The Spectacle Blog

The War on Child Porn

By on 5.21.08 | 11:42AM

It looks as though child pornography laws are the latest example of well-intentioned legislation that winds up threatening civil liberties.

Example one comes from R. Kelly's child pornography trial, where Slate writer Josh Levin filed this dispatch:

...the judge's media liaison gathers all of the reporters together to announce that we'll be watching a sex tape in open court. He then delivers stern advice about doodling. "I am here to warn you," says Terry Sullivan, "that anyone who draws a depiction or a simulation can be committing the act of child pornography. … You don't want to be doing that." Since I have the artistic skills of someone with no hands, this isn't much of a setback. The courtroom sketch artists, naturally, are more concerned.
Example number two is a dated story that hasn't gotten nearly the attention it desserves.
The FBI has recently adopted a novel investigative technique: posting hyperlinks that purport to be illegal videos of minors having sex, and then raiding the homes of anyone willing to click on them.
Entrapment isn't the biggest concern here, though it is one concern:
Using the same logic and legal arguments, federal agents could send unsolicited e-mail messages to millions of Americans advertising illegal narcotics or child pornography--and raid people who click on the links embedded in the spam messages. The bureau could register the "unlawfulimages.com" domain name and prosecute intentional visitors.
What's most astonishing about the story, however, is this:

While it might seem that merely clicking on a link wouldn't be enough to justify a search warrant, courts have ruled otherwise. On March 6, U.S. District Judge Roger Hunt in Nevada agreed with a magistrate judge that the hyperlink-sting operation constituted sufficient probable cause to justify giving the FBI its search warrant.

The defendant in that case, Travis Carter, suggested that any of the neighbors could be using his wireless network. (The public defender's office even sent out an investigator who confirmed that dozens of homes were within Wi-Fi range.)

But the magistrate judge ruled that even the possibilities of spoofing or other users of an open Wi-Fi connection "would not have negated a substantial basis for concluding that there was probable cause to believe that evidence of child pornography would be found on the premises to be searched."
In other words, it doesn't matter if someone sends you a link purporting to be an Onion article that turns out to be child porn, or if one of your neighbors uses your wireless signal to access child porn -- as long as someone using your IP clicks on a link that goes to child porn (or a site that the FBI is pretending has child porn on it) the state can break down your door.

The last example involves the least sympathetic character, a teen who posted naked pictures of his 16 year-old ex-girlfriend on the Internet (images she'd willingly sent him). I can't say I'm sorry he's been charged with defamation. But felony counts of child porn and sexual exploitation of a child? Sex offender registries ought to be designed for predators who pose a risk to kids, not teenage jerks.

And given the recent spate of probably exaggerated stories about kids sending one another naked photos through their cell phones, the laws we now have threaten to make a lot of sexually confused adolescents into felony sex offenders. Wouldn't police resources be better spent protecting kids from child molestors? Or gangs?

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