Rick Falkvinge On Child Porn and Freedom Of the Press

bazorg writes "Rick Falkvinge of the Swedish Pirate Party blogs on the subject of freedom of the press and foresees how users of Google glasses could be charged for possession and distribution of illegal porn. 'Child pornography is a toxic subject, but a very important one that cannot and should not be ignored. This is an attempt to bring the topic to a serious discussion, and explain why possession of child pornography need to be re-legalized in the next ten years.'"

Re:Is this really a problem?

[Anonymous Coward]

Aren't there existing protections limiting prosecution to knowingly and intentionally committing crimes? I can't see how legalizing possession completely will "fix" the "problem" of accidental prosecution in an effective way. Baby/bathwater and all that.

FTFL:

UPDATE: Some people have complained that no court would ever convict in this scenario, since you also recorded your unintentional approach. But possession of child pornography is a strict liability offense, like possession of cocaine, at least in the entire United States, as well as several other countries. Intent, mens rea, is irrelevant: if you have it, no matter why, you're guilty.

Re:Some good arguments, some bad arguments.

[Jiro]

It's a paranoid fantasy (involving some kind of uber-nerd/uber-hipster cross) about the government coming down harder on witnesses of a crime than the actual perpetrator.

If you also read the comments they mention two cases where this actually happened. They are in Swedish, but Google Translate does a fairly good job on them.

Relying on government's discretion to prevent people from being prosecuted for something that the law says is illegal will only work until you run into someone with an agenda, or a mindless bureaucrat. or a fanatic who happens to be in government.

Subjectivity

[elucido]

The problem is who decides what is or isn't pornography? It's entirely subjective. It's based on how we think the person interprets the information, it's basically about what we think the viewer is thinking. A child could be naked in one context, hell a baby could be naked, and it's not considered child pornography but then in another context viewed by a different set of brains and it's child pornography. It's entirely subjective as to what is art and what is child pornography.

For example if a child actress plays out a rape scene in a movie that is not child pornography. If a child models in a beauty pageant that is not child pornography even if the child is dressed like a hooker on a street corner. If a child is in the "sexual positions" and naked then it's child pornography. How do we decide on those "sexual positions"? That part is subjective. Obscenity laws in general are subjective and different communities find different words, body language or levels of nudity as obscene.

Here's an example in english

[Anonymous Coward]

Simon Walsh: How bodged arrest and 'profoundly damaging' false charges have ruined my City Hall career

http://www.standard.co.uk/lifestyle/london-life/simon-walsh-how-bodged-arrest-and-profoundly-damaging-false-charges-have-ruined-my-city-hall-career-8046087.html

Problems with Canadian Child Porn Legislatoin

[Anonymous Coward]

Here are a couple of the issues that I am aware of with the current Canadian child porn legislation.

1) Anything sexual produced for youth, is considered child porn. So if a Doctor write a guide on safe sex, and it is targetted to high school sex ed classes - that doctor has created child porn. Under the verbage of the legal document, he is technically a sexual offender.

2) Those photos in your family album of the twins Julie and Mat playing in their wading pool at the cabin when they were 6 months old. Remember how they were both wearing swimming diapers, but the rest of them was naked? Well - you possess child porn. Any photograph (or ther media) of a naked or partially naked child, is considered child porn. Same thing goes for that photo of your 2 year old niece swimming at the beach - on your iphone as you walk through Canadian customs.

I am sure there is much more. These are the two bizarre sitautions that I know of.

The root of the problem (as I see it) is:
- We write laws that are either so vague that anything even remotely similar to the offence they want to stop becomes criminal as well.
- We never go over the old laws to clean out the outdated. We just pile it all on whatever is already there.
- We label a law that is extremely overzealous or totally out to lunch with labels such as 'Child Porn' so that if you say no to it, you must be one of them. Not many of us are for Child Porn, but how many of us do things that are legally speaking, thanks to bad laws, actually considered to be child porn?

I make a point of putting my camera away, if either of my girls (2 and 4) decide they want to run around naked. I have had to tell my wife to do the same, and delete all those cute videos of the baby chasing the balloon across the room...

