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July 22, 2016

"Possession, Child Pornography and Proportionality: Criminal Liability for Aggregate Harm Offenses"

The title of this post is the headline of this notable new article authored by Anthony Dillof and now available via SSRN. Here is the abstract:

Federal prosecution of individuals for possessing child pornography has risen steadily and dramatically over the last twenty years.  As the number of prosecutions has increased, so have the penalties.  Today a typical defendant charged with possessing child pornography can expect a seven-year prison sentence.  The article considers whether such sentences are just, fair and proportionate.  To answer this question, the article adopts a retributivist perspective on punishment. Retributivism, in turn, requires evaluating the wrongfulness of the conduct to be punished.

The article argues that while the possession of child pornography by a large group of persons in aggregate creates significant social harm — for example, a robust market for the production of child pornography — individual acts of possession, considered at the margin, have only a trivial impact.  This raises a serious problem of disproportionality in punishment for retributivists.  The article attempts to solve this problem by developing a theory of aggregate harm offenses.  According to this theory, even acts that have little marginal impact may constitute serious moral wrongs insofar as they violate the principle of rule consequentialism.  Rule consequentialism requires acting pursuant to a rule with desirable social consequences.  The article develops a rationale for rule consequentialism and explores how rule consequentialist norms may be used to justify and explain not only child pornography possession laws, but also a broad group of superficially unrelated criminal offenses.

July 22, 2016 at 09:04 AM | Permalink


Never mind the seven year sentence, what about the life long shame and punishment on the registry?

By all means, go after the producers of CP, prosecute them to the fullest extent of the law, they are the cause of the market for CP. But those who unknowingly come across CP on the internet are certainly not as culpable as those who produce or buy it.

Sentences are not just, fair or proportionate and the exsistence of the registry is the most shameful injustice of them all!

Posted by: kat | Jul 22, 2016 10:41:14 AM

Pretty sure it's the consumer who drives the market. Your comments suggest you think that there are producers and unwitting acquirers, but no active seekers. Would you like to know the percentage of child porngraphy defendants who "unknowingly come across" child pornography on the web? It's zero.

The guideline is out of control high for possessors, and should be reformed. Just not for your reasons.

Posted by: USPO | Jul 22, 2016 11:58:47 AM

It's impossible to know, but isn't most of the CP out there quite old stuff, the same "series" recurring in case after case? This isn't the typical market--there are few producers, rarely is anyone paying for the material. There isn't much market in the U.S. for new material, which is traditionally what a market-type justification for punishment is trying to address. There is, instead, re-circulation of the same material. That's the vast majority of cases, at least from the public case materials I've read. I wish that analyses of CP, and justifications for punishment, would be more realistic about how this is, and isn't, like a market. We shouldn't justify punishing possessors so severely on the theory that they fuel a market for new instances of abuse.

And I agree USPO, the guidelines for possessors are insane.

Posted by: jsnsdf | Jul 22, 2016 12:09:08 PM

Like all advances in technology, the internet has brought both good and evil. Easy access to child pornography is certainly one of those evils.

Posted by: Michael R. Levine | Jul 22, 2016 12:36:40 PM

"Pretty sure it's the consumer who drives the market."

Absolutely sure you are wrong about that. There is simply no evidence that most child porn is created for monetary reason anymore. For one, trying to sell child porn is certainly going to lead to an arrest as police follow the financial trail. Second, the modern technology behind child porn distribution doesn't lend itself to commercial transactions. Peer to peer technology such as Limewire or Bittorrent doesn't have ANY commercial component and other means such as Tor (see the Playpen bust) don't lend themselves to commercial transaction readily because the only thing that can be used is Bitcoin.

The idea that there is a significant financial market for child pornography is an FBI fantasy.

Posted by: Daniel | Jul 22, 2016 1:15:52 PM

The paper does a good job of debunking the "market for CP" pseudo-economic analysis.

Posted by: Fat Bastard | Jul 22, 2016 7:51:46 PM

To the extent that my use of the word "market" was taken as pertaining only to financial transactions, I apologize. Demand drives distribution. Sometimes the demand is a government fiction.

On the other hand, there are still paid subscription sites operating on the darkweb, so there is still a traditional "market" element as well.

Posted by: USPO | Jul 22, 2016 9:13:03 PM

Yeah I agree with the people above that there is no economic market, that was 30 years ago not today.

The paper I want to see is the one that compares (1) child porn possession with (2) being a member of a hate group or advocating (although not actually doing) terrorist acts. The main difference between 1 and 2 is that in US society the violent right-wing is not so dangerous. Whereas in Europe, they are not so pampered and there is more of a threat from these disruptive groups so their speech is also banned. This paper is right that the harm is an aggregate harm but I found it odd that it lists four or five analogies for child porn possession and it misses the best one. Does anyone agree/disagree?

