21st Century Child Abuse: Seeking Justice for Victims and Survivors. A Conversation with James Marsh, Founding Partner of the Marsh Law Firm

Our series on 21st Century Child Abuse continues as host Warren Binford sits down with legal trailblazer James Marsh. They're diving deep into the constantly shifting legal landscape for victims and survivors of tech-facilitated child abuse.

How are our laws catching up with technology to protect children? Tune in to find out!

James R. Marsh Bio:

Founding Partner 

James has been licensed to practice law in New York and the District of Columbia for almost thirty years, and recently became licensed in his home state of Michigan. A University of Michigan Law School graduate, James represents victims and survivors of sex abuse in religious, educational, governmental, and military institutions; campus sexual assault and rape, online sexual exploitation; child pornography; sextortion and revenge porn. 

Transcript

00;00;00;00 - 00;00;19;17
Unknown
You're listening to Radio Kempe. We value the sense of community that connects people and helps them find ways to move forward. Join us on our journey to prevent child abuse and neglect.

00;00;19;17 - 00;00;38;28
Unknown
Welcome and welcome back. This is Radio Kempe. I'm Warren Binford with the Kempe Center for the Prevention and Treatment of Child Abuse and Neglect at the University of Colorado. Thank you for joining us today. Last year, we started a podcast series, focus, specifically on 21st century child abuse.

00;00;39;00 - 00;01;05;01
Unknown
Generally, when we refer to 21st century child abuse, we're talking about child abuse or neglect. That's become increasingly prevalent in the last 25 years, such as online in Texas, facilitated child abuse, including child sex abuse material, or csam. The live streaming of the abuse of children luring, roaming and solicitation on platforms, as well as child trafficking online, sextortion, etc..

00;01;05;04 - 00;01;32;27
Unknown
So far, we've talked to industry leaders, policy leaders and some of the top researchers in the world. Today, we'll be interviewing one of the most controversial people in this field, a fierce and tireless attorney named James Marsh. James has been representing victims and survivors of tech facilitated child sex abuse for over two decades. Indeed, he led the first case that ever allowed a victim to appear before the United States Supreme Court.

00;01;32;29 - 00;02;00;02
Unknown
James has also successfully lobbied for federal and state legislation nationwide to support victims and survivors, and has led international efforts for children who are sexually exploited online. So that they can successfully pursue justice against their abusers. Today, we'll learn more about James and his journey advocating for children and survivors of 21st century child abuse. Welcome, James, and thanks for joining us.

00;02;00;05 - 00;02;25;15
Unknown
Thank you, Warren, for that introduction. I can't think of anyone more qualified to have this podcast than you, who has equally been a leader in this field over the last 20 years. I think you and I started around the same time. Oh, thank you James, that very sweet and unexpected that I appreciated, especially from you. I want to ask you a little bit about how you first got involved in 21st century child abuse.

00;02;25;15 - 00;02;56;23
Unknown
What took you into this field? That's a really good question. As you said, and the introduction, I've been doing this work for now, 20 years. It seems really hard to imagine that, it's been that long. It seems like just yesterday, when I met a young girl who had been trafficked from Russia by a pedophile who then, began to, spread images of her on the internet, in what we used to call child pornography.

00;02;56;26 - 00;03;27;19
Unknown
And that's still the legal term, although there was a bill voted out of committee today, the Senate Judiciary Committee that we've been working on for about 3 or 4 years, that will change that. And formally enshrine in U.S. law the concept of csam child sex abuse material, which is a more accurate description of the contents of the material, as opposed to something that's more nuanced and rooted in sort of social norms and cultural competence.

00;03;27;21 - 00;03;48;11
Unknown
So we are very excited about that. The name of that bill is stop Csam. And like I said it, it will again, sort of you've asked, you know, how I got into this and, and the and the and the changes over 20 years? It's going to change the landscape a little by little, which is seems like to a lot of people, an incremental change.

00;03;48;11 - 00;04;16;11
Unknown
But when you're dealing with legislation in the U.S. Congress and longest abolition norms on terminology, especially, which can be incredibly important in this field, these changes, take time and take take really an effort to solidify over many different constituencies that are involved, both law enforcement, legal experts, policymakers, victims themselves, which is what I've been working on for the last 20 years.

00;04;16;13 - 00;04;44;26
Unknown
So, to return to your question of how I got involved in this particular area of the law and, social justice, I had been doing this work, prior to that for, for 20, 20 years prior to beginning this work. I'd been working on issues affecting children, legal issues and policy. I graduated from the University of Michigan Law School.

00;04;44;28 - 00;05;10;21
Unknown
I spent many years, there in the Child Advocacy Law Clinic. That was founded by Dan Duquette back in the 70s. Michigan had one of the first clinical programs, as well as one of the only for many years clinical programs dealing with, broadly speaking, child welfare, which hadn't really sort of morphed into children's rights at that point, at least in the 70s.

00;05;10;23 - 00;05;36;23
Unknown
But, from, from a wider perspective is fundamentally grounded in the rights of children. And so I graduated from Michigan 1990, many, many years ago. Now it seems, and began work at the Legal Aid Society in New York City, where I, became a brand new, brand new lawyer practicing under Judge Judy, believe it or not.

