GEORGIA TACKLES CHILD PORNOGRAPHY

UNCLAS SECTION 01 OF 04 TBILISI 002663

SIPDIS

SIPDIS

STATE FOR INL/AAE, EUR/ACE, EUR/CAC
DOJ FOR OPDAT (LEHMANN/NEWCOMBE)

E.O. 12958: N/A
TAGS: SNAR PGOV OTRA KCRM KJUS GG
SUBJECT: GEORGIA TACKLES CHILD PORNOGRAPHY



1. Summary: In an effort to protect children from sexual
exploitation, Georgia is working to criminalize online child
exploitation, building upon its recent aggressive legislative and
enforcement efforts which resulted in Tier I status for Georgia in
the 2007 United States Government's Annual Report on Trafficking in
Persons. Consistent with their demonstrated commitment to
protecting vulnerable individuals from exploitation, a committee of
Georgian government officials - - including representatives from the
Office of the Public Prosecution Service (OPP) and the Georgian
National Communications Commission (NCC),the Georgian FCC - - the
largest Georgian Internet Service Provider (ISP),United Nations
Children's Fund (UNICEF) representatives, and international experts
- - Department of Justice Attorneys (DOJ),Sheila Phillips, Program
Manager, Office of Overseas Prosecutorial Development, Assistance
and Training (OPDAT) and Alexandra Gelber, Trial Attorney, Child
Exploitation and Obscenity Section, and UNICEF Child Protection
expert Kerry Neal - - recently worked with Georgian experts to
complete draft legislation to more expansively combat child
pornography. This legislation, compliant with international
standards and best practices, initiates Georgia's efforts to
comprehensively address the global scourge of child pornography,
specifically including internet child pornography. First, it
punishes - - by imprisonment, fine, and deprivation of civil rights
-- any individual who intentionally receives, possesses, offers,
distributes, accesses or produces child pornography. Second, it
creates a specialized unit to investigate and detect child
pornography and exploitation crimes. Third, it imposes an
obligation upon ISPs to report internet child pornography and assist
law enforcement with such investigations. Fourth, it creates a
public list of convicted child pornography offenders and requires
organizations, whether voluntary or paying, that involve children to
examine it prior to employing a person. Fourth, it provides a
general measure of assistance to child witnesses and victims.
Finally, it provides the foundation for future legislation and
enforcement efforts which address other internet-based crimes. End
Summary.

--------------
When You Wish Upon a Star - - An Idea is Born
--------------


2. In order to build upon Georgia's success in achieving Tier I
status, Georgia Resident Legal Advisor (RLA) Roger Keller and OPP
developed a three-step program to combat child pornography and
exploitation in Georgia based on the recognition that Georgians,
primarily, use child pornography and do not produce it. First, a
committee of interested NGOs and government officials would meet to
identify specific child pornography and exploitation problems in
Georgia. Second, Post RLA would convene a panel of experts to draft
legislation addressing those problems and ensure that Georgia is
compliant with international standards including provisions
advocated by the UN and Council of Europe. Finally, Georgian law
enforcement officials would be trained in computer technology,
including computer forensics, to investigate and prosecute these
crimes.

--------------
Hi Ho, Hi Ho It's Off to Work We Go
--------------


3. In May, Post RLA and the OPP hosted a meeting of interested NGOs
and public officials. The NGOs suggested that child pornography and
exploitation problems exist in Georgia; however, the problem's scope
is largely unknown because of the absence of public awareness,
hidden family or individual pride, and a lack of a common
understanding of what constitutes child pornography. Like the
absence of knowledge concerning trafficking in persons in Georgia,
they concluded that the problem's scope would not be fully
understood until the OPP begins to proactively investigate and
prosecute individuals. The participants noted that the OPP has not
prosecuted a child pornography case in at least 5 years. They
suggested that legislation concerning this issue should: (1) define
child pornography; (2) involve the public; and (3) rehabilitate
victims.


4. Work group participants also met with Members of Parliament and
NCC officials in an effort to garner support for legislative action.
Both the relevant Members of Parliament and the NCC readily offered
to nominate staff members to participate in the legislation drafting
work group. Furthermore, they identified issues the legislation
should address. For example, a Member of Parliament suggested that
the legislation should protect and rehabilitate child pornography
victims. Likewise, the NCC officials recommended that the
legislation should protect individual privacy from potential
government abuse and individuals who accidentally access child
pornography. NCC's chairman also said that prosecutions should
expressly be limited to individuals intentionally accessing child
pornography.


