Day 5 of 2257 Trial Hears From One Expert & One FBI Agent

PHILADELPHIA, Pa.—As Day 5 of the 2257 lawsuit trial opened, Judge Michael M. Baylson went over the list of witnesses scheduled to testify over the coming week—and then surprised attorneys and reporters by noting that after the testimony on Friday, it was his intention to give his impressions of some or all of the witnesses who had testified thus far to point out what he thought might be shortcomings in their testimony. He would do that, he said, to head off "pages and pages of [post-trial] briefs," and so that the attorneys could supplement the record before he ruled on the case, which he stated would happen by the end of July.

The first witness was government expert Janis Wolak, a senior research assistant with the Crimes Against Children Research Center at the University of New Hampshire, where her specialty was online child exploitation. It took a few more questions by DOJ attorney James Schwartz to get there, but she disclosed that all of her funding comes from the U.S. Department of Justice (DOJ) and the National Science Foundation, and that she was being presented to rebut the report of plaintiffs' expert Dr. Daniel Linz—although Linz himself isn't scheduled to testify until Friday. (Hey, it's all scheduling; what can you do?)

Wolak testified that she had been engaged to challenge Linz regarding what he had reported was the quantity of child pornography on the internet and the types of images available, but in fact, little of her testimony dealt with those topics other than to say that she didn't think Linz had done any original research on the subject. However, she admitted that he may have done some meta-analysis of others' research for inclusion in the chapter of a book on the subject of child porn.

Wolak said that she had been part of three major projects at the research center, all of which involved surveying law enforcement officers and their agencies, by mail and sometimes by telephone, regarding the types of child porn they had seen in the course of their work, and about the production of the material and what types of children had been used. She generally divided the child victims into three categories—ages 2-5, 6-12, and 13-17—and noted that victims in all three categories had been found in the image collections of those who had been arrested for possessing, distributing and/or producing the child porn. However, she admitted that she did not personally verify the ages of the children found in those collections—in fact, she said she had never personally looked at any child porn—but simply accepted the age estimates of the law enforcement investigators.

Much of Wolak's testimony revolved around where child porn can be found, and these days, she said the vast majority of it is on the internet, being circulated through email, peer-to-peer (P2P) networks, dedicated applications, and even on some commercial websites which maintained both adult and child content, the latter only accessible with a specific password or sub-program which child porn viewers would download. In particular, she noted that there is a vast array of P2P sharing sites spanning the globe, and that most child porn files have very long descriptions to inform potential viewers exactly what is depicted in the material.

Of particular interest to the issues in this case, she noted that fully 80 percent of the child porn found in the possession of those arrested on child porn charges was of children aged 6 to 12, while another 12 percent are 13 to 17, and at least some of the rest of kids under the age of 6. She testified, however, that between 2000 and 2009, there had been a "jump in the number of adolescent victims," and that in the most recent study, some 70 percent of arrestees had sexually explicit or nude images of adolescents.

Wolak also explained how child porn is tracked by agencies like the National Center for Missing and Exploited Children (NCMEC), which collect the images and try to identify the child depicted in them, though she said that only about 2,000 to 3,000 victims, or about 15 percent, had been identified—and that of the 80 million images submitted to NCMEC since 2002, there are sometimes hundreds of different images of the same child. She noted that law enforcement agencies have tracked so many cases of child porn possession that they can't possibly prosecute all of them.

At that point, Judge Baylson interrupted to ask plaintiffs' attorney J. Michael Murray to confirm that his adult producer clients did not employ minors, and that they check their models' IDs to ensure that they are indeed not minors, to which Murray agreed. However, when the judge asked whether his clients have a problem with the requirement in 2257 that those IDs be checked, Murray said that they did, because the identity check was inextricably entwined with other requirements that he felt were unconstitutional, though he reaffirmed that adult producers don't want to use children in their productions.

However, when the judge asked Wolak if she knew that was the case, she responded that she was unsure, because while most producers were "scrupulous," some were not. She also later testified that about 6 percent of child porn images were produced by teens, who would often sext the photos and videos, but that the rest were likely done by family members or acquaintances.

Schwartz then asked Wolak to confirm that most child porn is made at home by either family members of the victim or their acquaintances, and she agreed that that was usually the case, though she believed that some children were paid to appear in the photos or videos, and others were recruited through fake talent agencies. She also noted that a European group, the Internet Watch Foundation, had estimated that there were 9,500 child porn web pages, one-quarter of which could only be accessed by subscribers.

When it came Murray's turn to question, he quickly established that Wolak didn't have a Ph.D. in sociology, but that it was the law degree she obtained in 1978 that had allowed her to be promoted at her university.

Murray also took her through various ages of children who could never be confused as adults, and Wolak agreed that while ages 10 and under wouldn't be, she was less sure about some early-developing 11- and 12-year-olds.

Murray brought out that in fact it was 87 percent of child porn arrestees who possessed images of kids aged 6 to 12, and got Wolak to agree that most of those could never be confused with adults. She also admitted that the vast majority of child porn prosecutions were successful, since they involved P2P networks with many images, and she only knew of possibly one or two acquittals, though in some cases she was aware that charges were dropped altogether. She also said she'd never heard of anyone being prosecuted for a 2257 violation.

