4.18.1462 Use of Interactive Computer Service for Obscene Matters,

18 U.S.C. § 1462 See Statute

[Defendant] is charged with knowingly using an interactive computer service to carry obscene [pictures] [writings] in interstate or foreign commerce. It is against federal law to use an interactive computer service to carry obscene [pictures] [writings] in interstate or foreign commerce. For you to find [defendant] guilty of this crime, you must be convinced that the government has proven each of the following things beyond a reasonable doubt:

First, that [defendant] knowingly used an interactive computer service;

Second, that [defendant] did so in order to carry one or more of the charged [pictures] [writings] in interstate or foreign commerce;

Third, that the particular [picture] [writing] was obscene; and

Fourth, that [defendant] knew at the time the general contents, character and nature of the [pictures] [writings].

“Knowingly” means that the act was done voluntarily and intentionally and not because of mistake or accident.

The term “interactive computer service” means any information service, system or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions.

“Interstate commerce” includes commerce between one state, territory, possession, or the District of Columbia and another state, territory, possession and the District of Columbia.

“Foreign commerce” includes commerce with a foreign country.

Material is “obscene” when:

(1) the average person, applying contemporary community standards, would find that the material, taken as a whole, is in some way erotic, and appeals to a degrading, unhealthy or morbid interest in sex as distinguished from normal, healthy sexual desires;

(2) the average person, applying contemporary community standards, would find that the material depicts or describes ultimate sexual acts, excretory functions, masturbation or lewd exhibition of the genitals in a patently offensive way; and

(3) a reasonable person would find that the material, taken as a whole, lacks serious literary, artistic, political or scientific value.

All three characteristics of this test must be present in the particular listed material for it to be found to be obscene. It is not necessary for the government to prove that [defendant] knew or believed the material to be legally obscene.

[“Lewd, lascivious or filthy” as used in the Indictment all have the same meaning as “obscene.”]

Comment(s)

(1) For the caselaw supporting the obscenity definition, see instruction on Transfer of Obscene Materials to Minors, 4.18.1470 (§ 1470).

(2) A three-judge court in the Northern District of California has persuasively explained why Supreme Court precedents should be interpreted as giving the same meaning to the phrase “lewd, lascivious or filthy” as to the defined term “obscene.” Apollomedia Corp. v. Reno, 19 F. Supp. 2d 1081, 1094-95 (N.D. Cal. 1998). If the Indictment does not use the phrase, however, there is no need to refer to it.