Review of Child Pornography and Obscenity Crimes
Report Number I-2001-07
July 19, 2001
The Honorable Frank R. Wolf
U.S. House of Representatives
Washington, D.C. 20515
Dear Congressman Wolf:
I write in response to your request that the Office of the Inspector General (OIG) conduct a study of the number of pornography cases, including child pornography, that have been prosecuted from 1980 to 2000. In your letter, you expressed concerns that the Department of Justice (Department) was not aggressively pursuing pornography crimes.
Background
Distribution of child pornography and adult obscenity has expanded exponentially with advances in computer technology and increased availability and popular use of the Internet. This globalization of criminal activity is a significant challenge to the Department's capacity to investigate and prosecute these crimes. 1 In its strategic plan, the Department states that one of its strategies for reducing violent crimes is to "provide [continued] leadership and technical program support to ensure that our nation-wide capacity to quickly and effectively respond to all incidents of crimes against children is strengthened." 2
Child pornography is relatively easy to identify. Obscenity is less easy to identify and the legal definition of obscenity was established by the U.S. Supreme Court in Miller v. California, 413 U.S. 15 (1973). Under this ruling, the following three conditions must be met before material is considered obscene and subject to prosecution:
Increasingly obscenity is transmitted via the Internet and this has caused confusion as to which "community standards" should be applied in determining whether material is obscene. Consequently, according to officials from the Criminal Division, the Executive Office for United States Attorneys (EOUSA), and the Federal Bureau of Investigation (FBI), the Department, as a matter of policy, pursues major producers and traffickers of obscene materials.
Scope and Methodology
To respond to your request, staff from our Evaluation and Inspections Division interviewed officials from the Criminal Division, EOUSA, and the FBI. We also obtained statistical data from the FBI and EOUSA related to the investigation and prosecution of both child pornography and obscenity crimes. We also contacted the Department's Office of Juvenile Justice and Delinquency Prevention to obtain information on grant programs that provide funding to state and local law enforcement agencies to investigate child pornography cases.
The data provided by EOUSA was obtained from its automated case management system, Legal Information Office Network System (LIONS). The LIONS database comprises caseload data entered by each of the 94 United States Attorneys' offices (USAOs). Although you requested data for the period 1980 to 2000, EOUSA reported that the data prior to 1992 is not consistent with the data from 1992 to 2000. In addition, EOUSA stressed that the data could not be provided timely or without considerable cost. The EOUSA changed its database system in 1992, which affected the method by which the data could be entered and retrieved. Under the previous database system, the USAOs would enter only the lead charge into the database. 3 Since 1992, however, the USAOs have been entering all charges into LIONS. Thus, the data prior to 1992 would understate the Department's caseload.
The EOUSA therefore provided us with data on the number of referrals, prosecutions, and declinations for cases involving obscenity and child pornography crimes from fiscal year (FY) 1992 to 2000. We also obtained data on the source of the referrals, the results of the prosecutions, and the reasons for the declinations. For each year, EOUSA provided us with reports detailing the case information by statute and summarizing the case information. The summary report counted a case only once regardless of how many charges were included. We used the data from the summary reports rather than the detailed reports because the detailed reports can double count cases based on multiple charges against a defendant. According to EOUSA, the summary method of counting cases would not result in duplication.
Child Pornography Prosecutions
The U.S. Attorneys' Manual states that "Prosecution of all crimes involving the sexual abuse or sexual exploitation of children and the distribution of child pornography is strongly encouraged." 4 To assist the USAOs, as well as state and local officials, in prosecuting cases relating to crimes against children, the Department established the National Obscenity Enforcement Unit within the Criminal Division in 1987. The unit was later renamed the Child Exploitation and Obscenity Section (CEOS) to reflect its work on child sexual exploitation crimes. CEOS attorneys assist USAOs in investigations, trials, and appeals of child pornography cases. These cases include the prosecution of individuals who possess, manufacture, or distribute child pornography; who sell, buy, or transport children interstate or internationally to engage in sexually explicit conduct; who travel interstate or internationally to sexually abuse children; who abuse children on federal lands; and who transport obscene material in interstate or foreign commerce. Occasionally, due to their particular expertise, CEOS attorneys may prosecute cases themselves. In addition to assisting prosecutors, the CEOS has several other responsibilities relating to child pornography and child exploitation issues. These include advising USAOs on child victim witness issues; developing proposals for policies, legislation, government practices, and regulations; and training federal, state, local, and international prosecutors, investigators, and judges.
