On May 26, 2006, Gonzales, FBI Director Mueller and other DOJ officials met with civilian representatives of Internet Service Providers (ISP) in a closed door meeting at the Justice Department. At issue were data retention measures, a pet project of Gonzales.
During the meeting, officials passed around pixellated images of child pornography aimed at pressuring the ISPs to agree to long term data retention policies.
It's clear the spirit of the child pornography laws were violated, but was the letter of the law violated. The Fifth Circuit says yes.
From CNET News:
In a private meeting with industry representatives, Gonzales, Mueller and other senior members of the Justice Department said Internet service providers should retain subscriber information and network data for two years, according to two sources familiar with the discussion who spoke on condition of anonymity....
During Friday's meeting, Justice Department officials passed around pixellated (that is, slightly obscured) photographs of child pornography to emphasize the lurid nature of the crimes police are trying to prevent, according to one source.
First, these were civilian business men, not law enforcement trainees. Second, it appears the images were not in a controlled environment being handled by authorized agents. Third, someone realized a line was being crossed and had the images modified (pixelled).
That was the argument in U.S. v Grimes 244 F.3d 375 (5th Cir. 2001).
Grimes was charged with 13 computer images, the bulk of which had pixels obscuring the genitals of young females:
Grimes argues that the presence of the pixel
boxes prevents, as a matter of law, the nude
photographs of the minor girls from meeting
the statute’s definitional requirements. First,
he asserts that because the genitals were
blocked out, the photographs fail to meet the
definition of "lascivious." Second, and along
the same lines, he argues that because the genitals
are blocked out, they are not "exhibited."....
After viewing the photographs, we reject
Grimes’s challenge to the sufficiency of the
evidence. It is plain to any viewer that the
producing of these visual depictions involved
the use of minors engaging in sexually explicit
conduct and that the visual depiction captured
that activity.
Grimes answers by saying that postproduction
computer alterations brought the
photographs outside the statute’s reach. That,
however, is not what the plain language
requires.
The Grime's case was reversed and remanded on other grounds, and subsequently dismissed, but the holding regarding pixelled images stands.
Thus, pursuant to Grimes, Gonzales and his co-conspirators produced, transported, distributed and possessed images of child pornography in violation of 18 USC 2252A.
Production carries a 15 year mandatory minimum. Gonzales would be subject to his own registration guidelines. He would also be defined as a child molester under the BOP civil commitment guidelines, subject to a sexually dangerous person evaluation. Guidelines which don't require a sex offense conviction and which Gonzales has publicly embraced.
There is also the question of privacy law violations. If any of the victims in the images had previously been identified, then Gonzales would have needed permission from the parents, or the victim(s) if now an adult. If any were identifiable victims, the victim could also sue Gonzales civilly for compensation under 18 USC 2255 (amended as Masha's Law, Section 707 of H.R.4472), or 18 USC 2252A(f).
And Gonzales was well aware of what he was doing.
The courts and Congress have found that each viewing of child pornography is a re-violation of the victim. On those grounds, Gonzales pushed for, and Congress approved, an unprecedented law restricting discovery:(Section 501/504 of H.R.4472).
(D) Every instance of viewing images of child pornography represents a renewed violation of the privacy of the victims and a repetition of their abuse.
(E) Child pornography constitutes prima facie contraband, and as such should not be distributed to, or copied by, child pornography defendants or their attorneys.
(F) It is imperative to prohibit the reproduction of child pornography in criminal cases so as to avoid repeated violation and abuse of victims, so long as the government makes reasonable accommodations for the inspection, viewing, and examination of such material for the purposes of mounting a criminal defense.
This restriction applies to alleged images of adult performer Melissa Bertsch whose images keep getting charged as child porn, as well as the alleged images of a number of her industry peers. The law has also created constitutional concerns for federal judges.
So what was Gonzales thinking when he passed around images of child pornography to civilians? The same thing Douglas County, Georgia, District Attorney David McDade was thinking.
In a political move to ambush proposed legislation, McDade re-produced, distributed and possessed copies of the Genarlow Wilson sex tape, which is classified as child pornography. The last line of the AP article sums it up:
McDade fought a bill in the Legislature earlier this year that would have helped Wilson. Some lawmakers who were on the fence changed their mind after seeing the tape.
For Gonzales, this was by design, not accident. It appears the strategy was to offend and repulse the public and private sector with images and descriptions of child porn to the point that any opposition to "protecting the children" legislation would be minimal and damaging. The child abuse images Gonzales passed around had nothing to do with whether or not law enforcement was being hampered by ISP data retention policies.
We know Gonzales, Mueller and McDade are not pedophiles or child molesters. But exploiting child victims to support a political agenda draws no quarter from the statute.
In His Own Words
April 20, 2006:
To educate people about this threat, I am going to describe some of the criminal evidence we have seized. It is graphic, but if we do not talk candidly, then it is easy for people to turn away and worry about other matters....But there are even more shocking and vulgar images we’ve uncovered.... we cannot, and will not, tolerate those who seek to abuse or exploit our children....And I will reach out personally to the CEOs of the leading service providers, and to other industry leaders, to solicit their input and assistance. Record retention by Internet service providers consistent with the legitimate privacy rights of Americans is an issue that must be addressed.
September 19, 2006:
These are shocking images that cry out for the strongest law enforcement response possible. Moreover, these disturbing images are only the beginning of a cycle of abuse. Once created, they become permanent records of the abuse they depict...
December 4, 2006:
If there is evidence that a child has been hurt, I want to see an arrest, a thorough investigation and a merciless prosecution if you have the evidence....But it is the faces of child victims that haunt my dreams. I can see their eyes, that awful emptiness, as if their tiny souls are trying to detach themselves from their desecrated bodies....
You and I won’t tolerate the continued victimization, exploitation and desecration of our children.
June 21, 2007:
The fourth and final issue I want to mention today is my commitment to restore public trust and our efforts to fight corruption. Public corruption is the most dangerous poison for any democracy. Those of us in public office owe a special duty to the people we serve. When that trust is violated, there must be accountability. And whether you are in the State House or the White House, Congress or the State legislature, Democrat or Republican, I intend for the Department to follow the evidence of any wrongdoing.
August 15, 2007:
I’ve also encouraged everyone who cares about and works on these issues to "go public." To talk about this issue openly and often. I encourage you all to speak in raw, frank terms, and don’t let your audience turn away. People need to know, for example, that children are being violated for profit – that the Internet has enabled child rape and molestation to become an industry. It has created a marketplace where images of crime scenes are bought, sold and traded every day. It is our duty to bring that industry down, to bring its purveyors to justice.