The laws are deliberately broad to allow the interest groups that lobbied for it to basically lay down the law without pesky democratic interference.

In this case, it's corporations that want to arbitrarily add new restrictions they haven't even thought of yet (or perhaps have already), so they want a broad law they can later redefine and apply as they please. Making breaking the terms of service crime allows them to do that. It basically allows them to write their own laws, including absurd ones.

In two of the examples you've given we're talking about laws that have be devised by people that want to enforce a repressive sexual morality on society. It absolutely is their intention to make any sexually oriented activity by anyone under 18 illegal.

And the sick part of it is, that by making it illegal in practice, they slowly manage to convince the rest of society things that used to be perfectly normal and harmless are now Very Bad Things(TM), which in turn allows them to push even further. See also: the history of copyright.

This currently happens in every Western country. We are considerably less free than the previous generation, and things are getting worse. This is not "unintended", there's a method behind it.

'And it’s no excuse to say that the vast majority of these cases will never be prosecuted. As the Ninth Circuit explained, “Ubiquitous, seldom-prosecuted crimes invite arbitrary and discriminatory enforcement.” Instead of pursuing only suspects of actual crimes, it opens the door for prosecutors to go after people because the government doesn’t like them.'

People lobbying for these laws and the legislators passing them are not stupid. They are as well aware of the above effect as the Ninth Circuit or anyone else. You really have to question their intentions before it is too late.

This sort of problem is summed up nicely in the original post - "As the Ninth Circuit explained, “Ubiquitous, seldom-prosecuted crimes invite arbitrary and discriminatory enforcement.”"

I think that's an important distinction to make (it's not every legislator that's a corporate shill or working to repress an aspect of free choice based on their own perceived moral superiority).

None of the consequences of the law were unintended. The lawmakers never gave any thought to the idea of hackers being something other than criminals. The idea of PCs being the dominant mode of computing remains foreign to most of our lawmakers, who think that their laptops, desktops, and tablets are just terminals used to connect to industrial systems. Killing the hacker spirit is not unintended; the law envisioned a world without hackers at all.

It is still assumed by those in power that programming is something you do for pay (and for the maximum pay you can find), that source code is a valuable industrial secret, and that the Internet is divided into "clients" and "servers" (i.e. it is just a shadow of the world, which is "producers" and "consumers"). Sure, there are "hobbyists" out there who play with computers, but the serious work and the dissemination of technology is done by industry. It is the same worldview that says that research can only be done by those with an affiliation and that legal documents can only be read by lawyers (hence the prosecution of Aaron Swartz).

Do you really think that every legislator has no problem with any eventual use of this law?

A little off topic, but I just have to ask, at what age does it go from repressive to appropriate?

This is patently false. The internet and other technologies have opened up massive vistas of freedom. Your bunker siege mentality, exciting as it may be, is an illusion.

It has also increased surveillance on all citizens to a point former East European totalitarian regimes could only dream of.

They only freedom we've gained it the freedom to globally bitch about it. Any action we may actually take with the help of the internet is rapidly being criminalized. Those "massive vistas of freedom" are just a matter of inertia.

This "bunker siege mentality" is not an illusion when every week new measures and laws are introduced to take away freedoms we used to have 25 years ago.

It's not that we have less freedom now, it's that freedom is different. Now, we torture people and hold them indefinitely in Guantanamo. We spy on our citizens. We still haven't overcome racism or sexism. But there are definitely areas where we've improved greatly.

Your parents and grand parents grew up in a time when divorce wasn't culturally acceptable and likely just "toughed it out".

http://divorce.lovetoknow.com/Historical_Divorce_Rate_Statis...

Over the time, the increase in divorce rate has has a lot to do with (personal) freedom, education and exposure especially of women; and not to the mention the era of women-emancipation and after.

Each period in the article correlates with women's status in society at the time, and is mentioned in there.

It would be interesting to know what were the % of divorces where women initiated it(it's recorded, right?).

http://www.divorce-lawyer-source.com/faq/emotional/who-initi...

Unfortunately the link does not provide further link to sources, but it claims it comes from US census.

I had seen the US census links, and it is correct, also the same is true in Brazil (our laste census resulted in also about 70% of women initiating divorce with no provided reason). Later if I have time I will edit this post to post the census links.

There actually isn't very good legal precedent for this yet. In each case where someone was convicted of possession of CP involving cartoons and drawings, there has also been possession of photographs, with one exception. In that exception, the defendant plead guilty. However, even in that case the judge ruled that the "visual depiction of any kind" part of the law was unconstitutional.

