September 26, 2003

Yeah, so?

From Chuck Shepherd:

Arizona law treats selling, downloading, trading or buying child pornography as the equivalent of actually molesting a child, with a penalty of 10 to 24 years per count, with multiple counts to run consecutively, and two high school teachers (convicted of photos-only, no child interaction) are now serving 200 and 408 years (the latter for having 17 photos) in prison, respectively. Critics point out, according to a May report in The Arizona Republic, that there are cold-blooded murderers serving less time in the state, and that a life sentence without possibility of parole could be obtained by as few as 12 computer-mouse clicks at a pornography Web site. [Arizona Republic, 5-19-03]
I don't have a problem with this, if you get caught breaking the law you should get punished. Viewing and dowloading child pornography is against the law and in Arizona we decided to crack down.

The PETA people argue that those buying furs are as culpable as those who kill and skin the animals. I would say that that logic would definitely fit here. If you are consuming child pornography, you are creating/encouraging a market.

Rather than complain that the penalty for child pornography is too harsh, as they seem to be, I would say the penalty for murder is too lenient.

BTW: I agree that fur buyers and fur manufacturers do rate equally, since I have no problem with either action.

Posted by Vox at September 26, 2003 11:16 AM | politics

It makes me nervous when mere possession of anything can lead to life sentences! One would hope that some proof of actual or intended harm would accompany severe sentences. For example, one who pays for child porn is paying indirectly for someone to abuse a child to make the porn. Someone who has a history of child molestation and possesses the porn is obviously a danger to society. Someone who merely possesses the porn, without having paid for it, is probably a slime ball, but making that penalty greater than second degree murder is, to me, absurd.

Furthermore, and this is the real problem, it is dangerous. It allows unscrupulous prosecutors or law enforcement personnel to destroy a person's life (by planting the porn). The huge sentences are headline grabbers, and thus are likely to be sought by prosecutors with political aspirations (which is why my friend suggested, and I agree, that prosecutors and states' attorneys should never be allowed to hold elective office, even though the vast majority are honest people).

And if you think this will never happen, we need merely look at the false convictions of "child molesters" at various day care centers around the country, based on a solidly (now) discredited use of "repressed memory syndrome" and the coercive coaching ("brainwashing" would be a better term) of child witnesses, such as happened in the infamous and tragic Amirault case or the McMartin Preschool Case. And Janet Reno made political hay out of one of the first successful false prosecutions in this area, sending an innocent (if unsavory) person to jail.

Now, it is an undeniable fact that paedophiles do their best to infiltrate organizations and business that give them access to children, and child care centers are an obvious target. But the cases mentioned above (and many more that have been written up primarily by the Wall Street Journal) were prosecutions based on groundless evidence. If prosecutors can do that with basically worthless evidence, imagine what they can do if they find something on your hard drive. And everyone is at risk for this - see below.

I find it chilling that having a few kilobytes of data on your computer is sufficient to jail you for life! As a computer professional, I am aware how easy it is for that data to appear without your intent. In other words, you don't have to be a paedophile in order for these pictures to get on your disk.

For example, hackers routinely plant "back doors" in computers, allowing them to use someone else's computer to disguise their identities. Although I have not heard of this happening with child pornography, I would be very surprised if, right now, there are not hundreds of computers in the US that are being used by child pornographers and their ilk to hold and distribute this information - computers owned by innocent people whose computer was infected with this kind of back door. People who would go to jail for life if this material was discovered by the authorities! Innocent people.

I know an individual who has a windows computer which is connected to the internet simply to provide an internet access for his other machines. Because he never uses this machine (it just sits there and relays messages), he didn't worry when he noticed some strange windows appearing on its monitor. I suggested he de-virus the machine, since it appeared it was being used by a hacker, but he demurred, saying he didn't care since as long as it kept working, it wasn't worth his time to worry about it. Then I pointed out that they might be using it to store child pornography and he could go to jail for life! At that point, the machine was dewormed! Imagine if, instead, the FBI had tracked the distribution of child pornography to his IP address - his computer. And they had gained a warrant based on this and found hundreds of child porn pictures on that machine. What would be his defense? He would obviously have the prohibited material; obviously it would have been downloaded to his machine, and why believe him when he says he didn't do that himself? After all, they all say that!

So, my objections to the sentences are based on two principles: they are not proportional to the harm caused to society (unless accompanied by solid evidencee that the owner of the information is a true paedophile); and, they are disproportionately susceptible to intentional and unintentional abuse.

For the paedophiles themselves... if you have proof and you can't cure them (and we have reason to believe that there is no cure), lock them up and throw away the key. They are defective human beings.

