages a robust exchange of ideas."
Howell Board of Education President Ed Literski said the school board has no authority to order Day to stop publishing material on her blog. ..News Source.. by SHARON GITTLEMAN • FREE PRESS SPECIAL WRITER
September 30, 2008
DC- PEOPLE CAN MAKE A DIFFERENCE -- House of Representatives' Web site overwhelmed
Hummm, the US House was overwhelmed on the Financial Bailout bill! Lets see, there supposedly are OVER 600,000 RSOs, and their family members, well thats over a million. RSOs and advocates of those issues, just give that a thought and pass on to your family members and other advocates... Hint..Hint.. Faxes and telephones even to local offices of the Congessmen and Congresswomen.
9-30-2008 Washington D.C.:
WASHINGTON (CNN) -- The servers hosting the Web sites of the House of Representatives and its members have been overwhelmed with millions of e-mails in the past few days, forcing administrators to implement the "digital version of a traffic cop" to handle the overload -- for the first time ever.
"This is unprecedented," said Jeff Ventura, communications director for the House's chief administrator.
The tidal waves of e-mails and page views began over the weekend after negotiators announced Sunday that a deal had been reached on legislation to enact a $700 billion bailout of the country's financial system.
In making the announcement, legislators said the public could view the agreement at financialservices.house.gov.
"In a short period of time, lots of Web users were rushing to the digital doorway to get a copy of this thing," Ventura told CNN in a phone interview.
As millions of people tried to look at the details of the bailout plan, the House.gov system became overwhelmed and many people saw notices on their computer screens saying "this page does not appear." iReport.com: Do you support a bailout?
Ventura compared the situation to the "old days, when you listened to a radio show and the 10th caller got a toaster. Then everyone calls the same 1-800 number at the same time and all you got was a busy signal."
"This was a massive digital busy signal," he said.
As more people gained access to the page and details of the bailout proposal were published in the news media, constituents then started to e-mail their representatives, Ventura explained.
"We know it's in the millions," he said of the number of e-mails that lawmakers in the House have been receiving. "But we haven't counted yet, because when you're about to get hit by a tidal wave, you don't count the drops of water in the wave."
After the House failed to pass the proposed deal Monday by a vote of 228-205, the e-mail volume surged again, Ventura said.
"Because there were so many e-mails, it was impacting even the presentation of House.gov," he explained.
"This morning, our engineers sounded the alarms ... and we have installed a digital version of a traffic cop. We enacted stopgaps that we planned for last night. We had hoped we didn't have to."
The office of the chief administrative officer of the House of Representatives issued a statement Tuesday saying: "This measure has become temporarily necessary to ensure that congressional Web sites are not completely disabled by the millions of e-mails flowing into the system.
Engineers are working diligently to accommodate this enormous traffic flow and we appreciate your patience in this matter."
Now, when House.gov or individual members' sites begin to get overloaded, a message will come up on the computer screen saying, in effect, "try back later," Ventura said.
"This really tells us that the level of constituent engagement on this issue is extremely high," he added.
He said after the failed vote Monday and the initial backlash, the House's Web site administrators thought there would be a drop in Web traffic -- especially with the Rosh Hashanah holiday.
"We monitored the situation all night long, and technicians and engineers saw that we were facing the same demand as yesterday," Ventura said.
He predicted that traffic on those Web sites "would start to subside once there's some guidance on the marketplace and political landscape about what comes next."
Ventura said the House.gov Web site experienced a very high number of hits when the 9/11 commission released its final report on the September 11, 2001, terror attacks against the United States, but nothing like what the site has seen in the past few days. ..News Source.. by CNN News
July 24, 2008
The Tangled Web Mail We Weave and Leave
7-24-2008 National:
It is an understatement to observe that the focus, if not the obsession, of e-discovery production today is the production of e-mail.
In the prototypical e-discovery matter a company has an e-mail server and workstations (desktop or laptop computers) and company e-mail, i.e. the kind with the e-mail address, "employee@company.com," will be found on both. Web-based e-mail, however, provides a second generic source of e-mail. Anyone with an AOL, Yahoo, Gmail, Comcast or other common e-mail account -- virtually everyone -- is familiar with Web-based e-mail. This article explores the problems with requesting, preserving and producing Web-based e-mail.
