If you're a prosecutor and you can't find anything in an average teenage text-exchange that constitues a quid-pro-quo ("I'll show you mine if you show me yours"), you simply aren't fit to do your job.
Hmm, yeah, good point. Looks like there needs to be a specific exception for sending an image of oneself, or receiving an image directly from the subject of the image, or, in the case of an image with multiple subjects, sharing the image with the other subject(s).
I like this, actually. It would clarify that there is a huge difference between sending a photo of oneself to one's lover, and sending a photo of a victim to a fellow child pornographer. Also, I like that a photo with more than one person in it could not be shared with anyone who was not in the photo.
I recall a case where a girl sexted her boyfriend, and the boyfriend's kid brother found the images and circulated them on the Net. In this case the kid brother is the one who would wind up in trouble, and I think that's the right outcome. (I'm not saying he should be on the sex offender registry, but he did commit a serious crime and needs to be made aware of that.)
As for your proposal -- I think that was the status quo before any of these possession laws were passed. I think it was felt that that structure did not give law enforcement sufficient leverage. Criminalizing possession allows prosecutors to pressure consumers of child porn into naming their suppliers, so that investigations can find the people actually making the stuff. It also attempts to stem the flow of money to these people. I have considerable sympathy with these purposes; but I also agree with Falkvinge that criminalizing mere possession is intolerable on free speech grounds.
So I'm trying to find a solution that gives law enforcement at least some of the help they want (and that many people agree they should have) while not criminalizing mere possession.
It's a very unpopular opinion, but I have argued that mere possession of bona fide child pornography should not be illegal. My primary reasoning is based on the ultimate futility of trying to police bits. And I think the argument that not punishing the consumers of it would encourage the production of more is specious - in fact I'd imagine enough has already been produced to satiate demands, and allowing the easy distribution of pictures would actually get evidence of new production into the hands of law enforcement quicker. But I obviously don't have a direct stake in that argument, besides knowing that all of the easy-to-persecute malinterpretations are ongoing injustices (eg having any pornography without explicit documentation that all participants are >=18, having your computer hacked and used as a proxy, inadvertently coming across it on a general website are all harshly illegal)
But I don't agree that we should somehow appreciate this practice because it can highlight other bad laws. Fishing expeditions function whether the laws are sensible or not. You can modify my above catfishing scenario for whatever happens to be illegal. Even if the images are fine, keep going with texts that show an intent to meet up. Even if no meet up occurred, it's still a big hassle. The setup is basically DIY entrapment for whatever crime you want to design.
The problem is not merely being caught up by other bad laws, but Cardinal Richelieu's old "If you give me six lines written by the hand of the most honest of men, I will find something in them which will hang him." The unfounded search is the problem, as it focuses police attention on the victim as a new potential criminal to investigate.
Here's a proposal. Mere possession should be legal, as Falkvinge argues. What should be illegal is purchasing child porn.
You might reply that it might be difficult to prove that money changed hands, particularly in this brave new Bitcoin world. Fine. Let's say that possession of images that are known to have been sold to anyone at any time constitutes prima facie circumstantial evidence that the person possessing the images paid for them.
Another objection might be that this law might not suffice for catching cabals of child pornographers who create and share images, but without money changing hands. Fine -- let's generalize the criterion to include any exchange of value, including in-kind exchanges. So trading images without monetary payment would still be illegal. (Of course, creating the images would remain highly illegal.)
The outcome would be that the provenance of the image would matter. Possessing an image taken by oneself, or by a friend, possibly by the subject -- all these would be legal, so long as no other crime was committed in the creation of the image or in obtaining it. But downloading material that was being circulated on the Net would still be very dangerous -- the probability of picking up an image that someone had paid for (or bartered for) sometime would soon approach 100%.
Let's call such images "tainted images". The provision that possession of a tainted image constitutes prima facie (i.e., rebuttable) evidence is important. It means that if you visit a Web site that pops up images of child porn, you haven't thereby committed a crime, so long as forensic examination of your computer supports your contention that this was accidental and not part of a pattern of behavior (e.g. there are only a couple of such images and they're only in your browser cache). Well, IANAL and I probably don't know exactly how the law should be phrased, but I think it should be along these lines.