TBILISI 00002663 002 OF 004



5. Finally, on September 24, 2007, the work group, in a digital
video conference (DVC) with DOJ officials and America on Line (AOL)
representatives, discussed investigative requirements and ISP
regulations. The DOJ participants outlined the U.S. enforcement
structure, and highlighted facets that could be used in the Republic
of Georgia. Experts also discussed how computer forensic evidence is
crucial in proving intentional transportation, possession and
accessing of child pornography. AOL's representatives explained how
the company complied with the U.S. laws that require that ISPs
report known child pornography and how they assisted law
enforcement. AOL highlighted the fact that it only saves available
historical ISP traffic for an extended period of time when requested
by law enforcement officials. Thus, expensive equipment upgrades -
- a constant fear expressed by the ISP representative - - are
unnecessary. Furthermore, AOL does not monitor its subscriber
traffic. Instead, it voluntarily established a system for its
subscribers to submit complaints about individuals abusing the
system. Several of these complaints have provided leads to internet
child pornography cases. Finally, both law enforcement officials
and AOL indicated that combating internet child pornography requires
government and private industry cooperation. Based on the ISP's
inclusion in the work group, the U.S. experts believed the Georgians
were off to a good start.

--------------
Whistle While You Work
--------------


6. Based on this series of meetings, the work group members
determined that the draft legislation should: (1) clearly define
child pornography; (2) remain sufficiently flexible to adjust to
technological changes; (3) punish only acts intentionally involving
child pornography; (4) make information readily available to the
public; (5) protect both child pornography victims and witnesses;
and (6) help to protect and assist child pornography and
exploitation victims. Furthermore, the legislation should be
consistent with international standards and best practices to
satisfy Georgia's current and future international obligations.
During the week of October 8, 2007, the work group, using draft
legislation OPP's representative prepared, addressed these issues
and completed draft anti-child pornography and exploitation
legislation.


7. First, the work group defined child pornography. NCC's
representative recommended that the definition should not include
adults portraying minors because including such material might
infringe upon a film director's artistic efforts, for example, to
portray certain acts in films. Likewise, he requested an exception
for individuals using pictures for medical purposes. U.S. experts
noted that such depictions would not constitute child pornography in
the U.S. The U.S. definition of child pornography requires that the
material depict someone under the age of 18 engaging in sexually
explicit conduct. They also noted that the definition of sexually
explicit conduct used in the UN Convention on Cybercrime and the
Council of Europe's recent Convention on Child Exploitation, is
specific enough to exclude images used for medical purposes from
being considered child pornography. UNICEF representatives, however,
urged the Georgians to adopt a definition that criminalized adults
portraying minors - a provision that has been held by the US Supreme
Court to be unconstitutional unless the image is deemed to be
obscene. The US Supreme Court indicated that such language would
potentially criminalize Hollywood productions such as the "Titanic"
that depicted adults playing minors engaged in sexual conduct.
UNICEF representatives noted that the United Nations Convention on
Child Exploitation defines child pornography to include adults
portraying minors. However, they suggested defining child
pornography in the explanatory notes to allow the local community to
determine whether artistic portrayals of adults pretending to be
minors engaged in sexual conduct constitutes child pornography.
Both UNICEF representatives and U.S. experts ultimately suggested
that the Georgians could adopt the Council of Europe's definition of
sexual conduct because the Council of Europe's definition, which is
identical to the definition used in the US, is limited to depictions
of sexual acts or material that lasciviously displays a minor's
genital area and would not criminalize images used for medical
purposes. The Council of Europe's definition of child pornography
also criminalizes images that depict individuals who are
indistinguishable from real or actual minors which would allow for
prosecution of digital images where the identity and age of the
persons depicted are unknown. The work group concluded that these
definition changes reflected their intent. Moreover, these
definitions are sufficiently broad to provide the necessary
flexibility as technology develops.


8. Second, the work group addressed the challenge of distinguishing
intentional and unintentional child pornography acts. NCC and the
ISP representatives claimed that individuals, including the
government, might infect a person's computer with a computer virus
and use the virus to access child pornography. Having infected the

TBILISI 00002663 003 OF 004


computer with child pornography, unsavory law enforcement officials,
for example, seeking to discredit an anti-government journalist,
would use the planted child pornography to search the entire
computer, including articles that reflected unfavorably on the
government. The work group quickly concluded that only intentional
efforts to access child pornography should be punished. The draft
legislation reflects this conclusion in that it expressly provides
that only intentional conduct is punished, and the government bears
the burden to prove that the accused acted intentionally. As to the
NCC and ISP concerns, the U.S. experts noted that evidence of the
computer virus would remain on the computer. Consequently,
investigators would find evidence to support the accused person's
argument that he did not intentionally access child pornography.
Moreover, as to concerns directed at law enforcement, the group
concluded that this legislation was not the place to address illegal
efforts by law enforcement to violate the law. Instead, the courts
would be the correct venue to curb illegal law enforcement activity.



