Discussion About Reddit and Child Pornography [Long]
For those of you who didn’t know, the hugely popular message board Reddit explicitly banned all forms of “suggestive or sexual content featuring minors” (child pornography) on February 12th. The media blog Gawker had this post about it.
I began to see a lot of false and/or misleading claims in the comments section that what Reddit had on the site was not *technically* child pornography, and so I threw in my two cents into the discussion. From there I began a discussion with user “Kanchou” (with tangential but relevant sidebars from a few other users.)
I wanted to share this discussion because I find it interesting, but also to prove you can discuss a hot button issue on the internet without it devolving into name calling and comparisons to Hitler.
Spiral Drive:
I want to clarify something for all of you who say that jailbait pictures are legal because of freedom of speech, or because the minors are clothed.
First of all, in 1982 the Supreme Court of the US in New York vs. Ferber determined that child porn is unprotected speech and does not need to meet any of the requirements of the Miller Test [[en.wikipedia.org]], meaning it is instantly qualified as illegal and obscene, and does not have to be demonstrated as such. It is its own classification and is categorically illegal. It has no standing under the first amendment.
Furthermore, in 2008 the Supreme Court upheld the PROTECT Act which made illegal “knowingly advertising or distributing an obscene visual depiction of a minor engaging in sexually explicit conduct; or a visual depiction of an actual minor engaging in sexually explicit conduct.” To put it plainly: posting a sexual picture of a minor is a criminal act punishable under federal law.
Here’s more in case you’re still not convinced: in United States vs. Dost the courts clarified U.S. code 18 USC § 2256 (the one about child pornography.)
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This Court feels that, in determining whether a visual depiction of a minor constitutes a “lascivious exhibition of the genitals or pubic area” under § 2255(2)(E), the trier of fact should look to the following factors, among any others that may be relevant in the particular case:
1) whether the focal point of the visual depiction is on the child’s genitalia or pubic area; 2) whether the setting of the visual depiction is sexually suggestive, i.e., in a place or pose generally associated with sexual activity; 3) whether the child is depicted in an unnatural pose, or in inappropriate attire, considering the age of the child; 4) whether the child is fully or partially clothed, or nude; 5) whether the visual depiction suggests sexual coyness or a willingness to engage in sexual activity; 6) whether the visual depiction is intended or designed to elicit a sexual response in the viewer.
Of course, a visual depiction need not involve all of these factors to be a “lascivious exhibition of the genitals or pubic area.” The determination will have to be made based on the overall content of the visual depiction, taking into account the age of the minor.
For example, consider a photograph depicting a young girl reclining or sitting on a bed, with a portion of her genitals exposed. Whether this visual depiction contains a “lascivious exhibition of the genitals” will depend on other aspects of the photograph. If, for example, she is dressed in a sexually seductive manner, with her open legs in the foreground, the photograph would most likely constitute a lascivious exhibition of the genitals. The combined effect of the setting, attire, pose, and emphasis on the genitals is designed to elicit a sexual response in the viewer, albeit perhaps not the “average viewer”, but perhaps in the pedophile viewer. On the other hand, if the girl is wearing clothing appropriate for her age and is sitting in an ordinary way for her age, the visual depiction may not constitute a “lascivious exhibition” of the genitals, despite the fact that the genitals are visible.
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So you see, whether the child is clothed or not. If he/she is under 18 and is in a sexy pose, it’s child pornography and there is no “free speech” right being infringed upon because it’s not free speech.
It doesn’t matter what your personal thoughts or feelings are about jailbait. Until the law changes (if ever) jailbait (even clothed jailbait) is illegal under the law. Period.
CrystalPepsi:
“So you see, whether the child is clothed or not. If he/she is under 18 and is in a sexy pose, it’s child pornography…”
Facebook is littered with high school students willingly posting photos that fall under this category. And those photos are being shared online on sites like Reddit. So while you might be 100% right, there will never come a day where photos of high school aged kids posing in semi-questionable ways won’t be readily available thanks to sites like Facebook.
Spiral Drive (Responding to CrystalPepsi):
Those minors (let’s just focus on them, I don’t care what 18+ high school juniors/seniors do) are not posting those pictures so other people can steal them and post the stolen pics on sites like Reddit. Presumably they’re posting them for themselves and their friends. Claiming that those minors “know what they’re doing” when they post sexy photos on Facebook is victim blaming and is merely an attempt at justification for those who steal these photos.The law protects minors like this explicitly because they may not fully comprehend “what they are doing” (and all the ramifications) when they post sexy photos on Facebook. In other words, I’m not claiming there won’t be a time when minors don’t post sexy photos of themselves on Facebook, I’m claiming it’s our responsibility as adults, and under the law, not to abuse those photos just because we can.And as a tangentially related note, don’t forget a lot of those pictures were procured by hacking minors’ photobucket (and other similar hosting site) accounts. Case in point: Angie Varona whose photobucket account was hacked when she was 14 and all her photos posted. Yet a lot of people not familiar with the situation would look at the photos and say “Oh look at that girl, she must know exactly what she was doing.”