Posted by: John Moore (Useful Fools) at September 26, 2003 05:59 PM

well??? I'm waiting :-)

Posted by: John Moore (Useful Fools) at October 8, 2003 08:40 PM

OK, it took me a while to recover - and a bit of prodding to get back to it - but I do have a few things to say here.

I think that there are many things we, as a society, consider harmful enough that possession is sufficient to warrant severe punishment. Child pornography is just one. Having one image on your hard drive won't get you a life sentence - but it will get you a harsh one. Whether you've paid for it or not, you are trafficking in damaging material - some child was exploited, somewhere.

To suggest that this law sets up the possibility of fraudulent prosecutions due to planted evidence says a lot more about your faith in law enforcement than the law. Why would this be the crime of which they would choose to plant evidence? Why have we not seen a rash of planted evidence in drug cases? or illegal weapons possession? or tax evasion, etc? Those would seem much easier to plant - or do you think that has been happening?

The false convictions of child molesters that you reference are incredibly tragic cases, and they relied on testimony elicited (mostly) from children - not concrete pictures. Brainwashing children and their angered parents is a far different evidentiary tactic than actual images. Incidentally, I believe most of the people on judicial end of those cases were acting in good faith - I think the 'psychologists' were reprehensible. The juries were swayed by their hearts, which is always an issue when you deal with humans, listening to what the children "remembered".

There is currently, I believe, a virus out there that turns innocent computers into feeds for adult pornography. Certainly, there are people who might be hit with that who would be unaware. However, besides the images that are stored on your hard drive - so is the virus code. If you were to find pornography on someone's computer that was left that way, you would also find 'reasonable doubt' as to their guilt. Yes, that also leaves a loophole for the truly guilty.

In searching the internet, I have accidently landed on hard core sites. I haven't downloaded the images or clicked to go further in, and any temporary files are deleted daily - therefore there should be no accidental evidence on my computer. If one of the sites I had come across had involved children, I would have reported it to the authorities - not clicked further in. Having images of children in sexual situations seems pretty convincing proof that one is a pedophile - why else would anyone (Germaine Greer) have those pictures. These guys had 20 and 17 pictures on their computers - that isn't an accident, they had to make the effort.

I do agree that the sentence shouldn't be greater than second degree murder, but I think the murder convictions should be made tougher - not that these possession charges should be made weaker.

Posted by: Vox at October 8, 2003 11:39 PM

What makes you think there are not prosecutions based on planted evidence? I know someone very well who was prosecuted for drug possession based on false testimony by a Phoenix Police officer. Certainly the false convictions of child non-molesters shows that some prosecutors (including Janet Reno) are willing to use faulty evidence to put people in jail for life, for political motives!

But planted evidence doesn't have to be done by dishonest prosecutors or policemen. I think most people in law enforcement are professionals and won't do this. It could be done by someone with a grudge. It could be done by accident.

You think that you cannot accidently get a child porn picture on your computer, but you are wrong. If I had such a picture (and I certainly hope I don't!), I could plant it on your computer fairly easily. For example, I could use steganography to hide it in a picture on my blog, and if you read that page, it would be on your computer without you ever knowing it. Now, you say that you delete the temporary files daily. But that doesn't mean their contents are gone. They are most likely still there on your disk, just not pointed to by the file system. I say this as a computer expert.

A computer forensics expert would go through your hard drive, find the steganographic image (assuming the staganographic algorithm wasn't too good), and boom! You've got kiddie porn! Even though you were being careful. And they might do this because they found that your IP address accessed the web site with the hidden picture (some innocent looking web site that you found with google or something).

You could download a program, a perfectly reasonable program, and someone could have put the image in the program binary. It wouldn't affect the running of the program, and you would never see the image. But on the pedophile chat rooms they would tell people to download the program and how to get the image out. YOU would be guilty of having child porn.

And you ignore my example of trojan horses used to hide the true identity of the pornographers. If I were trafficking in highly illegal data, I would sure try to store it *on someone else's computer*! And with "root kits" available to anyone in the hacker culture, you don't have to know much about computers in order to do this! Every time you get a virus email, you know that someone had a computer that was infected without their knowledge! That computer, if infected with a typical trojan, is immediately available to the creator of the virus for his personal use - such as storing files he doesn't want to get caught with!

I once found a hacker chat room and hung out there (I haven't personally been a hacker since 1970) for an hour to see what was happening. One hacker, challenged by another, typed in a command to tell the computers he controlled (via a trojan) to check in to the chat room. 160 new "users" suddenly appeared. Each "user" was a computer, owned by some innocent person, which had been subverted and was awaiting commands by the hacker. Those commands could be to store a file that the hacker wanted somewhere else - say kiddy porn.

