the cases of the cyber child pornography in the brazil

THE CASES OF THE CYBER CHILD PORNOGRAPHY IN THE BRAZIL: INTERNATIONAL LEGAL ISSUES OF JURISDICTION AND PRIVACY

ARNALDO SOBRINHO DE MORAIS NETO*

* Master of Law of the Federal University of Paraiba, Brazil (in conclusion).
Experts associate at Association Internationale de Lutte Contre la Cybercriminalité, France.
Email: asmn10@yahoo.com.br


THE CASES OF THE CYBER CHILD PORNOGRAPHY IN THE BRAZIL: INTERNATIONAL LEGAL ISSUES OF JURISDICTION AND PRIVACY

Arnaldo Sobrinho de Morais Neto*

ABSTRACT

This paper aims to address the difficulties of punishment for criminal conduct on the Internet when there is involvement/participation of individuals and companies in different countries. Thus, from the reporting of cases of cyber child pornography in Brazil, recorded on Orkut, has been complex problems that indicate the unfeasibility of national law enforcement to situations that occur on a global dimension. As the phenomenon has a transnational character, the emergence of legal issues regarding jurisdiction between nations, privacy and freedom of expression of users preclude the police action, the public prosecutor and consequently of Justice. While there is controversy on how to act, recognize undeniable, for example, that the cyber pornography, and cyber crime, continues to register and cause incalculable damage to people, government and businesses. Thus there is need to seek international instruments to reconcile these conflicts. It is, therefore, based on the cases of cyber child pornography in Brazil, examining aspects present in the Budapest Convention on Cybercrime concerning the privacy, competence, cooperation and international jurisdiction for criminal investigation, prosecution and trial of cases of cyber pornography

Keywords: cyber crime, cyber pornography, the Internet jurisdiction, the Budapest Convention, orkut



* Master of Law of the Federal University of Paraiba, Brazil (in conclusion).
Experts associate at Association Internationale de Lutte Contre la Cybercriminalité, France.
Email: asmn10@yahoo.com.br

TABLE OF CONTENTS

1 INTRODUCTION
2 DESCRIPTIONS of scenarios
2.1 The boom of the Internet in Brazil
2.2 Children (8) and adolescents as more users and difficulties of control
2.3 Freedom of expression, privacy and cybercrime
3 Cyber Child Pornography: the case of Brazil
3.1 The sites of relationship (online social networks) and cyber pornography
3.2 The case of cyber child pornography in Brazil on sites of relationship
4 Cyber child pornography: INTERNATIONAL LEGAL ISSUES OF JURISDICTION and the Convention of Budapest

5 CONCLUSION




1 INTRODUCTION


Technological developments have made solutions that made our life much easier. In that sense, the Internet and its network interconnections have brought great progress for society. It has been translated into benefits for many people and organizations, transforming the nation into a global village, even though the emergence of cyberspace has provided a change of conception of state sovereignty.
At the same time, there was a very strong migration of criminal conduct in this new world. The very relevant to the Internet, and the exercise of freedom of expression and privacy. The lack of submission and control of a central power has also been part of potential record of the new phenomenon called cyber crime and, in our study, the cyber child pornography.
Fear (involvement with drugs, kidnapping, ***ual exploitation) of the families for their children and adolescents before restricted to the real world has also expanded to that environment without borders, where space-time, the geographical concept of territory are still concepts under construction and therefore still subject to much regulation under law. Thus, several complaints of cyber child pornography have been recorded by everyone, with emphasis on the Brazilian case, which has proliferated with cases involving the relationship of site Orkut.
With the scope to deal with this problem, it is an approach in this study on the growth of the Internet in Brazil, the risks to which children and adolescents are exposed, freedom of expression and privacy as essential elements in the networks of relationships and social as has proliferated in this environment to cyber pornography.
The questions on jurisdiction in this new context of Cyberlaw are treated in the light of the conduct charged and well defined as transnational crime, with focus on the Budapest Convention on Cybercrime and its fundamental elements, defining of cyber child pornography. This is the challenge.