SuperAppleKid:
“So you see, whether the child is clothed or not. If he/she is under 18 and is in a sexy pose, it’s child pornography and there is no “free speech” right being infringed upon because it’s not free speech.”
Is there a legal definition for ‘sexy pose’? All government laws determining obscenity or pornography are pretty poorly defined and subject to misuse. Legally what the courts want to say is, “we don’t want icky people getting off to minors.” Evidence of this are lower courts frustration with sexting lawsuits that end up making sex-offenders out of normal 16 year olds. Given the definition you gave there are plenty of child pornography (jailbait) pictures present on Gawker and Disney’s websites.
Spiral Drive (Responding to SuperAppleKid):
There is a legal definition for “sexy pose” and you can learn all about it by reading New York vs. Ferber [[en.wikipedia.org]] and the PROTECT Act [[en.wikipedia.org]] and U.S. vs Dost [[en.wikipedia.org]] which clarified 18 USC § 2256 [[www.law.cornell.edu]]The laws when it comes to child pornography are not particularly “poorly defined and subject to misuse” as you say. I can’t speak for Gawker because you didn’t source anything, but the reason the Disney website or kids swimsuit catalogs don’t qualify as child porn under the law is intent. Disney or other similar sources are not presenting children as sexual objects, in sexual situations, or in any kind of sexual light. So even if they’re in a bikini, or princess outfit, or whatever you think qualifies, because they aren’t presented in a sexual light it doesn’t qualify as child porn. Now if the Disney channel site had the same pictures with a caption under them that said “waiting for a hot load”—THEN maybe you’d have a claim. Context matters according to the law.The law is actually very clear about what is and isn’t child pornography and only people looking to willfully obfuscate the law would claim otherwise.
Lobstr:
Remember about … ohhh, twelve+ years ago, there was a story about a couple from Turkey (maybe?) living in NJ, and it was their religious custom for a relative to actually put their mouth around the penis of a newborn baby for some fucked up reason (I’ve heard about this practice other times after that here and there) — so, to them, this act wasn’t pornographic at all. …And it was this very act that the proud parents took photos of, sent it to the photo lab (ah, 1990s) to which the lab tech contacted the authorities. Then it made the national news. I bring this up because I’m wondering how much dopey religious practices weigh in on what’s considered child porn etc or if they, too, have some horrible exemption…
Spiral Drive (Responding to Lobstr):
That “religious custom” was Judaism. In traditional Judaism, it is customary for a mohel to draw blood from the circumcision wound after circumcising a baby. Many mohel do it with a small hand pump these days, but it can still be done the traditional way where the mohel draws the blood with his mouth. I can see where this may look like something dirty but, once again, context matters under the law. Even though the national news may have picked up on it I highly doubt the mohel was charged with a crime because he was not molesting the baby. For what it’s worth I object to the mouth method on sanitary reasons. Is it really so hard for most people to understand that context matters?
Kanchou:
Law against pornography forbid production, distribution and possession. If it’s not illegal to produce, it’s not illegal to possess. I haven’t visited the sub-reddits in question. But based on the descriptions, Reddit members created those image in very few cases. Vast majority of the images were scrapped from Facebook and other social networks and re-posted to Reddit.For the sake of argument, all of those images passed/failed the Dost test and are not protected by 1st amendment. Shouldn’t we go after the original photographers, and those people who uploaded them in the first place? The whole sub-Reddit give a convenient, easy, centralized place to track down illegal child pornography and shut them down. That’s go after those degenerated photographers and uploaders. Great, right? Let’s arrest millions of preteens, teens, and parents along with those sub-Reddit members.Occam’s razor, if a reasonable Assistant US attorney wouldn’t prosecute the original photographer for producing child porn, then it’s not illegal child porn for Reddit to host.(There may be other IP, privacy issues.)
Spiral Drive (Responding to Kanchou):
I’m not going to address the fist part of your post because I previously covered why it’s not cool for people to be scrapping photos of underage teens from Facebook, no matter who posted them first—it’s in my above response to crystalpepsi.
And I don’t know about you, but I would rather make it harder for pedophiles to find child pornography rather than have it openly and easily accessible on Reddit where we can some how “track” them—whatever that means. Your last point is not correct. If a 14 year old takes a sexy photo of herself and puts it on Facebook you’re right, a US attorney is not going to prosecute her. However, if her privacy setting are lax and a pedophile takes that picture off her Facebook and puts it on Reddit, it fails the Dost test and is illegal. Again, context matters.
