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March 8, 2012

"From Peer-to-Peer Networks to Cloud Computing: How Technology Is Redefining Child Pornography Laws"

The title of this post is the title of this new article now available via SSRN by Professor Audrey Rogers. Here is the abstract:

Child pornography circulating in cyberspace has ballooned into the millions.  To punish this flood, the law must accurately delineate culpable conduct.  Technology such as peer-to-peer networks has erased the divisions among traders of child pornography, and, therefore, the differentials in punishment have lost their underpinnings.  The current sentencing controversy surrounding child pornographers is merely the tip of the iceberg of the larger need to revamp the offenses themselves.

This paper provides a framework for a normative critique of the offenses and their sentences. It suggests the law could better reflect technology by comporting with a refined harm rationale that rests on the fundamental injury to the victim’s dignity and privacy. Drawing on comparisons to diverse laws such as the Geneva Convention’s ban on photographs of prisoners of war, this paper states all traders in child pornography violate the rights of the children depicted and therefore inflict harm, albeit at different levels. Accordingly, the paper proposes three categories: producers, traders, and seekers of child pornography with base sentences varying accordingly.  Starting at the same base level, the Sentencing Commission could then propose enhancements or departures to distinguish among the traders and their individual culpability.

March 8, 2012 at 12:28 PM | Permalink

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Comments

The problem is that there is not a single scientific study that shows any evidence that physical sexual contact (let alone mere photos) between adults and minors causes any emotional or psychological harm to said child. The--admittedly few--studies that were ever done before it became illegal to do them showed either no effect or a positive effect on the child's development.

http://www.youtube.com/watch?v=cIZ9IS4qgU8

My favorite line, "Teaching them public speaking skills? When do they talk?"

How it is that "toddlers and tiaras" has not been shut down by some enterprising prosecutor is beyond me. From what I have read, men are in prison right now of a whole hell of a lot less.

Posted by: Daniel | Mar 8, 2012 3:37:23 PM

hmm if we want the amount of CP on the web and the cloud to be reduced. Maybe the feds could stop putting so much out there as bait! A study i saw once said a large majority of it was placed by the govt!

Posted by: rodsmith | Mar 8, 2012 3:38:22 PM

Any honeypot put out by government agents to entrap individuals, whether CP or detectives who get their jollies pretending to be 15-16 year old girls should be abolished immediately!

It is interesting that most of the current terrorist crimes have at their core a government agent whose testimony is as selective as the DAs want with minimal ways to get at the entire truth (Brady or no Brady).

No one has yet answered my previous question (posted twice) that if I receive an unsolicited E-mail from an unknown source and delete it without opening it and it contains CP, can I be charged with receipt but not possession of CP.

This would be a good way for the little J. Edgars (and his admirers) to eliminate their foes. My respect for Feds (most of them) is minimal.

Posted by: albeed | Mar 8, 2012 7:44:19 PM

Most of the trauma comes from the Victim Notification Program of the federal government. All defendants should file a cross claim against the federal government. The illegality provides federal price supports to criminal syndicates. And the government is subsidizing CP by the massive volume it orders. Always demand total e-discovery of prosecutor and judge computers. Refer any child porn to the FBI for investigation. Defense lawyers will never do that to avoid scaring the other side, the source of their jobs. The defendant must file for the subpoenas.

Posted by: Supremacy Claus | Mar 8, 2012 7:54:41 PM

Albeed, You would have to prove you had not opened it and deleted it. It isn't hard to prove if you have the computer forensics report. But you really need to have your own report done. Also, if they see you have several of those types of e-mails, even if not opened and they are deleted the Feds will use those to say you really wanted it, because after all, they really know your intentions.

Posted by: JS | Mar 8, 2012 8:21:34 PM

JS:

Thanks for an answer as I am not savvy computerwise, (just chemical wise).

It is sad but the behavior of politicians and LE in many areas is like the canary in the coal mine and I see more and more potential loss of liberty everyday, all in the name of citizen safety. Well, I say no thank you.

Posted by: albeed | Mar 8, 2012 10:19:43 PM

That's one thing about technology that is very taxing. Child pornography is a very serious crime.

Posted by: Louie Harper | Mar 8, 2012 10:48:46 PM

@ JS:

You have to prove that you did not open the e-mail? Guilty until proven innocent, so it would seem.