WHERE E-MAIL IS KEPT
In principle, Web-based e-mail works just slightly differently from "company" e-mail, where the company possesses the e-mail server. For both, incoming e-mail is sent to the server by the sender, through his or her server, and then accessed by the recipient. Outgoing "company" e-mail is sent by the sender to the server and from there to the recipient's server, where the recipient accesses it, while with outgoing Web-based e-mail the sender accesses the Web server across the Internet and sends e-mail from the Web-based server.
There are other differences between company-based and Web-based e-mail server setups. Looking to the Microsoft model as a typical company-based e-mail setup, the workstation has on it an e-mail application, such as "Outlook," which is designed to compose and save (at user initiative) both outgoing and incoming e-mail to the workstation. Outlook works with an Exchange Server, where outgoing and incoming e-mail also reside. Whether e-mail is saved to the server, the workstation or both, and whether the workstation and server are "synced" so that a deletion in one is a deletion in the other, for example, are all choices which the company's IT department will make.
By contrast, some Web-based e-mail applications are designed to allow the user "local" storage to the hard drive while others have no such feature. As for server-based storage, again, this varies from Internet service provider to provider, and there may be restrictions as to how much may be stored on the ISP's server and for how long.
One final twist is that Web-based e-mails are, unbeknownst to the average user, "cached" -- that is, automatically saved -- on the hard drive of the user's workstation. The user has no access to these e-mails, but a forensic analyst can easily recover them using computer forensic tools.
Both company and Web-based e-mails can have duplicate e-mails automatically forwarded. Often company e-mails are forwarded to e-mail archives, kept by the company or by third-party vendors. Web-based e-mails can be forwarded for the same purpose, but usually are "lower-end" operations, i.e. the forwarding is to a user's designated mailbox as opposed to a commercial archiving operation.
Here are checklists of e-mail locations in both types of systems:
Company e-mail:
Server;
Workstation;
Forwarded locations (e.g., archive).
Web-based e-mail:
Server;
Workstation;
Web-cache;
Forwarded locations (e.g., user mailbox).
TECHNICAL AND LEGAL ISSUES
Several issues arise regarding the preservation of Web mail. For cached Web mail on a workstation's hard drive, whether such Web mail must be preserved or produced will be the subject of dispute under Federal Rule of Civil Procedure 26(b)(2)(B), which allows a party not to produce responsive electronically stored information if it is not "reasonably accessible" because of "undue burden or cost." To preserve a hard drive's cached Web mail, the producing party must make (or have a vendor make) a bitstream, forensic image of the drive, that is, an exact copy of every bit of data on the drive, and then extract the Web mail from that forensic image. The cost of doing that will vary with the vendor, and that cost will be weighed against potential benefits when a court decides any Rule 26(b)(2)(B) motion, so the devil here, as in most places, is in the details.
For Web mail stored on a server, the preserving party will have to identify and have disabled any automatic deletion features of the storage offered by the ISP, such as overwriting when the user runs out of available storage space or deletion after a certain period of time. A standing committee report on Federal Rule of Civil Procedure 37(e), states that "good faith" in preserving data for litigation "may require that a party intervene to modify or suspend certain features of the routine operation of a computer system to prevent the loss of information."
Another approach to preserving stored Web mail, whether stored on the ISP's server or in another user's e-mail box, is to gain access to the e-mail through the user's name and password, export all of the e-mail to an external drive (usually a vendor will do this), and then "verify" that drive by obtaining a "hash value" for it. A hash value is a unique alphanumeric string created by using the media being "hashed" as a variable in a complex algorithm (the forensic image referred to above would also be verified by comparing the hash values of the original drive and the image). Creating a hash value for the extracted Web mail is a means of verifying that from the point it was extracted it was preserved pristinely.
If preservation of Web mail is not purely historical, and so requires ongoing preservation, a good solution is to configure the client's account(s) to forward copies to another site, as users often do, except that for these purposes the forwarded site would archive the data. Both tasks could be accomplished internally, as the client's IT department or a vendor could create archive accounts.
