- The Washington Times - Tuesday, January 7, 2003

A federal appeals court in Chicago has rejected an assertion that the Supreme Court overturned the entire federal child-pornography law by declaring that Congress could not constitutionally ban computer simulations of child pornography.
On Friday the three-judge panel of the U.S. 7th Circuit Court of Appeals unanimously affirmed the conviction and 33-month prison sentence of George Kelly.
After receiving the decision yesterday, Kelly's attorney, Stephen M. Komie, said he relied on Justice Sandra Day O'Connor's dissent, which he said treated the court's "virtual pornography" decision as overturning the Child Pornography Prevention Act of 1996. Justice O'Connor's dissent was joined by Chief Justice William H. Rehnquist and Justice Antonin Scalia.
"The dissenters say the majority struck down the whole act, and my recommendation to Mr. Kelly will be that this should be taken back to the Supreme Court for clarification," Mr. Komie said in an interview. He advocated that Congress enact an "innocent recipient defense" for people who receive unsolicited material.
In its April 16 decision, the Supreme Court said "virtual pornography," which uses computer-generated images of children or adult models who look younger, may not be outlawed simply because it is difficult to tell such images from the real thing.
The 7th Circuit panel said portions of the act not related to "virtual pornography" survived that 6-3 decision. Those provisions include its definitions of and ban on "traditional child pornography."
"Because regulation of real child pornography remains constitutional and Mr. Kelly possessed real child pornography, we affirm the judgement of the district court," the appeals court said.
Mr. Komie portrayed his client as an aging retiree killing time when he happened on a sex "chat room the government has an interest in regulating." Kelly arranged to receive material from a person under FBI investigation. He was arrested in January 2002 and later convicted of possessing that material when FBI agents found it in his computer.
"They followed the source into other peoples' homes. They had a search warrant and he cooperated, even offering the agents coffee and tea. It was like you came to Grandpa's house," said Mr. Komie, whose client waived indictment and pleaded guilty to two of 14 counts against him.
The three-judge panel accepted prosecutors' description of the chat room as a group of Americans and Canadians "involved in the fetishistic abuse of children."
Mr. Komie and other lawyers have raised the specter that computer users who receive unsolicited material could be liable for prosecution, even if they believe they've erased it.
"The unsolicited recipient is subject to the orbit of this act," Mr. Komie said. He contends that the Bush administration and Attorney General John Ashcroft have become more aggressive in such prosecutions.
In October, over government protests, the 9th Circuit allowed a trial court to sharply reduce the sentence of Robert Parish for having a computer containing 1,300 images that appeared to be child pornography.
"Although the vast majority of these images depicted adolescent girls, some images depicted graphic, violent sexual exploitation of very young children," the appeals court said.
Until 1998 federal law provided an affirmative defense if a disk contained fewer than four images, and Mr. Komie said the Clinton administration interpreted this as being fewer than four documents or communications. A 1998 change reduced that to one image received.
"Now Mr. Ashcroft and his group are of a mindset that it's a single image," Mr. Komie said. "My secretaries open up their computer and they will be bombarded by pornography. They are disgusted by it, and they push the button, but they are at risk. The only way the average person can pull it out by the roots is to destroy the hard drive or the memory disk that it's on."
Mr. Komie's suggestion that people are arrested on casual grounds was rejected by a U.S. attorney who asked not to be identified.
"We've never prosecuted a case like that, and I don't know of anyone who has," the official said.

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