The concepts that lead to the development of the Internet can be traced back almost 40 years to academic papers written in the early 1960s on "packet-switching" networks. In 1969 these ideas matured into a working proto-network called the ARPANET. Although this network had only four "nodes" or computers connected together, it was the forerunner of today's Internet.

By 1971, 15 universities and research institutions were connected together, and the system was upgraded to handle a seemingly large 64-node network. In 1973 the first European computers were connected in England and Norway.

Meanwhile the key technologies of Ethernet, telnet, ftp, and Unix were being invented in the early 1970s. Ethernet (invented by Bob Metcalf, who later founded 3Com) would later become the standard for local area networks. Telnet allowed remote interactive access to other computers. FTP (File Transfer Protocol) enabled the transfer of large data files over the network. Unix, invented appropriately enough by the "phone company" (Bell Labs) and enhanced at UC Berkeley, became the software backbone of the Internet. Later Sun Microsystems commercialized Unix.

The dominant use of the Internet in the 1970s was email. In 1979 Usenet was invented to carry discussion forums, a primitive form of today's chat rooms. This was the beginning of the more public side of the Internet, as contrasted to private email and telnet sessions. Usenet would later grow to its present volume of more 10,000 separate topic areas and more than 10 gigabytes of data – that's the equivalent information of a small public library – that is accessed every day. Sexual topics quickly became the largest volume single area of Usenet. Communication and discussion of human sexuality has continued to be an important use of the Internet to this day.

Throughout the 1980s and 1990s the Internet grew exponentially: the number of hosts in 1984 was 1000, in 1987 10,000, in 1989 100,000, and in 1992 the number of hosts, or computers with permanent IP addresses, surpassed the one million mark – and this doesn't even count the millions of people who dial in to the Internet daily via modems.

In 1993, Mosaic, the precursor to the Netscape browser, took the world by storm and gave birth to what is now known as the World Wide Web. And the rest, as they say, is history. Today the Internet links more than 170 countries worldwide, with over 1.5 million domain names, and over 40 million hosts. Underscoring the new central role of the Internet in American life--and indeed the entire world, a three-judge Federal panel in Philadelphia in June of 1996 called the Internet "the most participatory marketplace of mass speech that this country – and indeed the world – has yet seen." ("A Very Brief History of the Internet" was written courtesy of Dr. Jim Herriot)

Because of the Internet's participatory nature and society's interest in sexual topics, the Police and the general public have mistakenly begun to look at the Internet as a vast playground for adults who are attempting to sexually prey on children. While there can be thousands of actual acts of child molestation each day across the nation within the family households, a perceived Internet "molestation" becomes a media circus that ends up terrorizing parents. These "alleged predators" defy all logic: they are supposed to enter homes over the modem despite all safeguards and precautions. The parents become more afraid of a nameless, faceless phantom than they are of real live family members who statistically pose a greater threat to their children.

This phobia becomes even more irrational when it involves homosexuals. Parents look at their children's monitor in the bedroom as a means for a "homosexual" to kidnap their child and recruit him/her into the homosexual life style. This form of homophobia is at the heart of the parent's fear of the Internet--and the hysteria that endangers everyone's constitutional rights. It is also at the heart of this paper.

How is it possible to sit at your own computer exercising your 1st amendment rights and be the subject of a police Internet sting operation? Actually, it is quite easy once you understand the law.

Let's suppose that the police want to create a sting operation to catch a person who fences (buys and resells) stolen property. The police pretend to be burglars who have "stolen property" to sell. The property is not actually stolen but the police pretend that it is stolen. The "fence" buys the allegedly stolen property from the police. In this scenario it is factually impossible for the "fence" to buy stolen property from the police since the property is not stolen. However, if a person attempts to commit a crime that is factually impossible to commit he is still guilty of "attempt". The "fence" would therefore be guilty of "attempted receipt of stolen property".

Now, changing venues, let's suppose that the police want to create a sting operation to catch a molester, but this time on line. The police go on the Internet and pretend to be thirteen years old. They advertise in their "on-line profile" that they are a minor looking forsex with an adult. They go into sex chat room using this profile and chat with others in the sex room. A suspect then engages the police officer who is pretending to be a minor in sexual chat and eventually a real life meeting is arranged. The suspect is told to bring lubricants and condoms so that they can have a good time. The suspect arrives at a hotel as requested by the police with condoms and lubricant in his possession. At the hotel the suspect is arrested for "attempted child molestation". It is an attempt because it is factually impossible to be accused of child molestation with a forty-year-old police officer.

