Child porn distribution and legality question

Factual Questions
21

My WAG is that he’s definitely committed a crime, since look at it the other way:
If it was legal, then all anyone would have to do if they get caught with child porn is say they were gathering evidence for an article.
You wouldn’t even need to be a journalist; just say you were going to publish to your blog.
For this practical reason alone I think they’d have to draw the line above this journalist’s actions otherwise it would become hard to prosecute anyone.

For similar practical reasons I doubt it would work like that. Whistleblowers are very useful in prosecuting any crime and there’s a degree of good faith if you are the person approaching the police.
And consider, for example, an ISP. How could they possibly do business, if even if they immediately remove and notify police of any child porn their users upload or download, they’re still liable for prosecution (just by virtue of ever having the jpgs)?

Of course, if you go to the police and they find your hard drive’s full of child porn from numerous sources, they may well still prosecute, though your cooperation would be taken into account in sentencing.

22

…okay.

The OP is referring to an article written by Dan Olsen called “The Mods are (Always) Asleep” and is a part of a discussion around the 8 chan boards and more broadly Gamergate.

I don’t think that what happened to Larry Matthews is relevant. For starters, the material is completely different. Matthews was actively trading images that showed the following:

None of the images that Olsen downloaded and edited were images of children having sex: in fact none of them even featured nudity. (But they were all quite disgusting.) Olsen wasn’t trading images.

Also there was no evidence that Matthew was writing a story at all. As the judge points out:

http://www.washingtonpost.com/wp-srv/local/daily/march99/sentence9.htm

There is clear evidence that Olsen was acting as a reporter, because he actually wrote a report.

I very much doubt any action will be taken against Olsen. He has already been reported multiple times to the FBI and other authorities by gamergate supporters, as has others who have retweeted/linked to him. The material he downloaded and edited is apparently still online and easily discoverable by anyone who can google 8 chan, and despite being disgustingly horrible is arguably not illegal in many jurisdictions in the world. If the authorities are going to go after anyone it would be the site that continues to host the images online and not the person who wrote an expose on it.

This particular story “blew up” in response to some other things that happened in gamergate a few days before: I’m not going to add context as this isn’t the forum to do it in, but this story is the result of a much larger internet feud that has been going on for months.

23

Hmmm…

From what little I know, in most jurisdictions it is illegal to possess child porn. From what I read in the papers, most places do not need anything more than possession to charge - at least, a lot of cases in the news seem to be nothing more than possession. The law is pretty simple - you have it you possess it. As jezzaOZ says there are various excuses, but I assume that if it is found on your computer, the onus is on you to show “a virus did it” or “someone else did it”, etc.

I would think that like possession of drugs and similar cases, if you have it and recognize it and make no effort to immediately get rid of it and alert authorities, then the assumption is you got it for the purpose of keeping it. I would imagine unless the circumstances are pretty simple, the police and prosecutor would be pretty ticked at someone “advertising” a source of CEM even in the name of trying to stop it. If your story is “Dick Johnson is running for congress, but this is what you find on his blog” then once you have your one example blurred photo, what possible reason could you have for not alerting authorities first? (Of course, if you’re someone looking for that material why would you go to a website identified by the mainstream media? It just reeks of being a trap.)

So the answer to the OP is, technically the reporter is breaking the law. If he’s clever and covered his tracks, there may not be the evidence to charge him; assuming the blurred photo does not qualify. If it appears to be a legitimate news story, perhaps the prosecutor would not see value in prosecuting; but for a titillating bit posing as expose, I doubt the DA would be as understanding.

I recall reading of a case back in the 90’s; the defendant was charged over some videotapes he had ordered from a magazine ad. The videos showed some girls (about 10 years old?) bumping and grinding in tight leotards, and according to the article, the camera zoomed in on the crotch frequently. The way the federal law was written (is written?) the child did not have to be naked, an excessive focus on the genitalia as still sufficient to qualify as CEM. So don’t assume blurring is sufficient.

(The ad had said “100% legal!!” and the prosecutor was quoted as saying the people selling these tapes were certainly not qualified or motivated to be sure they were legal. No word about prosecuting the sellers, making me think it was a sting from the start)

As for manufacturing, if someone made CEM but you had no evidence of distribution or possession, what do you have? Most likely the evidence of a victim and nothing more… at which point the case is child abuse and hinges on the credibility of the victim?