>even written text

I am pretty sure that's false. Do you have a citation?

https://en.wikipedia.org/wiki/PROTECT_Act_of_2003

https://en.wikipedia.org/wiki/United_States_v._Williams

It is also not the case that only one person has been prosecuted over cartoons but no real child pornography; there have been at least two notable cases so far (and likely others that have not made the news):

http://www.sankakucomplex.com/2008/10/24/american-faces-20-y...

http://comipress.com/special/miscellaneous/down-the-slippery...

Really though, even if we ignore the fact that here in the United States we are talking about illegal cartoons, my point was that the law is not meant to protect minors. It should be clear from the fact that no minors are involved in the creation of such cartoons that that is the case. The point of these kinds of laws is to increase the power of the police to conduct searches or to arrest people, and to give prosecutors more power in plea bargaining and at trial.

The theory behind this kind of law is that the police are too limited by things like civil rights, and that prosecutors are too limited by our justice system; therefore, more laws must be passed to compensate for such restrictions on executive branch power. The way our politicians view this issue, if prosecutors are unable to convict lots of people for possession of child pornography because of constitutional restrictions on evidence gathering or the fact that defendants are allowed to actually defend themselves in court, then the prosecutors must be allowed to tack more charges on. After all, if a prosecutor is unable to build a strong case for one charge, they might still be able to convict a person by building a weak cases for multiple charges. If a defendant believes they can successfully defend on charge, they might not believe that they can successfully defend many charges and will thus forfeit their civil rights and just take a plea bargain.

This is a troubling attack on our most important rights. The fact that we cannot be arbitrarily thrown into prison is one of the things that makes America a great country. Every expansion of police and prosecutor power etches away at that fact and attacks our rights.

> It is also not the case that only one person has been prosecuted over cartoons but no real child pornography; there have been at least two notable cases so far (and likely others that have not made the news):

The Hadley case is the one that I was referring to where he plead guilty. In the Whorley case, he was in fact found to have "14 digital photographs depicting minors engaging in sexually explicit conduct" (http://caselaw.findlaw.com/us-4th-circuit/1431669.html)

As for there being other cases that haven't made the news, I doubt it. This is something that free speech advocates are paying close attention to, after all.

In any case, I agree with the rest of your point.

http://abcnews.go.com/US/family-pictures-flagged-walgreens-d...

well, that is just wrong. what if it is an unmonitored security camera?

However, the intent element would be satisfied if you keep the recording without informing the police and giving them the recording ASAP. Furthermore, you would not be subject to a longer sentence than the original perpetrator, since the original perpetrator will almost certainly be subject to civil commitment statutes for sexual offenders that keep imprisoned indefinitely beyond his original sentence (Pedophilia is considered a mental disorder, and ephebophilia is also considered a mental disorder to a lesser extent, by the DSM 4.)

Source: I am a former criminal defense lawyer.

You should know that statutory rape and child pornography criminal charges are unique in criminal law, in that they are strict liability crimes, and they do not require criminal intent.

In other words it is not enough that for a Defendant to claim lack of intent and prove the minor produced a ID showing they were 18 before having sex and/or before being photographed/filmed.

http://en.wikipedia.org/wiki/Strict_liability_%28criminal%29

CP is not uniquely excepted -- you must have the intent to possess the content that is CP for it to be a crime. If some other person acquired CP and left it on your computer (for example, in a real case but not one of mine, a grandmother's computer was filled with CP left by her nephew was not guilty of possession of CP), you are not guilty of possession of CP. I won a case in Cali on these very grounds.

BUT...what I think you are referring to is that you do not need to intend for the content to be CP. That is, if you make a video which is, unbeknownst to you CP, the intent to possess that video is sufficient. In that regard, it CP possession is similar to SR in that it is "strict liability" with regard to one of the elements. However, it would not apply to the original situation--the witness does not intend to possess the video beyond the length of time necessary to get it to the police...and indeed, destruction of the video could be deemed destruction of evidence!

Are you serious? Look at your OP, your site was yourself:

>Source: I am a former criminal defense lawyer.

Additionally, your reply is regarding CP - to my post which was about SR. In another post I replied to a question about CP, in which I stated CP is not strict liability (unlike SR), that possession is a much more complex analysis than people think, and even noted the "blind eye doctrine".

>However, it would not apply to the original situation--the witness does not intend to possess the video beyond the length of time necessary to get it to the police

Speaking of citations...

In 2007 I wrote a draft Romeo and Juliet Law for the Florida Legislature (did not get passed), but it was presented at various CLEs. It was tailored to protect minors from ending up on the Sexual Offender List for life (among other post conviction punishments of minors). To that end minors are charged and convicted in Florida regularly for receiving unsolicited mass texts messages of other naked students in their school and the charges generally start with the student who whistleblows and sometimes ends with the victim charged. The facts are similar to your Park hypo where the possession was unintentional and the material is generally immediately turned over to authorities.