2 DESCRIPTIONS of scenarios


2.1 The boom of the Internet in Brazil

Ten years ago computers with Internet access in Brazil was a consumer available for a limited number of households, that is middle and upper classes. Access also happened in the workplace, but with very limited use because of restrictions from natural relations of employment.
There was a suppressed demand. Factors such as the high cost of microcomputers, restrictions on access to the Internet because of the problems still existing in the telecommunications industry and service providers in remote locations of major urban centers. These factors, combined at the time of economic uncertainty (international crises which affect Brazil), configured itself as obstacles to growth and popularization of the Internet.
Until middle of 2000 were also the difficulties the industry of electronic commerce in the face of distrust for purchases of virtual and international crises like the crash of the dot com companies, known as "the bubble burst." The estimated number of users was just over 5 million users. In this scenario, it can be said that the incidence of cybercrimes was also very limited, with occasional performances of "defacers", mainly. This leads us to believe in a natural logic: if the trade is reduced, there is little number of criminal actions in the commercial sector.
This initial scenario began to change about five years. The economic stability provided opportunities for poor consumers. According to the site Digital Convergence, the Gateway Earth, "measures of tax incentive granted by the government to the industry of computers and economic stability and growth of income of Class C, D and E, and the PC’s become an object of consumption common"[1], as another necessary utility to a residence. Add this situation a factor to this low rate of the dollar in the real, that it can lower costs, because the electronic components are quoted in U.S. currency.
We must also remember that there was a very big developments in telecommunications infrastructure. The privatisation during the second government of Fernando Henrique Cardoso were unable to cause a significant impact by 2000. The effects of free competition in the industry could only be registered after 2003. It is not surprising that the use of Internet dial in Brazil is very restricted today. The use of the Internet quickly has become the standard common access to residential and commercial user, that a low cost.
Today we live at a time of unprecedented digital inclusion, corresponding to an estimated 22.4% of the population. The number of users Brazilian records over the mark of "40 million in the last quarter of 2007, which equates to a growth of 21.27% over the same period of 2006, when it was 32.9 million people"[2] , According to information from IBOPE[3] (3 is worth emphasizing that these figures refer to access residential, telecenters, commercial, cyber-lan and coffee-houses. Between 2000 and 2007, there was a growth of 752%, a jump of just over 5 to more than 40 million users, as numbers of Internet World Stats website.[4]
The record of business transactions online also grew. It is estimated that "the online retail should move $ 8.8 billion, up 45% compared to 2007, with a total of 12 million consumers"[5], who buy electric-electronics, magazines and books, mainly. Add to these figures the bank transactions by "home banking" indicating that "27.3 million people" make use of the system in Brazil.[6]
This scenario, with a small sample from Brazil, shows the large number of people who use the internet, showing what Felipe Pérez Eduardo Matias be known as "virtual globalization that concentrates the extraordinary advances in processing and transmission of information"[7], one of the pillars of the Global Society.
It would not be extraordinary, therefore, imagine that in a universe of 42 million users there is a significant part of children and adolescents, potential victims of actions of cyber pornography, which for SCHEL and MARTIN relates to the action of those who "produce and distribute or pornography using computer ".[8]



