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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 di

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.

mseebach 14y ago
> 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.
- ScottBurson 14y ago
  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.
jonhendry 14y ago
"Here's a proposal. Mere possession should be legal, as Falkvinge argues. What should be illegal is purchasing child porn." Really? Why focus on purchase, when sharing is just as bad as far as incentivizing people producing new material to satisfy demand? People will scan and distribute books, or crack software and distribute it, purely for whuffie or reputation. They'll do the same with child porn.
- icebraining 14y ago
  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.
  - pbhjpbhj 14y ago
    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?
    - sellandb 14y ago
      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?
      - pbhjpbhj 14y ago
        Neither is it rape nor is it necessarily a sexual crime for them to exchange sexual images of themselves in many jurisdictions, most I'd warrant. You need to specify the jurisdiction you're referring to.
    - icebraining 14y ago
anonymous 14y ago
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.
- dangoldin 14y ago
  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. Here's a paper: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2057299&http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2057299 http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2057299&#...
  - anigbrowl 14y ago
    Laws against drug possession are supposed to have a similar deterrent effect, but we know those don't work terribly well.

mseebach 14y ago

> 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.

ScottBurson 14y ago
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.

jonhendry 14y ago

"Here's a proposal. Mere possession should be legal, as Falkvinge argues. What should be illegal is purchasing child porn." Really? Why focus on purchase, when sharing is just as bad as far as incentivizing people producing new material to satisfy demand? People will scan and distribute books, or crack software and distribute it, purely for whuffie or reputation. They'll do the same with child porn.

icebraining 14y ago
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.
- pbhjpbhj 14y ago
  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?
  - sellandb 14y ago
    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?
    - pbhjpbhj 14y ago
      Neither is it rape nor is it necessarily a sexual crime for them to exchange sexual images of themselves in many jurisdictions, most I'd warrant. You need to specify the jurisdiction you're referring to.
  - icebraining 14y ago

anonymous 14y ago

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.

dangoldin 14y ago
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. Here's a paper: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2057299&http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2057299 http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2057299&#...
- anigbrowl 14y ago
  Laws against drug possession are supposed to have a similar deterrent effect, but we know those don't work terribly well.