Posted by: sexy | Jul 23, 2016 3:39:23 AM

"Would you like to know the number of child pornography defendants who "unknowingly come across" child pornography on the web? It's zero."

Absolutely sure you're wrong about this.

The U.S. Sentencing Commission recently changed their amendment wording to include "unknowingly downloaded" because it does happen, too frequently I might add.

While consumers of CP drive the market, producers of CP create what's in the market.

Posted by: kat | Jul 23, 2016 12:47:31 PM

If theres a "market" for CP then there is also a "market" for terrorist acts driven by supporters of terrorism. But is there?

Posted by: sexy | Jul 23, 2016 12:55:36 PM

The aggregate harm analysis misses the fact that possessors often do not intend harm, are in fact trying to minimize harm by not having contact offenses, and are arguably mentally ill rather than greedy or anti-social.

Posted by: Rory Fleming | Jul 23, 2016 4:19:01 PM

@Rory They are anti-social. Theres no evidence for the kind of substitution effect you describe. They form communities, they advocate evil behavior & its very much like a terrorist cell. If they didnt sympathize with the evil guys, they wouldnt have these images at all.

Posted by: sexy | Jul 23, 2016 4:24:54 PM

Oh my, I guess doctors and people that study the anatomy are criminals - even though they have not done harm to anyone. What about our administration that sits in Congress watching porn on their computers instead of reading laws that they pass?

Posted by: LC in Texas | Jul 23, 2016 5:56:06 PM


"Yeah I agree with the people above that there is no economic market, that was 30 years ago not today. "

I don't understand the rest of your comment, then. If there is no significant economic market for child porn then the main premise of the article falls apart. For without an economic market sentencing cannot result in market disruption and without market disruption there is no consequentialist justification for sentencing.

Posted by: Daniel | Jul 23, 2016 6:21:59 PM

@LC What legitimate purpose would be served by collecting hundreds of disgusting CP images?

@Daniel I haven't read this entire article but I didn't think the main point is accurately summarized by saying the harm is from a market. It just says the harm is aggregative and market harms are one kind of aggregative harm, but not the only one. Isn't that right? For example, it also mentions harms from perception.

Posted by: sexy | Jul 23, 2016 7:50:23 PM

And BTW I think harms from perception can be quite real, and the reason we often don't acknowledge them in the US is because we suffer from free-speech extremism. The case of CP is so dangerous that we are forced to do something but it can't be categorized as suppressing speech to avoid offending the civil libertarian zealots

Posted by: sexy | Jul 23, 2016 8:04:33 PM

You are confused. The amendment is to address the issue of default SHARING of child porn vis a vis use of P2P networks: http://www.ussc.gov/sites/default/files/pdf/amendment-process/reader-friendly-amendments/20160428_RF.pdf

Posted by: USPO | Jul 23, 2016 8:22:21 PM


From what I've read, alot of the CP that is "unknowingly" downloaded seems to be by people on free P2P websites like Limewire who either didn't know how or forgot to shut off some sort of "share". These are for the most part knuckleheads that stumbled upon more than what they were looking for and unknowingly got more than they bargained for. None of these folks belong in prison or on a registry as the likely-hood of them repeating the act is zero and they never were a danger to society.

Posted by: kat | Jul 24, 2016 10:36:10 AM

I'm a little confused too. I read your link on the USSC's proposed amendments. Most P2P CP collectors use the open file sharing option. Is that option defined as default sharing?

Posted by: tommyc | Jul 24, 2016 10:47:21 AM


The problem doesn't lie with the articles idea of social harms, the problem lies with the difficulty of aggregating them in this context. This is the problem addressed in Paroline (two years?) ago which rejected the theory outlined in this paper. The advantage of talking about economic markets is that it is easy to quantity harms. Once the monetary aspects is removed, upon what basis is there to attribute a certain dollar amount to the criminal either as a civil remedy or as a sentencing enhancement? This is the way that child pornography is distinctly different than drug dealing--with drug dealing one can look to profit as a metric but that doesn't work when there is no economic market.

So that's how the market discussion undermines the premise of the article. Take away markets then aggregating harms become indeterminate.

Posted by: Daniel | Jul 24, 2016 12:33:01 PM

@kat, tommyc

Let me see if I can clarify things. There are two separate crimes in this instance, possession and distribution. The proposed changes only apply to distribution. Whether or not a person "unknowingly" downloaded images is not addressed by the proposed changes, only whether a person unknowingly shared. The reason for this change is because people were claiming that even though they were guilty of downloading images they were not guilty of sharing them. Why? Because the default settings on P2P programs is to share so they never took any affirmative action to share. Some courts accepted this line of argument and other rejected it, claiming that the intention to share could be imputed from the use of the program itself.

