If a server with illegal material claims it is legal, can its users be prosecuted?

I asked a question in this thread:
twice, and never got a complete answer. So, I ask again. Assume that a web server containing something like kiddie porn (illegal, but subject to national standards and thus untouchable by the U.N.) claims that all of it’s material is not illegal, that it’s models are over 18, etc. Even if this is blatantly untrue, could an American be prosecuted for downloading pictures if he can claim that he thought the material was legal?
Other related question: Assume I take a movie, digitize it, hack off the copywright infringement, and post it as my material (lying, of course). Assume that someone else downloads it, and gives it to someone else, ‘believing’ that it is legal. Are the people in the download chain guilty, or just me?

If a guy on the street offers to sell you a Rolex or a VCR out of the back of a truck for a lot less than you would pay in the stores and tells you it isn’t stolen, would you suspect that the material is stolen? The same holds true for downloading something off the Internet. If you can reasonably suspect that you are buying something from someone who is not the righful owner, you can be prosecuted for receiving stolen property.

Why would you think that you wouldn’t?

Aha! But if the VCR sold you a (fake) certificate of authentication, could you not use it a legal pretext to avoid prosecution?

In the case of the VCR, the finder of fact would have to determine that you knew, or reasonably should have known, that it was stolen. You could present the fake certificate, and testify that you thought it was real; if the fact-finder believed you, you’d avoid conviction.

Of course, the fact-finder is equally free to conclude that no reasonable person could possibly have believed the certificate, and convict you.

Possession of child pornography is more akin to a strict liability offense: if you have it, there’s an almost irrebuttable presumption that you knew it was illegal. The government must prove that you knowingly possessed the material, but not that you knew the material was illegal; the presumption is that you knew this.

Now, if you download a media clip advertised as “Walter Cronkite’s Greatest Bloopers,” and it turns out to be child porn, how you react would go a long way to either support or defeat the inference that you knowingly posessed it. If you forwarded the material to the FBI, or deleted it, that’s a point in your favor. If you have hundreds of clips on your hard drive, you’re not going to be able to credibly claim ignorance of their nature.

Same thing goes for your hacked movie example. If you take an amateur home movie, your claim that you believed it was public domain might be tenable. If your digitized movie has Julia Roberts and Brad Pitt in it, your claims that you believed it was free are not likely to be credited.

I garner in this question a sort of unspoken belief that there exists in the law some sort of magic formula – that if you only claim a certain thing, no matter how ludicrous, you’ll magically be able to frustrate police and prosecutors. It’s a more complex version of the belief that an undercover officer must admit to being a police officer if he’s directly asked, a sort of Get-Out-Of-Trouble-Free card that, if only it is played correctly, will serve as an amulet against law enforcement.

It ain’t so.

  • Rick

I think the Gutenberg Project provides a good example of how this works.

All works on the various Gutenberg Project websites throughout the world are public domain in the country in which the server resides. You’ll find very clear warnings on the Gutenberg Project websites telling you not to download the material if the work is not public domain in your own country as doing so is an offence.

So even when a website is legal and contains material which can be legally downloaded, the onus is on you - the user - to ensure that you are not breaking any of your own laws by downloading it. Ignorance of the law has never been an acceptable excuse for breaking it.

Material which it is legal to sell, buy, and possess in one state can be illegal in another, let alone when you’re talking other countries.

If it’s illegal for you to physically import something into your country or state and/or to have it in your possession, the fact that you imported and possess it in virtual form isn’t likely to be seen as mitigation.

I’m old enough to have seen several Tracy Lords movies - from back when she was in high school, before the producers found out she was only 15.

I’ve seen stills from those movies (and her Penthouse spread) on the internet, mixed in with ‘regular’ image galleries. There is no way the average viewer or webmaster would know that these images are technically hardcore child pornography. But they are.

I wasn’t out looking for anything overly lurid - just checking out a link or two. The amount of really questionable stuff out there is amazing. For the record, I scrubbed my hard drive clean once I realized what I had viewed - even though most of it was just thumbnails.

I believed that I could be prosecuted if those images were stored on my machine. I didn’t think it would happen, but the slightest chance was worth extraordinary effort to avoid the possiblity.

Prosecuted and convicted are two different things – but juries and jurists are not known for leniency with accused child pornographers. The subject is so inflammatory that I doubt a truly fair trial can be held.

So, I’d say yes – you can be prosecuted (and probably convicted). Better scrub that hard drive, dude!