How serious is this? In the State of California all "attempt" crimes carry as a sentence one half of the underlying crime. Lewd acts with a minor under the age of fourteen years (Penal Code § 288(a)) carries eight years in prison; therefore, attempted lewd acts with a minor under the age of fourteen carries four years in the state prison. Further, the defendant if convicted must register as a sex offender every time he/she moves and on his/her birthday for the remainder of his/her life.

During this "sting chat" with the cyber minor (a police officer) and the Internet user, the cyber minor asks that the user--now a suspect-- send him pictures of himself. Suspect sends a picture of himself clothed. This isn't good enough for "cyber minor" so he asks again for "special pictures". The suspect sends a nude of himself or of others.

The suspect will now be charged with attempted sending of harmful matter to a minor with the intent to arouse, appeal to or gratify the lusts or passions or sexual desires of the adult or of "cyber minor". This charge carries with it three years in the state prison or eighteen months for the attempt. Each photograph might also be charged as a separate offense, adding years to the sentence.

Now consider this: what if the adult and "cyber minor" engage in "cyber sex"? Again, the suspect might be charged with "sending" harmful matter (the conversations) to a minor. The law would not make an oral conversation harmful "matter" but the prosecution theory is that the electronic transfer becomes "matter". There is currently no case law which rules whether a "chat" on the Internet is "matter" as defined in Penal Code § 288.2 or whether it is protected by the 1st Amendment.

The Law Office of Patrick E. Clancy is currently undertaking the first challenge to the constitutionality of Penal Code § 288.2 in the state of California on the grounds that it violates the 1st Amendment Freedom of Speech Clause of the United States Constitutions and violated the Commerce Clause of the United States Constitution. Those challenges are currently working their way through the courts.

"Cyber minor" now asks the suspect to send him some more pictures. This time the pictures depict a minor engaged in a sex act or simulated sex act. The suspect is now charged with the Sexual Exploitation of a Minor . This offense carries one year in the county jail on a first offense and three years in state prison if the suspect has a prior offense.

However, if the suspect does not send any child pornography to "cyber minor", that is not the end of the investigation. When he is arrested for either attempted child molestation or sending harmful matter to a minor, the police get a search warrant for the suspect's computer. Mixed in with adult with adult sexual matter on the hard drive are several pictures depicting minors engaged in sexual conduct. The suspect is then charged with child pornography or Sexual Exploitation of a Child (Penal Code § 311.3)

How such photos (depicting sexual acts between an adult and a minor) come into the computer is an important consideration. For example, what if the suspect received an e-mail with a child pornography picture attached? According to Penal Code §311.3(f) if the suspect receives unsolicited child pornography over the Internet there is no violation of the law so long as the suspect doesn't make copies or send copies to others. There is no mention in the law that he must destroy these files. (However, our attorneys recommend that anyone who receives such un-solicited child pornography immediately destroy it. You don't want to be put in the position of proving that it got on your computer drive unsolicited.)

You might be surprised how cyber sex originated on the Internet. Before it was even called the Internet, a small group of scientists were connected over a network with their computers. This network was for the exchange of highly scientific and theoretical research ideas. The scientists were mainly men because few women were educated in such scientific fields and fewer had the funds to own a computer. However, there were a few women and one day an unknown female scientist sent a sexually explicit and provocative communication over the network to the men. She was totally anonymous. The men were shocked by what they perceived as the misuse of their scientific research network; even so they liked it and started sending back anonymous responses to the woman. And thus, cyber sex was created, a phenomenon that was instigated by a woman, not men.

It is interesting to understand some of the social aspects for this new expression of human sexuality. Throughout all time women have been traditionally taught by society to repress their sexuality. The women had to be both the "good girl" and eventually the "good" mother. In other words they were expected to be virginal before marriage and then faithful during marriage. However, society expected and sanctioned men to be "bad" boys and to express their sexuality in a variety of ways. The Internet provided women with the freedom to ignore societal restraints on their sexuality and become the "bad girl" who could safely engage in all sorts of sexual fantasies through "cyber sex". There was no social stigma attached because they could remain anonymous. Women also couldn't get pregnant, catch AIDS or be infected with STD's. After having a great round of cyber sex she could meet her husband/boyfriend and be the "good" girl or good" mother and pick up her children from school. Women had found a place to safely experiment and explore their sexuality without any social stigma attached. The men were not far behind. Those that engaged in cyber sex were quick to learn that the ultimate sex organ was not the penis or the vagina. The ultimate sex organ is the human mind. The Internet allowed the fifty-year-old mother of five to go on line and be sixteen, engage in cyber sex and loose her virginity on a Friday night. On Saturday she could loose her virginity again. She was engaged in role-playing. Likewise, men could pretend to have sex multiple times a night with a variety of women. And for gay men and women, they too found a safe place to meet and enjoy sex without shame or stigma. Few people realize that Internet providers actively pursued gay communities in order to promote on-line business through anonymous chat rooms.

