Computer Crime Issues

1
Computer Crime Issues

• Mens Rea Entrapment
• 1st Amendment, Free Speech Obscenity

2
Case Study U.S. vs Thomas

• Robert Carleen Thomas sold pornography to
  customers over their modem-based BBS located in
  their Milipitas, CA home
• A Postal Inspector, David D, from Tennessee sent
  55 to the Thomass to get access to the
  downloadable files
• Robert phoned David D to provide him with the
  access password to the BBS
• David D downloaded the files from the BBS and
  also ordered 6 videos to be delivered by US Mail

3
Was a Crime Committed?

• The Supreme Court says that community standards
  determine whether something is obscene
• California defines very little as obscene
• The materials were obscene by Tennessee standards
• What issues does this case raise?

4
Legal Issues

• Was this entrapment?
• Was mens rea an issue in this case?
• Who has jurisdiction in this case?
• What is the proper venue for trying this case?
• What is the proper community to determine if
  the material is obscene? (is there such thing as
  a virtual community?)

5
Social Issues

• Can Robert Carleen be convicted for a crime in
  Tennessee where they have never even been?
• Do the defendants have a protected 1st Amendment
  right to free speech in this case?

6
The 1st Amendment

• The Constitution and its 27 amendments are the
  strongest law in the US
• The Bill of Rights defined the first 10
  amendments.
• The 1st Amendment defines the right to free
  speech
• Congress shall make no law respecting an
  establishment of religion, or prohibiting the
  free exercise thereof or abridging the freedom
  of speech, or of the press or the right of the
  people peaceably to assemble, and to petition the
  Government for a redress of grievances.

7
Discussion Right to Free Speech

• Should ALL free speech be protected (including
  obscene publications)?

8
The Constitution Interpreted

• The interpretation of the constitution and its
  amendments are often challenged in court
• Cops, prosecutors and lower courts interpret it
• Courts of Appeals review lower court rulings
• The Supreme Court has the final say
• The meaning must be interpreted as to what was
  meant when it was passed
• The 2nd Amendment
• A well regulated Militia, being necessary to the
  security of a free State, the right of the people
  to keep and bear Arms, shall not be infringed

9
Interpreting the 1st Amendment

• The Supreme Court determined it is allowable to
  limit the right to publish and speak
• Its illegal to yell FIRE! in a theatre
• Its illegal to assault someone
• Its illegal to publish obscene material
• Roth vs. US (1957) But implicit in the history
  of the First Amendment is the rejection of
  obscenity as utterly without redeeming social
  importance.
• Miller vs. California (1973) whether "the
  average person, applying contemporary community
  standards" would find that the work, taken as a
  whole, appeals to the prurient interest ... and
  lacks serious literary, artistic, political, or
  scientific value.

10
Child Pornography

• The Ferber ruling gave states more leeway to
  regulate this because
• the physiological, emotional mental health of
  the child is harmed
• Miller v. CA regarding obscenity is not
  sufficient to address child pornography
• the materials are largely produced because of the
  sales and advertising revenue
• there is little, if any, value of permitting live
  or photographic child lewd exhibitions