Out of curiosity, how does the law define ownership of child pornography? If, say, I only view images from a server that can’t be prosecuted, and delete them afterwords, only keeping them on my computer long enough to view them, what am I guilty of?
[I’m not a pedophile, if anyone’s curious. I would just be thrilled if this frankly ridiculous gaping hole in our legal system were to be filled in with a legal hack.]
So, I may as well expand my original OP: can anyone imagine a way to circumvent the U.S.'s laws on kiddie porn?

Here, at least, I’m pretty sure our laws are written in terms of “possession” rather than “ownership”.

Assuming that you’d deleted your history etc, etc, and the only way the police knew you’d viewed the pics was via your ISP records, my guess is that you’d be charged under one of our telecommunications laws or importation laws.

The net-based defamation cases which have succeeded here have determined downloading to be the equivalent of having a physical copy. Whether I delete what I’ve downloaded or not is irrelevant to the question of whether I ever “imported” it (and it’s the importing and possessing which is illegal - AFAIK, there is no law which says “thou shalt not view”).

I’m a little curious as to what “downloading” pornography means. If you’re talking about movies, I understand. How do pictures work? When you view a picture, it downloads itself into a temporary folder (if I understand correctly). Now, assuming that someone deletes the temporary files, can they be accused of “downloading” a picture simply by clicking on a thumbnail to see the larger version?

I assume that saving the image to your hard drive might qualify as “downloading”, but unless someone checks your hard drive, I doubt there’s any way to tell through your ISP records whether you saved a given image, or not.

I recently had to re-format my hard drive after I landed on some seriously illegal-looking sites (due to a mishap in pop-up hell). I was quite shocked at what I saw, but I did what only a very stupid, very curious person would do: I “rubber-necked” and looked at some of the pictures. I think I was either trying to shock myself further, or piss myself off. I thought of making a note of some of these sites, and reporting them. However, I eventually panicked and closed the windows instead. I then wiped out all evidence from my hard drive. I was pretty nervous about it for a few days, too.

Now that I know that this gross, scary stuff is not only out there, but very easy to find (even by accident), I try to be a bit more careful before I follow a link to a seemingly innocent and legal site.

Some time ago, I did run into something that made me wonder about something similar to the OP. While surfing these people’s personal pages, I ran into a link to a nudist (naturist, if you prefer) site. The hopeless voyeur in me had to go take a look. This was not a porn site. It was a site full of naked people, in all shapes and sizes, doing relatively “normal” everyday stuff. Within minutes, I could barely even notice that these people were naked. After a while, I hit a section where all the pics were of kids, and teens/pre-teens. Again, these pictures featured nudity, but no “pornography”. Nobody was in a sexually suggestive situations, or anything. Much like the adults, these kids were shown playing volleyball, riding bicycles, etc.

I got somewhat suspicious, so I followed the link about “legal matters” that they had. It explained at length that - though there might be pictures of nude people under 18 at the site - there was no pornography, and that the site conformed to US and Canadian laws. I’m no expert, but it seemed quite legit.

If such a site is indeed legal, I must say that I feel odd about the fact that I’m of two minds about it. When I found out (assuming I can believe the site’s disclaimer) that it was legal, I had two thoughts that went through my mind:

1- Cool!!! Finally, nudity is NOT being treated as “pornography”! Maybe there’s hope for this world full of weird hang-ups after all!

2- Ummm… Wouldn’t that site make an awfully good loophole for pedophiles? Granted, the stuff would be ultra-softcore, but I think it’s fair to suppose that some pedophiles out there might not need anything more than that.

Can anyone tell me whether such a site is indeed legal? Similarly, could someone be prosecuted for having such pictures on their hard drive? Are we letting pedophiles have a nice little loophole on this one? Conversely, if it is illegal, are we taking things too far? Is nudity in itself pornographic in nature?

There was a pretty infamous situation here a couple of summers ago where someone set up webcams at Bondi beach. Bondi is a public beach on which people wear varying degrees of clothing. It’s also a beach which is regular patrolled to ensure that people aren’t hiding in the bushes perving or photographing the people there.

The police and the courts both took the viewpoint that while those who were on Bondi had chosen to expose themselves to other beach goers they had in no way granted any explicit or implicit permission for images of their day at the beach to be taken or published (as opposed - for instance - to being shown on the 6pm news topless at Mardi Gras).

Here, at least, nudity is not illegal. Nudity in certain locations or under certain cirumstances can be illegal.

A well known weekly magazine here has a “home girls” and “home boys” section which publishes pics of people taken by themselves or their SOs. A woman just won in court because someone submitted her photo to the magazine and the magazine published it all without her permission. Had a release been signed by her, the publication would have been legal.

