Stanford Center for Internet and Society

Author: Alex Harris

The Fourth Circuit upheld the conviction of a man who downloaded, among other content, graphic illustrations of fictional minors engaged in sexual acts, and text emails describing fictional minors engaged in sexual acts. Federal law prohibits receiving obscene depictions of “a minor engaging in sexually explicit conduct.” 18 U.S.C. § 1466A(a). The court held the statute constitutional on its face, and as applied to downloading materials from the Internet. Receiving content via the Internet, the court said, constitutes trafficking in commerce. It is therefore unlike mere possession of obscenity in one’s home, as is protected by the First Amendment and Stanley v. Georgia. Further, the court held that text and drawings can be obscene and prohibited without violating the First Amendment.

In October 2008, David Kernell was indicted in federal court in the Eastern District of Tennessee. The grand jury charged him with gaining unauthorized access to the personal e-mail account of Alaska Governor Sara Palin, changing the password to the account, and making screenshots of e-mails and personal information found in the account, including e-mail addresses of family members, pictures, a cell phone number, and Governor Palin’s Yahoo address book. The indictment also alleges that Kernell posted the new password and screenshots to a public website, giving the public access to the account. Kernell was charged under 18 U.S.C. § 2701 and 18 U.S.C. §1030(a)(2), for intentionally and without authorization accessing a protected computer by means of an interstate communication and thereby obtaining information.