9. Third, the work group struggled with determining what information
should be publicly available. The work group decided that the
Ministry of Internal Affairs (MOIA) would maintain a list of
individuals convicted of child pornography crimes. However, what
information should the public be allowed to access? For example,
UNICEF's expert noted that the United Kingdom obliges organizations
to request information from a public register to establish that a
potential employee has not been convicted of a child pornography or
exploitation crime. This information, however, is not generally
available to the public. U.K. officials were concerned that widely
disseminating this information would invite vigil ante violence. By
contrast, in the United States, various agencies maintain lists of
individuals convicted of crimes and make the information widely
available to the public. Ultimately, the work group melded both
examples. It decided that MOIA's list should be maintained on its
website with access to the public. However, the information will
only include a person's name, date of birth, date of conviction, and
penalty leveled against him. This will allow the public to identify
individuals in their neighborhoods who have been convicted of such
crimes and limit the possibility of vigil ante violence.
Furthermore, the work group imposed a record keeping requirement on
organizations involving children. These organizations will have to
demonstrate that they examined the list and determined that anyone
in their employ, whether paid or volunteer, has not been convicted
of a child pornography or exploitation crime.


10. Fourth, the ISP representative proved helpful in addressing the
obligations imposed on the service providers. He readily conceded
that the ISPs should cooperate with law enforcement during an
investigation. However, he did not believe that the ISPs should be
responsible for saving or providing information it is technically
not cable of providing. In other words, the ISP should not be
required to invest large amounts of money to obtain or save
information law enforcement officials claim is theoretically
available. The work group conceded that this seemed fair and only
required the ISP to provide information if it was technically able
to do so. Moreover, law enforcement officials will not be granted
unlimited access to the ISP's system. In the United States, law
enforcement officials routinely digitally copy the content of
several servers belonging to an ISP when searching for incriminating
evidence. The ISP representative suggested that this would provide
law enforcement officials with access to information not involved in
the case, but which might be useful for political reasons. Instead,
he suggested that, other than instances in which the ISP is a target
of an investigation, the ISPs should be responsible for providing
the law enforcement officials with the requested information.
Finally, the work group concluded that the ISPs are only liable if
they intentionally fail to report evidence of child pornography or
exploitation. They are not responsible for searching for or
creating a system that allows them to detect such information.


11. Finally, the work group tackled the need to protect child
pornography and exploitation victims and witnesses from further
victimization and public humiliation. Consistent with the interests
of child victims, UNICEF and DOJ experts suggested that the
legislation might penalize press organizations who disclose the
victim or witness's identity. Furthermore, the legislation should
allow the court and various child advocacy agencies to remove a
child from an abusive atmosphere. The work group agreed with both
of these proposals. First, the draft legislation specifically
prohibits press agencies from disclosing a victim or witness's
identity. If an agency does this after a court enters an order
prohibiting such conduct, the press will be subject to fines and
possible imprisonment up to 30 days. Moreover, if an organization
does this prior to such a court order, the organization may be fined
an amount, based on a sliding scale, to deter such future activity.
Finally, the legislation allows the court, child advocacy agency, or
such other state agency to remove a child from an abuse situation;
however, the legislation does not dictate where the child must be
placed. Instead, it leaves this decision up to the court and the

TBILISI 00002663 004 OF 004


child's various representatives.




-------------- --------------
First Star to the Right and Straight on 'til Morning
-------------- --------------


12. Completing the draft legislation does not complete the work
group's efforts. The legislation also requires the MOIA to train
and equip a special unit to detect and investigate child
pornography. This means that the Government of Georgia will need to
obtain computers and train investigators how to use them to detect
child pornography and exploitation crimes. Additionally, MOIA will
need to teach a cadre of experts forensic investigating and
questioning skills with child victims. Finally, the work group will
need to respond to questions from the interested NGO and Members of
Parliament not involved in drafting the legislation. The draft
legislation, however, represents Georgia's initial attempt to
comprehensively address child pornography and exploitation issues,
including the real possibility of prosecution, currently found in
Georgia.


13. Comment. Achieving Tier I status demonstrates that Georgia has
made great strides to protect vulnerable individuals. It means that
powerful individuals cannot use the law to exploit vulnerable
victims. Instead, Georgia's efforts demonstrate that the law
shields the weak and extends the sword to the exploiters. In short,
achieving Tier I status demonstrates the growth of the Rule of Law
in Georgia. Extending this sword to child pornographers and the
shield to the children further demonstrates the Rule of Law's
continued development. Child pornography and exploitation is a
scourge on society. It uses a community's most vulnerable victims -
- children - - and wears at a community's moral fiber.
Criminalizing the receipt, possession, offering, distribution, or
production of child pornography empowers prosecutors to protect
another vulnerable group of individuals and to attack their
exploiters. This demonstrates to the public, in a meaningful way,
how the Rule of law can improve an ordinary citizen's life by
holding accountable individuals who believe power and/or wealth
entitle them to use and abuse weaker citizens. End Comment.

TEFFT