The CEOS works with other law enforcement organizations that are investigating child pornography operations. In 1995, the U.S. Postal Inspection Service, in conjunction with CEOS, initiated a nation-wide program designed to identify and prosecute individuals who used the U.S. mail to distribute and receive child pornography. In 1995, the CEOS worked with the FBI to initiate the Innocent Images National Initiative (IINI), discussed on page 8 of this report.
The CEOS has also been involved in coordinating investigations of international child pornography operations. CEOS worked with the U.S. Customs Service on one such investigation, a multi-national effort entitled Operation Cheshire Cat culminating in 1998. It resulted in the arrest of 107 individuals in 12 countries who were dealing in Internet child pornography. This investigation focused on the Wonderland Club, an Internet pedophile ring, that required its members to submit at least 10,000 pornographic images of children for exchange with other members.
Table 1 below shows prosecutions of child pornography crimes by attorneys from both the USAOs and the CEOS under Title 18 of the United States Code, sections 2251 through 2260. Appendix I contains a summary of these statutes.
Table 1: Federal Prosecutions of Child Pornography Cases
| Fiscal Year | Cases Referred | Cases Prosecuted | Cases Declined |
|---|---|---|---|
| 1992 1993 1994 1995 1996 1997 1998 1999 2000 |
253 221 190 500 593 716 873 1,131 1,161 |
104 79 72 121 279 320 382 510 563 |
147 162 148 148 297 283 361 422 468 |
| Total | 5,638 | 2,430 | 2,436 |
| Source: EOUSA
Note: There is not necessarily a correlation between cases referred, prosecuted, or declined in any particular year. Cases referred may have been prosecuted or declined in a subsequent year; cases declined may include those cases referred from a prior year. |
Data provided by EOUSA for this 9-year period showed that the FBI, the U.S. Postal Service, and the U.S. Customs Service were the primary sources of referrals of child pornography cases to the USAOs. The FBI referred almost half of all the cases. See Table 2 below.
Table 2: Child Pornography Referrals by Source
| Fiscal Year | FBI | Customs | Postal Service | Other | Total |
|---|---|---|---|---|---|
| 1992 1993 1994 1995 1996 1997 1998 1999 2000 |
62 57 67 227 231 310 415 706 696 |
50 38 39 101 152 243 257 243 200 |
136 111 76 150 169 108 130 111 161 |
5 15 8 22 41 55 71 71 104 |
253 221 190 500 593 716 873 1,131 1,161 |
| Total | 2,771 | 1,323 | 1,152 | 392 | 5,638 |
| Source: EOUSA |
In 89 percent of the cases, the defendants either pled guilty or were found guilty at trial. Of the remaining cases, approximately 8 percent were dismissed, 3 percent were terminated for other reasons, and 0.5 percent resulted in acquittals. See Table 3 below.
Table 3: Child Pornography Conviction Statistics
| Fiscal Year | Guilty Plea | Guilty Verdict | Acquitted | Dismissed | Other | Total |
|---|---|---|---|---|---|---|
| 1992 1993 1994 1995 1996 1997 1998 1999 2000 |
85 72 61 79 135 261 265 360 422 |
9 15 4 3 9 19 19 18 23 |
0 2 0 2 0 0 3 2 1 |
9 13 9 6 10 15 28 30 45 |
2 2 4 4 8 14 9 7 7 |
105 104 78 94 162 309 324 417 498 |
| Total | 1,740 | 119 | 10 | 165 | 57 | 2,091 |
| Source: EOUSA |
The primary reasons reported by the USAOs for declining a case involving child pornography were weak evidence (22.9 percent), prosecution of suspect by other authorities (20.9 percent), lack of evidence (11.7 percent), and lack of evidence that a federal crime had been committed (11.5 percent). See Table 4 below.
