SCOTUS Affirms Legality of CP Explosion

(SCOTUS is the acronym for the Supreme Court Of The United States.)

In United States v. Williams, the United States Supreme Court has affirmed the legality of speech advocating for the legalization of child pornography, although that wasn’t the constitutional question in the case. The law in question is part of the the PROTECT act. Justice Scalia first takes a humorous stab at the naming of such laws in defining the section of law in question.

After our decision in Free Speech Coalition, Congress went back to the drawing board and produced legislation with the unlikely title of the Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003, 117 Stat. 650. We shall refer to it as the Act. Section 503 of the Act amended 18 U. S. C. §2252A to add a new pandering and solicitation provision, relevant portions of which now read as follows:
“(a) Any person who—
“(3) knowingly—
. . . . .
“(B) advertises, promotes, presents, distributes, or solicits through the mails, or in interstate or foreign commerce by any means, including by computer, any material or purported material in a manner that reflects the belief, or that is intended to cause another to believe, that the material or purported material is, or contains— “(i) an obscene visual depiction of a minor engaging in sexually explicit conduct; or “(ii) a visual depiction of an actual minor engaging in sexually explicit conduct,
. . . . .
“shall be punished as provided in subsection (b).” §2252A(a)(3)(B) (2000 ed., Supp. V).

In layman’s terms, it appears that the law prohibits speech offering (or requesting) child pornography, even if the offerer (or the requested party) doesn’t actually have child pornography to provide.

The opinion clarifies things with this example.

Thus, an Internet user who solicits child pornography from an undercover agent violates the statute, even if the officer possesses no child pornography. Likewise, a person who advertises virtual child pornography as depicting actual children also falls within the reach of the statute.

(Regarding virtual child pornography, I think that in the United States, SCOTUS has established that virtual child pornography is illegal only if obscene, the same criteria applied to adult pornography.)

While the court upheld the law, Justice Scalia specifically notes that

As we have discussed earlier, however, the term “promotes” does not refer to abstract advocacy, such as the statement “I believe that child pornography should be legal” or even “I encourage you to obtain child pornography.” It refers to the recommendation of a particular piece of purported child pornography with the intent of initiating a transfer.

So there it is, straight from Supreme Court Justice Antonin Scalia, that blogs and speech advocating changes to child pornography laws or even advocating the legalization of child pornography are constitutionally protected speech, as such speech should be.

My last comment about this case goes back to that “unlikely title”. Talk about hyperbole. The Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003. The act is now over four years old and to date, if we are to believe what we hear in the media, it would appear the act hasn’t made any impact at all on the so called problem. FBI director Robert Mueller says so himself.

U.S. law enforcement is losing the battle to combat child pornography and child exploitation on the Internet, FBI Director Robert Mueller said today during a House Judiciary Committee hearing.

Did anyone really believe that the PROTECT act would make more than a token impact? Does anyone really believe that any constitutional law will eliminate child pornography? Do they really believe it?

Is Child Porn Ubiquitous?

My reading of child porn news reports seems endless. Sometimes I think I’m one of the few men in the world not collecting child porn. That feeling was reinforced today when I read this story from the United Kingdom.

An expert hired to set up the Government’s £10 million database of violent sex offenders has been jailed for almost three years for distributing child pornography.

Vincent Barron, 50, a senior probation service manager, was seconded to the Home Office ViSOR project because of his expert knowledge of offenders. He helped set up a national computer database containing the details and photos of more than 60,000 of the most dangerous criminals, including 25,000 registered sex offenders.

At Durham Crown Court he was jailed for 33 months after admitting 21 charges of distributing indecent images and one charge of possessing 3,800 indecent images.

More details are here and here and here.

Every day I hear of police or clergy or teachers or coaches or lawyers arrested or sentenced on child porn charges. And now a man with “expert knowledge of offenders” who was working on a government database of offenders turns out to be an offender himself. How fitting. I guess Mr. Barron will soon be listed in the very database he helped create.

The Journal story is a good example of lies, myths, doublespeak, and shoddy journalism in action. It quotes the judge in Barron’s case as saying “Each image represents a child being often horribly sexually abused” yet the same article states that only two of the 3,800 images were of the most serious (category 5 - ’sadism or bestiality’) while “the majority of the images – 2,798 – were of the least serious type” (category 1 - ‘erotic poses’).

Incidents like this make me suspicious of other self-proclaimed child porn expects such as Ernie Allen of NCMEC’s , John Walsh of America’s Most Wanted, and Andrew Vachss, author of novels featuring themes of sexually abused children. These three men share a willingness to perpetuate lies, myths, doublespeak, and shoddy journalism about child porn. I have long-term plans to write more about each of these men in the future.