If the client is an individual or small business without an IT department, Web mail is typically used because small businesses may not have the Outlook/Exchange e-mail architecture. For those clients, it would be best to have a vendor archive the data, so as to avoid the suspicion that the client has tampered with the archive. That suspicion can arise in a larger company as well, but the larger the business and the greater the production of e-discovery is a standard operating procedure for that business, the less likely suspicion will arise.
A litigant seeking to discover Web mail may say, "Why do I care about the producing party extracting their own Web mail? Why would even want such a thing? I'd rather go to the source itself -- the ISP (AOL, Yahoo) -- with a subpoena."
There are two problems with this approach.
The first is that the ISP may not have as many e-mails as the party itself does. By the time a requesting party realizes it needs to make its request, months if not years have passed between when the e-mails were generated and the date of the request. ISPs do not keep e-mail for months or years; indeed, it is because of this issue that for years law enforcement has sought (so far unsuccessfully) federal legislation to require ISPs to keep e-mails for prolonged periods (such legislation is not popular with ISPs, who would have to purchase many more servers to hold those e-mails). The requesting party often has a much better chance of getting e-mails from the producing party than from the producing party's ISP.
Second, it is not clear that the requesting party has the legal authority to compel the ISP to produce the e-mails. The Electronic Communications Privacy Act, 18 U.S.C. §§2701-03, governs how federal, state and local law enforcement may obtain e-mail from an ISP. ECPA makes it a third-degree felony for an ISP to release information or for a person to obtain information from an ISP except as provided for in the law. Under ECPA, law enforcement may obtain information from an ISP, including e-mails, by following any of several different paths, depending upon the nature of the information. ECPA makes no provision for private parties to obtain information from ISPs. The recent trend has been for courts to hold that because ECPA has no explicit provision for a civil litigant -- as opposed to law enforcement -- to obtain information from an ISP, civil litigants are affirmatively precluded from obtaining such information. State and federal courts making such rulings include those in In re Subpoena Duces Tecum to AOL LLC, No. 2008 WL 1956266 (E.D. Va. April 18, 2008) and O'Grady v. Superior Court, 44 Cal. Rptr. 3d 72 (Cal. Ct. App. 2006). But in Gonzales v. Google Inc., 234 F.R.D. 674 (N.D. Cal. 2006), a judge in the Northern District of California reviewed Google's challenge to a civil subpoena by referring to the standards in the Federal Rules of Civil Procedure without so much as mentioning ECPA. While none of these opinions is the last word regarding the issue of whether ECPA's silence concerning civil litigants is a bar to their obtaining information from ISPs, or whether that silence is there simply because ECPA was meant to address law enforcement and not to disrupt the subpoena power already in place under the federal rules and elsewhere, the opinions at a minimum present obstacles for the requesting party to overcome if seeking e-mail from an ISP.
Finally, when determining whether to produce Web mail, counsel must understand for what purpose the client has used that Web-based e-mail. It cannot be overemphasized that it is counsel's duty, and not the client's, to produce discovery. This principle was underscored earlier this year in Qualcomm Inc. v. Broadcom Corp., 2008 U.S. Dist. LEXIS 911 (S.D. Calif. Jan. 7, 2008). When a client has Web mail in the workplace, whether alone or alongside company-based e-mail, the client will often claim that the Web mail, or perhaps certain Web mail accounts, is "personal" and not business-related, and so should not be collected or reviewed. Often the client's claim that the Web mail is personal and has no business-related materials on it is accurate, but whether the client is accurate, mistaken or somewhere in between, the legal question is whether counsel can decide not to review e-mails solely based upon the client's representation that the e-mail account was used only for personal reasons. Counsel must consider not, or at least not only, how much resistance the client puts up to reviewing that "personal" e-mail, but how such an answer would look in court. The answer may look dubious from the start, since it is easy for a producing party to hide responsive e-mails by claiming they are "personal," it is relatively easy for counsel to review those "personal" e-mails in question and the court will most likely not care that the client does not want them reviewed. Furthermore, the requesting party need produce only one e-mail from the client's "personal" account for the court to become very angry very quickly. If, relying upon the client's representations, the producing party has not preserved the e-mails and, several months or years later the "smoking gun" e-mail from the personal account surfaces, chances are the producing party will not at that later date be able to produce all or even most of what it could have produced had the "personal" account been preserved. Producing counsel, then, must counter the client's antipathy to preservation and review with the "parade of horribles" that can arise from not preserving.