2.2 Children[9] and adolescents as more users and difficulties of control

If the commercial use of the Internet has about 15 years, the generation that was born with it has, therefore, approximate age, that is between ten to fifteen years, which corresponds to that age group in the transition from childhood to adulthood. The public grew with computers at home already connected to the world and have experienced the most rapid time of growth, with the migration of many social relationships to cyberspace, setting up the so called "digital generation".[10]
If for decades there was a fear of parents regarding the dangers outside the home, regarding robberies, assaults, kidnappings, among other risks to which children and adolescents were exposed, with the digital generation was an extension of that fear, not only for risks of real life, but especially the size without borders that provides the use of the Internet.
Doubtless the benefits offered by the Web. There is, however, that it is considered the major risks of exposure and access to inappropriate content or unfit to age group. Not that you want to leave children and adolescents isolated from the world (real and virtual), but to provide an immersion coherent and relevant to the ages.
In the United States, a study released by the Department of Education in 2003[11], inferred that 59% of children and adolescents in an age of 5 to 17 years using computers accessing the Internet. If we consider the number of users, from most updated information, based on population / number of users available on the Internet World Stats website will include a rate of around 71.4%[12] and still adding up the facilities for the use of Internet in environments other than just the residential use, we will have a much greater percentage of exposure. Thus, the current figures indicate that 93% of young americans aged between 12 and 17 years use the internet[13].
In Brazil it is possible that the figures are well ahead, to consider, for example the information contained in a search disclosed in 2003 by Ibope / NetRatings "the young Brazilian Internet user is the second largest user of the web around the world"[14], and that children of six to eleven years on average 4hours and 51 minutes using internet. Probably, with the explosion of the Internet in Brazil, with more than 40 million users currently, the numbers changed in the same size.
What can be questioned in this regard is that these children and adolescents more seek or access in the web? The same study mentioned above shows that games, school searches, use of the chat programs or chat sites and relationship are among the potential preferences of children and adolescents in the study, which shows an evidence that is behaving within the current standards.
In this sense, it is clear the exposure of children and adolescents to a number of risks: access to pornographic sites, subtraction of personal information, cloning of profile on sites of relationships and downloading viruses. Often the conversations of chat sites and relationships is the called "predatory contact", mainly from stamp ***ual and / or pornographic.
The findings of a survey that lasted seven years, on networks of social relations in the United States (MySpace) and conducted by LENHART and MADDEN[15] reveal that "young people today face potential risks associated with online life", especially when strangers on contact line, that is, people with whom had never reached before. This leads us to believe that the desire to see, characteristic of children and adolescents, beyond the curiosity regarding new contacts, expand considerably the impact of a possible "attack predatory."
The site Orkut relationship of the company's North American Google, experienced a moment of extraordinary growth in Brazil. Highlighting in this sense, Brazil as the country with the largest percentage of users on Orkut (53.86%), followed by India (16.96%) and the United States (15.12%)[16], which 61.50% of users reported having between 18 and 25 years. It should be considered, however, that such information age range do not correspond to reality, since users with the young age of 18 when you omit this information to enable the registration on Orkut.
In the face of the obvious risks and also the difficulty in limiting the access of children and adolescents to the Internet in the family, realizes that the greatest responsibility, a kind of tracking of what is done in large network, just being the responsibility of itself family. The care include the installation of filters, software tracking, timetabling for access, limiting the number of hours of access, limiting information about the personnel that can be disclosed and pages that can not be accessed.
