07TBILISI2663, GEORGIA TACKLES CHILD PORNOGRAPHY

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Reference ID Created Released Classification Origin
07TBILISI2663 2007-10-26 12:04 2011-08-30 01:44 UNCLASSIFIED Embassy Tbilisi

VZCZCXRO0438
RR RUEHDBU RUEHLN RUEHVK RUEHYG
DE RUEHSI #2663/01 2991204
ZNR UUUUU ZZH
R 261204Z OCT 07
FM AMEMBASSY TBILISI
TO RUEHC/SECSTATE WASHDC 8005
INFO RUEAWJA/DOJ WASHDC
RUCNCIS/CIS COLLECTIVE

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 intentionall
y 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 con
victed 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

Wikileaks

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