Pulitzer Prize winning columnist Leonard Pitts Jr. suggests in a recent column that “maybe we should legalize drugs.” I suggest maybe we should legalize child pornography.

Then there’s the collateral damage. ”When somebody gets arrested,” says Cole, ”it’s not only that person whose life is crippled. It drags down their whole family.” This, because the conviction makes it nearly impossible to get a job, go to college, even rent an apartment.

With child porn, the collateral damage also affects whole families. Increasingly, the child porn witch hunt is ensnaring the very people the anti-child porn laws are supposedly meant to protect.

If the girls are charged and convicted of child pornography violations, the plaintiffs contend, they would have a felony record and could be subjected to state Megan’s Law provisions, which would require them to register as convicted sex offenders.

What warrants such punishment? The rape of a child? No. The sexual abuse of an infant? No. How about:

The first image shows two teenage girls lying side by side in their bras. One of them is talking on a phone, while the other makes a peace sign.

In another picture, a third girl is seen just as she emerged from a shower, wrapped by a towel but with her breasts exposed.

There’s more on this case at a Wall Street journal blog post. That is what the child porn witch hunt has come to. I’m sure some hard core child porn does exist, but over-zealous police and prosecutors and lawmakers are no longer content to go after those responsible for the real abuse of children. Now children themselves are the targets.

Pitts writes more:

And for what? This ”War” has been an exercise in futility. In 1970, says Cole, about 2 percent of the population over the age of 12 had at some point or another used an illegal drug. As of 2003, he says, that number stood at 46, an increase of 2,300 percent — yet we’ve spent over a trillion dollars and imprisoned more people per capita than any country in the world in order to reduce drug use?

The laughable “war” on child porn follows the same trajectory. More police, more resources, more prosecutions, more time in prison, more sacrifices of our civil liberties, and what do we get for our efforts? A problem that is “exploding”.

How many hundreds of billions of dollars will we spend, how many hundreds of thousands of men will we imprison for decades before we realize the uncanny similarities between the “war” on drugs and the “war” on child porn? How long before we realize that when there is a demand, and when there are people (suppliers) able and willing to meet that demand, the demand will be met?

I’m Back

March 10, 2009

After a long hiatus from posting I’ll be making more frequent posts. I’m returning by quoting a paragraph from an online book by John Robin Sharpe, who is the subject of a child porn case that reached the Canadian Supreme Court. The bold text is my doing, not Sharpe’s.

The metaphor of “sending messages” is a favourite of those who advocate harsh penalties including judges. Somehow it is assumed that the intent of the message sent is identical with the meaning of the one received. But what message do harsher penalties send to those who engage or are tempted to engage in prohibited activities? It is true that some, the more timid and less aggressive potential offenders may be dissuaded. Harsher penalties are an escalation of social conflict and lead to violence, murders and more resources and “glamour” for the police. The adjustments to more restrictive laws and harsher penalties favour organized crime, corruption of our police and justice industry, and the use of weapons. We have seen this happen in the case of drugs where the police, courts and corrections, as well as the legal profession are as dependent on our drug laws as any junkie is on heroin. With high taxes we know we can create a similar situation with respect to cigarettes and smuggling. A few centuries ago during a crime hysteria much like the present one hanging was introduced by the “Reform Party” minded of the day for crimes such as theft and robbery. While some would be robbers may have been discouraged others took the logical step of eliminating witnesses to their crime. As a result murders increased. Because of a “tough on crime” attitude it was centuries, and thousands of unnecessary murders and executions later before the penalties were “softened”. Eventually juries and judges often refused to convict despite overwhelming evidence of guilt. The popular theory promoted by politicians, the media and advocate/activist groups is that harsher penalties, with a dollop of “education” will solve problems of crime. It is seen as a sign of moral weakness to acknowledge that the severity of penalties feed back into the type and nature of crimes committed.

The United States seems in the midst of a artificially constructed child porn panic designed to strip its citizens of liberties and funnel money to its law enforcement agencies. All this comes at the expense of its taxpayers, of men who look at legal adult porn featuring youthful looking women, and even of teenagers who make risque pictures with their cell phone cameras. Will child porn become the next vice on which the police, the courts, the prison system, and the legal profession become dependent?

The decades of the war on drugs, which physically exist and must be physically transported from producers to consumers, has been a disaster. Almost all child porn trade would seem to now take place in the virtual world, were it traverses the globe in seconds. We can’t keep drugs, a physical item, out of our prisons, yet people think we can keep JPEGs and MPEGs off the computers of people who want them?

The more I read about the anti-child porn efforts, the more I see similarities between the war on drugs and the war on child porn. We’re throwing more and more money at the child porn problem, characterizing teenagers and comic book collectors as child pornographers, and opening the door to government surveillance of the Internet. And what do we get for all the money, damaged lives, and curtailed liberties? We get a problem that isn’t getting any better, but is getting worse, possibly as a result of our misguided efforts to fight child porn in the first place.

Even someone who recognizes how the scope of materials considered child pornography continues to grow may find such materials repugnant. But repugnant as it may be, do we really want to have control over the production and distribution of such materials left to a criminal underworld, or would we be better off with a legal but tightly regulated marketplace for child porn and child erotica (they’re not the same thing)?

(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?

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?

The surest way to corrupt a youth is to instruct him to hold in higher esteem those who think alike than those who think differently. – Friedrich Nietzsche, The Dawn, Sec. 297

The current working definition of child porn in the USA is both absurd and hopelessly vague. I believe that any rational policy for dealing with child porn must incorporate the following principles

  1. If an activity is itself legal, then photos or video of that act, made with the consent of the participants or their legal representatives, must also be legal. One of the great absurdities in the child porn hysteria is the fact that two seventeen year olds can legally have sex with each other, yet if they setup a video camera across the room to record the ‘action’ they have just become child pornographers. Children take baths. Pictures of children taking baths should therefore be legal. See this Salon essay for examples parents being harrassed or arrested for innocent bath tub photos.
  2. If an original photo or video is itself legal, then manipulations or edits of those images must also be legal. The idea that a photo could be legal, but that an edited version of that same photo could be child porn is rediculous, but in the eyes of the government it is true.