The difficulty in implementing the rules in the family suffer a significant limitation because many parents work and are absent while their children can access free which information they want, if they do not have filters for access. Another difficulty, and that much greater, with respect to access that are made in other areas, where the rules imposed by households are not followed, as made online at school, cybers cafes, lan houses and friend’s home.


2.3 Freedom of expression, privacy and cybercrime

Freedom of expression is a fundamental rights that give up a base and characterizes a democratic state. Considered a fundamental human right, whose roots go back to fighting absolutism the eighteenth century France, which with the fall of the Empire promulgated the Universal Declaration of Human Rights and the Citizen, whose ideals was originated on freedom, equality and brotherhood passed guide the whole legal system of the West.
In understanding of Bonavides[17], are considered the first generation rights and therefore are "rights that they value the first man natural, man liberties abstract, the man mechanistic society that make up the called civil society" and so began to be included in the texts of magna’s letters of constitutional democracies.
If there is concern the freedom of expression, then what about the right to privacy in the XXI Century, when we are increasingly dependent on databases that store a multitude of information personnel, either within the government, either in relations common trade of the day-to-day?
The privacy and freedom of expression integrated the sphere of basic rights without which the lives of human beings can not be smothered by the express and is constrained by the invasion of refuge of the human being is entitled to his privacy at home, at work, in matches, in their personal information and on the Internet.
In the U.S., cradle of Western democracy, in the face of technological advances and new challenges face the Internet UROFSKY[18] says that "Congress has attempted to protect informational privacy through a number of statutes, including the Electronics Communications Privacy Act, but the problem is that the amount of information available is growing at an exponential rate, far faster than the means to control and regulate access”.
But in this sense, respect the right to privacy as fundamental human right that the Supreme Court of the United States to play the case SchmerbeR vs. California (384 U.S. 757767), in 1966 already decided on the basis of the Fourth Amendment to the American Constitution that "the overriding function of the Fourth Amendment is to protect personal privacy and dignity against unwarranted intrusion by the state".[19]
In this sense, VIANNA[20] teaches that the right to privacy must be designed in a three sides law, which is: "right not to be monitored, right not to be registered and right not to be recognized (right to personal records had not published) -- transcends therefore the informational society, the limits of mere right to private interests to become one of the cornerstones of a democratic state".
But the issues involving the freedom of expression and privacy took a new impetus when these freedoms have become fully exercised on the Internet, with the key assumptions of the vast network of the character not be subject to any control and its global character. It thus began to occur records of distorted use of its great potential, which is evidenced by numerous reported cases of criminal conduct committed under the false argument to be exercising the freedom of expression or protected by the right to privacy.
Given the breadth of the vast network and the large number of users, with the trend of rapid growth in developing countries, there is an increasing tendency to illegal conduct to flourish, featuring what the authors call the current cyber crime and specifically focus on the privacy as: dissemination of spyware, web bug, social engineering, cookies, phishing and other malicious code. The pipes connected to the right of freedom or expression are recorded as abuse, crimes against honour, racism, threats, abuse the right to privacy, among other pipelines.
In this case study, the abuses committed under the argument for exercising the right to freedom of expression and privacy are translated, fot the most part into cases of ***ual exploitation involving children, through dissemination of photos, videos, texts, images and pictures of pornographic content.
Draws attention again, that with the advent of technologies such as web cam, such conduct is found on line and so exponential spread of videos on sites and relationships such as Orkut (Google's), MySpace and Facebook, with emphasis on the first in countries like Brazil and India.