Table 4: Reasons for Not Prosecuting Child Pornography Cases
FY 1992 - FY 2000
| Basis for Declination | Total | Percent |
|---|---|---|
| No crime | ||
| No federal offense evident | 280 | 11.5 |
| Referred or handled in other prosecution | ||
| Suspect prosecuted by other authority Suspect prosecuted on other charges |
510 54 | 20.9 2.2 |
| Alternative resolution | ||
| Civil, administrative, or other disciplinary Pre-trial diversion complete |
26 118 | 1.1 4.8 |
| Suspect-related reasons | ||
| Suspect a fugitive No known suspect Suspect deceased Suspect deported Suspect serving sentence |
3 38 43 1 12 |
0.1 1.6 1.8 0.0 0.5 |
| Case-related reasons | ||
| Jurisdiction or venue problems Lack of evidence Stale case Statute of limitations exceeded Weak evidence Witness problems |
52 285 23 10 558 9 |
2.1 11.7 0.9 0.4 22.9 0.4 |
| All other reasons | ||
| Agency request Court policy Department instructions Department policy Juvenile suspect Lack of resources Minimal federal interest Offender's health, age, prior record, or other personal circumstances U.S. Attorney policy Petite policy Suspect's cooperation |
99 1 5 10 23 48 77 27 58 16 6 |
4.1 0.0 0.2 0.4 0.9 2.0 3.2 1.1 2.4 0.7 0.2 |
| Other reasons | 44 | 1.8 |
| Total declinations | 2,436 | 99.9 |
| Source: EOUSA
Note: Total percentage does not add to 100.0 due to rounding. |
Child Pornography Investigations
The FBI established its Office of Crimes Against Children in 1997 to focus specifically on crimes such as child exploitation, child pornography, child abduction, and parental kidnapping. In addition to the headquarters staff, each of the FBI's 56 field offices has at least two special agents dedicated to crimes involving children.
To specifically address Internet child pornography issues, the FBI, with the assistance of the CEOS, established the IINI in 1995. As a part of the IINI, FBI agents and task force officers go undercover on-line in Internet chat rooms by either posing as children (potential victims) or as adults seeking child pornography. Table 5 below reflects the results of the IINI. The increase in the number of cases largely reflects the increase in resources dedicated to the IINI over the years.
Table 5: IINI Results and Resources
| Fiscal Year | New Cases Opened |
Arrests, Locates, or Summonsa | Convictions | Direct Agent Work Years |
|---|---|---|---|---|
|
1996 1997 1998 1999 2000 |
113 301 698 1,497 1,541 |
68 56 103 337 482 |
68 87 84 309 472 |
33.7 63.4 59.1 93.6 115.1 |
| Total | 4,150 | 1,046 | 1,020 | 364.9 |
| Source: FBI
aLocates refers to the identification of individuals with outstanding warrants not issued by the FBI. |
Task forces with representatives from the FBI, the U.S. Customs Service, the U.S. Postal Inspection Service, and the USAOs, as well as state and local law enforcement agencies are involved in the IINI. In addition, the U.S. Customs Service and the U.S. Postal Inspection Service manage their own national and international initiatives, such as Operation Cheshire Cat, to combat the distribution of child pornography.
Although the FBI's IINI has helped convict those who sexually exploit children, the true scope of the on-line problem is unknown. Pornographic websites are prolific and international; on-line predators and pornography traffickers can easily mask their location and identity. According to FBI officials, the IINI has experienced difficulties in keeping up with rapidly changing technology that allows criminals to avoid detection. Another problem in these investigations is the lack of a requirement mandating the length of time that an Internet service provider must retain its records. While the larger Internet service providers are cooperative, thousands of smaller Internet service providers, when subpoenaed, report that their records already have been deleted. Perpetrators of child pornography crimes often are savvy to these recordkeeping weaknesses and use smaller Internet service providers with fewer controls.