00;05;36;23 - 00;06;24;07
Unknown
So we will not take up this podcast with tales of Judge Judy from Manhattan Family Court. But for a young lawyer going into this field in the midst of the crack epidemic, we were 60,000 children were in foster care. It was not only an opportunity to, become very proficient in, in court, appearing like hundreds of times a month in court, including in some juvenile proceedings, but also gave you a front line, view of what children, were facing, not only in society, which at that time, like I said, was in the midst of a drug drug, epidemic in New York City.

00;06;24;09 - 00;06;54;08
Unknown
But also what legal justice for children look like. In, in, in the day to day. Not in the abstract. Not in the think tank, not in the policymakers, not from people who had a notion of what that involve old, but actually representing real children in real proceedings and family court. That was probably the most important thing that ever happened to them in their entire life and would decide the future of their lives.

00;06;54;10 - 00;07;18;08
Unknown
And in fact, as the years have gone by, many years now, unfortunately, because there's still a lot to do, I would occasionally get emails, you know, letters from clients. I had a caseload of 200 cases, and and people would email me, Mr. Marsh, you know, you are my lawyer in Manhattan Family Court 20 years ago, 30 years ago.

00;07;18;10 - 00;07;41;20
Unknown
And, this is what you did for me. That changed the course of my life. So that was a very, instrumental experience. People that know me know that I am very much someone who believes that change comes from the bottom up, not from the top down. And most of the people on top have no clue of what they're talking about.

00;07;41;23 - 00;08;19;23
Unknown
They have maybe some good ideas and some, some good notions of what needs to be done. But I think you could only, make good policy, good law and good decisions when you've actually been part of the system that is influencing, you know, the lives of children. So did that for a while move to Washington, DC? To make a very long story short, saw a need for the systematic representation of children in the District of Columbia based on a case that involved the trafficking of a young woman from Jamaica.

00;08;19;26 - 00;08;46;02
Unknown
We did not even have the word trafficking at the time. That was not in common use in the 1990s. And, founded the Children's Law Center in DC to serve the needs, the legal, the legal needs of children in the District of Columbia who, like New York, were caught up in systems in which they had very little voice, not adequately trained lawyers.

00;08;46;02 - 00;09;11;06
Unknown
Not to say that there were some very talented lawyers there. And that they needed an institution to represent them. So, I'm very proud of the work of the Children's Law Center over now, almost 30 years. And, in fact, we have served over five, 50,000 children in the District of Columbia during that time, with free legal services worth over $100 million.

00;09;11;09 - 00;09;41;28
Unknown
That again, comes from a vision of, of lawyering, advocating, moving for change from the ground up as opposed to, what people think is needed, which is often wrong. And, we've always early on before these terms were even, you know, common parlance, based all of our advocacy on what our client's children needed and not what we think they needed.

00;09;42;00 - 00;10;05;15
Unknown
So when they needed special education advocacy, when they had problems with medical legal problems, when they needed Medicaid services, when they needed special education service, all kinds of services, we built legal programs to serve those needs, as opposed to saying, well, I think what really kids need is, you know, tutoring or I think what kids really need is this or that.

00;10;05;17 - 00;10;25;02
Unknown
We based it on what we were seeing and what our clients were seeing as the needs of the time. And, was probably, I don't know, district for 10 or 12 years came back to New York, where I started practicing, did a lot of work in the field of international adoption, which was very large and very controversial at the time.

00;10;25;02 - 00;10;52;24
Unknown
I'm talking in the early 2000, and it was under that, you know, that that work that I, got introduced to my first csam or child pornography victim. And that combined both abuse and as, as you said, worn, 21st century, you know, child exploitation, which at the time, I don't know, at the time, the internet didn't seem so new and novel.

00;10;52;24 - 00;11;25;10
Unknown
I guess it really was ten years in, and just, something that no one had ever seen before. I'm not saying the victims didn't exist. I'm not saying that, people in law enforcement in interact with them or the U.S. attorneys, but, at least in the public realm and certainly in the judicial realm, in cases in federal district courts across the country, child pornography, as it was then called and is still legally called, was a victimless crime.

00;11;25;10 - 00;11;54;20
Unknown
And having the victims being surfaced, having lawyers, these were all radical notions, even 20 years ago, that children of all people should advocate for themselves and their rights. And federal district courts all across the country. Thank you, James. So that that first case, that first trafficking case, was that the little girl from Russia that you talked about earlier, that was a little girl from Russia named her name was Marsha Allen.

00;11;54;23 - 00;12;19;12
Unknown
And I came to that case through a series of coincidences, if you will, and, that that could be an hour or two hour long podcast in and of itself. But that is, Marsha's case in which we filed the first, restitution request for for a victim. Actually, you know what? It was not Marsha's case, that we filed the first restitution request.

00;12;19;12 - 00;12;48;29
Unknown
That was in Amy's case a few years later. But, that led to a law called Marsha's law that enhanced and, reinforced the rights of child pornography victims to seek civil remedies against perpetrators of the crimes against them. Wow. So you have the little girl who is trafficked by a pedophile to to Russia. Now, did did that pedophile did he adopt Marsha?