Web-based e-mail can be a fruitful source of e-discovery. To think intelligently about seeking and producing Web mail, all parties must understand the limitations, both legal and technical, in storing Web mail, the places it can be found, and the means of producing it. ..News Source.. by Leonard Deutchman, Pennsylvania Law Weekly
July 12, 2008
FL- Internet crime can prompt virtually impossible ban
7-12-2008 Florida:
Judges have long put restrictions on defendants' rights while they await trial. Some people are forbidden from having guns in their homes. Others can't drive. Some can't have contact with children or estranged spouses.
Now, as law-enforcement agencies are turning more frequently to the Internet to catch sexual predators and other criminals, judges across Central Florida are barring defendants from logging on to the World Wide Web, and in some instances, denying them any computer use.
The orders are intended to keep those awaiting trial or serving probation from using the tool that could enable them to commit a crime similar to the one they are accused of.
But can such bans realistically be enforced?
"Obviously we expect people to follow our orders," Orange County Circuit Judge Lisa Munyon said. "Like any other order, it is not foolproof. People can always find a way around it if they want to break the law."
Court officials, law-enforcement officers and cyber-crime experts say the restrictions, if broken, can lead to additional legal consequences. Most often, bail would be revoked and offenders would end up in jail.
Relying on threat
But the Internet is too vast to patrol effectively.
"Obviously no one's standing guard over someone 24-7," said Julia Lynch, chief of the sex-crimes and child-abuse division for the State Attorney's Office in Brevard County.
So they hope the threat of jail time is enough to encourage offenders to follow the rules. Local court officials could only think of a handful of instances in which someone was caught violating the rules and rearrested.
In 2003, a probationer and registered sex offender who had been living in Winter Park, was barred from using the Internet while on probation. He was arrested after being caught accessing the Internet in a Massachusetts hotel room.
His probation officer was suspicious and requested a copy of his hotel bill, which showed the offender had been online.
In Orange County, the majority of people free from jail awaiting trial do not receive regular home visits by county corrections staff.
For those who do -- which are estimated at fewer than 400 people -- the visits can be limited to once a week for about 15 minutes.
"How do we enforce 'Don't use the Internet' specifically when we're only there occasionally?" said Don Bjoring, a professional services manager for Orange County Corrections. "We make it real clear to them . . . what a huge risk they would be taking if they were to do something."
Florida law requires sexual offenders and predators to report their e-mail addresses and instant-message names to law enforcement. New Jersey and Nevada have similar rules.
After years of pressure from lawmakers, MySpace agreed to provide attorneys general across the nation with user names and accounts belonging to suspected sexual predators on their social-networking site.
The Florida Attorney General's Office has received about 1,600 account names from MySpace since 2007, an agency spokeswoman said.
"MySpace has provided us with accounts associated with people on the sex-offender registry," said Attorney General's Office spokeswoman Sandi Copes. "At this point, we have not been able to report anybody to their probation officers."
Turned in by loved ones
While the legal system can't keep an eye on defendants every moment of the day, David Finkelhor, director of the Crimes Against Children Research Center at the University of New Hampshire, said family members and friends are "sometimes the whistle blowers."
In the handful of Internet or computer-related violations Polk County prosecutor Brad Copley can recall, officials have been tipped off to the use by a family member or person the defendant was communicating with.
"The families may not be real happy with them at the time because of the nature of the offenses," he said. ..News Source.. by Amy L. Edwards and Walter Pacheco | Sentinel Staff Writers
Can authorities spy on your private e-mail?
7-12-2008 National:
Appeals court retains warrantless search in Berkeley case
A law that allows the government to read private e-mails without a warrant survived a court challenge Friday in Cincinnati, prompting one judge to accuse his colleagues of trampling civil rights.
The 9-5 decision by the U.S. 6th Circuit Court of Appeals set off a spirited debate among the court's judges over how to balance privacy rights with the needs of law enforcement in the Internet age.
The dissenting judges said the decision would have offended America's Founding Fathers, while the judges in the majority described their colleagues' reaction as "overwrought."
The court's ruling was a setback for Steven Warshak, who faces up to 20 years in prison for defrauding customers of his herbal supplement company, Berkeley Premium Nutraceuticals.