My own take on the amendments in this area is to be thoroughly nonplussed. The amendments are word games that frankly are shameful for grown adults to engage in. I can only believe they will be taken by the courts that way who will respond with more words game of their own.

Posted by: Daniel | Jul 24, 2016 12:56:46 PM

Daniel's got it. You can "unknowingly" distribute if there is a default share setting. You cannot, ever, unknowingly download something through these systems. I suppose you could get rooked by choosing to download something that you believed was one thing, and then discovering that it was CP. This would require the uploader to name the file in a misleading way. Then, you would have to keep that file. Then, you would have to unknowingly download more( i.e. keep getting "fooled"). Because no person has ever been prosecuted for one image on their computer.

I stand by my 27 years of experience that nobody has ever been prosecuted for CP possession who, in actual fact, UNKNOWINGLY downloaded and kept it.

Here's a bottom line: At a time when so many of us think the CP guidelines are too high, the net effect of this round of amendments will be slightly lower guidelines for some and higher guidelines for others. So no reform. But also, greater rejection of these guidelines by the Courts.

Posted by: USPO | Jul 24, 2016 3:46:09 PM

@ Daniel & USPO

I only wish that the passing of time would not have to play such a dominate role in adopting reasonableness in our courts sentencing schemes...recognizing that fear has no place in a constitution such as ours.

Posted by: tommyc | Jul 24, 2016 5:29:38 PM

I think the "misleading of file names" is a good point. Can one knowingly download what they think is strictly adult porn only to find that there is CP in the mix?
It is all a word game, the Sentencing Commission takes forever to review and rewrite but in the end, very little changes.

Posted by: kat | Jul 25, 2016 9:59:46 AM

The vast majority of CP arrests have to do with peer to peer (P2P) file-sharing. When someone searches on P2P software for let's say the word "TEEN" s/he is flooded with FREE TEEN images to download; However, a person does not know if the pictures are of what they asked. They could contain unbeknownst to the downloader child rape images. The downloader also doesn't know where the images are coming from; they could be coming from law enforcement or government (Pentagon) computers themselves. For example; all the images people downloaded from the FBI site "playpen" also made it onto P2P software because that's what some people do share their images like trading cards. From what I have read they pose no harm but just enjoy collecting images for whatever reason never having harmed a child.

P2P downloaders do not know what the file they downloaded until the person opens the file and once they do, it is too late. Law enforcement software in real time has already spotted that downloaded CP file masquerading as a TEEN file located on the suspects HIDDEN file on their hard drive(hidden by P2P software design). Law enforcement computer forensic units use the same P2P tools used to distribute this material only modified for law enforcement purpose use in identifying individual files already acknowledged by the National Center for Missing and Exploited Children (NCMEC) to be CP. Law enforcement tracks down which machines are sharing and downloads the files where they are tagged for later retrieval. The data is identified by unique markers called “hash values.”

The process. Law enforcement spots a known P2P CP file, and they download it onto their computer where it is TAGGED. It is then re-uploaded to the targets computer for retrieval after a search warrant is issued. Law enforcement states they do it to their advantage, and It’s not much different than buying controlled drugs where the undercover (agent) will go to someone on the street corner and purchase heroin or marijuana; However there is a big difference because you meet NO one, and you buy NOTHING. No person is meet, no MONEY switches hands when downloading P2P files, and that is a BIG difference.

What the government is doing is comparable to flooding a neighborhood with heroin in the hope of snaring an assortment of low-level drug users. It seems as though it is OK for law enforcement to share CP images because Law enforcement does not desire to eliminate CP. Just as the military does not want to make world peace and the social services do not desire to eradicate poverty. If these agencies were that successful THEY would no longer be needed. In a recent CP operation "playpen" the FBI allowed over NINE THOUSAND images to be shared, and Judges are just now starting to see the real issue, not the one made up by prosecutors to WIN votes.

NCMEC via their re-victimization model has turned a declining social problem and turned it into a national epidemic. Re-victimization is what the CHILD CHARITIES and LAWYERS fabricate when they create a client by saying the person in the image is re-victimized without any research other than what, "everybody knows" each time it is viewed, and that is wrong on so many levels. With the advent of Microsoft Photo DNA, hashtags and hash values, and algorithms CP could be spotted and eliminated but it's not it left to law enforcement for prosecution. I find it incredulous that today with the various techniques for finding this CP material why it is not being used to eliminate it.

Posted by: FrankG | Sep 1, 2016 7:21:09 AM

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