Furthermore, I can think of little other than weapons of mass destruction that should trigger major prison sentences based on mere possession! And the reason is because possession simply doesn't prove intentional possession. Want to send someone to jail for a long time? Buy an easily convertible semi-automatic rifle, get or make the automatic conversion kit (making it into a machine gun), convert it, bury it in their yard, and then let the ATF know that it is there. Boom! Off to jail for 10 years for the owner of the property, for possession of an unlicensed machine gun.

Possession laws are inherently dangerous. That is why I argue that mere possession, without further evidence of how the material came to be in possession, or other evidence of (in this case) pedophilic intent, is too dangerous.

Real pedophiles will reveal themselves in other ways - say by hanging out in chatrooms and searching for porn to buy. Then the possession becomes useful evidence against them and could be used to magnify the penalty. Pedophilic pornographers have to distribute their wares, and the distribution can be tracked (although I suspect the commercial distributors would turn out to be part of organized crime in countries where it is hard to exert jurisdiction). Then you can bust them for it. Their customers likewise will have to access that information. Again, bust them for buying it.

Finally, the only appropriate justification for prosecution of possession of such material is that the market for that material causes child abuse. In fact, the Supreme Court has held that computer generated child porn is LEGAL, supporting the idea that a child must have been harmed for a crime to be committed. Personally, the idea of computer generated child porn is pretty nauseating also, and I suspect someone who indulges in it may escalate to molesting real kids. But that already is a crime.

As far as I can tell, pedophiles tend to be caught by legal entrapment, which I think is quite appropriate. The feds get involved in the distribution chain, and bust the customers. The feds themselves obviously don't purchase or otherwise contribute to the creation of the material, so they aren't responsible for the abuse of a child. I think this is an appropriate way to enforce the law.

But the way the law stands now, you could give your current computer to a charity, with a child porn picture on the disk that you don't know about it, and a computer geek refurbishing the machine could find it and you could go to jail, because with the law as it is, you are guilty of a major felony. Period. No intent needed. No overt acts needed. Just possession of nothing more than a fraction of a square millimeter of magnetic dipoles in a certain pattern!

Finally, as far as reasonable doubt, you are wrong. Because their guilt is not in downloading the porn. Their guilt is not in viewing the porn. And if the porn is on their computer, there is no reasonable doubt that they possessed it, because in fact they did possess it! And ultimately that is the big problem with possession laws: the government only has to prove possession. It doesn't have to show how it came into possession or that there was an intent to possess. Pure possession is itself the crime, so if there is no doubt that the pictures are on the computer, there is no doubt about the possession. This is no different than police finding a few kilograms of heroin in your closet. You are guilty. Period.

And that is scary.

Posted by: John Moore (Useful Fools) at October 10, 2003 12:00 AM

I don't think there aren't prosecutions based on planted evidence, I just think they are rare. I imagine that if I were to commit a crime, from embezzlement to murder, that I would go out of my way to make it look like someone else did it.

I also believe that it is unlikely (though you presented scenarios otherwise) that a piece of hidden porn would just be found - there needs to be a reason to suspect. We do still require a search warrant in most cases.

If I happened to pick up a hidden image from visiting a questionable site, and my auto-delete of temporary files left it hidden on my hard drive, there would still be a URL attached to it - at least that is how all images I have on here now work. Should they find a suspect image, I imagine they would check not only the trail, but look for evidence I had (or even knew how to) decrypt it.

Once again, a trojan that leaves files for use at a later time leaves the code necessary to utilize the computer (for serving images or running code) Like the hacker in the chat room, those computers needed to have the application available to him. That would show up in an investigation.

Planted evidence found on an anonymous tip is also subject to scrutiny. There is a lot of reasonable doubt in drugs found in an apartment closet or a gun in the yard. How long have they been there, who else had access, why were they looking...?

I believe the law is flexible enough to allow for the possibility of non-intent as spelled out in the accidental and planting cases mentioned. Neither of the men in the original article claimed the images weren't theirs, nor were they 'virtual porn' OK'd by the Supreme court. The law was not a secret. They chose to download and view kiddie porn - I feel no pity that they are locked away for the rest of their miserable lives.

Posted by: Vox at October 13, 2003 10:07 PM

Who is allowed to post here? I have an article I would like to submit for review before posting.

Posted by: Just Wandered In at November 29, 2003 11:24 PM

Anyone can comment, but only I can post
If the comment is off topic or profane, I will delete it

It's my blog...mine, mine, mine

Posted by: Vox at November 30, 2003 11:06 AM

what about porn on p2p like kazzaa?
they are always mislabled... im looking for J LO
or other legal porn and it is really 13 yo naked teens!!! intent ? not for kiddie porn but for adult pics that are legal

what then??? im buying a new computer

Posted by: hello at January 24, 2004 02:49 PM