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Child Porn Laws Aren’t As Bad As You Think. They’re Much, Much Worse.

Tuesday, September 11, 2012 8:10
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Infopolicy: My last article about the counterproductive laws on the topic of child abuse imagery has drawn quite a bit of attention, and I’m very happy about that. Its worst conceivable fate would have been to lay silenced in stigma, but people seem to have shared it far and wide.

I take one bit of criticism to heart immediately, though, and that is the counterproductivity of talking about “child pornography”. We should be talking about “child abuse imagery” or “documentation of child abuse”. As the latter term implies an inclusion of text-only material, I will use the Child Abuse Imagery (CAI) henceforth.

A common protest to my article was that prosecution of people who record evidence of child abuse, or of teenagers doing things voluntarily, “would absolutely never happen”. The arguments went along these lines:

It would be absolutely insane for the law to say this, and since the law can’t possibly be that insane, you must be wrong. Therefore, you’re an evil person for writing this opinion.

The problem is that I agree with these people: it would be absolutely insane for the law to say the examples I gave, and that the law says exactly that, so the law is indeed that insane. I understand the disbelief, so I’ll be returning to that shortly and list how it has already happened. But first, let’s take a look at what happens when you document evidence of a couple of types of very serious crimes:

  • If you film a police abuse situation to get evidence and show it to the world so the power abusers can get caught, you’re a hero to the level that your film can cause riots.
  • If you document a genocide in enough detail that your evidence can bring perpetrators to justice, you’re a worldwide hero.
  • If you film wartime killings, people will risk their lives – and sometimes die – to bring your evidence and documentation to news studios.
  • If you risk being beaten up by covertly filming a street battery and assault, you’re welcomed with open arms by the police when you hand over the evidence you produced. (I personally did this, for the record.)
  • If you film something as serious as a presidential assassination, people will watch the film over and over and over again and your name will go down in history for centuries.
  • If you film a rapist of a minor to get evidence in order to bring the sick, twisted bastard to justice, you’re the bad guy and will get a worse sentence than the rapist you attempt to bring to justice and jail.

Where is the logic here? Where is the justice? Lionel Dricot elaborates well on this.

I’d like to see people who focus on the feelings of the victims to justify jail terms for CAI possession to justify why you can possess genocide documentation, and you’re even encouraged to have it and distribute it, but that people should go to jail for CAI. Another counter-argument to the above has been that there would somehow be money in the rape evidence case, but not in the others. I can’t quite understand where this argument comes from and I’m sure Fox News, CNN, al-Jazeera, etc, would be very surprised to learn there’s no market at all for filmed evidence of violent crime and other forms of violence/killings.

These laws weren’t primarily written to help children at all, I’m afraid. That’s not their effect, either.

As I described in my last post, these laws were constructed by Christian-fundamentalist pressure groups with the intent of criminalizing normal teenage behavior, and the side effect of protecting child molesters from prosecution, under the pretext of protecting children. I find that completely unacceptable. Outrageous, actually.

Other politicians are not late in exploiting the situation. I learned from Arjen Kamphuis that the economics minister in the Netherlands tried to railroad ACTA through with the argument that it “would only be used against child abuse imagery sites”. (So, ironically, he was arguing for stronger copyright monopoly laws to combat child abuse imagery – not sure how the logic holds together, there.)

Many, when they hear of “child abuse imagery”, imagine horrible images of crying toddlers getting unspeakably abused. But that’s not what the prosecutions are about. That’s why a lot of people who are indicted of possession of CAI get dumbstruck in complete disbelief, and even more so when convicted. But since the convictions are secret, we can’t see what people are actually convicted of, but just assume they are monsters.

So I’m going to take the opportunity to present a rare exception to the secrecy.

A man working with manga comics lost his career over possession of this image: he was found guilty of possessing “child pornography”. The case went all the way to the Supreme Court, and only on appeal was this image found to not be Child Abuse Imagery.

If you’re a somewhat typical person, you’re now reacting with a OMG I’ve looked at child porn, omg omg I’m a horrible horrible person! That’s normal. We’ve been trained to think and feel that way.

Then, second thoughts set in, as you realize that there’s not even a naked and much less abused child in this… cartoon, and assuming you’re still a typical person, your thoughts and feelings probably race in this direction:

Wait a minute. This is a cartoon of a clothed child playing in the water. This is not a real child, and there is definitely no abuse going on. This is not even remotely pornographic. What sick, twisted, perverted fuck of a judge ruins a man’s life over this picture?

