by Frank Svetlik
The United States Federal Criminal Statute found at Title 18 United States Code Section 2252B, sets out the elements of the forbidden conduct in the section titled "Misleading Domain Names on the Internet" and defines that conduct as a crime. Section 2252B also states the potential penalties for conviction under this section.
The use of a misleading domain name on the Internet to deceive a minor into viewing material that is harmful to minors can result in fines and/or prison sentences of not more than ten years. The term "material that is harmful to minors" is broadly defined as any communication, consisting of nudity, sex, or excretion, that, taken as a whole and with reference to its context predominantly appeals to a prurient interest of minors; is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material for minors; and lacks serious literary, artistic, or scientific value for minors. The shorter prison sentence of up to two years can be handed out for using misleading domain names on the Internet to deceive any non-minor person into viewing material constituting pornography.
If you have reason to be concerned about the issues addressed in this writing call Attorney Frank Svetlik 713.724.8538, an attorney familiar with matters of interest to those accused of sexual performance by a child or possession or promotion or distribution of Child Pornography.
The operative provisions of the laws are set forth below with editing for ease of understanding.
Misleading domain names on the Internet.
[i] Whoever knowingly uses a misleading domain name on the Internet with the intent to deceive a person into viewing material constituting obscenity shall be fined under this title or imprisoned not more than two years, or both.
[ii] Whoever knowingly uses a misleading domain name on the Internet with the intent to deceive a minor into viewing material that is harmful to minors on the Internet shall be fined under this title or imprisoned not more than ten years, or both.
[iii] For the purposes of this section, a domain name that includes a word or words to indicate the sexual content of the site, such as “sex” or “porn”, is not misleading.
[iv] For the purposes of this section, the term “material that is harmful to minors” means any communication, consisting of nudity, sex, or excretion, that, taken as a whole and with reference to its context
[A] predominantly appeals to a prurient interest of minors;
[B] is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material for minors; and
[C] lacks serious literary, artistic, political, or scientific value for minors.
[v] For the purposes of subsection [iv] above, the term “sex” means acts of masturbation, sexual intercourse, or physical contact with a person's genitals, or the condition of human male or female genitals when in a state of sexual stimulation or arousal.
For the purposes of this portion of title 18 United States Code, the term
[i] “minor” means any person under the age of eighteen years;
[ii]
[A] Except as provided in subparagraph [B], “sexually explicit conduct” means actual or simulated
[1] sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex;
[2] bestiality;
[3] masturbation;
[4] sadistic or masochistic abuse; or
[5] lascivious exhibition of the genitals or pubic area of any person;
[B] For purposes of subsection viii[B] of this section, “sexually explicit conduct” means
[1] graphic sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex, or lascivious simulated sexual intercourse where the genitals, breast, or pubic area of any person is exhibited;
[2] graphic or lascivious simulated;
[I] bestiality;
[II] masturbation; or
[III] sadistic or masochistic abuse; or
[3] graphic or simulated lascivious exhibition of the genitals or pubic area of any person;
[iii] “producing” means producing, directing, manufacturing, issuing, publishing, or advertising;
[iv] “organization” means a person other than an individual;
[v] “visual depiction” includes undeveloped film and videotape, data stored on computer disk or by electronic means which is capable of conversion into a visual image, and data which is capable of conversion into a visual image that has been transmitted by any means, whether or not stored in a permanent format;
[vi] “computer” has the meaning given that term in Title 18 United States Code section 1030;
[vii] “custody or control” includes temporary supervision over or responsibility for a minor whether legally or illegally obtained;
[viii] “child pornography” means any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct, where
[A] the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct;
[B] such visual depiction is a digital image, computer image, or computer-generated image that is, or is indistinguishable from, that of a minor engaging in sexually explicit conduct; or
[C] such visual depiction has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct.
[ix] “identifiable minor”
[A] means a person
[1]
[I] who was a minor at the time the visual depiction was created, adapted, or modified; or
[II] whose image as a minor was used in creating, adapting, or modifying the visual depiction; and
[2] who is recognizable as an actual person by the person's face, likeness, or other distinguishing characteristic, such as a unique birthmark or other recognizable feature; and
[B] shall not be construed to require proof of the actual identity of the identifiable minor.
[x] “graphic”, when used with respect to a depiction of sexually explicit conduct, means that a viewer can observe any part of the genitals or pubic area of any depicted person or animal during any part of the time that the sexually explicit conduct is being depicted; and
[xi] the term “indistinguishable” used with respect to a depiction, means virtually indistinguishable, in that the depiction is such that an ordinary person viewing the depiction would conclude that the depiction is of an actual minor engaged in sexually explicit conduct. This definition does not apply to depictions that are drawings, cartoons, sculptures, or paintings depicting minors or adults.