24

Hmmm… so I looked this article up.

And if that is the case, you are right, and you correctly identify why, because the circumstances are ***not ***quite how most of us interpreted the OP conversation.

Right – This does give us pause in that most of us reacting to the OP scenario were automatically thinking about an undisputable worst-case childporn scenario. Pictures of explicit childrape, y’know.

But from a look at Olsen’s article, (A) these pics seem to be more from what I described as the skeevy “model” exploitation sites that try to skirt just a hair’s breadth this side of the law, and (B) they are only *part *of what he samples from the 8chan boards, being mostly material he feels supports his position about what kind of utterly disgusting sleazes lurk in those boards and how the admins just let it happen.

Right - Olsen seems to be careful to NOT use any per-se illegal material himself. At most one could get from his article is that he is making the accusation that those boards provide a forum for pedophiles to exchange their disgusting sick thoughts, but he does not himself use undisputable childporn. The pictures seem more the kind of stuff that would involve dueling witnesses and lawyers in court going “it’s art not childporn, it’s not even nude”/“your honor, just look at it, this is not art, this is wank fodder”.

That said and done, apparently those running 8chan counterclaim that they DO make an effort to detect and remove “real” childporn, close boards and ban users if reported and when the Mods can get around to it (which seems to be Olsen’s title thesis that they don’t do it effectively). They are making a dilligence defense.

The authorities probably can look at this and say to themselves: Great. Another bunch of geeks going “Mr Law, Mr Law, look at him, look at him, he’s doing something bad! Oh, now you’re in trouble, now you’re in trouble!”. Oh please.

25

FWIW - in case anyone is wondering how Google would be allowed access to a database of child porn - they aren’t. What is provided to them is one way “hashes” of each photo in that database. The run these hashes against all email attachments in gmail and presumably all stuff their image crawler runs across. When a matching hash is detected they alert the authorities.

Presumably they are using a has that has very low collision possibilities (this can be lower than 1/ the number of atoms in the universe if long enough).

26

I don’t think it would be that simple.

As an example, consider a similar out: a guy arrested for hiring a prostitute claims that he’s actually a porn producer soliciting for actresses. He films having sex with them, so it must be legal right?

No, not really. When investigators look at the whole situation, it’ll pretty obvious whether we’re talking about porn or prostitution.

The same should be true for similar claims on child porn. I can see the investigators now… “So, you’ve been collecting child porn for the last three years with the intent of eventually writing an article about it on your blog about wild birds?” :dubious:

27

Yes, but I disagree that that situation is analogous. How did the parties contact each other in the first place? Was it filmed, and was there a third party lined up to film it (even in POV films there’s usually another guy doing a few shots)? Was it done in a state where hiring someone to be in a porn film is legal?

Well in my own post I said just that: I said that even if you were a whistleblower going to the police of your own accord, they’d likely still prosecute if the amount of porn you had went far beyond “stumbled upon” quantities.
The journalist example was concerning a hypothetical like the OP, where a single page is visited ostensibly for exposing in an article, and I was arguing that it would not be practical if that were legal.

But, on thinking about it, it’s always going to be difficult to define these things perfectly in advance. Arguably the most practical option is to say “X is definitely illegal behaviour, anything approaching X is a test case that will require some deliberation”.

28

What if a criminal defense attorney was provided a copy of the photograph as part of discovery? The law seems to have no exemption even for that.

29

You mean, does the criminal defense attorney then become a possessor of child porn? No. There is an exemption for possession of illicit material obtained in criminal discovery. The prosecuting authority wouldn’t just send the attorney a copy of the picture(s), though. The defense attorney would have to arrange to view it at the DA’s office. The same thing happens when a prosecuting authority releases purported drugs or other controlled substances to a defendant for independent analysis; the DA provides a sample and an evidence specialist from the police department or other law enforcement agency is present to observe the testing process.

30

How exactly could some one have it on their computer and not have either “created it” or “acquired it”?