00;12;49;01 - 00;13;14;17
Unknown
Yeah. That's, like I said, that that's how I sort of got interested in her case was through the lens of international adoption. I didn't know what I didn't know about child pornography, and and, you know, or, as you would say, the 21st century child abuse, you know, online exploitation. You know, I think at the time, 20 years ago, this is pretty iPhone.

00;13;14;17 - 00;13;43;09
Unknown
This is pre you know, we're still in some places dial up or or you know, DSL or whatever, you know, like, you know, it was the internet was seen as sort of a website and an information source. And we still had chat groups and bulletin boards and stuff like that. So, you know, as I think back, I think by then the majority of people knew that bad things were happening online.

00;13;43;09 - 00;14;06;08
Unknown
You know, that that, you know, there was there was a lot of good. I think the, the good about the internet in those days is probably 90 to 10. And people, you know, figured that just like in the real world, bad stuff was happening, you know, and we've heard about it and maybe there's, some sense of it and, you know, maybe, yeah, there's this problem, this problem, but, you know, hey, great.

00;14;06;08 - 00;14;34;23
Unknown
I can book an airline ticket and I can, you know, look at the New York Times, and then I can send emails. You know, we're still we're still in the first, you know, the first decade of the internet. And so, I think Marsha's case, at least, was the first, at least broadly, you know, broadly, have, you know, illustrated and reported and there was congressional hearings.

00;14;34;25 - 00;15;01;20
Unknown
I think it was probably the first time where we actually saw, the, the dark underside of the internet, and certainly was the first time we saw the negative impacts on children. So you you handled Marsha's case, and it's basically, as you said, an adoptive, a dad, a single dad who adopts this little girl from Russia for the purposes of abusing her.

00;15;01;27 - 00;15;27;15
Unknown
He records his abuse, he uploads it to, you know, the internet and digital spaces, and you advocate for Marsha. But then you take her case and you create the statute to protect other children who might be abused so that they can go after civil remedies against their perpetrators. Well, and in the context of the time that we've all forgotten.

00;15;27;16 - 00;15;54;13
Unknown
And if you have to, I'm working right now on a history of, some of these factors, and we're starting with a timeline because I'm planning on being around a few more years. But many of the people who are very active in these spaces, you know, remember this thing called Myspace and Napster and all these things, you know, from, you know, pre 911 and post 911, a lot of these people are were in the room when these issues were being discussed.

00;15;54;13 - 00;16;13;17
Unknown
And we're, we're going to be losing these people. And so I've been having some really high level discussions that we need to really start documenting the history here, of what happened before I got involved 20 years ago. Now I'm talking to people who said, well, 1999, I was at a meeting, you know, in The Hague about X.

00;16;13;17 - 00;16;44;02
Unknown
I was like, oh, well, that's before me. What was discussed there? And so I think it's really important to get this history down while we have this opportunity. But the cultural context at the time 2005 was the rise of file sharing services, which were being used to share music. Right? Napster, grok, or all these all these services were being used to share copyrighted materials, without payment.

00;16;44;03 - 00;17;12;18
Unknown
This is before iTunes. Okay. This is before all the things we think of today. You press a button $15 a month, can get any music that we can. These were disruptive internet services and technologies designed to, you know, and a lot of, a lot of ways evade, you know, what had been the norms, which is you pay for copyrighted materials that was rooted and grounded in American law since the revolution.

00;17;12;21 - 00;17;45;14
Unknown
I'm in the Constitution. So, so into this vivid discussion about the sharing of music, the downloading of music, the free mass distribution of copyrighted materials without payment stepped in to this situation of images of child sex abuse being shared in the same way, using a lot of the same technologies that were being used to share music and other copyrighted materials.

00;17;45;17 - 00;18;13;25
Unknown
And so I'd like to think I was the first person to have any, you know, brilliant idea about this, but it was really within this cultural context that the similarities were very, very obvious. Right? If you should pay $150,000 for a copyrighted song by Snoop Dogg, I know, why shouldn't you have to pay anything to possess a child pornography image or video?

00;18;13;28 - 00;18;43;04
Unknown
To me, it seemed pretty simple, and one of the roads to success in Congress are to keep things simple and to base what you're doing today on things and norms that have already been established. And so it was a very easy argument to say, well, if Snoop gets $150,000 for copyright infringement, why shouldn't Marsha get $150,000 for sharing images of her being raped and abused?

00;18;43;06 - 00;19;08;15
Unknown
As you can see in a simpler era, prior to the rise of the social media platforms and the billion, billion multi billion dollar multinational business that these platforms have become, it's a really hard to sort of refute that argument, right? That copyright should be protecting the corporate corporate interests, which it does. And, you know, inventors, creators, whatever poets, you name it.

00;19;08;18 - 00;19;31;11
Unknown
But, why should children who are victims of much worse crimes in an environment and a legal tradition in which child pornography is not protected by the First Amendment, so doesn't even have the protections that copyrighted materials have, why shouldn't they be entitled to the same or similar, recourse? And of course, right time, right place, right argument.

00;19;31;11 - 00;20;03;21
Unknown
That was very easy to sell in the halls of Congress. Okay. So in the early 2000, when you're advocating for, you know, protections and remedies for children and survivors, you're saying it was relatively easy compared to today to to get that? I think that, yes. Understatement. Right. I mean, that's a huge understatement. Yes. But, mostly because the issues I mean, I think the issues are still pretty clear, but I guess I'm I'm naive.

