As this NYT article discussed back in August, Internet sites featuring fully clothed children in erotic poses are currently the focus of legal actors. That article observed:
While many of the recently created sites are veering into new territory, the concept of for-pay modeling sites using children has been around for years. They first appeared in the late 1990’s, when entrepreneurs, and even parents, recognized that there was a lucrative market online for images of girls and boys.
Sites with names like lilamber.com emerged, showing photographs of children, usually modeling in clothes or swimsuits. Their existence set off a fury of criticism in Congress about possible child exploitation, but proposed legislation about such sites never passed.
Under 18 USC 2256(2)(A)(v) child pornography is defined in part as the “actual or simulated…lascivious exhibition of the genitals or pubic area of any person…under the age of eighteen years.” Of course what constitutes a “lascivious exhibition” is incredibly ambigous and subjective. In a recent Wired article, Declan McCullagh wrote:
Until a 1994 case called U.S. v. Knox, judges interpreted that language to mean either images of nude minors or of minors having sex. In that case, however, the 3rd U.S. Circuit Court of Appeals extended that definition to include videotapes of girls in leotards, and upheld Stephen Knox’s conviction on child pornography charges.
“The genitals and pubic area of the young girls…were certainly ‘on display’ as the camera focused for prolonged time intervals on close-up views of these body parts through their thin but opaque clothing. Additionally, the obvious purpose and inevitable effect of the videotape was to ‘attract notice’ specifically to the genitalia and pubic area. Applying the plain meaning of the term ‘lascivious exhibition’ leads to the conclusion that nudity or discernibility are not prerequisites for the occurrence of an exhibition within the meaning of the federal child pornography statute,” the 3rd Circuit wrote.
Courts have also looked to a 1986 case called U.S. v. Dost for guidance on what’s “lascivious” and what’s not. Among the factors they evaluate: whether the focus is on the child’s genitalia or pubic area; whether the image suggests sexual coyness; and whether the visual depiction is intended or designed to elicit a sexual response in the viewer.
This article reported “indictments against Marc Greenberg, 42, Jeffrey Libman, 39, partners in a Fort Lauderdale, Fla., business called Webe Web, which in turn ran the now-defunct ChildSuperModels.com site.” (see also; here and here too). McCullagh mentioned that in 2002, the Rep. Mark Foley (yes THAT Mark Foley) “announced a bill called the Child Modeling Exploitation Prevention Act that would effectively ban the sale of photographs of minors. But under opposition from civil libertarians and commercial stock photo houses like Corbis, it never left committee.” McCullagh asserted: “That leaves judges and juries faced with the difficult task of making distinctions between lawful and unlawful camera angles and facial expressions–an exercise that proves to be impossible to do without running afoul of the First Amendment.” For support he quoted FLP Amy Adler asking: “How do we distinguish pictures like these (on child modeling sites) from the everyday photos that our culture tolerates and even prizes? … For instance, who’s modeling in Vogue? A lot of those people are 15 and in scantily clad or suggestive photos.”
Earlier in the piece McCullagh obligatorily cited “First Amendment scholars” who he said “warned that any legal precedent might endanger the mainstream use of child models in advertising and suggested that prosecutors’ budgets might be better spent investigating actual cases of child molestation.” The tone of the article is one of civil liberties advocacy, and though he doesn’t say it outright, my impression is that McCullagh endorses a legal rule that images of fully clothed children cannot be pornography. Here is the paragraph of the article that gave me the most pause, however:
“I don’t know what the DOJ’s trying,” said Lee Tien, an attorney at the Electronic Frontier Foundation, a civil liberties group. “The best I can say is that it’s puzzling that they would devote investigative and law enforcement resources to something (like this). This is a far cry from what folks normally think of as child pornography.”
I don’t know exactly what the DOJ is attempting either, but I am very, very curious about one issue that McCullagh doesn’t address in an otherwise seemingly well researched article: the timing of the indictments. Why did the DOJ decide to act more than five years after main stream media outlets starting porting about the pedophilia-based business model of child modeling Internet sights? McCullagh actually linked to a November 2001 “investigation” of Webe Web by an NBC affiliate which noted: “Our investigation found a Fort Lauderdale company called Webe Web runs eight child modeling Web sites. The same company also sells sex online, having operated at least 14 sites that market adult pornography.”
Earlier still, in July of 2001, Wired News (the same publication that McCullagh writes for), published an article entitled “Girl Model Sites Crossing Lines?” by Julia Scheeres, the topic of which is, yes you guessed it, the Webe Web Corporation. Here are some excerpts:
Amber seems like a typical 11-year-old girl who loves horses and hates chores. Her website shows her hugging a stuffed white rabbit and playing dress-up.
But her site also contains photographs that are only available to dues-paying members.
For $25 a month, “Lil’ Amber” fans can ogle pictures of the little girl coyly hiking up her miniskirt or posing in a bikini on a faux bearskin rug. For $50, they can purchase a video of Amber “dancing and running around” in outfits that leave little to the imagination.
The money goes to her college fund, the site says. …
… “Many of these girls are making more money than their parents make,” Gordon said, adding that while the company has been accused of exploiting children, he has no reservations about the sites.
“If you had a cute dog that I could put up on the Web and make money off of, I’d do that too,” he said.
Webe Web also runs another business: hardcore porn sites, including Home From School. (The site www.homefromschool.com was taken down soon after an interview with Webe Web.)
Gordon said he was “irked” by a question of whether the company’s child-modeling sites and porn sites were related and insisted there was no crossover between the company’s two lines of business. …
… The mother of “Jessi The Kid” insists her daughter’s site is geared toward other children, and that her daughter enjoys planning the themes for the photo and video shoots.
“There’s so much smut on the Internet, we’re completely on the opposite end of that,” said the mother, who refused to give her name, referring to herself instead as “Jessi’s mommy.”
She said she didn’t know who was buying pictures and videos of her daughter because she had no face-to-face interaction with customers. She said the site is profitable.
“Let’s just say that from her portion of the earnings, she could apply for medical school right now and not have to take out a loan,” she said.
But while Webe Web and Jessi’s mother say they don’t know what their demographic is, a quick peek at the girls’ virtual fan clubs make it quite clear: men with nicknames such as “Cum ta Poppa.”
At one of Amber’s fan clubs, “humberthaze” writes: “We only get glimpses of her potential when she does a bit of ‘bump and g,’ but then she quickly relapses into something awkward and childish. Sometimes you can hear the photog get excited when he gives us what we/he want(s). She’ll do a little killer wiggle and we hear him say quickly, ‘What was that?’ or ‘Do that again!!!'”
Another complained: “She’s gotten too developed for my taste, I doubt I’ll be an Amber fan anymore.” …
Webe Web gets mentioned in this July 2002 MSNBC article and this September 2002 CBS article as well. Why did the DOJ wait so long to act, and why are they addressing this issue now? I’ll update this post if I come up with any answers or interesting theories.
–Ann Bartow
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