Comics Lead to Child Porn Charges at Canadian Customs

Fri, June 24th, 2011 at 6:04am PDT | Updated: June 24th, 2011 at 8:15am

Comic Books
Brigid Alverson, Contributing Writer

A U.S. citizen was arrested for child pornography while crossing the Canadian border with a fan-made comic featuring characters from the "Magical Girl Lyrical Nanoha" manga

The Comic Book Legal Defense Fund announced today that it is forming a coalition to support the defense of the U.S. man whose laptop was searched and seized by Canadian customs agents and now faces criminal charges of possession and importation of child pornography because of comics that were found on his computer. The CBLDF will contribute money toward the cost of the man's defense, which is estimated at $150,000 CDN, as well as providing expert advice. A Canadian organization, the Comic Legends Legal Defense Fund, is also helping with the case.

Charles Brownstein, executive director of the CBLDF, said that the materials that led to the arrest of the man, whose identity is being withheld both as a matter of legal strategy and to protect his privacy, were comics, not photographs. "My understanding with regard to the material at issue is that it includes fantasy comics drawn in a variety of manga styles," he said in an e-mail to Comic Book Resources. "One of the items is believed to be a doujinshi, or fan-made comic, of the mainstream manga series 'Magical Girl Lyrical Nanoha.' Another is believed to be a comic in the original Japanese, depicting stick figure-like figures in various sexual positions. In all cases, the authorities are targeting expressive art and not any photographic evidence of a crime."

According to the CBLDF, the defendant in this case is a computer programmer and comic book fan in his mid-20s who flew to Canada to visit a friend. When he arrived, Canadian customs searched his laptop computer, iPad, and iPhone, and found material on the laptop that they deemed to be child pornography. The man is being charged with violating sections 163.1(3) and 163.1(4) of the Criminal Code of Canada, which prohibit importation and possession of child pornography, respectively.

"The defendant was permitted to return to the United States, and is observing court imposed restrictions, such as not using the Internet outside of work," said Brownstein. However, he cannot simply walk away from the charges. "Not appearing for trial would not stop his case from being prosecuted or going to trial," Brownstein explained. "The charges he faces are sufficiently serious that if found guilty, the offense could come with risk of extradition. Likewise, the sex offender registration could be reciprocal in the United States. And, furthermore, he shouldn't need to live like a fugitive because the comics he had on his computer led an authority to wrongly accuse him of a horrible crime."

Canadian law prohibits the importation of obscene materials into the country, and it is not unusual for customs agents to seize comics during searches at the border. In an advisory, the CBLDF says that another traveler who was on his way to an anime and manga convention was detained at the U.S./Canada border, handcuffed, and held briefly on charges of child pornography. In May, customs officers confiscated five copies of the "Black Eye" anthology and Blaise Larmee's "Young Lions" that Tom Neely and Dylan Williams were bringing to the Toronto Comic Arts festival. The law requires the customs service to rule on the admissibility of the seized material in a timely manner, usually 30 days, and many comics that are seized at the border are subsequently ruled admissible. Comics as diverse as "Sailor Moon" and Alan Moore and Melinda Gebble's "Lost Girls" have been seized by customs agents only to be later determined admissible after all.

In this case, however, Canadian customs determined that the manga they found on the man's laptop was child pornography, and the defendant faces a minimum of one year in prison if convicted. Brownstein said that the decision not to reveal the man's name is based mainly on legal strategy, but he added, "It's also because it's important to be sensitive to the fact that we're talking about a young man trying to maintain gainful employment who's being wrongly accused of trafficking in child pornography. That's a guilty until proven innocent kind of accusation that follows you around for the rest of your natural life on Google. That's one of the really scary elements of this case -- a customs agent can look at your comics and make an accusation that, no matter what happens in the courts, can turn your entire life upside down."

In March, the CBLDF issued an advisory on the legal problems travelers may encounter when bringing comics across international borders, focusing mainly on U.S. Immigration and Customs enforcement policies. The advisory noted that between October 2008 and June 2010, customs agents searched electronic devices belonging to over 6,500 people and points out that courts allow routine searches at the border without probable cause. "In light of the broad authority for the government to conduct border searches and the lack of traditional legal protections, travelers should take practical steps to minimize or avoid the risk of intrusive border searches," the advisory stated, and the CBLDF suggests that travelers send materials by mail or upload it to the cloud, rather than physically carry it across borders; back up their laptops and other devices; and encrypt or password-protect the data on those devices.

