Unintentional production of child pornography

There’s a thread in the Pit right now about a school district that gave students laptops equipped with webcams that school officials could activate by remote. Given that most students probally kept the computers in their bedrooms it’s possible that the school district could end getting pictures of students in various states of undress and/or performing very private activities (like masturbation).

I want to stress that there’s no evidence that the school officials have actually done this. But such images couldbe created without any intention of making child porn. Yet photos of minors masturbate would undoubtly be considered pornographic. What kind of criminal and or civil liability could school officials face? What if was a parent doing it instead of the school?

They’re not even going to get to the issue of ‘potential/accidental CP’ because just the issues of invasion of privacy, unlawful electronic surveillance, and conspiracy to commit these things are all so blatant and egregious that the local DA won’t need to bother with anything ‘potential’.

I’m utterly aghast at this school’s actions. What the hell were they thinking?! How could any reasonably intelligent person not immediately know how incredibly illegal and lawsuit-causing this would be?! Not to mention how incredibly unethical, immoral, and just plain wrong it is!!

From the story reported, it broke because they reprimanded a student for some viewed activity, and all but admitted how they knew about it. Like they didn’t even think anyone would care!

Yeah. Read the thread on Ars Technica.
Some bozo planted the allegation that the “improper conduct” was theft of the computer. The school board website says they would only activate the camera as an antitheft measure, so someone creates an account on Ars, posts only that one message that the says that the improper conduct was theft. The school accused the student of “improper conduct” not “theft”.

Others who were students there recently said the indicator light beside the camera (MacBooks) would come on occasionally for no reason and the IT department said it was just glitches. Suspicious students took to blocking the lens.

One student on Digg suggested that he would not be surprised if the VP was just bluffing, claiming they had pictures of “improper conduct” to get a confession. But that would mean the VP was aware of the capability, whether it was used at all or not. If so, likely he was arrogant and stupid enough to not realize what sort of trouble he was bringing down with that threat.

The class-action complaint says that nowhere in the papers handed out with the computers did the schoolboard warn of the camera capability.

Taking pictures where there’s a “reasonable expectation of privacy” without consent is illegal. I suppose it’s a bit less cut and dry than the bozos in the news who plant a camera in the women’s change room - the camera is obvious and visible; but if the laptop is in a place where the student has a “reasonable expectation of privacy”, nothing short of a bold-type warning in the handout “The camera may come on” will get the school guys off. If it records audio too, then the federal wiretapping laws can come into play. In some states, too, recording ANY conversation with explicit consent of at least one party is illegal.

If it turns out they captured “questionable” photos, then that’s just icing on the cake. Simple possession is illegal. “But we’re the school board” or “the warning is buried here on page 5 in the 6-point type” won’t get them off. If they captured and kept any photos other than of theives, they got a lot of 'splaining to do.

snerk

How about a piece of tape over the camera lens?

If you mean opaque tape, yes. Don’t forget the microphone, too.

Better yet…get some kid to find out where the software resides and disable it. Better yet, ring a bell in the police station whenever the cam comes on, and send a picture of someone’s social finger back to the school when that happens.

Hee, hee. We can have fun with this.

No, they wouldn’t. A photo of a minor masturbating is just a photo of a minor masturbating. Whether it’s pornography depends (not just in a semantic sense but also in a legal one, depending on the jurisdiction) of the intent of the photographer, and how that intent is reflected in the photograph.

Good catch! I missed that.

I would think which of you is correct would depend on exactly how the law is written.

I think that child porn laws are usually expressed in terms of “photographs of minors in sexual situations”, or some such, without regard to intent (otherwise, the perpetrators could use a defense of “Well, I didn’t intend to get aroused by it”, or whatever). And it’d be hard to argue that a picture of a kid masturbating isn’t a “sexual situation”.
Meanwhile, to frame the OP’s question in a way that avoids some of the baggage with this particular case: Suppose a photographer sets up a camera in a public park, to take a set of time-lapse photos over a span of a few days (intending to watch the leaves turn color, or flowers blooming, or something similarly innocuous). A couple of horny high school students come to the park, and either don’t notice the camera or don’t care, and have sex on the grass, in a place where the camera captures them. The next day, the photographer comes and gets his camera, and has a surprise when he sees the pictures. Is he liable in any way?