Unfortunately, it was not one judge, but five in a panel, and their hands were tied by the law: there was a lot of public discussion on the subject, and everybody agreed that the judges had applied the law correctly with no option to acquit. As a result, the man’s career was instantly destroyed, and his computer – complete with family photos, work, and other things you typically have on a computer – was destroyed too. This is where a normal adult’s thoughts go toward something like this:

What evil monsters write a law so twisted, perverse, and plain wrong that it forces academically schooled, decent, and respectable judges to make so obviously perverse a verdict?

…and, well, yeah, that’s pretty much the point I wanted to come to.

The evil monsters are ECPAT, by the way, which I described in my last article, the fundamentalist Christian organization that claims they care about children. Oh, and they vigorously defended the man’s conviction over this image, too, arguing about “violations of children on a conceptual level”. Even the police argued publicly against the law banning possession of child abuse imagery here, arguing – from their viewpoint – that it protects child molesters, as they are forced to hunt comics fans instead of real crime. This is similar to my argumentation in this and the previous article.

Yes, this is the same ECPAT that made it illegal for you to possess naked or sexual images of yourself from before your 18th birthday, arguing that it violates “children in general on a conceptual level”.

The man was eventually acquitted because manga images weren’t realistic enough – the eyes were too big – and not because the imagery as such wasn’t criminally culpable child pornography. The Supreme Court basically bent over backwards to acquit in a highly political verdict, seeing the nationwide attention of the case.

Oh, and I should add: before this verdict was reversed, and the image above declared explicitly legal in Sweden (and therefore the EU), you would also have been sentenced as a sex offender in Sweden for looking at the cartoon image like you just did.

Didn’t say could. Would. Merely looking at child abuse images (including cartoons) is illegal in Sweden. Yes, the Christian fundamentalist group ECPAT again.

When this court case was going on in Sweden, and particularly after the first verdict, several comics artists in Sweden started drawing 17-year-olds having sex, as realistically as possible but still in a comic fashion, and publishing them, intentionally breaking the law in sympathy with this manga translator and comics fan who had been convicted. Unfortunately, I can’t link to them, as they have not been explicitly cleared in a court of law, as that could put me on the censorship list, and I want this article to stay visible.

Yes, you read that right. In the Nordic countries, there is a secret censorship list maintained by the police that most ISPs follow about which domains you’re not allowed to visit. It’s supposed to be strictly CAI only, but has been found to be less than 1% such material, 9 out of 1047 censored domains: in reality, once leaked, it was discovered to be mostly ordinary porn with age certs and all, but also completely unrelated sites like Bonsai gardening that’s on the list of censored sites (koreabonsai.com). For more on this, see this blog post by Oscar Swartz from 2007.

When a Finnish activist published the secret censorship list to criticize this wrongdoing and abuse of power, their site was itself immediately added to the censorship list. This is consistent not with democracies, but with a completely different set of regime, that reporters who expose abuse of power are immediately silenced.

In any case, learning from that event, I choose not to link and display anything but what I know to have been cleared and I hope you understand my priorities (as well as see the meta-point I’m making).

Joe McNamee of EDRi, European Digital Rights Initiative, called the censorship list “Ineffective, counterproductive, and absurd” in a hearing in the European Parliament recently.

Ah yes, journalism. Why don’t we look a bit more at how that profession and activity is affected?

Images and videos of children getting their arms chopped of and/or with their bodies burning are ok, but not naked children. So how about a burning and naked child? Let’s see what happened last time that was published. (If you’re young, you may not remember this image, but it was deeply imprinted in the world’s psyche at the time.)

Children running down a road after having had their village bombed with napalm in the Vietnam War. The naked 9-year-old girl near center-middle had her back burned badly, after shedding her napalmed and burning clothes. This image won a Pulitzer and ended the Vietnam War. Today, it would never have been published, and the war would likely have continued for far longer. (Photo by Nick Ut; published under fair use for nonprofit commentary.) More info on Wikipedia.

This image ended a war. Today, it would never have been published. Are the laws that prevent that really okay in any way, shape, or form – laws that prevent stories like the napalming of children from being told?

This image is quite likely child pornography in Sweden today (just compare with the cartoon above…) so I need to invoke a journalistic defense in the law and state it’s being used for current-events commentary, and point at the fact that I have a journalistic license for this blog (utgivningsbevis). Don’t be too sure you can republish it if you don’t.

