Sweetie: The Legality of Using a Virtual Child to Catch a Webcam Predator

November 7, 2013

Thursday, November 7, 2013, by Tony Lucas
This past week, Terre des Hommes, an international organization advocating for children rights, turned over the names, contact information, and IP addresses of over 1,000 adults in more than 65 countries suspected of engaging in webcam child sex tourism to law enforcement authorities.  This event caught the attention of national media because 254 of the 1,000 adults were from the United States.

Despite what many would consider a success in the fight against webcam child sex tourism, there remain questions of whether Sweetie and Sweetie-like programs are legal and whether the information obtained from the sting can be used to charge individuals of a crime.

Webcam child sex tourism consists of “adults pay[ing] or offer[ing] other rewards in order to direct and view live streaming video footage of children in another country performing sexual acts in front of a webcam.”  Although webcam child sex tourism is an international crime, only 6 sexual predators have been convicted for it.
Terre des Hommes collected this information during a ten-week period by using Sweetie, a computer-generated 10-year-old Philippine girl.  The group’s staff posed as Sweetie in online chat rooms where 1,000 of the 20,000 individuals that interacted with “her” offered “her” money to perform sex acts in front of a webcam.  Despite what many would consider a success in the fight against webcam child sex tourism, there remain questions of whether Sweetie and Sweetie-like programs are legal and whether the information obtained from the sting can be used to charge individuals of a crime.
A spokesman for Europol, the European Union policing agency, expressed concerns about the Sweetie-sting stating that “[they] believe that criminal investigations using intrusive surveillance measures should be the exclusive responsibility of law enforcement agencies.”
The information obtained in the Sweetie-sting may not be admissible in courts in the United States or even enough to bring charges against the individuals caught in this sting.  Furthermore, Sweetie would be illegal in the United States based on two Supreme Court decisions: Ashcroft v. Free Speech Coalition and United States v. Williams.
In Ashcroft, the Court struck down a federal law criminalizing possession and distribution of “virtual” child pornography.  The Court reasoned that there was no harm present to victims to justify the infringement of free speech as there is with “real” child pornography.  In his dissent, Chief Justice Rehnquist expressed concern that computer-generated images may be indistinguishable from real images, which would make enforcement of the laws against real images difficult or even impossible.
After the Court’s decision, Congress passed 18 U.S.C. § 2252A(a)(3)(B) making it illegal to “distribute[] or solicit . . . any material or purported material in a manner that reflects the belief, or that is intended to cause another to believe, that the material or purported material is, or contains an obscene visual depiction of a minor engaging in sexually explicit conduct.”  In Williams, the Court upheld the federal law, but limited its scope.  The Court held that “an offer to provide or request to receive virtual child pornography is not prohibited by the statute.  A crime is committed only when the speaker believes or intends the listener to believe that the subject of the proposed transaction depicts real children.”
So in the United States, there remains a question as to whether the individuals caught in the sting committed a federal crime because the violation rests on whether they believed Sweetie was real or fake.  Furthermore, groups that operate a Sweetie or Sweetie-like program may be violating federal law, since they intend to cause individuals to believe that the girl was an actual minor engaging in sexual acts.  Whether law enforcement officers will attempt to use Sweetie-like programs and whether the Supreme Court will find the program constitutional remains to be seen, but at least for now, it appears unlikely.