Framed as crime scene evidence, it is kind of strange that simply possessing it, for any reason, is a serious crime worth decades in prison. The pedophiles are voluntarily taking pictures and videos of themselves committing crimes and sharing it on the internet. I am sure that if internet sleuths were allowed to investigate such material, like law enforcement is, many, many more child abusers would ultimately get caught. Distributing it should obviously still be illegal, but banning simple possession doesn't stop traffickers (obviously) and eliminates an enormous free workforce of amateur sleuths who I am sure would seriously help the problem. They have helped solved many cold case murders that police never could.
It's kind of creepy in a way when you think about it. No other crime scene evidence is guarded in that way. Is it illegal to possess photos/videos of someone getting stabbed, shot, beheaded, etc? Surely there are people who derive sexual pleasure from that material too, yet it proliferates and no one really cares. It's almost as if the powers that be REALLY don't want the general public to know who's behind some of this stuff. We already know very rich and powerful people are routinely involved in child sex rings...
And the AI image generation stuff makes it even more dangerous and ridiculous. So we're approaching a time when someone can just generate some images locally with stable diffusion or whatever of what looks like CSAM (but no actual children involved), get it into your possession (either remotely or just dropping an SD card in your house somewhere you don't see) and now you are liable for decades in prison...hopefully you don't have any enemies.
Some reasonable points here, but I think there is one very solid argument in favor of making possesion of child porn illegal (and also explains the sense of applying strict liability here): if mere possession is illegal then demand is reduced. Effectively, the legislation aims to destroy the market for child porn thereby preventing abuse/exploitation of children.
There's definitely room to debate whether illegalizing possession will actually curb demand, but assuming that it does, it seems to me to be a pretty strong argument.
One of the big arguments for banning child porn is that having the material "out there" causes continual anguish to the victim. In fact, victims have been awarded financial damages from those convicted of possession. (Can't find the source now, but I recall reading about the case in the "cybercrime blog").
In my opinion, this whole argument is specious at best. One could argue that making the "Star Wars Kid" viral video (among so many others) illegal would have saved that poor dude some major suffering. Why are things of a sexual nature so special?
One argument for decriminalizing simple possession is the fact that crowd-analyzed investigation at the citizen level is severely hampered. I recall reading an amazing account of the investigation and rescue of the then-8-year-old girl in the "Tara series". A relatively small group of people analyzed the photos, identified paintings and drapes in a motel, which allowed law enforcement to home in on the victim and her captor.
Can you imagine the scope of such investigations if these pics were allowed to be viewed and discussed in a public forum? The power of anon and /b/ could be used for so much greater good than hunting down kids who torture cats.
> let's generalize the criterion to include any exchange of value, including in-kind exchanges
> Possessing an image taken by oneself, or by a friend, possibly by the subject -- all these would be legal
If you're a prosecutor and you can't find anything in an average teenage text-exchange that constitues a quid-pro-quo ("I'll show you mine if you show me yours"), you simply aren't fit to do your job. And then we're back to square zero.
How about this: it's an indisputable fact that exchanging bits online (with the copyright holder's permission, of course) has no victims, don't make it illegal. Producing child pornography very much has victims, and should be illegal with the full force of the law. Managing money originating from illegal activities is also illegal, so paying for the production, or acting as any kind of middleman, would be too.
I've never really understood the child pornography thing.
Criminalizing mere possession of such images seems like a roundabout, largely ineffective, and perhaps even counterproductive, way of tackling the real issue; the sexual abuse of children.
It blurs the very real and very important distinction between those who are sexually attracted to children and those who will act on that attraction to sexually abuse a child.
It criminalizes the inquisitive, has the potential to make people inadvertent criminals, and ultimately — to return to the original subject matter — it makes a crime of possessing a particular sequence of 0s and 1s, which strikes me as particularly absurd.
