Interpretation of traditional offences

Three scenari demonstrating how the internet affects the interpretation of criminal law

Sexting: no child porn for the US courts
"Court Rejects PA DAs Attempt To Charge Teens For Sexting Themselves", TechDirt, 18 March 2010 - The court is right in legal terms. The child porn offence was meant to protect children against others (and adults) rather than against themselves (and their peers). But morally and practically, it is not satisfying. The DA could have used the money spent in prosecuting differently? I think this is one of the offences most deeply affected by our ways of consuming the new technologies

"California Court Says Online Bullying Is Not Protected Free Speech" TechDirt, 19 March 2010. Decision justified as long as the "bullying" fits the definition of harassment; calling somebody a jerk without a pattern of abuse is no harassment.


"ACS:Law Now Using Dubious Legal Theories To Threaten Slyck.com", TechDirt, 22 March 2010. It is not so much the headline that interests me than the details of the article: NY has passed a legislation to avoid forum shopping in liber law. In effect, libel decisions from foreign jurisdiction are unenforceable on its territory. This destroys the idea that one can be liable from anything published on the web by any jurisdiction; indeed, a condemnation can only be enforced if the country of residence accepts the enforcement! Remains the issue of the trial by abstentia and the difficulties the person may have to travel to the country who took the original decision as traditionally, stepping on one's territory is to accept its jurisdiction. So the ban is enforced differently!

But for no change in the law, just change in illegal methods to act: "Disgruntled Ex-Auto Dealer Employee Hacks Computer System To Disable Over 100 Cars" TechDirt, 18 March 2010

Update on China's filtering software

China puts brakes on internet-filter rollout - ZDNet.co.uk (01 July 2009)

After the uproar when people learnt that China ordered computers made in the US to incorporate a filtering software, there seems to be a back up. Obviously, the Minister of Industry and Information Technology refused to acknowledge attempts to curtail free speech. As in the West, the official line is that filtering is necessary because of child porn. But I wonder what it really means? Will they do it next time without bothering to say anything, 'hidding' the software in the hard drive?

PC makers lobby, but prepare for China censorware (ZDnet.co.uk 29 June 2009)

See also in French:

Logiciel de filtrage Web : la Chine fait marche arrière (JDN, 1 July 2009)

I don't think the EU Chamber of commerce's opinion had any influence, although one never knows how much concerns about money may have weighted in the balance.

EU Chamber urges China to rethink internet filter (ZDnet.co.uk, 30 June 2009)

From 30 April 2009, but valuable. It is about the UK Internet Watch Foundation, that self-regulatory body (yet using taxpayer's money), filtering the internet. We had already questioned the transparency of the filtering. The IWF own report does not reassure much about the utility of its role, not about the criteria it uses to do its job.

Child Porn Blacklist Group Claims Its Approach Is Working, But There Are Lots Of Questions(TechDirt, 30 April 2009)

See previous post http://cybercrimeatessex.blogspot.com/2009/02/transparency-in-cybercrime.html

From filtering to software piracy

How the desire to control child pornography turns into a piracy/ illegal trade issue...Apparently, upon request of China, computers shifted from the US to China must contain a 'Chinese' filtering software... which code is partly stolen from a US company!

Chinese censorware has stolen code, says US firm (ZDNet.co.uk, 15 June 2009)

update: "US asks China to drop filtered software " (ZDnet.co.uk, 25 June 2009)

Distorting offences

"Guy Convicted Of Hacking For Uploading Naked Picture Of Himself" (TechDirt, 7 May 2009)

Child porn and prosecution policy: bias charges?

The story is problematic for several reasons:

1.1) the charges, as reported below, should never have existed as the image is not even pornographic - this is purely a legal argument/point

1.2) the charges should not have been started either given the context of the case. The principal is the one who has ordered the investigation; his employee reported it and obviously the student's mother had an interest in damaging his reputation. Because he was a man, it was easy to label him (and libel). That the prosecutors refused to see the context and proceeded with the charges is contrary to any good policy of prosecution - that the policy argument/point

2) the background of the case is those children/teenagers sending photos of themselves or others nude via mobile phones. Two issues: what kind of society are we where it is viewed as trendy to be exposed nude to everybody? I am not prude, but frankly, I don't see the point; the offence of child porn is protect children against adults: can it be to protect children against themselves?