Usually such laws are written sufficiently sensibly to exclude obviously non-titilating (e.g., medical) depictions of child nudity and sexual behaviour. For instance, there are many common sleep disorders which are diagnosed by having the patient attend an overnight sleep study in a hospital, during which he or she is video-recorded. Most laws would not brand the doctors running such a study child pornographers if their tapes happened record a minor patient experiencing a wet dream, or drowsily masturbating à la Edtv.

IANAL but this would be unlikely to cause any problems for the photographer as the two horny teens would likely have to have sex directly on top of the camera for it to capture proof that they’re horny teens and not horny adults.

Given all of the prosecutions over sexting, wouldn’t it be the children who are guilty of producing child pornography?

There’s a standard of reason applicable in situations like this. Is planting a hidden camera in somebody’s bedroom reasonably likely to catch pictures of that person naked and/or in sexual siutations? Most people would say yes. But suppose I manage a burger joint and put a hidden camera in my supply room to watch for break-ins. Two of my sixteen year old employees sneak in there during their break to have sex. Am I liable for making child pornography? Most reasonable people are going to agree that was not a likely result of my action.

Probably 15 years or so ago I read a column in PC Magazine (or PC Today, I forget) from the editor in which he claimed they had discovered software was being installed on new PCs which could remotely activate a mic built-into the motherboards to record conversations. He said that sometimes when you see the harddrive light randomly go on it was this software activating.

Anyway, he said they had a fix you could download and said the address was on page something of that issue. On that page it said “April Fool!” (it was the April issue), but also he made the point that this was inevitably where we could be headed.

Wasn’t there a crappy movie made with Tim Robbins playing a Bill Gates clone in which the big shocker reveal was this? (Secret remote PCs cameras)

Nah, the big reveal was that Bill Gates was secretly a psychopath who murdered college students and stole their code to create a next generation Napster.

Not if their webcams are being activated by a 3rd party without their knowledge.

Nope. A picture of an underage person in any sexual pose is still child porn. You would have to really argue absolutely no intent and never foresaw the chance that you would capture it, and also that you never viewed it. Simple possession is automatic guilty, unless you have a really really good excuse for the judge. There was a case I recall where some guy was convicted based on a video of pre-teen girls dancing in swimwear or leotards with the camera zooming into the crotchal area. It wouldn’t be obscene if not for the camerawork… The bar is pretty low.

The article linked on DrudgeReport says this:
*According to the suit, Harriton vice principal Lindy Matsko told Blake on Nov. 11 that the school thought he was “engaged in improper behavior in his home.” She allegedly cited as evidence a photograph “embedded” in his school-issued laptop.

The suit does not say if the boy’s laptop had been reported stolen, and Young said the litigation prevents him from disclosing that fact. He said the district never violated its policy of only using the remote-activation software to find missing laptops. “Infer what you want,” Young said.

The suit accuses the school of turning on Blake’s webcam while the computer was inside his Penn Valley home, allegedly violating wiretap laws and his right to privacy.

Blake Robbins told CBS3 on Friday that a school official described him in his room and mistook a piece of candy for a pill.

“She described what I was doing,” he said. “She said she thought I had pills and said she thought that I was selling drugs.”

Robbins said he was holding a Mike and Ike candy, not pills.*

Hmmmm… So they did it seems take pictures of him, or are implying that actually the pictures were left on the hard drive to weasel out of the situation. The FBI is investigating now.

As for the “camera in the park” scenario… If the camera is in a public place, and someone intrudes to make porn, I guess the question is going to be “OK it’s accidental - what did you do when you discovered it?”

A similar question was the R Kelly(?) case some years ago, where the question was when the video was made - before or after she turned 18? And was it really him in the picture? That’s why we have judges.

A camera that can be remotely activated in a bedroom - and likely was - is a different kettle of fish. Even if a 17yo minor flashed them fo his own entertainment, that’s kiddie porn. It doesn’t matter if its consent or not, if it was accidentaly or not. If you didn’t delete it the moment you found it, or report it to authorities for criminal investigation, you could be doing serious bubba time.

Which begs another question - should a school be disciplining a student for drugs, or turning what evidence they have over to the authorities? Should a school be doing what is essetially a policeman’s duty?

Should they complain if they find themselves criticised for rights violations for doing essentially police investigations with no mandate, and violating what would be due process to gather evidence in the process? How would this interfere with police investigations, and the student’s right to a fair trial (for dealing Ikes) if some of the tree of evidence came from illegally gathered photos? Would the case be tossed?

I think that’s a very reasonable analysis. I doubt it would stand up in court.

Of course, it would have to have been reported stolen before the picture was taken, for them to use that as justification for taking a picture.