Warshak had argued that the fraud and money laundering charges against him should be thrown out because the government snooped in his e-mails for evidence without first obtaining a warrant.
A majority of the 6th Circuit judges said it was too early to consider Warshak's arguments and that he would have to wait to file an appeal until after he is sentenced in August.
The dissenting judges, however, said the evidence shows that the government conducted an unconstitutional search when it tapped into Warshak's e-mail accounts.
"While I am saddened, I am not surprised by today's ruling," Judge Boyce Martin wrote in the dissenting opinion. "It is but another step in the ongoing degradation of civil rights in the courts of this country."
Martin was joined in the dissent by Judges Martha Craig Daughtrey, Karen Nelson Moore, R. Guy Cole Jr. and Eric Clay.
Judge Jeffrey Sutton, writing for the majority, said the case simply is not ready, or "ripe," for the court to consider Warshak's constitutional claims.
He said the issues could be raised properly when Warshak appeals his conviction and sentence.
"The dissent's concern about the 'ongoing degradation of civil rights' seems a bit overwrought," Sutton wrote. "The dissent's concerns have almost nothing to do with this case."
Sutton was joined in the majority by Judges Danny Boggs, Alice Batchelder, Julia Smith Gibbons, John Rogers, Deborah Cook, David McKeague, Richard Griffin and Ronald Lee Gilman.
With the exception of Gilman, who was appointed by President Clinton, all of the majority judges were appointed by Republican presidents. The dissenters all were Democratic appointees.
The key issue in Warshak's case is whether the government misused the Stored Communications Act of 1986 when it got permission from a federal magistrate to read the e-mails.
The law allows authorities to seek permission from a magistrate or judge instead of getting a search warrant, as long as there are "reasonable grounds" to believe that the e-mails are relevant to a criminal investigation.
If they get permission, authorities then have 90 days before they must obtain a search warrant or disclose the snooping to the individual.
Warshak said the investigators went long past the 90-day time limit - at least a year - without getting permission to continue without a warrant. He also challenged the law itself, arguing that a search warrant approved by a judge is the only approach that passes constitutional muster.
A search warrant requires authorities to show that they have "probable cause" that a crime is being committed, a higher standard than the "reasonable grounds" requirement permitted under the Stored Communications Act.
"The government has no constitutional right to go through your private e-mails in secret without probable cause," Martin Weinberg, Warshak's attorney, said. He said such searches "erode the basic fabric of liberty in a computer age."
Government lawyers say the law has been used effectively and fairly for more than 20 years.
"We will continue to use every available legal means to investigate and prosecute wrongdoing, while cautiously guarding a potential defendant's legal rights," said Fred Alverson, spokesman for U.S. Attorney Greg Lockhart.
Weinberg described the ruling as a procedural decision and said he would make the same arguments when he appeals Warshak's conviction.
But Martin said the majority should have taken on the big constitutional issue now.
He said courts are quick to stand up for free speech or gun rights but seem hesitant to do the same when it comes to protecting citizens from illegal searches.
"Heaven forbid that we should intrude on the government's investigatory province and actually require it to abide by the mandates of the Bill of Rights," Martin wrote. ..News Source.. by Dan Horn
June 19, 2008
Scotland- New laws to target sex in e-mails
6-19-2008 Scotland:
STAFF sending sexually explicit e-mails at work were warned last night that they could be accused of being a sex offender.
As part of the biggest overhaul of sex offences in Scotland, a new statutory offence of "communicating indecently" will criminalise those who send malicious and unwanted sexually offensive e-mails and texts, as well as other verbal and written messages.
A new bill unveiled yesterday contains proposals for a raft of other new offences, covering areas such as indecent exposure and spiking drinks for the purpose of having sex.
It proposes a crackdown on "sex tourism", with Scottish law-enforcement agencies empowered to investigate and prosecute any adult who has intercourse with a child overseas.
The bill also seeks to overhaul the law on rape. For the first time, the crucial issue of consent will be defined, in a bid to ensure more rapists are brought to justice. Latest figures show the proportion of reported rapes that result in a conviction in Scotland has fallen to just 2.9 per cent.
The planned legislation also widens the definition of rape to include the abuse of males.
