Cook: The most important legal idea you've never heard of

Cook: The most important legal idea you've never heard of

February 3rd, 2019 by David Cook in Opinion Columns

You're watching the Super Bowl when you discover a dead mouse in the jar of cheese dip.

Then, your flat screen catches fire.

Local attorney Erin Wallin, left, and Nicole Bernard of Shield NC are shown after a meeting with top White House staff.

Local attorney Erin Wallin, left, and Nicole Bernard...

Photo by Contributed Photo /Times Free Press.

In both cases, you can sue. If lawyers can prove a clear link, or causal line, between the negligence — faulty wiring, poor sanitation in the cheese factory — and damage, a judge could award you financial restitution.

Restitution is a cornerstone of our legal system, designed to provide financial justice to victims.

But there is one crime, perhaps the worst of all crimes, where restitution does not work.

"Child pornography," said Erin Wallin, a local attorney.

Wallin, 38, is responsible for one of the most exciting legal ideas of 2019. How exciting? She just returned from a private meeting with top White House staff.

The child pornography problem, as she explains it, is this:

"Regular restitution doesn't work," she said.

Possessing child pornography is a crime. After an accused person is found guilty, the victim also may sue for restitution.

But if a victim sues, how much restitution does the guilty person owe?

Let's say a man possesses downloaded videos. He did not cause the initial abuse. He is only watching it. (Still a crime, but a different crime.)

How much damage has this man caused?

How direct is that causal link between downloaded video and victim harm?

What if the videos downloaded by the guilty man have been downloaded by, say, 10,000 other people?

Does that make the damage he owes somehow less?

How much restitution is that one download worth?

"How do you parcel out how much one download pays out of thousands?" asked Wallin, who works at the Berke, Berke and Berke law firm.

The judicial mathematics are hazy when they need to be clear. Faulty TV wiring caught your living room on fire. There's only one set of TV wires. Only one room burned. It's easy to prove a direct, causal line.

But for criminals who possess child pornography, especially if they are one out of thousands?

"It is an impossible determination," Wallin said.

The federal government has tried. From U.S. Supreme Court decisions to congressional legislation, Washington has engaged in this debate, often trying to give district court judges the muscle to assess damages in an effective way.

"But it's not working," Wallin said.

Often, the restitution awarded is shamefully small.

"The average restitution for any child pornography victim is $500," Wallin said. "That won't even pay for the attorneys."

Imagine if the worst moment of your life, or your child's, is being downloaded by thousands of people.

And all you get is $500.

Thankfully, Wallin has a solution.

David Cook

David Cook

Photo by Ashlee Culverhouse /Times Free Press.

In 2017, while in law school, she interned with the U.S. Attorney's Office and worked with authorities on child pornography cases.

At the same magical time, she was taking a media class on copyright law.

"It just dawns on me," Wallin said.

Her idea?

"Copyright law fixes all of this," she said.

Wallin's solution? Congress should grant limited copyright to victims of child pornography in media that was created.

That gives child pornography victims ownership of their image.

Automatically empowered, victims would no longer have to prove a causal line between possession and damage.

The causal line would be automatic. (It's my image. I own it. And you have it on your computer without my approval.)

Then, victims would have legal standing to tell webmasters to take down videos and pictures that contain their image.

"You can't destroy what you don't own," Wallin said.

Wallin's copyright solution means that if there's a guilty charge, the immediate restitution occurs; no more re-traumatization from victims having to reappear, over and over, in court.

Wallin suggests an appropriate scale of restitution:

For webmasters, $500 per image.

For possessors of child pornography, $1,000 to $5,000 per image.

Doesn't matter if 10,000 other people have downloaded that image. That image is mine. You have it on your computer. And you will pay. End of story.

"It incentivizes attorneys," Wallin said, to pursue restitution against as many child pornography possessors as possible.

Wallin's idea reached Nicole Bernard, who runs an anti-trafficking group — Shield NC — in North Carolina.

One podcast later, and they obtained meetings with staff from U.S. Sen. Bob Corker and Sen. Orrin Hatch.

Then, Theo Wold, special assistant to President Trump for domestic policy, heard about the idea; he, Wallin and Bernard began emailing.

Then, an invitation.

On Jan. 9, Wallin, Bernard and Wallin's husband Bart (he's a friend and teacher/assistant principal at McCallie School), traveled to Washington, D.C.; wearing bipartisan purple — red plus blue equals purple — Wallin and Bernard met with Wold and staff for an hour.

"He liked it," Wallin said. "He said to consider it the first of many meetings."

Since the meeting, Wallin has been in touch with a potential congressional sponsor.

Her idea seems to finally provide solid-ground justice to victims most worthy of it.

It's also an American Dream story. Sometimes, fixing problems doesn't take lobbying and billion-dollar connections. Sometimes, Washington really does listen.

"We're just a couple of moms. We're not affluent. We're not politically connected," said Wallin. "We're just trying to help people."

David Cook writes a Sunday column and can be reached at dcook@timesfreepress.com or 423-757-6329.

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