31

Yes, that’s what I meant. I’ve only had one case that could have made it an issue. It was a state charge for a juvenile forwarding a picture of another juvenile with her bare breasts exposed. She was underage and the statute in question provide that an element of the offense was that it either had to show sexual acts or had to be a picture of genitalia, the anus, or an unclothed female breast, the last three done for the purpose of sexual gratification. (For those that commit this offense under age 18, it is a juvenile offense; over age 18, a felony)

Now, the client admitted his guilt, and I took a quick peek in the prosecutor’s office. Frankly a quick peek was too much for a girl that young. Short version: he was guilty and took a plea.(unsupervised probation and “don’t do it again” classes).

But, I could imagine a situation where the girl claimed it was artistic and the boy claimed that he was simply helping her distribute her art. In that case, wouldn’t it be fair game to show the picture in the courtroom and have a copy of it to analyze? Does the federal law require sexual acts to be depicted, or is nudity enough?

32

I would think that would be obvious. You blame your roommate or say that the computer was hacked. Thus, someone else did the acquiring.

33

As mentioned above someone else could have put it there.

The police needed to show meta-data that the accused was the one that downloaded it. If they couldn’t show how it got there the accused would likely walk.

34

American Beauty… wasn’t the girl that showed her breasts underage at both the time of filming and release? However, as it was not sexually explicit it was not illegal? Movie was released in 1999 and she was born in 1982… so, 17 at the time of release and could have been 16 at the time of filming?

35

Thora Birch was 16 at the time of fliming, and the scene was approved by her parents. However, mere nudity is not illegal even if the actor is underage. Brooke Shields appeared nude at the age of 12 in Pretty Baby (1978).

36

The rule for underage porn is not as “absolute” as people sometimes think it is – there have been rulings from SCOTUS, you can’t just say “any 16 y/o boob = automatic CP regardless of circumstance”. **jtgain **quoted the conditions of when it *does *become illegal in one state jurisdiction and as far as I can tell, the federal statute does also require that it meet the standards to be considered pornographic.

The misconception of utter absoluteness is used a lot as a club to hold upside some teenagers’ heads to dissuade “sexting”, revenge-porn and privacy violations, but that’s more because they are known to be in a weak position to mount a defense.

In the argument where the defense is mounted that this was artistic publishing, there would have to be a whole other set of things brought into evidence (model releases approved by the minor’s legal guardian, photographer’s portfolio, etc.). IANAL but I believe that in such a case while it is still unsettled whether the material is or is not illegal to hold or transmit it would probably be presented for examination to counsel and to the jury as evidence but not in such a manner as to risk having it compromised to the public, for the sake of protecting the privacy of the minor, not because it would be criminal to hold.

Besides, the law can still forbid a minor from distributing something that IS otherwise legal if spread through proper channels – guns, smokes, booze, Playboy, etc.

If it’s something like “American Beauty” or David Hamilton photobooks or Brooke Shields’ early work (not just Pretty Baby but outright nude photoshoots), it is something that has already been published so in a case where it is claimed it should be illegal it could be argued that ship sailed already when it comes to “protecting” the material; I dunno if a court could always say “hey if the general public wants to look at it, it’s still at the library, we have not banned it yet”.

37

Plus, remember, the onus is on the law to prove beyond reasonable doubt. “Well, he has it he must have acquired it” is not good enough (see “someone else/virus did it” excuses). The act of acquiring has to be shown to have happened, usually email exchanges or proof of browser activity, the defendant most likely in control of that process, etc. The act of possession is easy to prove. It’s there or it’s not. Basically, unless you can prove the photo originates somewhere else, saying “he’s either guilty of acquiring or making it” is a pretty vague charge. Saying “He did either A or B” means “we can’t prove A and we can’t prove B”

I always wonder in cases like this how likely the match is made if a photo is cropped, adjusted in colour or contrast, resized, etc.

38

What’s the public service?:confused: That’s there is kiddie porn out there on the internet? :dubious:

39

(bolding mine)

Wouldn’t that be true by definition (at least in the US)?

40

I assume he is distinguishing between factual guilt and legal guilt. Factual guilt is largely irrelevant from a legal perspective, at least under the federal Constitution, of course (that is, a convicted defendant may not be entitled to retrial or dismissal even if absolute proof of his innocence exists) but state law may differ.