My personal suspicion is that sexual attraction to children (primarily referring to teenagers here) is not the abhorrent, unnatural illness that people speak of in public, but a perfectly natural, harmless preference that is far more commonplace than most people would like to admit.
Ultimately, I'm for the free sharing of 0s and 1s in any order, and I'm not the least bit swayed by the child pornography challenge.
That's the problem. So long as there is a channel for distribution of images depicting child sexual exploitation, there will always be someone abusing even more children to produce more material for profit. Widening that channel is opening the figurative floodgates and possibly encouraging a 'dormant' pedophile to act on his/her urges when they normally wouldn't have.
Stopping the distribution of photos of children being raped -> less children being raped so that photos can be distributed for profit.
I'll even argue that legalizing distribution of such images will normalize the behavior in sick individuals. Remember the jailbait/gonewild reddit, and the hoards of neckbeards claiming that there is nothing wrong with looking at suggestive or actually explicitly illegal pictures of underage kids? That was a community in which that kind of disgusting behavior was normalized and encouraged. You could tell that most of them thought it was perfectly fine.
It's ludicrous to suggest that making the distribution of the pictures of children being raped legal is a serious attempt at fighting child abuse.
The 'legalize it' attitude works for the drug argument, where there really isn't a victim from one's choice to consume whatever substance they please.
There is and always will be victims when child pornography is being distributed or produced. Taking a laissez-faire approach just because ALL distribution channels can't be destroyed ignores the real and lasting repercussions the phenomenon has on children.
Edit: I'm still kind of shocked that you are advocating what amounts to a child abuse economy. It isn't the price that is the problem, it is that children are suffering BECAUSE sick individuals feel the need to look at pictures of exploited children.
But as I stated above, that path leads to ignoring mens rea. Instead of "did you mean to", it is "you possessed it, too bad". This is badness to the point that I could send people CP via picture message on their phones, and turn them in.
Well can't we just make it a law that it's illegal to possess and intend to possess child porn? What's so hard about that. You can often tell based on the files in a computer whether they intended to posses it. Are there dozens/hundreds of images, or only one? Are the images organised, or in the temporary browser cache? Have the images been saved over many dates or were they all created at once? The solution is better written laws, not no laws.
Or worst yet, a 15 yr old girl sent a naked picture to her boyfriend. And then, SHE was prosecuted for the production of child porn. And it's her own fucking body!
Oh I agree that that should not be illegal. So it's just a matter of tweaking the law to exclude that.
I agree that distributing images of people without their consent is wrong. I hadn't considered identifying and distributing material from people willing to help stop child porn. I can't imagine what that approval process would need to be or how to ensure the process would be carried out. It does avoid starving the market which could lead to an ideas in production. With a goal of ending production of child porn, not consumption, a very different approach may be taken.
I'm not advocating no punishment for consumers, however only focusing police/FBI resources on producers (as that doesn't appear to be the approach today) and pushing the expenses of care/treatment for consumers elsewhere (the healthcare system?) Could lead to a more significant reduction in both consumption and production.
Criminalizing the possession of child porn photos is a tool to assist in the capture of people who make child porn photos. A person facing prosecution for possession is highly motivated to reduce their own sentence by helping in the arrest and prosecution of the source of their images. If the source didn't make the photos, they certainly possessed them too, so it's possible to walk another link higher in the chain.
So, you are in favor of the current remediation against teenagers that sext, which is generally to bring the recipient up on charges of possession of child pornography and the sender on charges of making and distributing child pornography?
Such felony convictions will have far more ramifications that the act itself ever could.
The abusers are not the issue here, the parent is questioning whether possession should be illegal in all cases, especially if we are talking about a victimless crime. Photoshopped adult porn to make the actresses look young, for example. It's a good question. However, I expect that no politician is brave enough to ask the question for fear of getting precisely the criticism you just demonstrated. So the discussion will remain theoretical.
I see your argument; actually it's very good and I mostly agree with the point made.
But still I'd prefer to see other, more applicable, laws used.
Proving somebody saw these nude images (if there are any) is going to be a huge legal minefield. And even then classing it as child pornography is difficult for a variety of reasons.