3 Cyber Child Pornography: the case of Brazil


3.1 The sites of relationship (online social networks) and cyber pornography

Thus, placing the context of research from the design of social networks will be possible to connect these points with the interests misrepresented that are shared now so strengthened by the Internet, the example of cyber paedophiles.
The traditional definition for social networks, according to FRITJOF CAPRA[21], is that "social networks are networks of communication involving the symbolic language, the cultural limits and relations of power." It is thus, the forms of representation of relationships that are emotional or professional, between people or between groups of people with common interests. The social network, then serves for people know values, ideas, desires, dreams, interests, projects and goals. From be noted here, the positive character of the idea.
In Brazil, the legal definition for child pornography was adopted in 2004 under Article 2, paragraph "C", the Optional Protocol to the Convention on the Rights of the Child on the sell of children, child prostitution and child pornography, adopted in New York on May 25, 2000. This Protocol determines child pornography as "any representation, by whatever means, of a child engaged in explicit ***ual activity, real or simulated, or any representation of the ***ual organs of a child for primarily ***ual purposes", this definition can be employed to the conduct that is check on the Internet. In the context of an instrument of international law, is the legal definition that can be used by other countries acceding to the Protocol.


3.2 The case of cyber child pornography in Brazil on sites of relationship

The issues discussed in this study, to begin the significant increase in the number of users, amount of children and adolescents with access to the system, freedom of expression and privacy in cyberspace, are a strong destination in networks of relationships (MySpace, Orkut and Faceebook ), Thus constituting an environment conducive to criminal practices, in the case, ***ual exploitation by the Internet, involving children up to 12 years and adolescents aged up to 18, adults and young people themselves.
The advent of the Internet did not reduce the problems that occurred in the real world, unlike, added all aspects to issues of ***ual exploitation involving much larger proportions. For example, photos or a video of a *** scene involving children or adolescents, but restricted to one city, to be put on the network, take global proportions and may be disclosed to an incalculable number of people.
A book published by UNESCO in 2001, showed an illustration of situations of ***ual exploitation, referring to the cases that occur in many cities of Brazil and the government initiatives to address the problem. Thus, according to BARBOSA[22] "there are no reliable statistics on the number of children and adolescents who are victims of abuse and ***ual explitation. However, it is all too apparent that the low socio indicators points - for reasons of sheer survival - to ***ual exploitation of children and adolescents, particularly in the suburbs and centers of the big cities [...]".
There are approximately five years, the economic growth of Brazil, coupled with economic stability, allowed the access of millions of Brazilians to the Internet, with an increase exceeding 21% between 2006 and 2007, although it is estimated that these numbers exceed 42 million[23] users already in March 2008, in the face of access available in cyber-cafes, schools and houses-lan. We may well consider these variables as crucial to the cases of cyber child pornography has taken alarming proportions.
In Brazil, in the last three years the major problems of cyber child pornography have been recorded on sites of relationships (social networks), with emphasis on Orkut, the company's North American Google, which operates in Brazil since 2005 on the site of relationship. Other sites of relationship, even if I have an English version did not have the same amount of users for Orkut.
It is estimated that in April 2008 Orkut reached the landmark of 120 million users, already well on the MySpace with 130 million[24]. Also worth noting that the demographic data provided by Google indicates that 53.85% of Orkut users are Brazilians, in an age group between 18 and 30 years (73.52%) (38), although it is possible to believe that the age group of users under age 18 is much greater, because the numbers can match the ages fictitious.
There are no official records on the number of complaints involving child pornography on the Internet. In March 2008, a Non Governmental Organization - ONG, called SaferNet[25] , which collects reports of child pornography on the Internet in Brazil reported that "around 90% of complaints of child abuse registered in Brazil last year [1997] had relationship with the content of Orkut [...]"[26] according to information from the report released to the press.
Another shocking information contained in the report indicates that "in total, the Safernet received 267,470 complaints about child pornography in 2007, a high of about 120% over the previous year [1996]" which indicates the willingness of users to denounce abuses committed, mainly on the site of relationship.
The repercussions of cases of child pornography on Orkut in Brazil took unimaginable proportions, making the Senate of the Republic started in March 2008 a Parliamentary Commission of Inquiry to investigate the cases of paedophilia and child pornography on the Internet, whose complaints in almost its entirety are against Orkut, especially as the complainants Federal prosecutors and ONG SaferNet. The Commission of the Senate approved the breach of confidentiality of albums with pornographic content on the site of relationship and they were on restriction of access to other users.
The company Google that maintains a subsidiary in Brazil, resisted to provide confidential information contained in "private Orkut 3,261 albums that can bring together content and images of child pornography"[27], but with the installation of the Commission which has judicial powers, Google decided to collaborate. In other previous attempts Prosecutors of the Republic were denied access to content on the album, under the argument that because of Google is a U.S. company, with the database in the United States, would be subject to the jurisdiction of U.S. laws, which ensure the freedom of expression[28] and not to Brazilian law, even though the alleged crimes of cyber child pornography had Registered in Brazil.
The first results of investigations, in May 2008, which are supported by the Police and federal prosecutors have noted the initial suspicions, because, "more than 500 users on Orkut were detected on crime of paedophilia. They are among the owners of 3,261 private albums of the portal that had broken the secrecy by the committee [Parliamentary Commission of Inquiry of the Senate]"[29], it contains images of children in scenes of *** or with such insinuations.
After all this passed, even international in scope[30], in addition to the negative aspects about the image of Google and its advertisers, the company is collaborating with Brazilian authorities. Clearly, too, that the company is conducting the search in the contents Orkut looking for profiles and albums that contain videos, images and possible links to child pornography, which can now be checked with the withdrawal of several pain air profiles with that feature. Similarly the Facebook announced in May 2008 that will implement "new security measures to protect young users of the site of relationships of *** offenders [...]."[31]


