The "AP" is the Associated Press. It's probably the largest news gathering organization in the world.

--AC

The general rule is that arguments raised for the first time on appeal are waived. That means that the appellate court should summarily dismiss those arguments.

--AC

How does it handle double letters?

For example, would it type my username as Goobermunch or Gobermunch? How would it know the difference? How does Swyping accommodate the William Wallaces of the world? Are they doomed to being Wiliam Walaces?

The press release leaves the question open. The ability to detect a repeated input seems to be an advantage of keypad type input. Perhaps, if you dwell for a sufficiently long period of time, it will count the character beneath the stylus twice.

--AC

Right, but if the rationale for the conviction for possessing the anime images was "merely" that the defendant possessed child pornography, his conviction would be impermissible without meeting the Miller Obscenity Test, correct?

That's because the rationale for banning child pornography is largely based on the negative impacts that child pornography has on actual children. See, for example, Ashcroft v. Free Speech Coalition, where the Supreme Court struck down the predecessor to the statute at issue here because it did not require proof that an actual child was involved in the production of the alleged child pornography.

So what makes these images illegal is not that they depict children having sex. It is that they depict children having sex in an obscene manner. In other words, not all hentai is illegal. Only obscene hentai is illegal.

Finally, if you'd read the opinion, you'd know that, in this case, Mr. Whorley was downloading the images to a computer at what appears to be the local state employment office. Thus, Stanley v. Georgia (the case holding that mere possession of obscene materials in the privacy of ones own home is protected by the penumbra of rights between the first and the fourteenth amendment) is inapposite. The Fourth Circuit also explained why, although Stanley v. Georgia holds that mere possession is not punishable, distribution of obscenity may violate the law.

"But Stanley's holding was a narrow one, focusing only on the possession of obscene materials in the privacy of one's home. The Court's holding did not prohibit the government from regulating the channels of commerce. In an unbroken line of Supreme Court decisions since Stanley, the Court has
repeatedly rejected the notion, urged by Whorley, that as a matter of logic, because the First Amendment prohibits the criminalization of private possession of obscene materials within the home, there exists a correlative "right to receive" obscene materials. See United States v. Reidel, 402 U.S. 351, 354-55 (1971) (explicitly rejecting the notion that Stanley's recognition of the defendant's right to possess obscenity meant that "someone must have the right to deliver it to him" through the channels of commerce (internal quotation marks omitted)); see also Smith v. United States, 431 U.S. 291, 307 (1977) ("Stanley did not create a right to receive, transport, or distribute obscene material, even though it had established the right to possess the material in the privacy of the home"); United States v. Orito, 413 U.S. 139, 141 (1973) (holding that Stanley's tolerance of obscenity within the privacy of the home created no "correlative right to receive it, transport it, or distribute it"); United States v. Thirty-Seven (37) Photographs, 402 U.S. 363, 376 (1971) ("That the private user under Stanley may not be prosecuted for possession of obscenity in his home does not mean that he is entitled to import it from abroad free from the power of Congress to exclude noxious articles from commerce")."

However, your comment does raise an interesting legal question. What would be the result if Mr. Whorley had merely possessed the obscene anime images in his home, rather than in a public place? If the police were able to access Mr. Whorley's YAHOO account and locate the images in that account, then, most likely, the conviction would stand (as the statute specifically prohibits "moving" the images in interstate commerce). However, if they were unable to determine how Mr. Whorley obtained the images, then I would argue Stanley applies, and the images would not violate the provisions of the act.

--AC

So obviously, I was too brief in my comment, so let's put the big asterisk by the brief conclusion:

UNDER CURRENT FEDERAL STATUTORY AND DECISIONAL LAW, child porn involving actual children--always illegal because actual children are injured in the process. Images and stories of children having sex--illegal if obscene.

The key here being that because the First Amendment doesn't protect obscene speech, there is no First Amendment issue with these convictions.

--AC

Here's a link to the opinion: http://pacer.ca4.uscourts.gov/opinion.pdf/064288.P.pdf

Here's the language from the opinion:

Counts 1-20 charged Whorley with using a computer on March 30, 2004, to knowingly receive obscene cartoons in interstate and foreign commerce, in violation of 18 U.S.C. 1462. The 20 cartoons forming the basis of those counts showed prepubescent children engaging in graphic sexual acts with adults. They depicted actual intercourse, masturbation, and oral sex, some of it coerced. Based on the same cartoons, the jury also charged Whorley in Counts 21-40 under 18 U.S.C. 1466A(a)(1) with knowingly receiving, as a person previously convicted of illegally downloading child pornography, obscene visual depictions of minors engaging in sexually explicit conduct. In addition, the grand jury charged Whorley in Counts 41-55 with knowingly receiving, on March 11 and 12, 2004, 15 visual depictions of minors engaging in sexually explicit conduct, in violation of 18 U.S.C. 2252(a)(2). These counts were based on lascivious photographs of actual, naked children. Finally, the grand jury charged Whorley in Counts 56-75 with sending or receiving in interstate commerce 20 obscene e-mails during the period between February 5, 2004, and April 2, 2004, in violation of 18 U.S.C. 1462. The e-mails described sexually explicit conduct involving children, including incest and molestation by doctors.

By my read, the key factor that made these prosecutions legitimate from a First Amendment standpoint is not that they were "child pornography," but that they were obscene.

--AC

It's a bad summary.

The opinion makes it clear that the child pornography charges were related to the actual child porn he received, while his convictions related to the anime and emails were obscenity convictions. This is an important distinction.

In Miller v. California, the United States Supreme Court held that the First Amendment did not protect obscene speech, and that such speech could be banned by the government. However, the test for whether speech is obscene is so broad that very little pornography is subject to regulation. According to Wikipedia (since I'm too lazy to look it up on Findlaw), the three prongs of the test are:

* Whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest,
* Whether the work depicts/describes, in a patently offensive way, sexual conduct or excretory functions specifically defined by applicable state law,
* Whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value. (This is also known as the (S)LAPS test- [Serious] Literary, Artistic, Political, Scientific).

If each if these prongs is met, then the work is obscene and may be banned.

In contrast, in Ferber v. New York, the Supreme Court held that child pornography is never protected by the First Amendment, regardless of whether it is obscene. The rationale being that the government has a compelling interest in preventing the sexual exploitation of children, and that by its nature child pornography causes injury to the children involved in its production.

So, in brief: child porn involving actual children--always illegal because actual children are injured in the process. Images and stories of children having sex--illegal if obscene. Whorely was convicted under an obscenity statute, rather than a child pornography statute.

--AC

Tell your tech writers not to copy and paste specs or other internal documents.

Or if they do, have them save the copies without metadata. I'm not a betting man, but the odds are, your company didn't share your customer's secrets with its competition. The potential liability is too big and too obvious. Instead, I'd wager someone tried to save time by cutting and pasting one document into another as a template. The tech writer then modified the template to address the new client's needs and emailed it off. The new client then opened up track changes and read the specification information from the original document.

This wouldn't be the first time that "secure" information leaked out because someone failed to scrub a document's metadata or failed at redaction.

--AC

It was also very much based on Dune II.

--AC