The FBI also works closely with the National Center for Missing and Exploited Children (Center). The Center, a nonprofit organization established in 1984, serves as a clearinghouse for information related to missing or exploited children. The Center operates the CyberTipline, an on-line mechanism for the public to report Internet child pornography and sexual exploitation, and the telephonic Child Pornography Tipline. Internet service providers also have been required since 1999 to report child pornography to the Center. The Center forwards the information it receives from both the public and the Internet service providers to the appropriate law enforcement officials for investigation. To assist in the process, the FBI has assigned a supervisory agent to the Center who reviews the information received and identifies cases of interest to the FBI. The FBI stated that this review consists of approximately 1,500 to 3,000 tips a month related to child pornography and sexual exploitation.
The Office of Juvenile Justice and Delinquency Prevention's Child Protection Division (Division) administers programs related to crimes against children and provides leadership and grant funding in the areas of enforcement, intervention, and prevention. One program, the Internet Crimes Against Children Task Force Training and Technical Assistance Program, provides grant funds to 30 regional task forces and 24 investigative groups (satellites) to work on child pornography and cyberenticement cases. The regional task forces are designed to provide forensic, investigative, preventive, and technical assistance on a state-wide or regional basis; the investigative satellites are designed to provide smaller law enforcement agencies with training and equipment to respond to on-line crimes against children in their jurisdictions. The Division is in the process of adding 16 investigative satellites, with another 15 scheduled to be added in October 2001. In FY 2001, the Division also provided $2.25 million to the Center for administering the CyberTipline and for training community investigators and law enforcement officials.
Obscenity Investigations and Prosecutions
The U.S. Attorneys' Manual states:
Prosecution of large scale distributors of obscene material who realize substantial income from their multi-state operations also is encouraged. Prosecution priority should be given to cases in which there is evidence of involvement by known organized crime figures. However, prosecution of cases involving relatively small distributors can have a deterrent effect and would dispel any notion that obscenity distributors are insulated from prosecution if their operations fail to exceed a predetermined size or if they fragment their business into small-scale operations. Therefore, prosecution of such distributors also may be appropriate on a case-by-case basis. 5
The Manual further requires that substantial deference be given to the factors set forth in Miller v. California in determining the viability of potential obscenity cases. Officials within the FBI's Violent Crimes Unit and the Criminal Division's CEOS stated that because Miller v. California requires an assessment of community standards in determining obscenity, the Department relies more on the states and localities to investigate and prosecute obscenity cases involving individuals. The FBI and the CEOS also stated that because much of the obscene material is distributed over the Internet, it is difficult to identify a case's jurisdiction and therefore which community standards should be applied. They stated that the Department focuses its resources on investigating and prosecuting obscenity cases involving major producers and interstate and foreign distributors of obscene material. In addition, they stated that the Department investigates and prosecutes obscenity cases where organized crime or other crimes such as money laundering, extortion, and trafficking in women are involved. According to the FBI, since 1994 it has investigated a total of 58 obscenity cases, 12 of which were related to organized crime.
Table 6 below shows the Department's prosecutions of obscenity crimes under Title 18 of the United States Code, sections 1460 through 1470. Appendix II contains a summary of these statutes.