Interesting Quotes

“Child porn prosecutions have become the modern-day equivalent to McCarthyism, the Spanish Inquisition, or the Salem witch trials. Once accused, it seems that there’s no defense that can save you, not even innocence.” -Me, in a comment I left to Megan’s Flaw.

“That is a very scary statement, and exactly how the witch trials were conducted.” -The blog author’s comment back to me.

“When the possibility of child pornography consumption is raised, the court system slips into some sort of guilt-until-proven innocent trance.” -David Berlind, an Executive Editor at ZDNet, in Beyond a shadow of a pornographic doubt, don’t rush to judgment.

Coming Soon

I feel bad that I’ve been inactive for so long. But I’ve been so busy with life and research. New posts will be coming soon. Here’s a sampler of things I’m working on now.

• The increasingly blurred line between art and child porn.
• A way of getting around the prohibition of journalists seeing child porn in order to critically evaluate whether what we’re told by the government about child porn has any basis in fact. Don’t worry, no laws will be broken.
• A friend of a friend. Or more like a friend’s brother’s friend. I’m now in an interesting predicament. Someone I’ve actually met in person two or three times has been arrested and charged and jailed, but not yet convicted of a child porn related offense. I really want to talk to this person about his situation, but I don’t know how to go about it. How could I explain to my friend, who doesn’t know I run this blog, why I want to get in touch with his brother’s friend, who’s now in jail? I’m working on it! I’m working on it!

Stay tuned.

Where is it all?

In doing research for this blog I read dozens of news stories about child porn cases each week. I routinely search Google and Technorati with variations of child + porn. Pssst! Wanna know a secret? I haven’t encountered a website that seems to seriously offer child porn for sale or for free. Not once. Notice how I said seriously. In my research have found two websites that purported to have child porn for sale. But I considered both of those sites to be virtually screaming honeypot! setup! sting!

Some of the news stories I read talk about how many websites offer child porn, or how the child porn problem is exploding. But my efforts to find any hard figures to backup these claims have hit mostly dead ends.

Then imagine my surprise at the claim made by Dr. Laura Berman in a Yahoo blog post

However, as of August 21st {2007}, I discovered five child porn Web sites that offered Visa and MasterCard as a form of payment.

She must really know how to use Google. That’s a joke. I’m sure she used Yahoo’s search engine for her research. Maybe that’s my problem, I’m Googling when I should be Yahooing!

I wonder if she knows how to sniff out a sting operation, or if she’s delving into an area far outside her field of expertise. She won’t give the URLs (to “protect the children” of course) so no one can try to verify her claim. Does she think her readers would all go running off to join those child porn websites ASAP?

Did Elton John Possess Child Porn?

If you’re not familiar with this story, you can read up on the situation at the BBC or at CNN.

“Klara and Edda belly-dancing” by Nan Goldin was seized by police from Gateshead’s Baltic Centre on 20 September, the singer’s spokesman said.

The image of two naked young girls is part of an exhibition owned by Sir Elton, which is on loan to the Baltic.

Newsflash for the BBC: Only one of the girls is naked. Is this obvious error on the part of the BBC due to shoddy journalism, or the inevitable result of the media reporting on child porn without actually being able to see the material in question?

You can look, almost, for yourself. A blog post at a strange website includes a censored version of the photograph in question. Debbie Nathan also discusses this story in her post Sex Angst Monthly Roundup. A blogger for Time Magazine writes about Elton John and the Picture Police.

Time for some questions. Can a few strategically placed white pixels turn child porn into non-child porn? Is Nan Goldin a child pornographer? Will she be prosecuted? Will Queen Elizabeth II strip “Sir” Elton John of his knighthood if he turns out to be a “sicko” or a “pervert”? (The UK media likes to refer to those involved in child porn as “sickos” or “perverts”). If Nan goes to jail over this incident, but Sir Elton doesn’t, will he write a ballad about her?

What about some even deeper questions. To settle the issue of this photo being or not being child porn, couldn’t we just ask the child who appears naked on the floor? Remember, Kenneth V. Lanning, Former Supervisory Special Agent with the FBI, tells us that “Child pornography, by itself, represents an act of sexual abuse or exploitation of a child and, by itself, does harm to that child.” If the photo is child porn, then Klara (or Edda) will have been harmed, and harmed a lot since many people have seen “Klara and Edda belly-dancing”. Conversely, if Klara (or Edda) was not harmed by the photo, then obviously the photo is not child porn. Case closed! But, Ken Lanning is an American, and this case takes place in the UK. What if Lanning’s Law isn’t universal and instead only applies in the USA? But Nan Goldin is an American, and she took the picture, so Lanning’s Law should apply! Damn this is getting confusing!