People experimented with their sexuality over the Internet in a number of ways: by role-playing as a heterosexual when they were homosexual; role -playing as a homosexual when they were heterosexual; role-playing as a man when they were a women; role-playing as a women when they were a man; role playing as a minor when they were an adult; and minors also got on line and pretended to be adults. It became common knowledge in the Internet sex world that cyber sex was role-playing-- acting out fantasies-- and one never knew what was real and what was fantasy about the person with whom they were chatting. Eventually no one believed that the other person's on-line profile was actually real.

The Internet became a masquerade ball in cyberspace. Everyone was protected by a mask of anonymity that hid their true identity. Was that a gorgeous blond women you just had cyber sex with or was it really a man? You had no way of knowing. Someone even developed a game on the Internet of trying to "unmask" the other person in order to find out what was real and what was fantasy. Let's continue in this mind set: If the person you met in a chat room sent you a picture, was the picture real or fake? There was no way of knowing what was real and what was fantasy without actually meeting face to face. So people started asking to meet. Often this was done over the phone in order to learn something about the other person. Actual meetings were usually in public places. Sometimes one person would show up and hide just to see the other person. "Can we meet at the mall and look at each other across the atrium" might be a typical request for this kind of encounter.

Into this world of fantasy and role-playing comes the police officer who pretends to be thirteen. But he is not participating in this fantasy for his own exploration, he has another agenda and that is setting up a sting operation. However, if the person chatting with "cyber minor" doesn't truly believe that "cyber minor" is actually thirteen, then there is no attempted child molestation. If the person chatting with "cyber minor" doesn't really believe that "cyber minor" is in reality a minor, the "cyber sex" cannot be harmful material. It also follows that if the person talking to the "cyber minor" doesn't believe that "cyber minor" is truly a minor, sending a nude photo of oneself cannot be sending harmful matter to a minor.

Internet sting cases are unique in that almost all of the facts of the case are uncontested. The police make direct copies of the chats. If a phone call is made, the police records the phone call. In all of the cases that our office has seen, the adult on the chat transcript reveals that he doesn't necessary believe the profile of the other person. In all of the cases that we have seen, the suspect enters into a game of unmasking the cyber partner in order to determine what is reality. In the very chat transcripts and the audio tapes is the defense theory, which is predicated on the very nature of cyberspace: the anonymity that affords one the freedom to explore all fantasies, whether sexual or not. The logical conclusion is that if the suspect believes in good faith that all that is happening is merely fantasy, he has not attempted to commit any crime.

HOWEVER, THE POLICE JUST DON'T--AND WON'T--GET IT. THEY NO NOT UNDERSTAND THAT INTERNET SEX IS LIKE A MASQUERADE BALL AND PART OF THAT FUN IS TO UNMASK THE CYBER PERSON. Until the police--and the criminal justice system-- realizes this, innocent people who are just having fun on the Internet are going to be falsely arrested and falsely accused of being sexual predators and child molesters. The Supreme Court still hasn't outlawed fantasy-- but beware of the mind police who do not understand the fundamental principles of cyberspace sex.

The myth exacerbating parents' unfounded fears is that unsuspecting children are being found on the Internet and being lured into a sexual relationships. The truth is this: If your child isn't looking for sex on the Internet, your child will not be found. With over 1.5 million domain names and 40 million hosts, how do two people "find" each other on the Internet? It's done the same way two people find each other in a city with millions of inhabitants. They go to an area where they share common interests. For instance, if you are a biker and new in town, you go to a biker show, a biker rally, a biker bar, or a bike sales room to find other bikers. If you are gay and new in town, you might go to a gay bar or see a gay band. In all the cases our office has seen, the "minor" is a policeman--an adult-- who goes into adult sexual chat rooms. The problem is that in a world built entirely on fantasy, the other person--the victim of the sting--cannot know who is behind the mask. He or she cannot know what is reality.

Furthermore, the myth that the homosexual will find a child in his/her bedroom via the monitor and then recruit them into the gay lifestyle is a product of hysteria and media hype. A person--adult or minor-- must actively go into cyber space looking for others by going to common meeting places like gay chat rooms. Chat rooms are clearly marked as to what the sexual interests are of the participants. You cannot accidently fall into a gay chat room. And if you did stumble on a site you don't want to be in, anyone knows that one click of the mouse leads you to the exit. In cases that we have seen were real minors were involved in gay chat rooms, the minors were homosexuals or lesbians who were looking for someone that they could talk to and who would understood their concerns and questions. Our advice to parents is simply this: Know and understand your own children. Don't use the Internet as a means for exorcizing your fears and victimizing others.