Table 6: Federal Prosecutions of Obscenity Cases
| Fiscal Year | Cases Referred | Cases Prosecuted | Cases Declined |
|---|---|---|---|
| 1992 1993 1994 1995 1996 1997 1998 1999 2000 |
70 62 50 50 44 28 34 42 34 |
44 25 28 26 18 20 13 11 20 |
63 52 55 48 32 22 26 37 25 |
| Total | 414 | 205 | 360 |
| Source: EOUSA
Note: There is not necessarily a correlation between cases referred, prosecuted, or declined in any particular year. Cases referred may have been prosecuted or declined in a subsequent year; cases declined may include those cases referred from a prior year. |
The data provided by EOUSA for this 9-year period showed that the FBI, U.S. Postal Service, and the U.S. Customs Service were the primary referral sources of obscenity cases to the USAOs, with the FBI referring 43 percent of the cases. See Table 7 below.
Table 7: Obscenity Referrals by Source
| Fiscal Year | FBI | Postal Service | Customs | Other | Total |
|---|---|---|---|---|---|
| 1992 1993 1994 1995 1996 1997 1998 1999 2000 |
30 28 14 21 21 12 12 23 16 |
34 20 22 20 9 6 12 5 6 |
2 9 8 5 8 5 4 8 9 |
4 5 6 4 6 5 6 6 3 |
70 62 50 50 44 28 34 42 34 |
| Total | 177 | 134 | 58 | 45 | 414 |
| Source: EOUSA |
In the majority of the cases (63 percent), the defendants either pled guilty or were found guilty at trial. Of the remaining cases, approximately 30 percent were dismissed, 5 percent were terminated for other reasons, and 2 percent resulted in acquittals. See Table 8 below.
Table 8: Obscenity Conviction Statistics
| Fiscal Year | Guilty Plea | Guilty Verdict | Acquitted | Dismissed | Other | Total |
|---|---|---|---|---|---|---|
| 1992 1993 1994 1995 1996 1997 1998 1999 2000 |
34 29 28 27 25 18 8 11 7 |
5 2 2 2 0 2 0 0 0 |
0 6 0 0 0 1 0 0 0 |
8 6 34 18 4 2 6 16 1 |
3 1 3 2 5 0 0 0 1 |
50 44 67 49 34 23 14 27 9 |
| Total | 187 | 13 | 7 | 95 | 15 | 317 |
| Source: EOUSA |
The primary reasons reported by the USAOs for declining a case involving obscene material were weak evidence (18.3 percent), lack of evidence that a federal crime had been committed (12.5 percent), lack of evidence to support the case (11.9 percent), prosecution of suspect by other authorities (11.7 percent), and minimal federal interest (10.6 percent). See Table 9 below.
Table 9: Reasons for Not Prosecuting Obscenity Cases
FY 1992 - FY 2000
| Basis for Declination | Total | Percent |
|---|---|---|
| No crime | ||
| No federal offense evident | 45 | 12.5 |
| Referred or handled in other prosecution | ||
| Suspect prosecuted by other authority Suspect prosecuted on other charges | 42 18 | 11.7 5.0 |
| Alternative resolution | ||
| Civil, administrative, or other disciplinary Pre-trial diversion complete | 6 9 | 1.7 2.5 |
| Suspect-related reasons | ||
| No known suspect Suspect deceased Suspect serving sentence |
5 2 2 | 1.4 0.6 0.6 |
| Case-related reasons | ||
| Jurisdiction or venue problems Lack of evidence Stale case Statute of limitations exceeded Weak evidence Witness problems |
2 43 12 1 66 4 |
0.6 11.9 3.3 0.3 18.3 1.1 |
| All other reasons | ||
| Agency request Department instructions Department policy Lack of resources Minimal federal interest U.S. Attorney policy Suspect's cooperation |
26 1 2 12 38 12 6 |
7.2 0.3 0.6 3.3 10.6 3.3 1.7 |
| Other reasons | 6 | 1.7 |
| Total declinations | 360 | 100.2 |
| Source: EOUSA
Note: Total percentage does not add to 100.0 due to rounding. |
I hope this information is responsive to your questions about the Department's efforts to detect and prosecute child pornography and obscenity cases. If you have any questions about this report or would like any additional information, please contact me or Mary Demory, the head of our Evaluation and Inspections Division.
Sincerely,
[Signed]
Glenn A. Fine
Inspector General