Posted by: Guy | Mar 9, 2012 1:46:55 AM

actulay in this day and age in american NON of that matters. All the govt will care about is AT ONE POINT YOU HAD IT ON YOUR COMPUTER!

That's all they need for a conviction!

Posted by: rodsmith | Mar 9, 2012 1:53:44 PM

I guess actually discussing what the professor is proposing in the article is out of the question - I haven't gotten the opportunity to read the article yet, but the abstract sounds like she is making good proposals. First, she seems to recognize what the real harm of child pronography is - the invasion of privacy aspect which adds additional harm beyond that of child molestation. Secondly, she appears to be recommending more rational sentencing baselines to disguish between levels of harm.

Of course here people are more interesting trying to claim that there is no harm from child porn or even sexual molestation to actually discuss sentencing aspects - maybe there is some other sentencing law and policy site where people actually do that.

Erika :)

Posted by: virginia | Mar 9, 2012 5:32:03 PM

Erika:

Yes, Please tell us when you find it!

Posted by: albeed | Mar 9, 2012 6:29:45 PM

i read parts of it erika! Unfortunately she lost me here!

"Drawing on comparisons to diverse laws such as the Geneva Convention’s ban on photographs of prisoners of war, this paper states all traders in child pornography violate the rights of the children depicted and therefore inflict harm, albeit at different levels. Accordingly, the paper proposes three categories: producers, traders, and seekers of child pornography with base sentences varying accordingly."

Seems kind of TWO-FACED to talk about the Geneva Convention when we are currently violating it on OH SO MANY LVL's upto and INCLUDING our little holding facility in cuba!


this is right up there with the bank robber to went into the police station to complain he'd been mugged and robbed on the way out of the bank parking lot!

Posted by: rodsmith | Mar 9, 2012 9:13:11 PM

I am a journalism student. Studies that demonstrate depiction in child pornography has no ill effect but rather a positive component to children used serial killers as the baseline "normal" individual. Since most victims never become serial killers, they're above the norm, proving the positive effect of victimization on children. Of course this assumes we can expect most people to become serial killer or worse.

Here's the standard that works: if the prosecution can prove that legally forbidden digital images could not have been copied to a disk drive unintentionally or by any other person besides the defendant, in the absence of physical evidence that proves the defendant viewed the actual images found, for sexual stimulation, the most the court can do is order the owner of the drive to destroy all illegal content suchwise that it cannot easily be recovered using undelete-type utilities.

The illegal image-file hash sums, unique for every unique computer file, shall be calculated and added to national law-enforcement file hash-sum databases. Those who have repeated problems with kiddie porn accidentally being recorded on their hard drives have the option to run a resident program that compares all image files incoming or outgoing recorded on the hardrive to a list of hash sums of known kiddie-porn files, and which then immediately wipes known-illegal images from the drive.

The alternative is loss of liberty on the next strike. Sexual preference is constitutionally protected information that cannot in a free state, among a free people, be coaxed by applied science or judicial order, and at the same time be admissible as evidence.

All defendants upon first contact must be informed that this is America. Citizens here have rights.

Established Producer-Perverts, not in it purely for the money, get a sex crime charge. Those who produce purely because of financial incentive: RICO.

Posted by: fragileswan | Mar 10, 2012 12:25:58 PM

I am a journalism student. Studies that demonstrate depiction in child pornography has no ill effect but rather a positive component to children used serial killers as the baseline "normal" individual. Since most victims never become serial killers, they're above the norm, proving the positive effect of victimization on children. Of course this assumes we can expect most people to become serial killer or worse.

Here's the standard that works: if the prosecution can prove that legally forbidden digital images could not have been copied to a disk drive unintentionally or by any other person besides the defendant, in the absence of physical evidence that proves the defendant viewed the actual images found, for sexual stimulation, the most the court can do is order the owner of the drive to destroy all illegal content suchwise that it cannot easily be recovered using undelete-type utilities.

The illegal image-file hash sums, unique for every unique computer file, shall be calculated and added to national law-enforcement file hash-sum databases. Those who have repeated problems with kiddie porn accidentally being recorded on their hard drives have the option to run a resident program that compares all image files incoming or outgoing recorded on the hardrive to a list of hash sums of known kiddie-porn files, and which then immediately wipes known-illegal images from the drive.

