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?