Re:lolwut?

[Skapare]

It happened when they made the law that was poorly worded to do exactly this.

Sure, judges will sometimes be smart enough to realize the law is wrong. But consider this ...

I read about a case many many years ago when PCs were just becoming common, and some internet thing was just emerging. A man had trouble with his PC not working so it takes it to the PC store to have it fixed. They find his hard drive died so they put in a replacement. Being cheap bastards they grabbed a HD known to be working from another PC (not sure why) and put it in the PC to be repaired. The man got the PC back, and there was still another issue, so he went for repairs again. This time they detected child porn on the HD that had been replaced in the previous visit, and called police (as the law required them to do). This man's life was ruined. He wife divorced him. He lost his job. He spent a few weeks in jail. His finances were wiped out by legal fees. In the end after a couple years the judge cleared him of all charges. He never even saw the child porn until a printed copy of one was shown in court. He never even accessed the files involved. He didn't even know they were there.

It is wrong to have a law that even allows this to begin to happen, since we can't have a law that makes everyone forget that it did. There are real things that are wrong enough that we do needs laws against them. But the laws need to be written by people who can thoroughly figure out all the effects. Our existing politicians aren't spending the time to even try, if even they were smart enough to do so (I'm absolutely certain 99% of them are not).

Re:Philosophical thought experiment

[grumbel]

Why not ban text descriptions, or ban stories which encourage child abuse?

They are already banned, see Manga Collection Ruled “Child Pornography By US Court [io9.com].

Re:Is this really a problem?

[Martin Blank]

Injecting a bit of law might help the discussion. Even CP has defenses. The following is from 18 USC 2252, Certain activities relating to material involving the sexual exploitation of minors.

(c) Affirmative Defense.— It shall be an affirmative defense to a charge of violating paragraph (4) of subsection (a) that the defendant—
--(1) possessed less than three matters containing any visual depiction proscribed by that paragraph; and
--(2) promptly and in good faith, and without retaining or allowing any person, other than a law enforcement agency, to access any visual depiction or copy thereof—
----(A) took reasonable steps to destroy each such visual depiction; or
----(B) reported the matter to a law enforcement agency and afforded that agency access to each such visual depiction.

Paragraph 4 deals with possession in federal jurisdictions or possession obtained by way of mail or computer. All of 2252 requires the accused to knowingly possess such materials.

There is still the issue of distribution if you're live-streaming it, but this is a (very tiny) risk in any live stream that happens in public. Anyone who sees it (the original witness and any stream viewers) is required to report it to law enforcement. Someone who, as TFA suggests, turns and runs while deleting the images then is guilty of destruction of evidence, may be guilty of failing to report a crime, and may be charged as an accessory after the fact since the witness saw the crime and covered up the evidence which in some cases results in some extremely harsh penalties akin to what the attacker gets.

Re:Really?! So, let's google, shall we ....

[elucido]

http://www.medicalnewstoday.com/articles/247321.php [medicalnewstoday.com]
http://spectrum.ieee.org/geek-life/tools-toys/this-is-your-brain-on-fmri [ieee.org]

http://gizmodo.com/5922208/scientists-invent-mind+reading-system-that-lets-you-type-with-your-brain [gizmodo.com]

http://www.aclu.org/blog/technology-and-liberty/high-tech-mind-readers-are-latest-effort-detect-lies [aclu.org]

http://www.hlntv.com/article/2012/04/06/mobile-brain-scanner-ibrain-stephen-hawking [hlntv.com]

Do more research. It's already here even if you don't know about it.

Re:On a philosophical level its just bits

[Shoten]

RTFA. He's right: child porn is one of the situtations where mens rea is not necessary. You are absolutely 100% wrong on this one. Possession, regardless of means, circumstance or intent, is a criminal act. I know this first-hand, from engagements where we deployed network-centric DLP solutions in a consulting role and were briefed in advance by a law enforcement official AND a lawyer as to what to do if we came across child porn in our systems. It's you who needs to learn about criminal law, not him.