Where's the mandatory minimums for possession of child porngraphy? The zero tolerance? Our prisons fill with drug offenders, yet we give sex offenders a scarlet letter + probation?
I don't think drug offenders should be put in prison since it's a victimless crime. I think child porno while much more serious does invoke some of that chain of reasoning.
To me there is a big difference between a guy who found some on the internet and someone who produces or pays for it.
I would be wary of putting in minimum sentencing for such crimes unless it was only targeted towards those producing/paying as you can reach murky area's. Two i can think of off the top of my head would be finding images inside someone's browser cache who browses a site like 4chan where people will post it randomly.
That and art, if someone draws child pornography is that a crime? If blizzard says one of their overwatch characters is 17, are the people who make those animated porno videos making child porn? And are the people watching it consuming child porn?
There was a sex offender who wrote on paper fictional stories of child sex and he was put back into jail for a violation of his parole (for writing it, never shared it).
If you have child pornography the law considers it the same as taking the photo and you can be sued civilly by the victims.
Remember that parolees are still under sentence. There are almost always restrictions on parolees that go beyond those on the general population - that is the whole point of the parole system, you agree to live under sometimes onerous restrictions in return for being allowed out before your sentence is up.
> That and art, if someone draws child pornography is that a crime? If blizzard says one of their overwatch characters is 17, are the people who make those animated porno videos making child porn? And are the people watching it consuming child porn?
The answers to these questions are obvious: no and no.
If the answers are any different or short of being absolute, then that's a clear hole in the first amendment.
> The answers to these questions are obvious: no and no.
Tell that to Chris Handley [1]. He imported a pornographic comic book from Japan, a postal inspector got his panties in a bunch over it, and a prosecutor pushed for 15 years in prison and life as a sex offender unless he plead guilty.
Knowing he'd probably lose in front of a jury of his peers [2], and being blackmailed with the threat of 15 years, he took a plea for six months in prison. Wasn't even afforded the right to a fair trial.
Oh, and it's not just pictures, either. Textual, fictional stories can be "obscene" as well. It is possible to write a fake story in a Hacker News comment that can get you 15 years in federal prison in the US.
[2] it's deemed "obscene", which is a magic "get out of Free Speech free" card, so it falls under the Miller Test. You could get a jury in a very deep red county to find two fully-clothed males kissing as "obscene" if you wanted. "Obscenity" is the thing that needs free speech protections the most.
> "Obscenity" is the thing that needs free speech protections the most.
Agreed.
I'm even of the mind that mere possession of any piece of media cannot be properly regarded as criminal, precisely because it interferes with the far more important right to free speech.
It seems to me that prohibiting the creation or sale of child porn is more appropriate.
In an ideal world, I want possession of real CP to be a crime ... that is, if it could stop there. I would be willing to accept that small bit of cognitive dissonance / hypocrisy. I'm very sympathetic to the victims of abuse having their images out there being sold and traded online.
But then you have cases like Handley where cartoons are criminalized (which I consider to be a thought crime), and cases like this story where it's used to basically eviscerate the fifth amendment ... and it really makes it clear: you cannot have exceptions to free speech, or it will continue to grow and gut everything else. It's not a "slippery slope" argument ... the slope has already happened -- we're seeing it right now. An appeals court just said you can rot in jail for the rest of your life if you forget your password. And they're going to get away with it because of the horrific spectre of CP ( parodied well here: https://www.youtube.com/watch?v=sdu4wSBZqMM )
As much as I abhor the content, I really believe prosecutors should be going after the producers, the sellers, the people collecting ad revenue off of hosting this stuff, and of course, the actual abusers themselves.
I'd like to see the people with paraphilias they didn't ask for have access to proper counseling, access to anti-androgens, etc.
But we don't live in a country that wants to help people. We live in one that wants to punish people -- even if that results in more victims.
>In an ideal world, I want possession of real CP to be a crime ... that is, if it could stop there.
I partially disagree with this. I think it should only be a problem if it's actually real, and can be proven to be, and thus can be proven to have an actual victim. And that victim needs to actually be a child.
In today's age of Photoshop and life-like realistic rendering programs, it's entirely possible to create stuff that looks real, and really isn't. It's also possible for models/actors to look less than 18, while not really being that young. How do you tell for sure that a person in an image is 17 years and 364 days, and not 18 years? Pretty soon, the rendering technology will be so realistic you'll be able to create movies with fake humans that look entirely real. So if someone buys this software and makes some naughty stuff with it, why should they get in horrible trouble and spend decades in prison, when someone else can buy the same software, buy the same digital assets of child models (which aren't really real children, just fake but realistic looking children), and then make movies of these "kids" being slaughtered by dinosaurs or mowed down with machine guns or something, and that's perfectly OK?
