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The maturation of any new area of criminal law, such as New York’s computer crime statutes, often mimics one of the fundamentals rules of a capitalist economy — the law of supply and demand. The criminal statutes that get used most often by law enforcement are the ones that evolve the fastest. No clearer example of this theory exists than what has been demonstrated over the last 20 years by the progress, or lack thereof, that has occurred with New York’s computer crime statutes. For about eight years, law enforcement agencies throughout the state have aggressively pursued adult sexual predators who visit Internet chat rooms to meet minors for the purpose of engaging in sexual activity. One of the more prominent tools available to prosecute such predators arrived in 1996, with the passage of statutes criminalizing the dissemination of indecent materials to minors transmitted over the Internet (Penal Law ��235.22 and 235.21, subdivision 3). The frequent use of these statutes has already generated several prominent court decisions. In contrast, another group of New York’s computer crime statutes has received virtually no attention from the courts, even though they were enacted 10 years. These statutes, all found in Penal Law Article 156, have been rarely used by law enforcement and could be described as designed more to prevent acts of “pure computer crime,” computer trespass and computer tampering, for example. Clearly, the fewer the frequency of arrests, the less likelihood significant legal issues will be litigated. The court decisions to date dealing with disseminating indecent material to minors over the Internet have evolved in two waves. The first, ending by 2000, evaluated constitutional issues; the second analyzed the manner in which law enforcement has used the disseminating statutes. BACKGROUND The state Legislature decided in 1996 to amend the disseminating statute already in existence in Article 235 of the Penal Law. Previously, it only applied to the transfer of physical items of pornography, such as magazines and films. In 1996, New York extended the applicability of that statute to the digital world by adding a new subdivision (subdivision 3) to the disseminating statute by criminalizing such distribution occurring over a computer network. What would turn out to be far more important in the years ahead, however, was a brand new statute passed at the same time. Once the new subdivision was added to the prior version of the disseminating statute, it was then re-designated as a “second degree” statute (�235.21, a class E felony), and a new “first degree” statute was created (�235.22, a class D felony). The new first-degree statute added an important element to the digital transmission of pornography to minors that was missing from the now re-designated second-degree statute. Where the defendant’s act in digitally transmitting pornography to a minor is performed to “invite or induce” the minor to “engage in sexual intercourse, deviate sexual intercourse, or sexual contact” with the defendant, or to “engage in a sexual performance, obscene sexual performance, or sexual conduct” for the defendant’s benefit, the defendant is chargeable with the first-degree offense. The earliest legal attacks upon these two new computer crime statutes were broad in scope, basically challenging their constitutionality. ‘ALA v. PATAKI’ The first court decision addressed the constitutionality of the new second-degree disseminating statute. In American Library Association v. Pataki, 969 FSupp 160 (SDNY, 1997), the statute was struck down on Commerce Clause grounds. Early in the decision, the court recognized that it was impossible to reliably determine the true age of anyone accessing or using the Internet. Hence, a person distributing sexually oriented material over the Internet, which would be legal for an adult to receive, could face criminal prosecution for distribution in New York to minors. The U.S. District Court for the Southern District also expressed its concern that given the broad geographical reach of the Internet, people from across the country — even across the world — could be subject to prosecution in New York. The court felt in Pataki that before any distribution of pornography to minors should be criminalized by a single state that it should, instead, be left up to the federal lawmakers to develop a single consistent set of laws to address the problem. A myriad of conflicting state statutes could inhibit the legitimate dissemination of such materials to adults throughout the country and, thereby, affect interstate commerce. For these reasons, the court issued an injunction prohibiting the use of the portion of the disseminating indecent material to minors statute specifically found in Penal Law �235.21, subdivision 3, by any of the state’s 62 district attorneys. ‘PEOPLE v. FOLEY’ It was inevitable that a defendant prosecuted for violating the disseminating first-degree statute would eventually attempt to challenge its constitutionality as well. That occurred in People v. Foley, 94 NY2d 668 (2000), an Oneida County case that ultimately reached the Court of Appeals. In Foley, the court easily dismissed the constitutional challenges raised by the defendant on both Commerce Clause and First Amendment grounds. With respect to the First Amendment issue, the court ruled that unlike the disseminating second-degree statute ruled unconstitutional in Pataki, the first-degree statute criminalized more than speech. Since Foley