00;20;03;23 - 00;20;44;09
Unknown
The issues seem very clear, and there was a little bit of a cultural panic at the time about the safety of children on the internet. That's really where it began. There were hearings on child safety on the internet. Yes. 20 years ago we did not have platforms. We did not have algorithms. We didn't have any of the, you know, the scourges that we have today, but we have this general notion that was well placed and obviously well-founded, that children were not completely safe on the internet and that, you know, someone needed to do something about it, you know, undefined.

00;20;44;11 - 00;21;07;12
Unknown
And, at least we needed to have congressional hearings about it in which everyone would line up to say they, you know, we respect the right of children to be safe on the internet. Jesus seemed to be a real simple time given where we are today. So yeah, it was I'm not saying it was. It was simple. But we didn't have any opposition, at least organized opposition.

00;21;07;15 - 00;21;37;20
Unknown
At some point during the discussion about this bill, someone mentioned AT&T was opposed to the bill. I was like, oh, really? Back in the day, back way before the platforms, the internet was Verizon, AT&T, MCI, the people that built the pipes that carried the data right. And one of the ways that we went wrong very early on, was we didn't focus on the data providers.

00;21;37;22 - 00;21;56;09
Unknown
And for many years, you know, it was little people in their basements with their blogs. I had a blog, you know, you know, who was I was didn't think of myself as a publisher. I just thought of myself as somebody who was, you know, getting information out to people. And, you know, we had some of the papers, newspapers, televisions.

00;21;56;09 - 00;22;20;11
Unknown
We didn't have streaming video like we have now. So, you know, you didn't have a lot of big corporate players at the time, at least in the content delivery space, mostly because they didn't hadn't figured out a way to get paid for it. But you did have the people carrying the information. And so the only opposition that we'd have as well and say, well, just don't make us legal, you know, liable because we're just, you know, connecting your modem.

00;22;20;13 - 00;22;39;16
Unknown
They don't even people don't even know what that is anymore. You know, and so I said, oh, you know, I don't know, why would AT&T be, liable for anything we're talking about in this bill? But it was that was it. I mean, it was a quiet conversation in the back of the room. And nothing substantive came up in.

00;22;39;19 - 00;23;12;23
Unknown
So, I mean, I'm back in. It's amazing to be talking to you about the good old days. Yeah, right. How far and how far we've come. Right. So, you know, in the end, it seemed so simple then, you know, but that, as you know, even then in 2005, the Kemp Center was talking about these issues and the dangers that the, internet posed with regard to new ways for people to exploit and abuse children, with non brass.

00;23;12;23 - 00;23;46;21
Unknown
And so I'm so grateful to you for sharing with me, you know, what you've uncovered in your research on the history to make sure that it is, you know, protected and cataloged so that people know how we got there and yet, you know, Don Bryce's vision, which at the time really aligned with your vision about there are new ways that kids are in danger today, you know, helped move forward, not just the field of research, but also the legal advocacy that you were doing.

00;23;46;28 - 00;24;17;05
Unknown
So you then talked about how there was a subsequent client, Amy, that led to another major piece of federal legislation. So tell us a little bit about your work with Amy and and what came out of that advocacy. James. Right. That is that is a good segue, into the, you know, like identifying the problem. You know, it's always really critical to accurately identify the problem.

00;24;17;08 - 00;24;56;09
Unknown
And as I look at the history and, and Don's, contribution, you know, we so often, I think, fall into preconceived, rhetoric and framing of dissimilar things that have some things in common. So when we began looking at this new and exciting technology called the internet, you know, this was seen as a parental, you know, parental control issue, you know, you know, just like everything else drugs, sex, rock and roll, you know, be careful, parents of your children out there.

00;24;56;09 - 00;25;29;26
Unknown
It's a dangerous world. There's this new thing called the internet. And, you know, make sure you have the family computer and you sit down with Johnny and Susie and you explain, you know, etc., etc., etc. that was a very early narrative. And it was like everything else, you know, alcohol, drugs, you know, bad friends, bad neighborhoods, you know, vigilance, vigilance, was sort of the watchword at the time and a very easy way of looking at things.

00;25;29;26 - 00;26;02;10
Unknown
Right? Because unfortunately, a lot of people still today, even especially today, the child welfare and child well-being space until very, very, very recently have not understood or been involved in the technology space. And certainly the vast majority of people in the technology space have no understanding of child welfare or child development, child well-being. So we are we are in two vastly different worlds.

00;26;02;12 - 00;26;28;05
Unknown
And so the people in the child welfare world, it's easy to say, geez, parents, be careful. We don't know what it is necessarily to be careful about. But, you know, just be careful. And unfortunately, with these narratives, like many other social narratives, they ignore, especially today, the majority of children that may not have parents may not have parents that are home, may not.

00;26;28;05 - 00;26;58;27
Unknown
Parents that are busy may have parents that are engaged or are drug addicted or too busy with their own personal lives, on and on and on. So need people like Don to say in without being probably as directing. Controversial as I have been saying, jeez, you know, this internet thing is all well and good, but we need to also think about how the technology itself is impacting children, right?