Moving to things that “could absolutely never happen”, according to reactions, I’d like to highlight how they have already happened in some cases. The most obvious retort has been that “Nobody would accidentally record a rape using Google Glass – they don’t even exist!”. Well, no, they don’t. That’s why I am clear that I think the re-legalization of every kind of observation and re-broadcast will need to be made in a decade, which is even in the headline. However, I still argue that the laws as they stand today are already protecting child molesters.

As for other things that “could absolutely never happen”, that’s a very strong statement. It is enough with me to present one single case where it did happen to prove that it can happen. And even if it’s rare that something happens, that doesn’t matter – even a minuscule possibility of something very bad or very good happening can change people’s behavior fundamentally. To illustrate, Europeans spend millions of euros every week on the lottery, despite the chance of winning the jackpot being something like one in ten billion.

“Nobody would get prosecuted for handing in evidence”: There was a famous case in Sweden where a mother recorded evidence of her children having been abused, by filming them playing, documenting what would have been much too advanced sexual play for that age, handed it to the police, and promptly was arrested for possession of CAI. In the meantime, Social Services gave the father single custody of their children, and banned her from seeing them. She was ultimately acquitted from the criminal charges, but Social Services didn’t change their verdict; she’s still banned from seeing her children ever again. I think that only the most heartless of bureaucrats would call such a fate an “acquittal”.

“Nobody would get prosecuted for handing in evidence”, again: In Spain, prosecution of child molesters grinded to a halt as the local police said outright that people couldn’t legally submit evidence of the crime.

Seeing these cases, would you dare interfere? Would you really risk that your children were separated from their parent over your trying to good? I’d argue that most people wouldn’t, and that the current laws therefore protects child molesters.

“Nobody would ever get prosecuted for having comics”: Well, see above.

“No teenager would ever get prosecuted for having photos of themselves”: This has happened many, many times.

Christian von der Weth has an additional writeup about the toxicity of “possession” as such, when applied to computers – most users have no idea about what files they have on their computer, and it is trivially easy for a webpage to plant images on a computer. (He demonstrates this by planting an image of a cute dog.) Jake Appelbaum makes the same observation.

Reactions to the article

Normally, I have a rather strict comment policy here, about “no rude comments“. This time, I chose to keep the “I’m going to kill you for having that opinion” comments, to highlight the contrast (not to mention the fact that the hate comments are drowned out by constructive discussion, for the first time ever on this subject).

To be honest, I don’t think I’ve ever read such a nuanced, thoughtful discussion on this subject as in the threads that the article started. I’m very happy to see that people are daring to start clean up this toxic sludge and attempt to make sense of our laws. For examples, look at the Slashdot thread as well as the thread on Hacker News. It’s not just the traditional geek forums, either: Mainstream press such as Business Insider also holds a generally supportive comment field.

The one exception came from the German Piratenpartei, whose leadership quickly sent out a press release distancing themselves from me as a person. That (the distancing) predictably became a story in itself in German press, the exact content of the PPDE press release, rather than the contents and argumentation of my article.

Ironically enough, this attempt from the PPDE leadership to prevent a controversy by strongly distancing from me as a person seems to have overshot its target and instead created a controversy within the German PP – one example in this blog post, several more on Twitter. It is not possible for me abroad to determine the scale and scope of this, but I wanted to highlight the full picture. In any case, I’m sad to see the conflict but happy to see the subject being discussed: this is a subject that all PPs must be able to talk about.

(Other PPs have been calmer and just stated the plain truth, that I posted my article as an attempt to spark a debate, and that it is no policy of any party. Easy enough. Those who wanted to could also have added that it is official policy of at least one journalist’s union, which is a good response to any reporter.)

The Piratenpartei aside, I don’t think I’ve ever seen that kind of massive positive feedback for that kind of neckrisking statement, and I want to thank everybody for that. We all risk our necks every day in fighting for what we believe is right, and I respect each and every one who does.

There’s also all of the silent support, of course. I’ve gotten a lot of support under the table – including from members of the Piratenpartei who want to take the edge off the reaction of their leadership (thanks!), and quite visibly in the numbers of followers/fans on Twitter/Facebook that spiked above the ordinary.

In the meantime, I want my children to grow up a world where nobody thinks you’re brave for stating a political opinion, but perhaps that’s just a feature of Homo Sapiens, seeing that people have been punished for unpopular ideas, thoughts, and opinions for the past 2,000 years or so.

In these credits, I’ve left out the many (hundreds) of mildly positive comments that forwarded the article to their friends (which is fantastic in itself), and wanted to highlight a sample that made me particularly happy about other people daring to break the stigma and discuss this as adult people:

[Display of tweets seems to malfunction at the moment. Working on it.]


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