Kanchou:
That’s an interesting assertion. Context matters, within each photos. The Dost court use “a visual depiction” as its unit of analyses, and apply the test of “each and everyone” of the photos. The Dost court didn’t apply the test to the whole collection in context as a set. Can you cite a case where individual image that’s not illegal child porn by itself, but became illegal in a collection due to “context.” Or is it just your own opinion that this collection of images on Reddit would pass/fail Dost test as illegal child pornography? As for “track” comment, if the TRUE INTENT to “make it harder for pedophiles to find child pornography,” than why it isn’t a priority to punish the primary producer of such child pornography?Part of my job is to select, purchase, catalog, and organize a collection of books. I don’t have the works of David Hamilton, Sally Mann, Jock Sturges, artists whose legal works had been under attack by James Dobson and Terry Randall, among others, in my collection. But I did worked with collection contains those before. The idea that individually legal items can be transform into illegal child porn by how it’s collected, curated, organized and presented is a proposition that I would like to nip in the bud.
Spiral Drive (Responding to Kanchou):
I cited one earlier. 14 year old Angie Varona had bikini (and other) photos on her Photobucket account for the viewing of her and her friends, which is not child porn according to the Dost test or New York vs. Ferber. When a pedophile hacked her Photobucket and posted the pics to Reddit and other similar sites where the objective of the sites is sexualization of minors, then it becomes child porn. Why is this so hard to understand?
Moving on! The FBI do work to punish the primary producers of child porn, but if we’re talking about a site like Reddit, it didn’t appear to me on a cursory viewing that most of the illegal pictures were taken by Reddit members, much like other content on Reddit. That’s not to excuse what was going on there, or that it makes it any more legal, but in this case there’s no “producer” to go after because the child porn on Reddit was mostly re-posts. Of course it could be argued that there was some producing going on when Reddit members were soliciting minors to “go wild” and take sexy pictures for them.
I guess it comes down to the fact that I’m okay with any steps taken to remove child pornography from the internet. If you want to complain about how taking easily accessible child porn from one of the largest most well-trafficked sites on the internet wasn’t a big enough step, that’s your prerogative. Personally I think it was a pretty big step and I think it should have happened earlier. Lastly on the topic of controversial photographers I’m not 100% knowledgeable about all their works but I’m pretty sure those artists have never been convicted of anything, right? So what point are you trying to make? I’m sure a lot of things annoy James Dobson but he’s not the arbiter of United States law.
Kanchou:
“I cited one earlier. 14 year old Angie Varona had bikini (and other) photos on her Photobucket account for the viewing of her and her friends, which is not child porn according to the Dost test or New York vs. Ferber. When a pedophile hacked her Photobucket and posted the pics to Reddit and other similar sites where the objective of the sites is sexualization of minors, then it becomes child porn.”
Can you name anybody who was prosecuted and convicted for possession of those “child porn” as you call it.
In Adrian Chen’s last round of vendetta against Reddit: “She and her father notified the FBI and tried to scrub the pics.”I spent the whole summer trying to take down all the pictures, but it was virtually impossible to track down who hacked me,” she told thestatus.org recently. “I felt like crap knowing my life was going down the drain.”
They and FBI were able to take down some pictures, but does that sound like anybody was prosecuted for possession of child porn?
What I am against is attempts to restrict Freedom of speech by expanding definition of child pornography from it’s current narrow definition. And misrepresentation of the Dost test. No, Jock Sturges and others were not convicted despite FBI’s attempt. And I still can not find anyone convicted over Angie Varona’s pictures either.
Spiral Drive (Responding to Kanchou):
I think it shows how apologetic you are about child pornography that you would call the Dost test misrepresented. The Dost case was explicitly about so called “jailbait” images that were of semi-clothed minors. As I noted above child pornography has no free speech rights under the law, so you shouldn’t be concerned about restricting them further. There was never any right to begin with. I can’t specifically name a case where someone was convicted of having ONLY Angie Varona pictures on his/her hard drive but I’ve heard of several cases over the years where men have been convicted for child pornography with hundreds (if not thousands) of jailbait photos on their hard drive and I’m willing to bet Angie was in there with them, considering her popularity among the pedophile community. I’ve also heard that most men who get their hard drives raided by the feds have what you might call “real” child porn (explicitly sexual nude children, penetration, abuse, etc) along with the jailbait stuff, which doesn’t surprise me.
You seem really upset/annoyed by Reddit’s decision (or is it Gawker’s coverage?) I still don’t think I understand why. Why are you against people who want to prevent the sexualization of minors?