You better believe anyone turning in any video that includes a minor having sex, no matter how brief or unintentional, will immediately be read their Miranda rights and if a prosecutor with ice in their veins wants to charge you, they have the discretion and they will happily present evidence of a video that includes a minor having sex and evidence it was in your possession.

I suppose I did not need to use a different hypothetical, but I thought it would demonstrate the point about intent, bc in my hypothetical the Defendant could not have had intent when a minor produces an ID that says 18, ie. how can you intend to have sex with a minor if you believe the individual is 18? You can not intend it, at least legally and I specifically used a hypothetical that creates some culpability on the minor, producing a fake ID, but even that is not a defense because that only goes to intent, the actual crime still occurred.

Back to the original hypothetical, keep in mind we are not talking about recording a crime in a public place, it is much more specific we are talking about recording statutory rape in a public place - there is no defense regarding intent bc it is a strict liability crime. Moreover, it does not matter it was inadvertent, a mistake or anything else if the video exists and you recorded your intent, or lack thereof, is not a valid defense to a strict liability crimes.

If your camera records a rape of a child, then under the letter of law you are guilty of recording and possession of children pornography, no matter whatever you wanted to record it or not. Sure, most of the time judges will exhibit common sense about this, but it's a problem that if they wanted to, they could make you do jail time and it would be entirely within the law. Laws that are ambiguous and that can stretch depending how the police/judges see you,are the worst, it should be changed.

Also, while the perpetrator might stay in jail longer in this hypothetical scenario, the fact that the other person might have a longer sentence is screwed up.

I don't live in the U.S., but I tried to be involved in politics in my country and have even sent a bill to our parliament :) (which is mothballed somewhere :P ).

I believe both the U.S. and my country would be better served by less laws and clearer ones (for cases such as this). In the U.S. Judges and juries seem to have more leeway, at least (as your example implies).

"possession of child pornography is a strict liability offense, like possession of cocaine, at least in the entire United States, as well as several other countries. Intent, mens rea, is irrelevant: if you have it and know you have it, no matter why, you're guilty."

But then, you are a lawyer,not me.

>I read somewhere that possession of CP is like possession of cocaine - both are crimes purely because you have them, regardless of intent:

Possession of drug charges are not strict liability - in fact possession is actually a much greater legal analysis than one might think - for example, the are different types of possession legally (constructive or actual). Additionally, do not think you can beat the legal system by having someone else hide drugs in a vehicle and then you drive it not knowing you have possession, because there is a doctrine that prohibits someone from denying criminal intent under a willful blind eye (Willful Blind Eye Doctrine).

Intent applies to every material factor of the crime, for most crimes. Thus, for cocaine possession, you must (a) intend to possess the substance at issue, and (b) you must know the substance at issue is cocaine. If intent is not met for both of those factors (aka sub-elements), then intent has not been proven.

For SR, it's different. You must have intended to commit the sexual acts at issue. However, intent is not required as your knowledge of the age of the other party. In that sense, SR is strict liability. But note--many legal scholars and judges are of the opinion that SR as a strict liability crime is unconstitutional. For CP, the issue, as discussed in another comment, is similar--the intent to possess is a required element, but not knowledge that the possessed content is CP (though some states require intent as to both).

Actually, I'd prefer it if people stopped spreading hateful lies about how acceptable images of child sexual abuse are, and how this abuse causes no harm, and how it should be fine for people to make and possess and distribute these images of abuse; and if they stopped spreading FUD about how taking a photo of a man raping a child to give to the police would mean you'd be arrested, but I realise that apologists for paedophilia[1] are very vocal on the Internet.

> In the US recording child pornography usually carries a larger penalty than raping a child.

Do you have any citations for this? Specifically, a crime where a person has been given a longer sentence for recording images of child sexual abuse when that did not also involve carrying out the child sexual abuse?

[1] don't fucking dare try to start with the ephebophila nonsense.

Under the law, what is defined as "child pornography" extends far, far beyond actual images of child sexual abuse. A teenage girl taking a nude picture of herself in a suggestive pose, for example, is not a child being sexually abused. But the law still considers that child pornography.

>and how this abuse causes no harm, and how it should be fine for people to make and possess and distribute these images of abuse

Can you show me one example of someone on HN (with an un-hellbanned account) claiming that child sexual abuse is harmless, or that producing non-simulated images depicting sexual abuse is fine?

What's the issue with using "child pornography" to denote "images of child sexual abuse"? It's not like child pornography has undergone some fluffy rebranding that makes people go "oh yeah that's cool!"