00;26;58;27 - 00;27;26;04
Unknown
What about the providers? What about the people? On the other end of the wire literally was wires at the time. And predating the, you know, iPhone and the, you know, digital devices in everyone's pocket and every child. So I think he was a visionary, at the time in, in spotting the issue, I know this sounds very, you know, we we want change today.

00;27;26;04 - 00;27;54;17
Unknown
You and I, we see it. We are you know, we are woke and hooked in and get it. And, you know, we're out there in the trenches. The vast majority of people come along at a much, much slower pace. And so defining the issue is, I think, critical to beginning to to solve the problem and to focus on what the solutions might be, which again, I credit Don, I was surprised, I think you were surprised, you know.

00;27;54;17 - 00;28;32;14
Unknown
Hey, wow. I found this letter to the editor, 2005 talking about this, and no one else to that day had talked about it in this way. So yes, the camp setter was a real leader and we hope that they will continue their leadership, which is which is desperately, desperately needed from a child welfare perspective. But yeah. So as we evolved, you know, into the 2000, it became clear that not only, were victims entitled and should be entitled to civil remedies as elusive as those could be.

00;28;32;17 - 00;28;56;11
Unknown
But they also had well established remedies for restitution in criminal cases in federal courts. And, you know, we could spend another hour or two on the development of victims rights and victim notification and the right to redress and all of the rights that my good friend and colleague Paul Casale had been involved in prior to meeting up with me in 2009.

00;28;56;13 - 00;29;32;19
Unknown
But I think it's sufficient to say, for the purposes of this, you know, brief review, that many stars were aligned by 2009 to enable and empower a victim of child pornography to advocate for what the statute required. Times three actually said this three times. I'm a simple minded person. I have a fairly good grasp of the English language, which was full restitution for compensation for their injuries.

00;29;32;22 - 00;30;09;05
Unknown
Said three times. And so, it seemed rather simple to me that in a case involving any of the enumerated crimes that the statute covered, that the victims should be entitled to full restitution from that individual. You know, a vast number of courts agreed, disagreed, debated, argued, nuanced, comment expounded, reduced. You know, that's the nature of the law.

00;30;09;08 - 00;30;41;10
Unknown
Which is what I'm trying to tell my paralegals. You know, that that comma, you know, we don't appreciate this. All the young lawyers listening out there, you know, that comma in that sentence is important. You know, we got to think about commas. The word may is important. You know, all of these all of these things that I think people take for granted, you know, these are some of the nuances on which precedent and the evolution of the common law is built upon.

00;30;41;10 - 00;31;16;13
Unknown
And so we saw full restitution as being what the statutory framers designed, victims of child pornography crime. And these were entitled to full compensation for their injuries. And I'm only talking about pecuniary losses. I know big word out of pocket. I'm not talking to pain and suffering and all the other things that people are used to. I'm talking about, the, the goals of restitution, which are to restore a victim to their previous condition prior to the crime taking place.

00;31;16;15 - 00;31;47;08
Unknown
And I think, Warren, you know all about this, from some of the multinational, treaties that require that victims of human rights abuses, especially child trafficking and child victimization, be restored to their original state and that states have an obligation to do everything they can to make sure that victims are adequately compensated and given the services and support that they need to live useful and productive lives.

00;31;47;08 - 00;32;16;07
Unknown
So that's how we approached this issue in 2009, when we filed the first restitution request for our client, Amy. The statute seemed very clear to me. Perhaps the biggest, ironically, the biggest, barrier to convincing people, of the, you know, brilliance of this approach was, you know, I sat down and I read the statute, you know, people like what what you read.

00;32;16;12 - 00;32;34;12
Unknown
I said I was just looking through the statute, and I found this provision, and there it was, and I read it, and it seemed clear to me, and I can't tell you, you know, the ABA and all the other journals and, you know, published articles, you know, that, you know, oh, you know, really, you know, you you were you got to this by reading the statute.

00;32;34;12 - 00;32;52;29
Unknown
I said, I don't know, what do lawyers do? We used to have books. Right. And and one of the benefits of books, you could sit down with a book and you sort of flip through the book, see what might be interesting in their mind through the, you know, the, the thousands of pages on, you know, federal regulations and statutes involving all kinds of various and sundry things.

00;32;52;29 - 00;33;21;24
Unknown
And you might find some surprising things in there. Certainly, the current administration has found a lot of interesting things that are buried in federal law and, and, and precedent. So, that is my challenge to all the new lawyers listening out there. We all too often get, you know, sort of on tunnel vision and what we do, but sit down and look at the statutes and be, expansive in your vision and advocate for your clients.

00;33;21;27 - 00;33;47;18
Unknown
You know, you know, when you have a the most brilliant idea that nobody's thought of, let's start of the things that people have thought of and make the most of those, and build, you know, change on things that are already in existence. And then we can move, as I said, ground up, not top down, you know, and now we can move to the billion ideas that you might have that we, you know, will expand into the new constitutional right.

00;33;47;20 - 00;34;17;07
Unknown
But this was sort of the foundation. It was a statutory analysis did not invoke constitutional law. All the exciting things that people like to think about First Amendment, we have the Paxton case that's being decided any day now that I filed an amicus brief in the Supreme Court on. Yeah, there's a lot of interesting issues out there. But, for your client, sometimes the best, you know, approach is something that's right there in the statute that nobody has done before.

