Here's a proposal. Mere possession should be legal, as Falkvinge argues. What should be illegal is purchasing child porn.
You might reply that it might be difficult to prove that money changed hands, particularly in this brave new Bitcoin world. Fine. Let's say that possession of images that are known to have been sold to anyone at any time constitutes prima facie circumstantial evidence that the person possessing the images paid for them.
Another objection might be that this law might not suffice for catching cabals of child pornographers who create and share images, but without money changing hands. Fine -- let's generalize the criterion to include any exchange of value, including in-kind exchanges. So trading images without monetary payment would still be illegal. (Of course, creating the images would remain highly illegal.)
The outcome would be that the provenance of the image would matter. Possessing an image taken by oneself, or by a friend, possibly by the subject -- all these would be legal, so long as no other crime was committed in the creation of the image or in obtaining it. But downloading material that was being circulated on the Net would still be very dangerous -- the probability of picking up an image that someone had paid for (or bartered for) sometime would soon approach 100%.
Let's call such images "tainted images". The provision that possession of a tainted image constitutes prima facie (i.e., rebuttable) evidence is important. It means that if you visit a Web site that pops up images of child porn, you haven't thereby committed a crime, so long as forensic examination of your computer supports your contention that this was accidental and not part of a pattern of behavior (e.g. there are only a couple of such images and they're only in your browser cache). Well, IANAL and I probably don't know exactly how the law should be phrased, but I think it should be along these lines.
> let's generalize the criterion to include any exchange of value, including in-kind exchanges
> Possessing an image taken by oneself, or by a friend, possibly by the subject -- all these would be legal
If you're a prosecutor and you can't find anything in an average teenage text-exchange that constitues a quid-pro-quo ("I'll show you mine if you show me yours"), you simply aren't fit to do your job. And then we're back to square zero.
How about this: it's an indisputable fact that exchanging bits online (with the copyright holder's permission, of course) has no victims, don't make it illegal. Producing child pornography very much has victims, and should be illegal with the full force of the law. Managing money originating from illegal activities is also illegal, so paying for the production, or acting as any kind of middleman, would be too.
If you're a prosecutor and you can't find anything in an average teenage text-exchange that constitues a quid-pro-quo ("I'll show you mine if you show me yours"), you simply aren't fit to do your job.
Hmm, yeah, good point. Looks like there needs to be a specific exception for sending an image of oneself, or receiving an image directly from the subject of the image, or, in the case of an image with multiple subjects, sharing the image with the other subject(s).
I like this, actually. It would clarify that there is a huge difference between sending a photo of oneself to one's lover, and sending a photo of a victim to a fellow child pornographer. Also, I like that a photo with more than one person in it could not be shared with anyone who was not in the photo.
I recall a case where a girl sexted her boyfriend, and the boyfriend's kid brother found the images and circulated them on the Net. In this case the kid brother is the one who would wind up in trouble, and I think that's the right outcome. (I'm not saying he should be on the sex offender registry, but he did commit a serious crime and needs to be made aware of that.)
As for your proposal -- I think that was the status quo before any of these possession laws were passed. I think it was felt that that structure did not give law enforcement sufficient leverage. Criminalizing possession allows prosecutors to pressure consumers of child porn into naming their suppliers, so that investigations can find the people actually making the stuff. It also attempts to stem the flow of money to these people. I have considerable sympathy with these purposes; but I also agree with Falkvinge that criminalizing mere possession is intolerable on free speech grounds.
So I'm trying to find a solution that gives law enforcement at least some of the help they want (and that many people agree they should have) while not criminalizing mere possession.
Because, as TFA points out, it's very hard to distinguish the kinds of sharing. Sure, if you're seeding CP, that's clear cut, but sending erotic pictures to your girl/boyfriend is sharing too, and it's illegal if you're a minor.
Sexual relationships for minors is also illegal in most jurisdictions. Why do you need to allow minors to send erotic images of themselves when they're not allowed by law to engage in physical sexual activity?
Firstly, that's not exactly true. For example, the age of consent in 30 of the US states is 16 (as it is in many other countries), so many minors are in fact allowed to have sex (even with adults!) but still prohibited from sharing erotic pictures of themselves.
Secondly, that argument poses a false dilemma; the other option would be to change both laws.
Re the false dilemma claim, I didn't present it as an only option; changing both laws is, like you say, consistent and was in mind when I made the argument I did.
Whilst it would be consistent to change both laws that doesn't make it any the less inconsistent to specifically alter your laws to allow for relay of erotic images for those considered to be under the age of sexual maturity. Or do you disagree?
Only five countries in the world have the age of majority at 16. The vast majority set it at 18 or older. From a cursory look at the lists, most countries set their age of consent lower than their age of majority.
Whilst it would be consistent to change both laws that doesn't make it any the less inconsistent to specifically alter your laws to allow for relay of erotic images for those considered to be under the age of sexual maturity. Or do you disagree?
I think your framing of the question is misleading. Laws don't actually allow or disallow anything; they create incentives do perform certain behaviors. Since law or no law, kids will send pictures of themselves, I don't see exactly who are we helping by branding them as criminals.
Furthermore, I find the very idea of criminalizing such behavior to be obscene, and an insult to free speech.
>Laws don't actually allow or disallow anything; they create incentives do perform certain behaviors. //
That's just being linguistically obtuse. One can still do something that is not "allowed" by the law.