"School Administrator Accused Of Child Porn Because He Investigated Sexting At School" (TechDirt, 6 April 2009)

Fight against cybercrime - Costs of

Financial crisis helping, some warn that firms may not invest as much as they should in cyber-security, with the negative consequences this could have. See the interview of Régis Fohrer, French Lieutenant Colonel (Home office): "La crise a un impact négatif sur la lutte contre la cybercriminalité"(JDN, 30 March 2009).

Maybe to palliate this pronostic, the French Home Secretary announced a series of measures to fight cybercrime. Filtering for child porn, and linking the Complaint website of Internet-signalement.gouv.fr to a European website managed by Europol. The last is good news; not sure the first is feasible...
"Michèle Alliot-Marie durcit la lutte contre la cybercriminalité" (JDN 25 March 2009)

The fight against child porn: to the root of the matter, money

The EU accepted to fund the European Financial Coalition where different firms and NGOs join their forces to combat child porn. The 427,000 euros will go towards tracking down the producers of child porn via the amount of money they manipulate. In other words, it goes to the heart of the matter: money. Porn is about money first of all (for adult porn, it is even truer). The fight has traditionally gone towards the end users probably because it is easier to track them down than to find the producers. But like the mafia or other forms of organised crimes, money (and tax) is the first tool used by criminals; tracking it down allows for the chain to be discovered.

Europa Press release 3 March 2009

In that sense, filtering looks like an inadequate tool. Given the immensity of the web, it is also an ineffective tool to avoid child porn. See "Group Reveals There Are Ways To Fight Child Porn Other Than Useless Web Filters" (TechDirt, 5 March 2009)

Child porn and teens' behaviours

Facts: teens post pictures of themselves nude or in pornography positions (at least, sexually explicit). Pennsylvania took the view of charging girls for distributing child porn, boys for receiving and thus possessing it.
"20% Of Teens Send Sexually Explicit Photos Of Themselves?" (TechDirt, 8 January 2009)
"Teens Face Child Porn Charges... For Taking Nude Photos Of Themselves" (TechDirt, 20 January 2009)

Comments.
Sociologically, to be a teenager means to be interested by sex, and that's human nature (hopefully). However, what does it say of ourselves, adults, if our own children do not see the difference between sending a picture of oneself nude/sexually explicit to people who are not even their lover? What does it say of our capacity to create relationships a bit more meaningful?
Legally, the charge seems to run counter the spirit of the law. I do not believe the prosecution can protect the "children" and it will certainly not help them if they are found guilty and appear on the sex offender register.

Child porn fights and technical understanding of the internet

Fighting child porn on the internet has created many issues, mainly related to the adaptation of criminal law to the internet. A series of cases in the UK showed that interpretating the concept of posssession of obscene materials was not as straightforward as one could think. Often the problems arise from the lack of understanding of the technical aspects of the internet. In that sense, see the following story "Did You Know Caching Is How Perverts Avoid Downloading?" (TechDirt, 18 December 2008)

Note that reading or viewing can hardly be criminalised without infringing on free speech and without condemning innocent people. We sometimes come across porn unvoluntarily and see porn: to criminalise viewing would lead to criminalise anybody. Plus the difficulties to prove that the person actually viewed for a few seconds or for hours?

Causation, child abuse, video and liability

It is interesting because criminal law has not been set up for those types of cases on a massive scale. I don't see how the prosecution can stand on its feet because it is very indirect liability - chain of causation is frail

"Man Who Re-Uploaded Viral Baby Swinging Video Charged With Child Abuse?" (12 December 2008, TechDirt)

ISPs as enforcers of the law

Nothing new really, but more obvious now. Section 230 (c)(2) CDA (the other part of section 230 is the infamous "child porn provision") allows for ISPs to filter contentious contents. Spam being illegal, ISPs are allowed to filter content, i.e. here e-mails and block the account holder. Law enforced by private companies which are probably quite happy about it because spam is a hindrance to their services. Decision of 10 April 2008 (Northern District Court of Illinois)
http://www.spamsuite.com.nyud.net/index.php?q=node/387
the PDF version (and full decision) is available on http://www.circleid.com/pdf/come360-counterclaim.pdf

From "Court Tells Spammer That It's Not Illegal For An ISP To Filter Its Emails" (11 April 2008) http://www.techdirt.com/articles/20080411/150256827.shtml