When I talk about intent I mean the intent to see it as sexual content. Clearly the proper thing to do is delete any inappropriate images - and in this respect there may be some indecency laws that apply. But CP is about the sexual abuse of children and the use of indecent material in a sexual context. This has already been watered down here in the UK to the point of making a conviction barely an inconvenience to them.
Given how many kids (teens) produce this stuff for each other and have been prosecuted as criminals for it, I think our approach to enforcement is completely dogmatic and ineffective. While SWATting is still a thing, there is no way in hell this won't become weaponized.
If the goal is to stop actual human trafficking, then target movement. Possession shouldn't be illegal (stops your pissing-cupid garden statue from being declared CSAM tomorrow, and settles making criminals of shutterbug parents at bathtime), but broadcasting, exhibiting or selling anything to do with it (or tutorials for producing it) should be illegal. I'd even suggest uploading it to cloud/external storage should be illegal.
Distribution allowable only between owner and any direct recipient(s), while both parties are under or over 18 (stops the adult-child grooming issue). Solves the underage-revenge-porn issue as well; Bob15m is on the hook for any forwarding or "losing" of the nude selfie he solicited from Alice14f, lest he face CSAM distribution charges. Either of them possessing it wouldn't be illegal, but it would be a liability if lost or stolen, so both are best served deleting it as soon as possible.
They say every advance in tech starts with pornography. This is how you normalize a culture of responsible data stewardship-- by getting people used to the idea of personal risk associated with keeping data longer than you should.
I am just thinking of a case where a guy was in court for possession of child pornography, and the porn star flew to the court to show her ID and prove that yes, she was older than 18, despite her small figure. If simple possession wasn't illegal then the case wouldn't even happen. People have also been arrested and lost careers because they had pictures of their own children taking a bath or playing in the pool.
As for consent - it's perfectly legal for anyone to have videos and pictures of murder, despite murder being just as illegal. You can go on google and find videos of beheadings within 5 seconds. Why is that any different? Because some people get off pictures of children? I am sure there are people who get off pictures of murder. My point is - just having pictures of anything(and I mean anything) should not be illegal on its own. Producing them - absolutely. Distributing them - sure. But going to prison for having one? That's just wrong in my opinion.
Well, there was that recent case about the tween girl who got convicted of distributing child pornography for sexting another tween.
So it's obvious to me that underage sexting itself shouldn't be prosecuted as child porn. Because if they're old enough to prosecute as adults, they're also old enough to legally share naked pictures of themselves.
But of course, it's arguable that third parties -- especially adult third parties -- who distribute such images should be prosecuted.
Possession of child porn is illegal in part because it gives the police a tool to compell possessors to help them find the creators--which is who they really want to catch.
Hmm, yeah, good point. Looks like there needs to be a specific exception for sending an image of oneself, or receiving an image directly from the subject of the image, or, in the case of an image with multiple subjects, sharing the image with the other subject(s).
I like this, actually. It would clarify that there is a huge difference between sending a photo of oneself to one's lover, and sending a photo of a victim to a fellow child pornographer. Also, I like that a photo with more than one person in it could not be shared with anyone who was not in the photo.
I recall a case where a girl sexted her boyfriend, and the boyfriend's kid brother found the images and circulated them on the Net. In this case the kid brother is the one who would wind up in trouble, and I think that's the right outcome. (I'm not saying he should be on the sex offender registry, but he did commit a serious crime and needs to be made aware of that.)
As for your proposal -- I think that was the status quo before any of these possession laws were passed. I think it was felt that that structure did not give law enforcement sufficient leverage. Criminalizing possession allows prosecutors to pressure consumers of child porn into naming their suppliers, so that investigations can find the people actually making the stuff. It also attempts to stem the flow of money to these people. I have considerable sympathy with these purposes; but I also agree with Falkvinge that criminalizing mere possession is intolerable on free speech grounds.
So I'm trying to find a solution that gives law enforcement at least some of the help they want (and that many people agree they should have) while not criminalizing mere possession.
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