4 Cyber child pornography: INTERNATIONAL LEGAL ISSUES OF JURISDICTION and the Convention of Budapest

Traditionally associates itself with the idea of territory and jurisdiction with sovereignty, geographical area where the state has the power to exercise its laws on the facts that it occur in order to resolve the conflict and make it possible to life in society. This function State, in the traditional view, is competence of the Judiciary in the exercise of judgement of conflicts occurring within the territory of the State. Hence it is observed that the jurisdiction of a country, it is limited to facts that arise where he exercise his sovereign power within the limits of its borders.
The emergence of the Internet and consequently of cyberspace[32] caused profound changes in the concept of sovereign state, because the idea of territory, space-time physical and geographical simply does not exist on the Internet. This is a virtual space, without frontiers and without a global regulation[33] by any nation, "most of its content would be [is] beyond the regulatory scope of any territorial sovereignty in particular."[34]
Thus, it is to imagine that any legislative effort in a particular country to regulate a specific criminal conduct, whose actions may be committed via the Internet may simply become ineffective, given the complexity of the phenomenon of cyber crime. This is the case, for example, cyber pornography, whose nature of variables involved as people, companies and countries have a transnational character.
This feature of transnational cyber crime, and in this case study, the cyber pornography, may well lead to conflicts of jurisdiction between countries, as to the competence of trial for cases recorded. It may even happen that certain conduct is considered a crime in one state and not in another. Still, as determine where the crime was committed a victim, accused and means used may be found in different countries?
The cyber pornography has characteristics whose size can be protected and understood as an exercise of freedom of expression in a country. In another point can be perpetrated without risk, under the argument that one can not violate the right to privacy and still use issues of jurisdiction and incompetence for consideration of a case, as has occurred in Brazil. Moreover, agreeing to the questioning of BRENNER[35] "finally, countries can impose their own criminal law on their citizens when the citizens are abroad, which means that the country could prosecute one of its nationals for committing a cybercrime even though the actual commission of the offense was carried out in another country and did not have harmful effects on people or property located within the prosecuting jurisdiction."
This approach illustrates the significant issues of cyber pornography, involving the relationship of Orkut site, maintained by Google in Brazil. Although the case is being investigated in a serious manner by the Senate, with support from the Police and the Federal Public Ministry, there is no certainty of punishment for those found guilty. Or in the face of the complex situation involving questions of jurisdiction (accused may be in another country) or because the fragility of national laws that may not provide for punishment for many pipelines.
The concrete fact is that we can assure that there was a strong migration of child pornography cases to the Internet, thus making the designation of emerging cyber pornography and the consequent spread of photos, videos and other pornographic events. Cases of ***ual exploitation are numerous, with registration, especially of ***ual violence practised against poor children and at risk, although we also record of situations involving the middle class and upper middle class.
Although we have registered shares effective states, with the arrest of many paedophiles, perceives itself disguised form of the advancement of cyber pornography. Stocks point, such as the Parliamentary Commission of Inquiry of the Senate of Brazil, which investigates the child pornography and paedophilia on Orkut, demonstrate the power of reaction and concern - duty of governments, to protect the families along with our children.
These issues of cybercrime have been shown to the challenging Nations and the Law of the XXI Century. The issues of conflict of jurisdiction will not decrease unless there is a firm international cooperation. Clearly the need to address the problem, under a legal perspective, on two fronts: the accession to a legal instrument of international character, in the case of the Budapest Convention on Cybercrime and adequacy of national laws to punish criminal conduct defined in the Convention.
It would then the Budapest Convention on Cybercrime the legal instrument capable of international character, to support actions to combat cyber child pornography? What devices contained in the Convention are applicable? Without doubt that the answers to these questions are positive. Other observations therefore beyond the scope of this study, whose answers would not be possible be highlighted.
Interested noted two issues contained in the preamble of the Convention of Budapest. First the conviction of the need to pursue a matter of priority, a common criminal politics, with the aim to protect society against crime in cyberspace, including through the adoption of appropriate legislation and enhancing international cooperation, "and concern" with the risk that the computer networks and electronic information, will also be used to commit criminal offences and that evidence of such offences are stored and transmitted through such networks." From observing that these needs, views when drafting the convention there are more and more today.
This way you can understand how perfectly possible legal framework of the Convention of Budapest, the conduct of cyber pornography, as recorded and discussed with occurrence in Brazil, only see the content of Article 9 of the Convention:

"Article 9 - Offences related to child pornography
1 - Each Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences under its domestic law, when committed intentionally and without right, the following conduct:
a) producing child pornography for the purpose of its distribution through a computer system;
b) offering or making available child pornography through a computer system;
c) transmitting or distributing child pornography through a computer system;
d) procuring child pornography through a computer system for oneself or for another person;
e) possessing child pornography in a computer system or on a computer-data storage medium.
2 - For the purpose of paragraph 1 above, the term "child pornography" shall include pornographic material that visually depicts:
a) a minor engaged in ***ually explicit conduct;
b) a person appearing to be a minor engaged in ***ually explicit conduct;
c) realistic images representing a minor engaged in ***ually explicit conduct.
3 - For the purpose of paragraph 2 above, the term "minor" shall include all persons under 18 years of age. The Party may, however, require a lower age-limit, which shall be not less than 16 years.
4 - Each Party may reserve the right not to apply, in whole or in part, paragraphs 1, sub-paragraphs d. and e, and 2, sub-paragraphs b. and c. "[36]