If anything, "child pornography" will probably set off a quicker, harsher reaction than "images of child sexual abuse." The latter is almost clinical in its approach: people will spend a couple seconds parsing it to try to figure out what it means, while child pornography evokes a very visceral, gut reaction. Using your preferred phrasing seems weird enough that, if not for your context, I might assume the user was trying to create a subcategory of child pornography that's real "child sexual abuse," implicitly also creating a complementary subcategory of some kind of legitimate child pornography that's somehow not abusive.

Obviously not what you're doing, so what's the motivation, here?

You sound like someone who spends a lot of time in the SRS bubble on reddit (I see this argument from them all the time). In that same vein I would just like to point out that its rather ironic that people who spend their time analyzing social issues to death in attempt to tease out nuance and increase understanding of complex issues (e.g. I've only ever heard the term cisgendered on reddit) would balk at an increased understanding of human sexual deviances. The fact is ephebophilia is clinically and socially distinct from pedophilia. Anyone who refuses to recognize the distinction is doing so for purely political reasons. Someone who would chastise one for using the term ephebophilia, while in the next sentence shove the term cisgendered down another's throat, seems absurdly self-serving.

The abuse carries harm. The images however,do not. If they did, how would it be legal(as it is) for me to download a video of two guys killing another one, stabbing him in the eyes and the throat with a screwdriver? This is also a video of a crime, yet one is legal and the other is not. I tend to agree with the article I linked here - it's because we(as a society) would rather make the very existence of information illegal, because it does not go well with our morals, and not because it's a logical thing to do. Ban on cp is actively(as in - right now) stopping predators and criminals from being caught.

That was the dubious argument made decades ago, when the only way to obtain pornography of any kind was to purchase it. In today's world, it is far more common for people to download child pornography without ever having paid for it. People are arrested for downloading such videos from peer to peer file sharing networks all the time, almost always without any evidence that they paid for it, knew who made it, or were in any way encouraging its production. Just having child pornography in your browser cache is sufficient to be charged in New York.

It is clear at this point that the purpose of child pornography law is not to protect children, but to punish adults regardless of whether children are involved. It is illegal to possess cartoon depictions of child pornography, even if you possess no other imagery:

http://io9.com/5272107/manga-collection-ruled-child-pornogra...

http://www.comicsalliance.com/2011/06/27/u-s-citizen-arreste...

Like most laws that increase police power, this has gotten completely out of control and put the public in danger.

It is important to remember that child pornography is evidence of a crime. People do not send that evidence to others without receiving compensation of some sort; the knowledge that others are looking at the images is knowledge that they have evidence of the crime. The people who commit crimes against children are very secretive, and those who produce child pornography often go to great lengths to remain undetected. It is clear from what is known about online child pornography exchanges that trade of some kind is occurring, often serving a dual-role of compensation and of filtering out law enforcement officers.

That is the real issue: these people know that once their photos and videos spread around, the police will become aware of them. Rather than knowing that people enjoy their work, what the producers of child pornography know is that their work can lead to their arrest. They are exchanging it because they are receiving enough in return to justify such risks.

The original legal justification for the censorship of child pornography was to remove that compensation, since the police were having so much trouble locating child pornography producers. My point is that that justification is now badly in need of review, because the majority of people guilty of child pornography possession did not compensate the producers in any way. I have no problem with raids on forums where child pornography is exchanged quid pro quo; my problem is with raids on people suspected of downloading child pornography from peer to peer networks or third/fourth/fifth/etc. hand websites that are many levels removed from the producers. At the very least, prosecutors should be required to show that the imagery was paid for in some way, whether by barter or with money.

I have vague recollections of the case that decided that simulated images were legally equivalent to the real thing. It was a pretty hot topic at the time with a lot of debate going on. Had the people involved come with a different interpretation of the law at the time, I don't think it would be considered illegal today.

And as it has been mentioned before - possession of CP was made a criminal offence back when the only way to get it was to pay for it. Nowadays, you can easily find it online, for free - without knowing who created it. So making it illegal is by no means helping anyone catch producers of child porn. It's not like making cp legal would suddenly make it ok to rape children.

Police don't need people to report CP on 4chan--they can easily monitor 4chan themselves. (or any other public site)

It's useful when they find thousands of photos and videos that are recent and not publicly available, on a person's HD. Since possession is a crime, they can plea that person into turning over their supplier, then roll him too--hopefully traversing the network to find the person who is actually making the photos and videos.

It would fall under the definition of "means an honest belief that an act is justifiable". If the photo of the girl getting raped in a park was meant to help catch the rapist, then any laws that would have gotten you in trouble for taking the photo would likely be tossed aside.

In defense of the laws, however, they were formulated only to regulate sex outside of marriage. With love and marriage, sex was viewed as something else.

For proof of this, look to the prosecutions. If we had a vast history of people being prosecuted for marrying young, that would be one thing. Instead we've got a lot of busts in parks or having other public trysts.