The proposals are based on recommendations in a report published last December by the Scottish Law Commission. It had been commissioned in 2004 to examine the law on rape and other sexual offences.
However, ministers have turned down a commission proposal to decriminalise all consenting sex between youngsters aged 13 to 15.
Also rejected was the commission's proposal to decriminalise consensual adult sexual violence. That had raised fears among police and campaigners of creating a legal loophole for rapists and perpetrators of domestic violence.
Of the proposals that were accepted, Kenny MacAskill, the justice secretary, said: "There is widespread agreement that the existing law is unclear and derives from a time with very different attitudes from today."
The bill provided a "once in a generation" opportunity for parliament to reform the law, replacing a complex mix of common and statute law with "a clear legal framework that more accurately reflects the values of modern society".
He went on: "Reform of rape law will not, on its own, improve low conviction rates. Other ongoing work is vital – improving investigation and prosecution of rape and sexual assault, reviewing law of evidence and challenging public attitudes to rape and sexual assault.
"However, this bill will, together with this other work, contribute to improving the criminal justice system's response to crimes of rape and sexual assault."
The offence of indecent communication reflects growing concern that existing laws do not adequately protect people from receiving unwanted and sexually offensive messages via the internet, and in e-mails and mobile-phone texts. Colin Tyre, of the Scottish Law Commission, told The Scotsman: "We wanted to make sure all forms of communication were covered by a single law. Sending offensive e-mails in the workplace has become more common, as have text messages."
He stressed people would only be held to be breaking the law if their actions were motivated by sexual gratification, or to humiliate the recipient.
But one legal expert last night warned that people who sent risqué e-mails at work should be more careful. John Scott, a leading human-rights lawyer, said: "The offence is not defined as such to exclude people in the office who send rude e-mails.
"These people probably won't be the first port of call for the authorities. But if somebody was on the receiving end of an e-mail and took particular offence, they may decide to phone the police.
"People can already lose their jobs for sexual harassment, so this doesn't necessarily raise the stakes too much. But I certainly think people in this situation should be more careful."
The new law was warmly welcomed by Lily Greenan, the manager of Scottish Women's Aid.
She said: "Mobile phones and e-mails have increasingly been used to harass and intimidate both ex-partners and complete strangers.
"This is a positive step, as we need to ensure people on the receiving end are protected."
Anyone found guilty of indecent communication faces a maximum ten-year jail sentence.
Pauline McNeill, Labour's justice spokeswoman, welcomed the proposal to make the use of date-rape drugs a sexual offence. She added: "The proposal to prosecute so-called sex tourists is also a welcome move and one that Labour will back."
That aspect of the bill will empower Scottish prosecutors to pursue anyone who has sex with someone under the age of 16 in a foreign country.
A spokesman for the Association of British Travel Agents also supported the move.
"This new legislation will provide clear guidelines and sends out the unequivocal message that this kind of behaviour is utterly unacceptable and culprits will be severely punished," he said.
Bill Aitken, the Scottish Tories' justice spokesman, threw his support behind the proposed changes to the law on rape. "Clearly, we wish to do everything possible to tidy up the law in this respect and also to ensure that the victims of what are sometimes the most disgraceful and damaging of crimes get justice," he said.
"We do have to recognise, however, that at the end of the day, it will in many cases be a matter for juries, and there is the possibility of evidential difficulties with regard to the definition of consent.
"I do think, however, that what is being proposed is a way forward. The victims of sexual assault are entitled to look to the parliament to do everything possible to prevent these types of crime which frequently leave the victims traumatised."
While Rape Crisis Scotland welcomed many of the measures, its spokeswoman, Sandy Brindley, said they had grave concerns about one part of the legislation.
She said the bill contained provisions that would mean someone who was asleep or unconscious could have consented to sex, explaining: "The notion that someone can give advance consent to sex at 6pm and that this consent should still apply at 1am, when they are incapable of giving meaningful consent, is absurd."
A welcome first step – but when it comes to consenting adults, some things make Scotland look puritanical
ONE of the most recent surveys to delve into the sex lives of Scots painted a portrait of a broadminded people accepting of preferences and practices which might differ from their own and willing to be adventurous in their own relationships.