The alternative is loss of liberty on the next strike. Sexual preference is constitutionally protected information that cannot in a free state, among a free people, be coaxed by applied science or judicial order, and at the same time be admissible as evidence.

All defendants upon first contact must be informed that this is America. Citizens here have rights.

Established Producer-Perverts, not in it purely for the money, get a sex crime charge. Those who produce purely because of financial incentive: RICO.

Posted by: fragileswan | Mar 10, 2012 12:32:28 PM

The traffic lights in my town were ignored for many years until the Red Light Cameras were installed. The pictures of offenders followed by fines caused drivers to be much more cautious. Then the cameras started to malfunction. They photographed people driving throught the lights on yellow, they even photographed people stopped properly and they all received fines. Everyone running the yellow lights and those who were stopped properly argued they shouldn't have to pay the fines. The system for punishing offenders was broken.
Child Pornography is wrong. Nobody is arguing that it should be legal. They system to enforce the laws is broken.
Kelly :(

Posted by: Vivian in Vermont | Mar 10, 2012 2:42:28 PM

Is nobody here worried about the potentially dangerous ramifications of the author's reasoning as to why such images are inherently harmful to the victim?

The author claims that such images are inherently harmful because knowing that an act of humiliation committed upon the victim was recorded or photographed is in itself humiliating. In addition, the author claims that making those images public constitutes as a breach of privacy, citing both Geneva Convention and laws about death scenes and autopsy photographs.

If we are to follow the author's logic, then doesn't that mean that most of the "shocking" videos you see on Youtube and Liveleak are inherently harmful to the parties depicted in the videos? Doesn't that mean that every viewer of those videos, and every person who posted/reposted those videos, are causing damage to those in the videos?

I am by no means trying to defend the monsters who commit such atrocities to our children and then disseminate them on the Internet, nor am I trying to defend those who gain gratification from looking at such images. However, I am reluctant to buy the author's argument.

While I'm not a big fan of the "slippery slope" argument, I fear that such reasoning can potentially lead to a very large 1st Amendment problem. Does this mean, therefore, that online publication of murder caught on tape should be criminalized? What about citizen journalism? If I witnessed a police officer brutally beating an innocent woman, recorded it on my Iphone, and uploaded it on Youtube, does that mean that I am humiliating the woman and breaching her privacy? Help me out here.

Posted by: Doc | Mar 11, 2012 10:11:00 AM

I am a sibling of a person in jail. He was charged with one count and 4 images and received 3 years, which is ridiculous. Sitting in prison is doing nobody any good, except costing the tax payer and me money. First of all I think the Govt should work more on shutting these websites down, pull their plugs instead of waiting and watching who is on their computer in their own home looking at CP, which is horrible, but it is wide spread. Turn the person's internet off who is looking at CP, send them a letter telling why it is shut off, mandatory therapy, mandatory supervised community service, 2 year probation, anything instead of prison no therapy. Things need to change! Each person convicted has different charges and normally 300- 3,000,000 images, so our Govt makes no since.

JL

Posted by: JL | Mar 15, 2012 11:44:11 PM

I'm very concearned about the lack of proper definition of child pornography. Police siezed my computers and stated that there were no images of child pornography on my computers but that they would do a deep search of my hard drive. The first deep seach they said they have 500 images that may be child pornography. A month later they said they have 250 images that are child pornography. Another month later they said well actually we have 15 images that are child pornography. And so out of 70,000 pictures they dug up the 15 worst they could find to persent to the jury and try convict me. The thing is I am completely and venimently against child pornography!
But i have a great appreciation for beauty. All the sites that I got pictures from were simply modeling sites with no sexual contact whatsoever. Laws were clearly posted on sites and clearly marked NOT CHILD PORNOGRAPHY. Not to mention these sites are all still up and running and claim to be legitamit and legal.
I did not ever consider any of the pictures downloaded to be child pornography. It apears that Washington State defines child pornography differently then the national law does. I did not know that. I never had any intention of breaking any laws. I believe very strongly in the freedom of self expression. All the models had full parental permission and they all seemed to really enjoy what they did. I think that child pornography should be more clearly defined as sexual contact. Otherwise the authorities will inevitably trample on peoples rights to freedom of expression.

Posted by: Kaiden Evinlyle | Oct 28, 2013 3:23:30 AM

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