Forgive my facetiousness. Really, this whole case would be comical if it weren’t for so many people taking it seriously. Men, women, and children are dropping like proverbial flies in Darfur, while UK police are busy studying “Klara and Edda belly-dancing” to determine if it might be indecent or even child porn. I think the girls being raped in Darfur are being harmed a WHOLE LOT MORE that Klara (or Edda) will ever be harmed by “Klara and Edda belly-dancing”.

The $20 Billion Lie on YouTube

I didn’t make this version. A man from the UK, Dr. Nigel Leigh Oldfield, runs a news aggregation blog Critical Estoppel covering issues of law, criminality, mental health, and sexuality. Dr. Oldfield has a channel at YouTube, where he recently posted a video The Myth of Commercial CP - Part I. Many of the points I make in my first post, The $20 Billion Lie, are covered in Dr. Oldfield’s production.

Also on YouTube and linked on the home page of Critical Estoppel is an appearance by Dr. Oldfield on a UK news show “Newsnight.” Fair warning: Dr. Oldfield freely admits to a past conviction in the UK for possession of child porn.

It’s interesting that the host and the guest Michelle Elliot seem unable to conceive of any child porn as being anything other than a horrible abuse of a child. Maybe the host and Michelle missed this article at Popular Photography.

Do They Really Believe It?

You’re fooling yourself if you don’t believe it. You’re kidding yourself if you don’t believe it. -Styx, “Fooling Yourself (The Angry Young Man)”

Apologies to Styx for the strike-through, but after reading a recent Reuters article about the G8 Summit in Germany I knew I needed to quote this song. The lyrics needed a minor modification to make them fitting. The story reports that:

The G8 has been working with Interpol for years to combat child pornography and helped it establish the International Child Sexual Exploitation Image Database, which is intended to help police identify and rescue victims of such abuse.

They’ve been working for years, but by most accounts that problem is just getting worse, not better. Really, the very title of the story (”G8 needs private sector help to end child porn”) shows just how foolish our political leaders, law enforcement officials, and the media have become when dealing with child porn.

So now I pose the question that no politician, law officer, or journalist ever thinks to ask. Do they really think that we will ever end child porn?

I don’t think we will ever end child porn, and I suspect the current policies used to deal with child porn are having the unintended consequence of causing more and more child porn to be made. In drawing the conclusion that we cannot end child porn, I draw heavily on reading I’ve done about the failed war on drugs. The sites Drug War Facts, and LEAP, are informative.

Drugs are a physical item that must be physically moved, often across continents. Large quantities of drugs are heavy. Despite all resources poured into the drug war for many years, illegal drugs are still widely available in cities, suburbs, in rural areas, even in our prisons. We cannot even keep illegal drugs out of our prisons!

Child porn, in contrast, exists today mainly as data. Child porn can be moved from one continent to another electronically, in a matter of seconds. Child porn can be duplicated and still retain its value to its users.

I we cannot keep a physical item like drugs out of our prisons, how can we ever expect to keep a electronic data out of the hands of child porn aficionados? We can’t.

The LEAP site includes this quote about the decades long drug war.

The stated goals of current U.S.drug policy — reducing crime, drug addiction, and juvenile drug use — have not been achieved, even after nearly four decades of a policy of “war on drugs”. This policy, fueled by over a trillion of our tax dollars has had little or no effect on the levels of drug addiction among our fellow citizens, but has instead resulted in a tremendous increase in crime and in the numbers of Americans in our prisons and jails. With 4.6% of the world’s population, America today has 22.5% of the worlds prisoners. But, after all that time, after all the destroyed lives and after all the wasted resources, prohibited drugs today are cheaper, stronger, and easier to get than they were thirty-five years ago at the beginning of the so-called “war on drugs”.

The current approach to dealing with child porn makes it likely that years from now we will be saying, “after all that time, after all the destroyed lives and after all the wasted resources, child porn today is cheaper, more abusive, and easier to get than it was thirty-five years ago at the beginning of the so-called “war on child porn”.

Child porn will always used for the same reason that illegal drugs will always be used - there is a demand. And some people are always going to be willing to do whatever it takes to get access to those materials.

Unintended Consequences

One area where some success has been made is in efforts to prevent credit cards from being used to purchase child porn. In 2006 there was the formation of the Financial Coalition Against Child Pornography, covered in a NCMEC press release). There is some evidence that this effort is having success. The Reuters article includes

Germany recently smashed a child pornography ring thanks to credit card data provided by financial institutions and credit card companies.