The study found that 90 per cent of Scots said they were open and non-judgmental, with most engaging in sexual activity on average 29 times a month. Twenty-two per cent of people asked had had sex on a beach, while one respondent even admitted to having sex in a wheelie bin.
So far, so liberal, but the survey also found more than 80 per cent had had unprotected sex more than once, and a quarter had been taken advantage of while under the influence of drink or drugs. Almost a third had experienced an unwanted pregnancy.
Meanwhile, Scotland maintains its dismal record on sexual health and teenage pregnancy, which is among the worst in western Europe. Just last month, it emerged that a record number of abortions were carried out in Scotland last year, with rates highest among 16 to 24-year-olds. Chlamydia rates among young men are also rising.
While we have come a long way from the repression of the dancehall days, when sex was still taboo, we remain a nation still ill at ease with sex and sexuality. We may teach our children about it in a way we could never have imagined in the 1950s, but we leave it too late and we keep it too short.
And so it was a delicate task for the Scottish Government to craft its new bill on sex crimes, which was unveiled yesterday. The legislation is long overdue, especially when it comes to toughening the laws on rape and improving the country's appalling conviction record.
But there were other areas which needed to be addressed. The internet, the boom in cheap travel, the creation of new drinks, new drugs, the explosion in mobile phone usage, have all opened up areas of concern to be addressed.
So the Scottish sex tourists trawling foreign countries for victims cannot now consider themselves safe from Scots law- enforcement; nor can the person who thinks it a wheeze to send sexually harassing and/or explicit messages by text or e-mail. Nor can the creep in the pub, spiking the drinks of unwitting women.
Where it gets trickier is when we get to consenting adults.
The new legislation rejected a proposal to decriminalise consensual adult sexual violence. It's not everybody's cup of tea, but when both parties are willing, where's the harm? For the government, it was the fear that such a move might offer some form of legal escape to rapists and those who commit domestic violence.
It's a powerful argument, but a misguided one. These are instances in which the state simply should not meddle.
Remember the man caught last year trying to have sex with his bicycle? He was in his hostel room in Ayr, the door was locked, but – surprised by two cleaners – he was hauled before the courts and sentenced to three years' probation.
The story went around the world, but for every person mocking the individual, many more mocked the Scottish justice system for branding him a criminal.
It smacked of our old puritanical ways, of a country terrified of sexual desire in whatever form. That does us a disservice because the legislation laid out yesterday is a measured, forward-thinking response to a topic that needs to be discussed, no matter how much it troubles us still.
Sex tourism
A CRACKDOWN on this practice involving children is also proposed.
Anyone from Scotland who travels abroad and has sex with someone under the age of 16 can currently only be prosecuted on their return if the intercourse was also illegal in the foreign country.
For example, a Scot who travels to Madrid and has sex with a 13-year-old could not be prosecuted because the age of consent in Spain is 13. The legislation would make it an offence under Scots law for anyone to commit a sex crime against someone under 18 abroad (it is 18 instead of 16 because offences of child prostitution and pornography are included).
The move brings Scots law into line with a European convention to protect children from sex abuse.
Under-age sex
THE Scottish Government has rejected a proposal to decriminalise sex between children aged 13 and 15.
Kenny MacAskill, the justice secretary, was persuaded that decriminalising under-age sex would send out the wrong message when the Scottish Government was trying to reduce teenage pregnancies and abortions. Nicola Sturgeon, the health secretary, and Alex Salmond, the First Minister, had serious concerns over the decriminalisation proposal. However, the practice of only prosecuting the male will end, with both boys and girls now having to face the legal consequences.
It is highly unlikely offenders will end up in criminal courts. Officials have signalled that the practice of dealing with cases through the Children's Panel will continue.
Consent
FOR the first time, the question of consent in rape cases will be
defined in law.
The Crown must prove that the victim of rape did not consent to sex. It is left to juries to decide what actually constitutes consent.
That led to concern that juries were bringing their own ideas and prejudices about women to the courtroom.
Many people believe such attitudes, mixed with a lack of clarity over what constitutes rape in law, are contributing to the low rape conviction rate.
Under the new bill, consent is defined as "free agreement" between the different parties.
To aid juries, a list of scenarios where consent cannot be said to have been given is also provided.