Murray also spent several minutes establishing that a person can't just Google for child porn; that most of it was accessed with special programs and/or passwords in P2P networks. Wolak also agreed that no one has any idea of the actual number of child porn images currently available on the internet, but that she's unaware that any U.S. webmasters host child porn pages.

When asked whether 25-year-olds would ever be confused with minors for porn purposes, Wolak speculated that some photos could be altered or "morphed" to make it appear as though the subjects were underage, but that "common sense" told her that most 25-year-olds would not be confused with minors. (Judge Baylson seemed intrigued by the "morphing" concept, and asked several questions about it.)

Finally, Wolak admitted that she'd never heard of a child porn producer who kept 2257 records.

After the luncheon recess, the government called FBI Special Agent Stephen Lawrence to the stand. Lawrence had been one of the agents in charge of the FBI's 2257 inspection team, along with Special Agent Charles Joyner, and he gave details of how he got onto the team, which operated out of Los Angeles but was not part of that local field office.

Under questioning by DOJ attorney Kathryn Wyer, Lawrence described how producers were selected for inspection—through random numbers matched to a database that started out with 300 companies but by the time Lawrence left the inspection team had grown to 1,200 and was still climbing. He said he discovered the additional production companies though a variety of sources, including a list published by the Los Angeles Times—and by collecting cards from companies exhibiting at adult conventions in Las Vegas and Los Angeles, which Lawrence attended.

Wyer also drew out that the inspection team had concentrated on DVDs and web pages, and didn't attempt to inspect the records of still photographers, book publishers or art galleries—an obvious attempt to undercut the claims of the plaintiffs whose main connection to adult content was through those media. He also said they didn't try to inspect people who made sexually explicit videos of themselves, mostly because he wouldn't be able to locate them. However, he said that he was aware that government programmers had estimated that there were possibly 1.2 million sexually explicit websites, and while he wasn't sure which producers were involved with them, at least some would have been added to the list of possible inspectees.

What followed was more than an hour of Wyer taking Lawrence through the inspection procedures in detail, beginning from his becoming familiar with the 2257 law and regulations, and also with checklists which had been prepared for use during inspections, to make sure that everything that needed to be done under the law would be accomplished.

Lawrence noted that after a company had been randomly selected to be inspected, he or his teammates would covertly order certain DVDs for examination—usually those with titles that suggested that young performers were featured—and those would be turned over to contractors to go through the videos and note any possible underage performers—and any deficiencies in adhering to the 2257 regulations—all of which information was put into spreadsheets to be used during inspections. (On cross-examination, Murray brought out that Lawrence had actually cited one company because the 2257 notice on its DVD was only four seconds in duration at the beginning of the movie, and 3.5 seconds at the end.)

Wyer then took Lawrence through what would happen at an inspection, and the agent was careful to note that he always treated inspectees politely and always left the company premises without causing any damage—and he even took photos to prove it! He further testified that he would hand each producer a letter detailing what the team was there to inspect, and why the producer was required to comply with the inspection under the law. He also stated that no producer had ever denied him access, never requested a search warrant, and that none "expressed reluctance" to having the FBI on the premises.

"Raid jackets were never worn" upon entering the businesses, he stated, and that the team arrived in as few cars as possible so as not to call undue attention to the inspection.

After verifying that the company's 2257 records were in order, complete and legible, and properly cross-referenced, Lawrence testified that the team would then put everything back in its place and leave—and that if he had found any deficiencies in the recordkeeping or labeling, he would give the producer one week to rectify them before delivering his final report to the Department of Justice and the FBI's Crimes Against Children Unit.

Wyer spent some minutes asking how the 2257 requirements helped the inspection process, and Lawrence stated that they were very helpful. She then had Lawrence examine several of the records and reports produced by his team and explain their meaning and/or usefulness in complying with the law—and she did so much of this that Judge Baylson finally asked her to cut it short, since the records had already been admitted as evidence.

Wyer also tried to get Lawrence to speculate on how the inspection process, which hadn't been used since 2007, would be different if done today, but Murray objected and the judge sustained the objection, though Wyer was able to get some of the answer in the record later.

Judge Baylson also did some questioning, getting Lawrence to agree that most (!) performers were adults and clearly over 18—and then asked about altering digital images to make subjects appear older. Lawrence said he had never seen such alterations in the inspected material.

Finally, it was Murray's turn to cross-examine, and there immediately arose a question of whether the 2257 statute had changed since 2007. (It hadn't, though Lawrence initially said that it had.)

Murray then went into more detail regarding some of Lawrence's inspections, concentrating on the various actions he took that, in any other circumstances, would have required a warrant to accomplish—and elicited agreement that the pre-inspection letter Lawrence gave to inspectees specifically said that no warrant was needed, that refusal to let them inspect was itself a crime, and that if Lawrence had seen evidence of a felony during the inspection, he could have seized that evidence and arrested the studio owner.

However, as Murray continued to press Lawrence on certain details of inspections he'd conducted, Judge Baylson asked whether Murray would be done soon, and getting a negative response, adjourned court for the day.

Check back with tomorrow for more on this fascinating court battle.