The bottom line is: victimizing innocent people should absolutely be illegal and punished. Anything which doesn't victimize an actual person should not.
years ago I read an article by Bruce Schneider in which he said he doesn't put a password on his home wifi. Anyone who wants to connect to it can.
His argument was that if someone downloaded illegal materials like cp and his network was password protected, they would argue that it had to be him (when we know this isn't even remotely true as software people).
The thing is, I kind of dismissed it and then several years after reading that I came across an article that just floored me. A cop was accused of accessing cp evidence repeatedly (presumably for himself). The article quoted the chief of police as having said "we know it was him because he used his password to log in and it's IMPOSSIBLE for anyone else to have gotten into it".
I've emphasized the word impossible.
I went home that night and opened up my home wifi and I've ran it that way ever since. The idea that a police chief would believe it's impossible for anyone else to get into an account because it's password protected is about some of the scariest shit I can imagine.
And what's scarier in my mind, is how easily people are swayed. Look at how many people are arguing that it's ok to jail this guy indefinitely for refusing to give the police a password. And they BUY the argument that because the police are only asking him to perform an action (enter the password) and not actually give them the password it somehow changes anything instead of it being bullshit hairsplitting by officials.
I'm not really a tin-foil hat sort of person, but the people who can buy that without blinking are a part of the reason why we can't have things like free speech, only acceptable speech.
> I'm even of the mind that mere possession of any piece of media cannot be properly regarded as criminal, precisely because it interferes with the far more important right to free speech.
While I agree in principle with the sentiment, by calling it "piece of media", you presume it to be something inert.
Stepping outside the context of obscenity for a bit, code is data and data is code. It used to be (50-100y ago) a reasonable valid argument that any media is "just words" or images, unable to hurt anyone/thing unless interpreted and acted upon by human volition. However in today's information technology-enabled society, we have automated systems and machines that will consume the data on a piece of media, and automatically perform real-world actions that have large consequences and may hurt people.
Weaponized exploit code (etc) can exist on a piece of media, and you can imagine how a rule that "mere possession of any piece of media cannot be properly regarded as criminal" can somehow always be wrangled into a loophole that abuses this rule. Information is a very weird and fluid beast, just look at the oddities around "illegal primes" or "coloured bits", to see where computational science and law collide.
I believe that our old intuitions about the fundamental nature of "information" are being challenged in a way. I don't have solutions or answers, either. I want the freedom too, but saying it's "just information" on a piece of media is a bit too quick.
"18 U.S. Code § 1466A - Obscene visual representations of the sexual abuse of children
Any person who, in a circumstance described in subsection (d), knowingly produces, distributes, receives, or possesses with intent to distribute, a visual depiction of any kind, including a drawing, cartoon, sculpture, or painting, that (1) (A) depicts a minor engaging in sexually explicit conduct; and (B) is obscene (...) or attempts or conspires to do so, shall be subject to the penalties provided in section 2252A(b)(2), including the penalties provided for cases involving a prior conviction. It is not a required element of any offense under this section that the minor depicted actually exist."
Those two words are hiding a lot. For example, it's probably not obscene in Oregon, since part of the Miller test defers to state law and we have a stronger state equivalent of the 1st amendment in our state constitution that would allow it.
And if you wrapped it in a story(like a manga or comic), it would be easier to argue that it has literary or artistic merit. Though, a "states' rights" argument would probably be more likely to succeed.
My comment wasn't meant to speak to the test of the federal register, under which a huge part of the everyday lives of Americans are federally prohibited.
I was more speaking to the question, "is it a crime?" IE, is it a crime in any sort of common-law sense and the proper purview of a government in a functionally free society.
In that sense, I do not believe that the wholesale fabrication of any form of media is a crime.
I remember reading about a case where a porn star actually showed up to a trial of her own volition and showed the judge her license to prove she was over 18 when she did the film.
Had she not responded when the guys lawyers contacted her, the accused would've gone to jail for child porn.
That's how insane and scary these laws are. I'm all for coming down hard on someone for having cp, but it wasn't cp, just a young looking actress.
Keep in mind that a 17 year old taking a nude picture of themself is in possession of child pornography. Do you want a harsh minimum sentence for that?
You gotta cut the government some slack here, they have contracts with private prison providers and quotas to fulfill. Can't have compassion and reason get in the way of that.
Times are moving faster, you have to adapt. Efficiency is trump. Children are no exception here. You gotta see that there is just no time for things like 'being a child'.