In your terms though the law is "disincentivizing" the relay of erotic images between minors. Why? Well I'd posit that maturer members of the community see that having naked sexually posed images of oneself available online is not especially helpful to the individual and may lead to negative attention, bullying, abuse and such. Making such actions illegal is saying that they are outside of the behaviour expected as morally normative.
>Since law or no law, kids will send pictures of themselves //
This is completely specious reasoning. Presumably then you're for anarchy as 'people break the law therefore it's wrong to have a law'. Great. But that doesn't speak to how to modify the law sensibly which is the locus of discussion.
>I find the very idea of criminalizing such behavior to be obscene //
This just seems like overly emotional speech; as if it's supposed to take the place of reasoned argument. Like "oh you find it obscene, now we must renormalise the societies laws to your personal preference".
Aside:
>The vast majority set [the age of majority] at 18 or older. //
I was quite surprised to find this. It's seem really strange to me not to treat a person over 16 as an adult. In my country they can leave home, vote, get married, have consensual sex, go to war, drink alcohol (with conditions), get tried in court as an adult, make medical consent decisions ... just not be called an adult, weird.
>"having naked sexually posed images of oneself available online is not especially helpful to the individual and may lead to negative attention, bullying, abuse and such. Making such actions illegal is saying that they are outside of the behaviour expected as morally normative."
So, behaving in an abnormal fashion that others label immoral... resulting in people targeting that person with abusive bullying...
Would this also reply to things like coming out of the closet as a homosexual, being a vegetarian, a pacifist, a male cheerleader, etc?
After all, we can't have children being bullied for being different, so we should criminalize it, or barring that, criminalize expressing that difference.
> Since law or no law, kids will send pictures of themselves, I don't see exactly who are we helping by branding them as criminals.
Doesn't this line of logic extend to any law that gets broken on a regular basis, which includes rape, murder.. basically all laws?
I've no idea if the law is effective at putting kids off taking pictures of themselves, but the fact that it isn't 100% effective doesn't mean it is 0%.
That's kind of one of the three legs of the article, that it shouldn't be rape for two 17 year olds to have sex and similarly it should not be a sexual crime for them to send each other pictures of themselves. Both of these "crimes" are clearly not the targets of their respective laws, so why are we creating "sex offenders" out of these people?
> Sexual relationships for minors is also illegal in most jurisdictions. Why do you need to allow minors to send erotic images of themselves when they're not allowed by law to engage in physical sexual activity?
In Scotland, 16 year olds can legally get married (without their parents' consent), and thus have a state-approved sexual relationship. They can perfectly legally take photos of themselves having sex, but the moment they show these photos to anyone else, they are evil child pornographers who must be punished.
>Why focus on purchase, when sharing is just as bad as far as incentivizing people producing new material to satisfy demand?
Huh? Sharing increases supply and thus reduces demand. The more people are sharing existing child porn, the less profit there is to be made in producing new material.
>a) the producers aren't necessarily driven by a profit motive
Sure, but I wasn't thinking just material profit; any kind of reputation or warm fuzzies or whatever they get from distributing would be diminished if there was a lot of it already out there.
>b) it's not like they spend a lot on sets and crew and equipment, so 'break-even' isn't even an issue. They'd be taking that trip to Thailand anyway.
Interesting thought. I have to admit I have basically no idea what motivates child porn producers/distributors, I just assume they must be gaining something from it. Otherwise, even assuming you did take the pictures/videos, why distribute them?
>c) Porn customers value novelty, so there's pretty much always demand for new material, whether or not there's a viable business model.
Not the impression I've got; I remember an interview with a "normal" porn producer where he said that 1) there is nothing new or original in (mainstream) porn; every single shot you can take has been done thousands of time before and 2) the widespread availability of free porn on the internet was driving a lot of porn producers out of business or at least into more specialized niches.
Why not criminalise only selling? If you criminalise buying, less people will buy it, therefore the sellers will be less visible. And you do want to catch the sellers, not the buyers.
I'm pretty sure peer pressure alone can regulate against people looking at child porn, no need to involve the police in it.
I forget where I read it but it was something along the line that penalizing the buyers of prostitution has a larger impact than penalizing the prostitutes themselves. By killing demand you end up getting rid of the supply.
You might reply that it might be difficult to prove that money changed hands, particularly in this brave new Bitcoin world. Fine. Let's say that possession of images that are known to have been sold to anyone at any time constitutes prima facie circumstantial evidence that the person possessing the images paid for them.
Another objection might be that this law might not suffice for catching cabals of child pornographers who create and share images, but without money changing hands. Fine -- let's generalize the criterion to include any exchange of value, including in-kind exchanges. So trading images without monetary payment would still be illegal. (Of course, creating the images would remain highly illegal.)
The outcome would be that the provenance of the image would matter. Possessing an image taken by oneself, or by a friend, possibly by the subject -- all these would be legal, so long as no other crime was committed in the creation of the image or in obtaining it. But downloading material that was being circulated on the Net would still be very dangerous -- the probability of picking up an image that someone had paid for (or bartered for) sometime would soon approach 100%.
Let's call such images "tainted images". The provision that possession of a tainted image constitutes prima facie (i.e., rebuttable) evidence is important. It means that if you visit a Web site that pops up images of child porn, you haven't thereby committed a crime, so long as forensic examination of your computer supports your contention that this was accidental and not part of a pattern of behavior (e.g. there are only a couple of such images and they're only in your browser cache). Well, IANAL and I probably don't know exactly how the law should be phrased, but I think it should be along these lines.