Cybersex
THE bill defines the new offence of indecent communication as occurring when a person intentionally delivers a sexual message to another person.
The offence requires that the person sends the communication to obtain sexual gratification, or to humiliate, distress or alarm the recipient. The communication can be a word in someone's ear, a page from a pornographic magazine, or an e-mail or text.
Someone who sends an offensive e-mail to a group of colleagues, friends and other people could be breaking this new law.
However, the Crown would have to prove that the purpose of sending the e-mail had been malicious, or that the sender had done it for a sexual "thrill".
Public indecency
THE offence of public indecency, which can include "flashing", streaking and urinating in public, already exists. But the government explicitly wants to criminalise anyone who intentionally exposes their genitals in a sexual manner to another person with the intention of causing alarm or distress, or being "reckless" as to whether alarm or distress may be caused.
The new offence also criminalises sexual exposure in someone's home. The aim is to make it clear such behaviour is a sex crime completely separate to someone causing offence by, for example, sunbathing naked in a public park. The Scottish Law Commission, which first proposed the move, reasoned that indecent exposure was in many ways similar to a sexual assault.
Children
AN ADULT who engages in sexual activity of any kind with a child will be committing an offence.
Under the bill, children aged under 13 are regarded as being too young to consent to sexual activity. It is therefore not a defence for anyone to argue that the child consented to that activity.
It will also be an offence for an adult to engage in sexual activity with a child aged between 13 and 15.
The penalties for offences with older children are lower than those involving a young child.
The government is not seeking to criminalise touching, kissing and sexual conversations between children aged 13 to 15, which the bill describes as something that is considered "a normal part of growing up for a teenager".
Date rape
MINISTERS want to toughen existing laws against so-called "date rape", or spiking someone's drink for a sexual purpose.
The bill says someone who intentionally administers a substance to another person without them knowing, in order to stupefy or overpower that person so sexual activity can take place, will be committing a new offence, which will carry a maximum five-year prison sentence.
Currently, the law only protects women who are unwittingly "stupefied" for the purposes of sexual activity, but this will be broadened to include men.
Last year, The Scotsman revealed about two women per week were contacting a national support group to say they had been drug-raped.
Male rape
THE bill emphasises the need for the law to apply equally to men and women.
That applies to the offence of rape, as well as other offences including administering a substance for a sexual purpose.
And, therefore, the statutory definition of rape will cover the penetration of a man or a woman, without the victim's consent and without any reasonable belief that the victim had given their sexual consent.
The government has agreed with the Scottish Law Commission's view on the need to widen the definition to include male rape.
"We see no reason why rape should continue to be defined so narrowly," the commission said in its report published last year. ..News Source.. by MICHAEL HOWIE
April 1, 2008
CA- E-mail threat to governor leads to child porn conviction
4-1-2008 California:
The next time you feel like sending a nasty e-mail to Gov. Arnold Schwarzenegger, consider the case of David Kearby Clements.
In September 2004, Clements e-mailed the governor protesting the lack of enforcement of California's Compassionate Use Act, the voter initiative allowing medical use of marijuana with a doctor's recommendation.
But Clements made the mistake of calling Schwarzenegger a "Nazi" and threatening to physically harm him, according to court papers.
That got the attention of the California Highway Patrol, which is responsible for protecting the governor.
So, on Feb. 16, 2005, CHP officers executed a search warrant at Clements' South Lake Tahoe home to obtain evidence that the e-mail originated on his computer.
They found a trove of "child pornography, sexually explicit images of minors, and child erotica," court papers say.
Clements, 50, was sentenced Monday to five years in federal prison for receipt and possession of child pornography.
He will be under the supervision of probation authorities for eight years following his release and will be required to register as a sex offender for the rest of his life, according to Assistant U.S. Attorney Michelle Rodriguez. She said he was ordered to forfeit to the government all computer equipment used to receive and possess sexually explicit images of minor females.
Court records show that, two weeks after the search of his home, Clements pleaded guilty in El Dorado Superior Court to threatening the governor, a felony. He was sentenced to the six days he had already spent in the county jail and placed on three years' probation.
He was ordered not to further "annoy, harass, threaten or contact" Schwarzenegger or any member of his family. He was also ordered to stay at least 500 yards from the Capitol. ..more.. by Denny Walsh