Thus, while the Convention establishes the parameters and elements of criminal conduct, as is usually talking about criminal law, there are consignment on the definition of the quantum of punishment to the application of national law. From stand out further that for the purposes of the Convention, it is considered less person under the age of 18 years, thus not causing, contradictions with the International Convention on the Rights of the Child.
Thus, in relation to cyber crime which is under the express condition that cyber child pornography, there is a description of typical criminal behaviour, that exist today with the production, distribution, procurement, possession of minors involved in situations of ***ual exploitation by adults, between children and yet realistic images, as has been recorded in reports of ***ual images involving children in the virtual game Second Life.
Many countries have been concerned to adapted their national legislation incorporating elements contained in Article 9 of the Convention on the Budapest nevertheless miss essential element that would be joining the Convention, subject to its jurisdiction and the benefits of international criminal cooperation, that has helped so extraordinary in the fight against cybercrime among the countries signatories of the Convention.
It is still possible to think that many governments have the fear of restriction its sovereignty in the face of possible joining the convention. As noted, the Internet has mitigated that the traditional concept of sovereignty and cyberspace. Hard to imagine another solution to combat cybercrimes than by adherence to international instruments - the Convention in the case of Budapest and cooperation in international criminal law and criminal procedure, with estimates in Article 23, of extradition under Article 24 and the general principles for mutual assistance in Article 25.
This fear would not have reason to prosper because the Article 15, down safeguards, explaining that the powers and procedures under the Convention are "subject to conditions and safeguards provided for under its domestic law, which shall provide for the adequate protection of human rights and liberties, including rights arising pursuant to obligations it has undertaken under the 1950 Council of Europe Convention for the Protection of Human Rights and Fundamental Freedoms, the 1966 United Nations International Covenant on Civil and Political Rights, and other applicable international human rights instruments, and which shall incorporate the principle of proportionality "in addition to reservations under Article 42.
Finally, it is noted that although the Convention has birthplace as the European Union, is currently the most skilful in dealing with issues involving the international cybercrime. Thus, with the thought turned to international cooperation in the field more than 40 countries are signatories[37] [51], put the option in Article 37, that other nations might join forces in combating transnational cybercrime upon the invitation of the Committee Minister of Council of Europe.




5 CONCLUSION


The approach developed with this article allows conclusions on matters related to the disturbing aspects of cybercrime, a phenomenon of the information society, where many parameters for the Cyberlaw are still under construction, but that does not cease to point out to potential issues related to rights fundamental as freedom of expression and privacy.
A second parameter signals for possible solutions to problems that have been in cyberspace, but with real effects and disruption in global, as aspects related to cyber pornography that spreads to the Internet unknown borders and laws. There is no legal treatment as to the complex character of a crime on the geographical question, the subject involved and legislation to be applied.
The conflicts of jurisdiction between the countries not be solved only with the traditional analysis of the concepts of sovereignty and state power, because this idea has been diluted by the new law which lays before the technological advancement.
What can be done, objectively, is that there was a breakthrough of child pornography, but restricted to the real world, to the virtual world, as we saw with the alarming cases of cyber child pornography present in the social networks of relationships in Brazil. But this is an issue that concerns not only to Brazil because affects everyone, now a transnational dimension.
Thus, combating cyber child pornography and cyber crime as a whole, can only be achieved through the union of interests between states, with the accession facilitated by the European Union, to which other countries are signatories of the Budapest Convention on Cybercrime, Thus eliminating, conflicts and issues of jurisdiction and international jurisdiction.
The international criminal cooperation, through supervision of specific legal instruments, there is this sense, as a strong opportunity for all countries to unite in the mission to fight cyber crime and other offences associated with it, such as cyber pornography.



[1] Available at: http://www.convergenciadigital.com.b...id=13021&sid=4

[2] Available at: http://www.convergenciadigital.com.b...id=13021&sid=4

[3] The IBOPE is a Institute of Public Opinion and Statistics is a Brazilian company specializing in searches of public opinion, with subsidiaries in several countries.

[4] http://www.internetworldstats.com/stats10.htm#spanish

[5] http://www.itweb.com.br/noticias/index.asp?cod=46185

[6] http://www1.folha.uol.com.br/folha/i...4u395485.shtml

[7] MATIAS, Eduardo Felipe Pérez. A humanidade e suas fronteiras: do Estado soberano à sociedade global. São Paulo: Paz e Terra, 2005, p. 121.

