ONLINE CHILD SEXUAL ABUSE MATERIAL: PROSECUTING ACROSS JURISDICTIONS

Abstract

"3 The Internet Watch Foundation confirmed that 51% of the 260,309 reports and 44% of 117 newsgroups investigated in 2019 were CSAM, at Least 25% higher than in 2018.4 Three factors have contributed to the increase in CSAM over the past three years, incLuding (a) concomitant growth in ownership of smartphones (currentLy 3.5 miLLion users) and other devices for accessing the Internet, even in deveLoping countries (e.g., PhiLippines, Vietnam); (b) the number of minors given unsupervised, easy access to the Internet; and (c) anonymization methods avaiLabLe for offenders.5 The sheer voLume of CSAM (estimated in the miLLions) avaiLabLe for instantaneous distribution and downLoad (as demonstrated by the high number of referraLs to NationaL Center for Missing & ExpLoited ChiLdren during the COVID-19 pandemic Lock-downs) makes it cLear that the task of combating abuse and expLoitation of chiLdren is simpLy beyond the abiLity of any one country.6 Instead, a nation's abiLity to successfuLLy Locate and prosecute offenders of vioLating chiLd sexuaL abuse/expLoitation materiaL statutes are significant indicators of the strength of its coordination with chiLd protection communities (private and pubLic agencies) across transnationaL and internationaL jurisdictions and the comprehensive scope of its LegisLation. ChiLd protection organizations make a concerted effort to (1) prevent and disrupt offenders from producing, possessing, accessing, and distributing CSAM; (2) protect children from being harmed and helping to locate and rescue those who are currently or have been harmed; (3) punish offenders engaging in CSAM and children sexual abuse and exploitation; and (4) alert law enforcement of emerging patterns (e.g., self-generated sexually explicit material, live-streaming of child sexual abuse) and challenges for eliminating CSAM (e.g., anonymization technologies such as TOR and Virtual Private Networks for online abuse; support for private policy preventing law enforcement from accessing basic subscriber information).7 By combining resources, law enforcement around the world work with numerous child protection organizations (e.g., End Child Prostitution and Trafficking/ECPAT; Europol/European Cybercrime Centre, International Centre for Missing & Exploited Children/ICMEC, Internet Watch Foundation/IWF; INHOPE hotlines, Thorn; Virtual Global Taskforce, WeProtect Global Alliance) and other private sector businesses, to eliminate online CSAM. The latter is invaluable to this cause; technology companies provide scanning tools (e.g. , image hashing) that detect and differentiate CSAM from non-CSAM; Internet Service Providers (ISPs, electronic communication service providers and remote computing service providers) remove Web sites that host online CSAM; and financial institutions and businesses (e.g., European Financial Coalition Against Commercial Sexual Exploitation of Children Online/EFC; Paypal; Credit Card companies) prevent payment attempts by offenders to purchase CSAM from being processed.8 This aliiance, however, is dependent upon a shared framework in the legislation developed by each nation in their effort to protect children. COMPREHENSIVE LEGISLATION CSAM will flourish when the laws to prevent it are insufficient and/or are not enforced.9 International Centre for Missing and Exploited Children (ICMEC) apply five criteria in determining the ability of member countries to provide comprehensive legislation to combat child sexual abuse/exploitation material: "1.) specifies CSAM; 2.) provides definition of CSAM; 3.) criminalizes technology-facilitated CSAM offenses; 4.) criminalizes the knowing possession of CSAM, regardless of the intent to distribute; and 5.) requires ISPs (electronic communication service providers and remote computing service providers) to report suspected CSAM to law enforcement or to some other mandated agency.