Under very few circumstances is publication of photos of naked children going to be legal, and you can bet your ass that those people who take photos of babies and toddlers in even semi-naked poses are extremely careful to have the contracts written in terms which not only demand that the parents prove their right to contract for the photos but which also prohibit certain kinds of republication (most - in fact - retain ownership in the negatives).

I have a 10 year old daughter. I cannot LEGALLY take holiday snaps of us at a nude beach and publish them, and nor should I be able to. Nor would I WANT to be able to.

Do such pictures appear online all the time? Yes, unfortunately they do. But in most Western countries you won’t find a court which will rule the publication of such photos legal because the child’s parents toook them or authorised their publication.


That day, I followed some links and ended up seeing a bunch of similar sites, most of which had more or less the same pictures. All of them featured similar warnings, and cited the laws on child pornography, and explained how they broke none of those. Further, many of these sites featured links to various anti-child-pornography groups. I should also note that many of these shots seemed to have been taken in France, and in various Scandinavian countries (though the legal warnings were usually only concerned with American laws - and occasionally Canadian laws). One or two exceptions aside, all these sites featured people of all ages - from babies to really, really old people. For the most part, it didn’t look like any of these people were photographed without their knowledge. Some of these pictures showed entire families obviously posing for the camera, while holding a prize for some “Nudist Family Contest” they’d just won.

Another point of note: very few of those pictures looked recent. In fact, most of them looked to be over 30 years old. Could that somehow have some effect on the legal side?

I’m really wondering about this, now. I’ve done my fair share of ummm… adult surfing in my life, and I figured I’d developed a fairly good eye for scammers, bullshitters, and criminals. Have I been fooled by these people? Could all these links to anti-child-pornography groups, and all these very convincing legal disclaimers have been nothing more than a very detailed, clever ruse to fool naive surfers? It’s not much of an issue for me, as I only looked at some of these nudist sites one night, some time ago; it’s not like I’m a regular visitor. However, I am annoyed at the idea that they might have fooled me at the time.

There’s certainly a coalition of “adult” websites in the US which is very strong on encouraging people to report inappropriate publication of images of minors (I’ll hunt up their website in a minute).

If the images are 30 years old then it’s quite possible that there may be some kind of legal loophole which allows their publication (although the publication might still be a COPYRIGHT infringement - often in “competitions”, all rights to publication are retained by the promoter).

The law these days takes a rather different view of the extent to which parents can “consent” on behalf of their children than it did 3 decades ago. I can tell you right now that if I published nekkid pics of my 10 year old or signed a release for publication of same, I’d be in deep doo-doo.

The fact it would be a loophole for pedophiles (and it certainly is) is irrelevant. Either pictures are obscene, either they aren’t. If we consider the picture of naked children aren’t obscene, ( and I do believe they aren’t) why would we change our norms and laws because someone, somewhere could find them arousing? What would it change exactly? Is the goal to prevent at all cost that a pedophile could masturbate, even if it means that we have to live in a police state in which you can be jailed for taking a picture of your toddler? Anyway, if we consider that a nude picture of a children is ok, who would be harmed if a pedophile use it to masturbate?

Let’s bring this further. Let’s suppose that all pictures of naked children are banned. Now, the pedophile is going to use pictures of children in, say, bathsuit. Are we going to ban all pictures of children in bathsuit? And then all pictures of children, even fully clothed? It might seem ridiculous, but actually it’s the same. If the agreed upon norm is that something isn’t obscene nor harmful to anybody (*) (be it nude children, children in bathsuit, clothed children) the fact pedophiles could use or collect them is irrelevant.

(*)Actually, “not harmful to anybody” should be sufficient in my opinion. I don’t quite like the concept of “obscenity” which is way too subjective for my taste. But that’s another debate.

I’m quite tired with the whole “pedophile” thing which has been blown totally out of proportion. The most ordinary things become suspicious : talking to a child raise questions, teachers don’t dare to stay alone with a student, parents are turned in because they shoot their naked toddler, and people want to implant microchips in their childrens to monitor them 24/7. Soon, it will be a crime to look at a a kid because you could be a lurker, and finally having children will be forbidden because if they are born, they can be someday victim of a pedophile.

On second thought, I retract my question. Don’t want the mods to close this…

Did you read my post above, where I talked about the non-existence of a magical Get-Out-Of-Trouble-Free card?

If you did, I’m at loss to understand why you’re continuing to ask this question.

If you “…only view images from a server that can’t be prosecuted, and delete them afterwords, only keeping them on my computer long enough to view them…” then you are guilty of possession of child pornography. The crime was completed the moment you knowingly possessed - that is, viewed on your computer - the illicit images.