00;34;17;09 - 00;34;58;02
Unknown
So you read the statute and you wind up in the Supreme Court, then what happens? Well, I mean, I have a very, We like to become polarized in our view of the court, conservatives, liberals, Obama, judge, you know, all that. You know, the interesting thing about the court was. You know, I like to approach things from a blank slate.

00;34;58;04 - 00;35;24;01
Unknown
And, I know, you know, some of the argument, you know, rested on the textual analysis of some of the conservative judges, which is all well and good. And, we've all heard the intonations against judicial lawmaking, and the judges are there to strikes and balls and and not to, you know, make law. That's not what they're there for.

00;35;24;01 - 00;35;41;29
Unknown
They're there to interpret the law. So you've got that, you know, you've got that tradition of thought, and then you've got all these liberal judges, you know, they they just want to pull things out of their, you know what and make up things as we go along. And that's not the problem at the court. All those things can be true.

00;35;42;06 - 00;36;14;22
Unknown
But if you approach it from that perspective, you are going to miss some obvious things. And one of the most obvious things that we missed, oh, I didn't miss it, but we'll we'll put a footnote into that. One of the things that was not perhaps emphasized enough was that Justice Sotomayor, in her autobiography, Last Job, was prosecuting child pornography cases in the Southern District of New York, the New York District Attorney's office.

00;36;14;25 - 00;36;43;22
Unknown
Right. How many people know that, Warren? Do you know that? They know it only because you told them, okay, at least two people know it now. And whoever has read her book. Right. So here's a person in right in my perspective who saw the victims, seized the videotapes, looked at the CD's. Sorry, folks, for who are millennials or thereafter back in the day, eight track tapes.

00;36;43;22 - 00;37;10;19
Unknown
Right. And had actually been dealing with this very issue in the 1980s at a time when New York was a vastly more lawless place, Times Square, everything was for sale. This it still is. We just don't see it like we used to. And she was part of the vice squad who was cracking down on kiddy porn right. And what was interesting about her autobiography, she talked about this.

00;37;10;21 - 00;37;34;22
Unknown
She talked about the victims. She talked about how they reminded her of her relatives, her nieces. She talked about how difficult it was to confront this crime and these victims. And she talked about, as I recall, don't don't quote me here. She was asked to lead the sex crimes unit of the district attorney's office, and she said, you know what?

00;37;34;22 - 00;37;59;05
Unknown
Having done this work, I don't know that I can lead the sex crimes division of the District Attorney's. And she left to become a Supreme Court judge. So very early on, we identified her as a person, probably the only person on the bench, who would actually, like I said, from the ground up, grappled with these issues.

00;37;59;05 - 00;38;20;06
Unknown
All of these judges had dealt with this issue in the criminal context. They all had criminal cases on their docket. I have no doubt, as all federal judges do and had, you know, prosecuted, you know, sentenced these guys and everything else. So they had a they had a top down judge's robes, view of this, but they hadn't confronted it like Justice Sotomayor had.

00;38;20;08 - 00;38;47;29
Unknown
And as it turns out, all, ideology aside, Justice Sotomayor completely adopted our arguments, which, again, could take two hours to explain exactly what those were. But, full restitution for victims from every single person with joint and several liability. Yes. All of you first year law students, come to my seminar, my 20,000 hour seminar on these topics.

00;38;48;02 - 00;39;24;00
Unknown
And, the other, for five judges in the majority, which ranged from Ruth Bader Ginsburg to the Chief Justice, sort of did judicial lawmaking, which I called the Three Little Bears decision, you know. Well, victims should get not too much restitution, but they really shouldn't get nothing, and they should somehow get something. But we don't, you know, it could be this.

00;39;24;00 - 00;39;48;08
Unknown
It could be based on this or this or this and put together like a 30 part, you know, test with ten different qualifiers on how the district courts should, decide these issues. That was dreamt up by the leaders of the United States Justice Department who had no idea what they were talking about. Because they'd never done the cases themselves.

00;39;48;08 - 00;40;16;21
Unknown
You know, these metrics, you know, we're going to sort of brainstorm and let's table it. Warren, you know, what do you think? And that's, you know, and turn out the Supreme Court adopted this, made up multifactor test based and nothing but some of these. Good idea inside the Beltway in Washington DC. And perhaps the concern, justices were the most honest, at least in my opinion.

00;40;16;23 - 00;40;47;07
Unknown
Legally honest or whatever, by basically saying, look, this statute sucks. Not their own words, but, you know, it doesn't do what Congress designed it to do. None of what's being said today will, result in Amy ever getting full restitution. At least not in the way this law envisioned it. And, sort of like Don and others identified that this is a new problem that requires some new thinking and new solutions.

00;40;47;09 - 00;41;15;08
Unknown
Right? This this problem of a sort of a mass mass tort against an individual mass tort feasible against any one individual. And we can talk about mass and all of the different tort theories. We had some of the most brilliant thinkers in the world on, on, on these theories. One of them, wrote a law review article that's been very instrumental in this concept.

00;41;15;10 - 00;41;46;19
Unknown
Suited sort of, as Warren recognizes, for the 21st century. Right. You have a world in which innumerable number of numbers of people online can victimize one individual. That is not our traditional notion of how to work in this country. Torts typically have a beginning, a middle and an end, a resolution, compensation, etc. we don't have torts that go on forever.