transmitted the pornographic material over the Internet for the purpose of engaging a minor in sexual activity for the defendant’s benefit, conduct as well as speech was involved. The Court of Appeals likewise dispensed with the Commerce Clause issue in short order. “We are hard pressed to ascertain any legitimate commerce that is derived from the intentional transmission of sexually graphic images to minors for the purpose of luring them into sexual activity,” the court wrote. Since the disseminating first degree-statute criminalizes conduct that “deserves no ‘economic’ protection,” the prosecution of this defendant was a “valid exercise of the State’s general police powers,” it continued. Once the constitutionality issues had been resolved, the attention of defense attorneys attempting to challenge the disseminating first-degree statute turned to how it was being used by law enforcement. As the first-degree statute survived these broad constitutionality based challenges during its infancy in the late 1990s, the next round of decisions, which have arisen more recently, have begun to focus on some of the finer points of the statute. The latest legal issue to be raised has to do with a somewhat awkward wording in the law. The statute criminalizes a computer-generated “communication which, in whole or in part, depicts” various acts of sexual activity. The word “depicts” has generated the recent court controversy. Must the computer-generated communication consist of a literal picture of the sexual act? Or can a purely textual “depiction,” such as a verbal description of a sexual act in an instant message, chatroom or e-mail, satisfy the requirement? To date, two trial-level courts have issued published decisions on the issue, and both have ruled in favor of prosecuting even “text only” sexually explicit Internet communications to minors. The two decisions, however, focus on slightly different aspects of the Penal Law provisions pertaining to the disseminating first-degree statute in reaching their respective conclusions. ‘GALLICCHIO’ AND ‘SKYA’ People v. Gallicchio, 189 Misc2d 182 (2001), is from Westchester County; and People v. Skya, NYS2d , 2004 WL 2591255 (2004), originated in Nassau. The law enforcement agencies involved in both cases used undercover investigators employed by their local district attorneys acting as minors to visit Internet chatrooms used by adult sexual predators. In both prosecutions, the undercover investigators only participated in textual communications with their respective defendants regarding sexual activities the defendants wished to perform on the supposed “minors.” Both decisions, recognizing that the word “depicts” is not defined anywhere in the Penal Law, turned to dictionary definitions. The Westchester court resorted to two versions of Webster’s dictionaries, noting that definitions include “to represent in words � describe” and “to picture in words � describe,” to support the court’s conclusion that the word “‘depict’ is not limited to a visual representation.” The Nassau court cited similar publications by Oxford University Press to demonstrate that “depict” can mean “[p]ortray in words � describe, draw, delineate.” Both courts, however, went beyond just interpreting the “plain meaning” of the word “depicts” in holding that it can apply to text-only Internet communications. Just as the two courts used different dictionary references in reaching the same conclusion, they also focused on different areas of the Penal Law to find statutory support to reach the same result that there is a sufficient statutory basis to hold that “depicts” applies to textual communications as well as pictorial. PENAL LAW DEFINITIONS In Gallicchio, the court noted that the dissemination statute requires the defendant to engage in a communication that both depicts sexual conduct and must be harmful to minors. The term “harmful to minors” is defined in the Penal Law, at �235.20, subdivision 6, as “any description or representation, in whatever form.” In Skya, the court observed that the dissemination statute criminalizes communications that “depicts actual or simulated” forms of sexual activity. The term “simulated” is defined in Penal Law �235.00, subdivision 6 to mean “the explicit depiction or description of any of the type of conduct described � which creates the appearance of such conduct.” Both courts noted that the clear legislative intent was that these new statutes were meant to apply to any form of luring minors over the Internet, whether in pictorial or purely textual form. Gallicchio and Skya both reached the same conclusion using the same forms of reasoning, that is, looking at dictionary definitions of “depicts” in order to interpret the “common meaning” of the word; looking at definitional provisions in the Penal Law other than the undefined word “depicts”; and divining legislative intent. FUTURE ATTACKS? As the evolution of court interpretations of the disseminating first-degree statute continues to mature, there are clearly more attacks from the defense bar to be encountered. Whether the conclusions of these future attacks will favorably end on the side of continued use of the statute to deal with the problems caused by online sexual predators is what is presently unclear. Stephen V. Treglia is an assistant district attorney in Nassau County, N.Y., and chief of the office’s technology crime unit. If you are interested in submitting an article to law.com, please click here for our submission guidelines.

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