[8] SCHELL, Bernadete Hlubik and MARTIN, Clemens. Cybercrime: A Reference Handbook. ABC-CLIO: Santa Bárbara, 2004,p.3.

[9] Article 1, the International Convention on the Rights of the Child states "that for the purposes of this Convention is considered to be a child every human being under eighteen years of age, unless, in accordance with the law applicable to the child, majority is attained earlier. " In this study it is a distinction to better understanding, based on Brazilian law that considers a child aged under 12 and adolescents between 12 and 18 years, although the Brazilian laws provide the same attention.

[10] BUCKINGHAN, David; WILLET, Rebekah. Digital Generations: children, young people, and new media. Lawrence Erbaum, London, 2006, p.6.

[11] http://www.ladlass.com/ice/archives/007631.html

[12] http://www.internetworldstats.com/stats14.htm#north

[13] LENHART, Amanda; MADDEN, mary. Teens, privacy & online social networks: how teens manage their online identities and personal information in the age of MySpace. Pew internet & American Life Project, Washington, 2007, p.13. Available at:
<http://www.scribd.com/word/full/2475365?access_key=key-z8r7hdpijdi6qvt4v1r>

[14] Available at:http://www1.folha.uol.com.br/folha/informatica/ult124u14304.shtml and

[15] Ibdem Lenhart and Madden, p.13.

[16] Available at http://www.orkut.com/MembersAll.aspx

[17] BONAVIDES, Paulo. Curso de Direito Constitucional. 21 ed. Malheiros: S&atilde;o Paulo, 2007.

[18] UROFSKY, Melvin. Individual freedom and the Bill Of Rights. U.S. Departament of State´s Bureau of International Information Program, Chapter 6, Washington D.C, 2003. Free in: http://usinfo.state.gov/products/pub...of/privacy.htm

[19] SOLOVE, Daniel J; ROTENBERG, Marc; SCHWARTZ, Paul. Privacy, information and technology. Aspen Publisher, New York, 2006, p.58.

[20] VIANNA, T&uacute;lio. Transparência p&uacute;blica, opacidade privada: O Direito como instrumento de limitaç&atilde;o do poder na sociedade de controle. Revan: Rio de Janeiro, 2007, p.116

[21] Definition of Capra available at: http://pt.wikipedia.org/wiki/Rede_social

[22] BARBOSA, Helia. Brazil: famyly, social and economic perspective, origins, causes, prevention and care. In: ARNALDO, Carlos A.(Org.). Child Abuse on the Internet: Ending the Silence, Bergan Books, New York, 2001, p. 30.

[23] Available at: http://www.internetworldstats.com/stats10.htm#spanish

[24] Available at: http://en.wikipedia.org/wiki/Orkut

[25] Available at: http://www.denunciar.org.br/twiki/bi...20060831215115

[26] Available at: http://www1.folha.uol.com.br/folha/i...4u385646.shtml

[27] Available at: http://www1.folha.uol.com.br/folha/i...4u396512.shtml

[28] Available at: http://www.crime-research.org/news/11.04.2008/3306/

[29] Available at: http://www1.folha.uol.com.br/folha/i...4u399289.shtml

[30] Available at: http://news.bbc.co.uk/2/hi/business/5278370.stm

[31] Facebook announced this measure in 08.05.2008, as news available: http://www1.folha.uol.com.br/folha/informatica/ult124u399931.shtml

[32] In the definition of UNESCO "Cyberspace is the virtual world for digital or electronic communication associated with the global information infrastructure", available at: http://unesdoc.unesco.org/images/001...04/130483e.pdf, p.12.

[33] KAMINSKI, Omar (Org.). Internet legal: o Direitona tecnologia da informaç&atilde;o. Juru&aacute;: Curitiba, 2007, p.39.

[34] MATIAS, Eduardo Felipe Pérez. A humanidade e suas fronteiras: do Estado soberano à sociedade global. S&atilde;o Paulo: Paz e Terra, 2005, p. 160.

[35] BRENNER, Susan W. Cybercrime investigation and prossecution: the role of penal and procedure law. University of Dayton School of Law, p. 17.

[36] Convention of Budapest available at: http://conventions.coe.int/Treaty/EN...s/Html/185.htm

[37] Information available at: http://pfdc.pgr.mpf.gov.br/clipping/...coes-pela-web/