00;41;46;19 - 00;42;38;01
Unknown
We don't have, you know, uncountable number of victimizers against one victim. And so I think what we saw in the beginning, from that decision was that this was a new era that called for new thinking, new legislative, solutions, new approaches to the problem. I'll state for the record, one other very curious, aside, legal aside, for all of you legal junkies out there, I don't know if this is a legal podcast, but we're a bunch of lawyers sitting around talking, so this really did not hit home for me, like most other things, until I went to London very soon after the court court's decision.

00;42;38;04 - 00;42;55;01
Unknown
And, like everything else, you know, you know, you only are loved when you leave. You know, people, everyone over there knew about the decision, have read it, have been very engaged and walk around New York, Uruguay, Rockland, California, walked on Washington. Nobody ever heard of this case, but a lot of people in London did in this space.

00;42;55;04 - 00;43;25;12
Unknown
And so having lunch with someone and they handed me a British Law Review article and they inscribed it and said, this James Marsh, it's right outside the court, in central London. And I don't know if you've ever read a US Law Review article. The British lobby, the British Law Review articles are at a level of, of, obtuseness that cannot be appreciated by even the most, self-absorbed law professor in the United States of America.

00;43;25;12 - 00;44;06;04
Unknown
So needless to say, this was a heavy read. But the major thesis was this once upon a time, 100 years ago, manufacturers of products were not liable for any, defects in their product. Right. The only people that were liable, were the sellers of that product. And there was this case of the ginger beer worm and the ginger beer that for the first time established that a manufacturer could be liable to a consumer.

00;44;06;04 - 00;44;35;03
Unknown
It's something we take for granted today and warn your very good comments about, you know, how did you know? Was this what was the big change, this concept of the internet, where nameless, faceless individuals that did not have a direct relationship with the victim could be found liable was very similar to a world in which private rights were the key consideration.

00;44;35;03 - 00;45;02;21
Unknown
Right. You bought something from someone? Contract rights. And that these non recognized legal relationships resulted in liability. So we may want to take credit for all the brilliant new novel things that we, That we've wrought. But this is really an old concept applied to a very new technology. And so, yeah, I'm happy to talk about the future.

00;45;02;23 - 00;45;31;25
Unknown
Okay. So, with our last few minutes, James, I just want to fast forward. So you took Amy's case to court and to the Supreme Court in a case called Caroline versus U.S, there is a split decision that comes down that basically forces a legislative solution to this problem that you've identified, which is that children are being harmed in new ways on the internet.

00;45;31;27 - 00;46;07;21
Unknown
And we need a new legal construct to ensure that they have their full right to restitution or compensation for the harm that's been caused. And so, I know that literally, you saw that there could be this need for this new legislative framework. And so the same week that you were in the Supreme Court, you also were on Capitol Hill working with our national leaders to create that that new legislative framework which became the Amy, Vicky and Andy act.

00;46;07;21 - 00;46;29;29
Unknown
Correct? That's correct. And you know that you're in trouble. This is the first beginning of the end, or maybe the beginning of the beginning of the troubles, where you have a bill that passed 98 to 0 in the Senate three times over six years, never got a hearing in the House or a vote until year six. And that was bipartisan.

00;46;30;02 - 00;46;54;25
Unknown
I mean, that was led by zero or 100 to 0. Yeah, yeah. I mean, who who were the the co-sponsors of that bill? James Marsh? I mean, you know, honestly, I, I mean, it was Orrin Hatch. I mean, it was Warren Hatch, God bless him. He was a real leader for children for many, many years. You really put him on here.

00;46;54;25 - 00;47;22;02
Unknown
I mean, we had three, six years. We had everyone as co-sponsors. I mean, the point being that this was not a Partizan issue. No, no. However, it was never a Partizan issue. I even got. Well, I don't even want to name names here, but we've got even the most rabid liberal socialists, you know, from your state, the Republic of, Oregon, the People's Republic of Oregon to, to sign on to, to this legislation.

00;47;22;02 - 00;47;56;09
Unknown
So it was broad based, bipartisan, uncontroversial until you got into the House and there were forces there that are still very unclear to me that didn't want to even have a vote on this or a hearing on it. And there was a hearing, it was a bipartisan hearing, basically, joined the, conservative, majority at the time with the radical leftist at the time who saw this as a, mandatory minimum for poor criminals.

00;47;56;11 - 00;48;21;16
Unknown
You know, it just the politics started to get very, very strange when we got into the house, for reasons that are still not clear to me, but, I think it was a sort of a it was sort of a pre, you know, a prequel to what was to come very, very soon thereafter. Which brings us like to 2020, because this bill, even though the cases in 2014 took six years, didn't get signed into law until 2019, 2020.

00;48;21;16 - 00;48;48;02
Unknown
So, okay, so it takes six years to get this bipartisan legislation that passes for non-controversial know criminal. Right? Right. Who's who's who's the pedophile. You know, who's who's voting for the, sex offenders, you know? Right. Like, yeah, easy, right. You know, easy. Yeah. In the Senate and but but you get it through and and so what's been happening in the last 5 or 6 years?