While the current case is being prosecuted under Canadian law, its significance goes beyond the Canadian border. "This is an important case that impacts the rights of everyone who reads, publishes, and makes comics and manga in North America," Brownstein said in the press release issued today. "It underscores the dangers facing everyone traveling with comics, and can establish important precedents regarding travelers rights. It also relates to the increasingly urgent issue of authorities prosecuting art as child pornography. While this case won't set a US precedent, it can inform whatever precedent is eventually set. This case is also important with respect to artistic merit in the Canadian courts, and a good decision could bring Canadian law closer to US law in that respect. With the help of our supporters, we hope to raise the funds to wage a fight that yields good decisions, and to create tools to help prevent these sorts of cases from continuing to spread."

"More of these cases are occurring," Brownstein told CBR. "I certainly expect, as word of this gets out, to hear even more stories of customs searches and seizures for comics content from people who thought they were alone. They're not. We hope they contact us and tell us their story so we can achieve a fuller understanding of the problem's scope and respond with even better tools to help people in similar situations."


Official Press Release

The Comic Book Legal Defense Fund today announces that it is forming a coalition to support the legal defense of an American citizen who is facing criminal charges in Canada that could result in a mandatory minimum sentence of one year in prison for comics brought into the country on his laptop.  This incident is the most serious in a trend the CBLDF has been tracking involving the search and seizure of the print and electronic comic books carried by travelers crossing borders.

CBLDF Executive Director Charles Brownstein says, "Although the CBLDF can't protect comic fans everywhere in every situation, we want to join this effort to protect an American comic fan being prosecuted literally as he stood on the border of our country for behavior the First Amendment protects here, and its analogues in Canadian law should protect there."

The CBLDF has agreed to assist in the case by contributing funds towards the defense, which has been estimated to cost $150,000 CDN.  The CBLDF will also provide access to experts and assistance on legal strategy.  The CBLDF’s efforts are joined by the recently re-formed Comic Legends Legal Defense Fund, a Canadian organization that will contribute to the fundraising effort.  Please contribute to this endeavor by making a tax deductible contribution here.

The facts of the case involve an American citizen, computer programmer, and comic book enthusiast in his mid-twenties who was flying from his home in the United States to Canada to visit a friend. Upon arrival at Canadian Customs a customs officer conducted a search of the American and his personal belongings, including his laptop, iPad, and iPhone. The customs officer discovered manga on the laptop and considered it to be child pornography. The client’s name is being withheld on the request of counsel for reasons relating to legal strategy.

The images at issue are all comics in the manga style.  No photographic evidence of criminal behavior is at issue.  Nevertheless, a warrant was issued and the laptop was turned over to police. Consequently, the American has been charged with both the possession of child pornography as well as its importation into Canada. As a result, if convicted at trial, the American faces a minimum of one year in prison. This case could have far reaching implications for comic books and manga in North America.

The CBLDF's Board of Directors voted unanimously to aid the case by raising funds to contribute to the defense and to help the defense with strategy and expert resources.

Brownstein says, “This is an important case that impacts the rights of everyone who reads, publishes, and makes comics and manga in North America. It underscores the dangers facing everyone traveling with comics, and it can establish important precedents regarding travelers rights.  It also relates to the increasingly urgent issue of authorities prosecuting art as child pornography.  While this case won’t set a US precedent, it can inform whatever precedent is eventually set.  This case is also important with respect to artistic merit in the Canadian courts, and a good decision could bring Canadian law closer to US law in that respect.  With the help of our supporters, we hope to raise the funds to wage a fight that yields good decisions and to create tools to help prevent these sorts of cases from continuing to spread."

Find out more on the case here. To help support the case, you can make a monetary contribution here.

About CBLDF
The Comic Book Legal Defense Fund was founded in 1986 as a 501 (c) 3 nonprofit organization dedicated to the preservation of First Amendment rights for members of the comics community. They have defended dozens of Free Expression cases in courts across the United States, and led important education initiatives promoting comics literacy and free expression. For additional information, donations, and other inquiries call 800-99-CBLDF or visit them online at www.cbldf.org.

About CLLDF
The Comic Legends Legal Defense Fund was founded in 1987 to raise money for the defense of a Calgary, Alberta comic shop whose owners were charged with selling obscene materials. The CLLDF has since been maintained on an ad hoc basis to provide financial relief for Canadian comics retailers, publishers, professionals, or readers whose right to free speech has been infringed by civil authorities.  Largely dormant since the early 1990s, the CLLDF is reforming to provide support for this case, and reorganizing to ensure that help will be readily available for future cases involving Canadian citizens or authorities.  To help the CLLDF in this mission, please go to www.clldf.ca.

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