Since you deleted the images, the problem for the government would be one of proof. In the same way, you might ask, “If I murder my landlord, and then chop his body up into tiny pieces, then dissolve the pieces with acid, and then pour the acid mixture into the Pacific Ocean hundreds of miles from land, and then burn down the building that I did the butchering in so that no tiny trace of blood remains, what am I guilty of?”

You’re guilty of murder. The problem for the government, since you have destroyed evidence, would be one of proof.

Turning your attention back to your child porn hypothetical, it might be easier to get that vat of acid mentioned above and drop your computer into it, since even deleted files can be resurrected by forensic computer experts.

There is no loophole, no legal hack.

I don’t see what is so difficult to grasp here.

  • Rick

I second Bricker’s analysis completely.

I also imagine that asking if anyone can think of a way to circumvent US law on child porn, however innocent the intention behind the question, is about as huge a no-no as you could possibly get on this message board.

I agree, albeit belatedly Crusoe. That’s why I retracted my request. But, surely there are certain hard and fast rules that govern under what circumstances looking at and owning kiddie porn is illegal.
Doesn’t the law require a certain body of evidence before I can be brought to trial? Isn’t the existence of law a large series of indexed get-into-trouble cards, with the 9th amendment pointing out that anything not mentioned in the card index is fair game?
And, I do wonder about the getting into trouble. I’m asking how to perform an action that is immoral to most, but legal.
So, let me get some basics down:
Simply looking at child pornography is legal.
Importing, owning, distributing, or creating it is illegal.
A sketch of a hypothetical child in an erotic pose is legal.
A representation of an actual child, be it photograph, sketch, or stick figure, is illegal.
And please, distribution of information, no matter how vile, can’t be realistically compared to murder.

Apologies, robert, I somehow completely skipped your second post above.

Sometimes yes, sometimes no.

Our law derives from the common law, a concept elegantly articulated by ye famed legal scholar of old, Matthew Hale. He described the law in force in England as of two kinds: Lex Scripta, the written law, and Lex non Scripta, the unwritten Law. The latter was derived from “immemorial
usage or custom” and was as binding as an act of Parliament.

Today, the common law is certainly written down, but as a derivation of usage and custom, not as an act of legislature. Its existence is the basis for the classic “ignorance of the law is no excuse” line, since the common law prohibits those acts which by custom and tradition are presumed to be well-known as abhorrent behavior, with or without a law.

In addition, just as in Hale’s time, we have a raft of statutory law. Assault against a person is a common-law crime - failing to depreciate non-taxable income credited in previous tax years may or may not be a statutory crime, depending on what the legislature says.

Some jurisdictions in the United States are common-law jurisdictions, and some are not.

Simply looking at child pornography is not necessarily legal. If you’re looking at it, then it must have come into your vicinity. How did it get there? Were you the agent of its arrival? Did you do anything that would permit a fact-finder to infer that you exercised dominion and control over it?

In other words, if I send you, unsolicited, a pack of child porn, and you, not knowing what’s in this thick envelope, open it up and look at it, you’ve not commited a crime. But then what actions do you take? DO you destroy it, or call the police? No crime. Do you keep it? Crime. Your actions become a crime the moment you knowingly possess it. Possession can be actual or constructive. If you discover your neighbor’s stash of child porn, take several of the pages and tape them to his window while he’s away on leave, and then go back to your house to look at them through the window… you have constructively posessed the material, even though you don’t own it and it’s not on your property, and you’re merely looking at it.

My comparison was intended to highlight the difference between the completion of a crime, and the proof of the crime. The seriousness of the crime was not the issue – it was the fact that a crime is completed the moment the last of its elements are satisfied.

This brings us back to one of your first questions, in fact:

Of course. That doesn’t change the fact you’ve committed a crime, merely the possibility or likelihood that the government can convict you. What you’re asking is not whether a crime has been committed, but whether the circumstances you describe could yield enough evidence to charge or convict you. If you stole a purse from an unlocked desk on the 90th floor of the World Trade Center’s Tower II on September 11th at 8:30 AM, then you are unlikely to be convicted. The witnesses and physical evidence that might otherwise convict you are forever gone. It doesn’t mean you didn’t commit the crime, though - just that there is no reasonable possibility of conviction.

  • Rick

Didn’t a case like this happen in Tennessee 10-12 years ago? I seem to remember something like that. A couple owned an adult BBS (Rusty and Edy’s?) and some postal inspectors sent them child porn and arrested them as soon as they opened it. Or am confusing two different cases?