00;48;48;04 - 00;49;15;11
Unknown
Just a two minute summary. What what have you been up to? What are you seeing on the front line? Yeah, no, that's a really good question. I'll try to be brief because, really, within the last five years, there has been an explosion of litigation in this space. That wasn't that didn't exist, you know, in the preceding 15 years.

00;49;15;14 - 00;49;47;29
Unknown
And I think that comes from the rise of social media, the obvious harms that people were observing, like parents, educators, child welfare experts, the sense like Don had in 2005 that there was something here more than just an information provider. You know, like all other risks, you know, be careful out there, kids. It's a dangerous world.

00;49;48;01 - 00;50;22;04
Unknown
There was the beginning of some understanding, like there was in cigarets and so many other products, liability spaces over decades. Going back to the ginger beer 100 years ago that the worm in the shield, can only came from the manufacturer and the shopkeeper. Yeah, maybe could have known there was a worm in there, but really didn't have the ability to know exactly which can have the worm.

00;50;22;06 - 00;51;00;22
Unknown
Right. And so, just like the common law developed 100 years ago to say that the manufacturer of the ginger beer that allowed a worm to get in there only could have let the worm in, because the shopkeeper sure didn't have a way of putting the worm in a sealed can of ginger beer. There's probably something about these manufacturers, these platforms, these data providers that is, you know, sort of resulted in our client choking on a worm.

00;51;00;24 - 00;51;41;25
Unknown
And so we're beginning to see a concerted effort to hold platforms liable despite the protections, the the ancient protections of section two, 30, 30 years old, at least now. And we are beginning to see the concerted effort by billion dollar multinational corporations to hang on to a privilege that only I think the nuclear industry has in America, which is zero liability for anything that they do.

00;51;41;28 - 00;52;14;03
Unknown
And that's what we have to look forward to from you, James, in the next few years, what have you have planned in your legal advocacy for children right now? We've got three. Yeah. Good question. Three big cases that we've been working on. One is the social media MDL in the Northern District of California. This involves dozens of lawyers from some of the top plaintiffs law firms in the country, seeking to hold meta, Snapchat, TikTok and YouTube responsible for the addictive nature of their products.

00;52;14;05 - 00;52;41;11
Unknown
That is forging new ground even as we speak, new decisions, new ways of looking at old problems that we thought were accepted, even outside the realm of section 230, mostly focused on who is the speaker. Does an algorithm speak for a company? All of these interesting issues that, that there's going to be some very significant new legal developments in the coming years.

00;52;41;14 - 00;53;18;27
Unknown
We also have a very significant case against Apple right now for failure to keep csam off their platforms in the way that many other companies, responsible companies do. And have done for decades. That, again, should establish whether or not a nameless, faceless, multibillion dollar company is responsible for the children that are being harmed. And, we also have, you know, a very, very interesting case that I cannot reveal yet against some other very high profile platforms for failing to stop the spread of csam on their platforms, even when they have actual knowledge that that's occurring.

00;53;18;27 - 00;53;41;17
Unknown
So, little by little, piece by piece, we're trying, despite Congress's inaction. And now there's no more 98 to 0 bills being passed. You know, you're lucky to get a hearing on a lot of seeing an explosion, explosion of legislation in this space in the last two terms of Congress, from 1 or 2 bills a year to 30, 40 bills a year, that are being considered.

00;53;41;17 - 00;54;05;07
Unknown
So and then we won't even get into AI. So there's a lot of challenges ahead, but a lot of promise, I think, for, for children's rights in the digital age, as you recognize the title of this podcast, clearly the public is fully engaged on this issue. I don't have to be the only person out there explaining what sextortion is and all the other harms that are out there.

00;54;05;10 - 00;54;37;21
Unknown
That is a really welcome development. And I think the next five years, the next ten years are going to bring a sea change. On the topic of this podcast, which is, you know, 21st century, child exploitation in the digital age, 21st century, technology and children there. We have a lot of really good institutions engaged on this issue, and I don't think anyone from the surgeon general to, five Rights Foundation, you know, needs convincing that we have a problem out there.

00;54;37;21 - 00;55;13;24
Unknown
I think every parent in America realizes that educators, child welfare professionals who are still quite late to the game, need to step up and need to engage, need to educate them and become aware of the challenges that children are facing in the 21st century. And don't let the Wizard of Oz, you know, scare you or bamboozle you, that there is so much happening behind the curtain that you could never be aware with that in your simple minds of child welfare, because, you know, children are easy, right worn and that the easy, simple minded people go take care of children.

00;55;13;24 - 00;55;37;10
Unknown
So we are the data wizards, the, titans of the universe. People sending rockets to other worlds. We're not going to bother ourselves with these trifling children, even though we may have, like, 30 of them. Well, thank you, James, for your brilliance and your passion, and for sharing with us your journey and your work in our field. And to our listeners, thank you so much for joining us today.

00;55;37;13 - 00;55;49;01
Unknown
Please tune in again soon for our next episode on 21st Century Child Abuse here on Radio Kempe. Thank you. Warren. Thank you James.

00;55;49;01 - 00;56;05;20
Unknown
Thank you for listening to Radio Kempe. Stay connected by visiting our website at kempecenter.org and follow us on social media.