Unfortunately, credit card fraud appears common among those buying child porn. (Big surprise there?) See Wired and the BBC for more information. Of course, making it more difficult, or risky, to use credit cards to buy child porn doesn’t appear to be making any dent at all in the availability of child porn. Judging by the typical story child porn is still Exploding.

Have any of the people battling against child porn ever stopped to consider that making it more difficult to buy existing child porn might lead to the creation of more new child porn? If someone can’t buy child porn, but still wants to get child porn, what do they do? Does anyone know? Does anyone care?

On the Internet, I have seen rumblings that the new currency for child porn is child porn itself. Specifically, new child porn. If one can’t buy it, then one must either find it, beg for it, or trade for it. I’ve seen discussions on the Internet that suggested that for someone new to begin trading with an established collector, the only option is for the newcomer to bring something new. New child porn. And how does one get new child porn? One probably makes it?

Another theme common to news accounts of child porn investigations is that the ages of the children involved are getting younger and younger and in some cases involve babies or even newborns. Rarely do those news accounts speculate why child porn involving such very young children is becoming more common. Is it that tastes are changing and child porn aficionados are developing a preference for babies? Or is it that first-time child porn producers choose babies because they know that the baby can’t tell anyone what happened, and in all likelihood, the baby will not remember what happened. It certainly avoids the Kylie (or Vicky) problem, doesn’t it?

Shoddy Journalism… and Hypocrisy

Disclaimer: I consider most television station websites to be little more than tripe.

A recent story on the website of an Omaha, Nebraska NBC affiliate, WOWT, only served to reinforce my opinion of television station websites. The story, called “Cyber Cops Uncover Child Porn Trend,” starts off with the shocking claim that “a startling new trend in child pornography has been uncovered by cyber crimes investigators.” So what is this startling new trend? Yawn… Oh, it’s the use of picture sharing sites such as Photobucket to store child porn images. Startling indeed. Yawn… The writer at WOWT would like us to believe this is somehow significant because

What concerns investigators about this latest trend they’ve uncovered in cyber crime is that it makes porn portable.

All that a suspect needs is a remote internet access device that can pull up Photobucket or other storage sites and view child pornography while taking a walk in the park.

I wonder if someone foolish enough, as three Nebraskans recently were, to store their child porn on a picture sharing site like Photobucket would have the technical skills to operate a “remote internet access device.” (What is a remote internet access device anyway? A web-enabled cell phone?) I’d think it would be easier, not to mention more secure, to just keep ones child porn collection on a laptop (though you probably shouldn’t use your work laptop) or a USB drive. Both seem quite portable.

This whole story reads like a bunch of cyber cop pabulum regurgitated by a technically illiterate television writer.

Now for the hypocrisy. Of the three Nebraskans arrested after using Photobucket to store their child porn, one is a 16-year-old child. Remember that as far as federal child porn law goes anyone under 18 years of age is considered a child. This child is being charged… yes, you guessed it… as an adult.

Mixed Messages

That these two news stories appeared on the same day makes me chuckle. From a story in the UK paper the Guardian, “Watchdog: Online Child Porn More Brutal,” we hear that

Child pornography on the Internet is becoming more brutal and graphic, and the number of images depicting violent abuse has risen fourfold since 2003, according to an Internet watchdog report published Tuesday.

The report comes from the Internet Watch Foundation, which may be a European version of the USA based NCMEC, an organization that’s been know to toss around unsubstantiated figures about child porn. (See The $20 Billion Lie)

Across the globe comes a story on the AsiaMedia site, “Magistrate clears magazine of wet T-shirt child porn charge,” where we learn that

Easy Finder magazine was acquitted yesterday of publishing child pornography when it ran pictures of a young pop singer in a wet T-shirt.

Kwun Tong Magistrate Gary Lam Kar-yan conceded that one of the four pictures of Renee Lee Wan, published last June when she was 14, did suggest the outline and shape of her left breast and nipple.

However, he acknowledged that all parties, including her mother, her agent and her wardrobe artist, agreed the girl was wearing an “invisible” silicon self-adhesive bra, more than 1cm thick and flesh-coloured, under her white camisole.

This “nude” bra meant it was almost impossible to reveal her chest, Mr Lam said, adding that he was not convinced the pictures amounted to a sexual depiction of her breast.

Sarcasm: on - Just think of the harm this poor child would have suffered if the photo had been declared to be child porn. By finding that the photo was not in fact child porn, the magistrate has actually spared young Renee Lee Wan a lifetime of abuse. See example #1 in The Big Lie for details. - Sarcasm: off

Maybe a sensible definition of child porn (unlike this one) could help us resolve the dilemma between whether child porn is increasinly “brutal and graphic” or whether it is the outline of a 14-year-old girl’s “silicon self-adhesive bra” covered breast.