July 17, 2008

When CGI Porn Looks Real: Is Anyone Thinking About The Children?

Making the internet rounds is a post written by Debbie Nathan, (Pornography: A Groundwork Guide and Satan's Silence: Ritual Abuse and the Making of a Modern American Witch Hunt) on what the government is going to do when computer generated child porn becomes indistinguishable from actual photos. 

Other than freak out.


Traci Lords makes several porn movies until 1986 when it is "discovered" that she was underage.  So they go after the distributor, X-Citement Video.

Open and shut case-- they have her on film being underage and naked, so...

But on appeal, the 9th Circuit reverses the conviction.  They say that the law is unconsitutional.  It goes up to the Supreme Court, who reverse the reversal, and, more importantly, decide that the law is not unconstitutional.  It is a great day for democracy, and for decency, but for the simple fact that they were wrong.

See if you can spot why that is:

Protection of Children Against Sexual Exploitation Act of 1977 (18 U.S.C. §§ 2252)

(a) Any person who -
          (1) knowingly transports or ships in interstate or foreign  commerce by any means including by computer or mails, any visual depiction, if -
               (A) the producing of such visual depiction involves the use  of a minor engaging in sexually explicit conduct; and
               (B) such visual depiction is of such conduct

The key word is knowingly.  Knowingly what?  Knowingly transports an object which [turns out to be] child porn.  Not: transports an object knowing that it is child porn.  Get it?  Following this reading, the UPS guy is guilty of transporting child porn.

The Court acknowledged that that is the "most natural reading" of the law, but since it could lead to "absurd" results, they decide to interpret it differently, the more "logical way"-- instead of disposing of the law and forcing a new one.

"Well, duh, everyone knows what was really meant by the law."  Really?  One can easily imagine a time (say, now) when we all decide to read it differently, where the government looks for ways and laws to catch anyone it deems undesirable.  Right?  That could happen?  I'm not just a paranoid, right?  Such laws become, for example, deterrents on actually protected speech.  For example, in this case it could be used to slow down all pornography.

Oh, wait, that turns out to have been precisely why the law was written that way in the first place:

In fact it seems to me that the dominant (if not entirely uncontradicted) view expressed in the legislative history is that set forth in the statement of the Carter Administration Justice Department which introduced the original bill: "[T]he defendant's knowledge of the age of the child is not an element of the offense but . . . the bill is not intended to apply to innocent transportation with no knowledge of the nature or character of the material involved." S. Rep. No. 95-438, p. 29 (1977). As applied to the final bill, this would mean that the scienter requirement applies to the element of the crime that the depiction be of "sexually explicit conduct," but not to the element that the depiction "involv[e] the use of a minor engaging" in such conduct.
So the intent wasn't to get the UPS guy, but it also expressly didn't want to make knowing the girl's age part of the offense, just that you know it's porn.  The idea was to scare everyone down the pornography chain-- producers, distributors, etc-- to force them all to be more attentive to the possibility that their porn is child porn.  Or not to make porn at all. 

The real question brought up in the dissent was why the law even needed scienter (knowledge) of minority.  Does forcing cinematographers to make sure everyone is over 18 really dampen free speech?  To even debate the scienter requirement is to give it legitimacy that it doesn't have in these situations.   This is pornography, not art-- why not force everyone to make very sure that the participants aren't minors?  Otherwise it's perfectly legal to distribute child porn from Thailand ("there's no way for me to check, we don't even know who the actors are, and they told me they're all adults.")  In other words, instead of debating where the word "knowingly" goes, get a law that doesn't have it in there at all: if you' can't show that everyone is over 18, you can't distribute it.

You may be surprised-- or not-- to learn that the dissenter in this case Antonin Scalia.  Certainly he is not pro-pornography.  But a) you can't have laws like this, vague and poorly constructed, talking around the issue, so that any government can choose to implement it any way it wants, and b) you can't allow the Supreme Court to  basically re-write it, to suit their particular inclinations.  You want a better law?  Go ask Congress.

The Court today saves a single conviction by putting in place a relatively toothless child pornography law that Congress did not enact, and by rendering congressional strengthening of that new law more difficult.


Back in the 1997(?) Patrick Naughton, an executive at Infoseek (where?), gets on dad&daughtersex and chats up a 13 year old girl named KrisLA, and agrees to meet in her home state.  Surprise!  She's a 40 year old guy who works at the FBI.

Naughton says he really "knew" she was an adult woman, and anyway all the pics found on his computer are computer generated.  He's found guilty of possession, all other counts result in a hung jury.  (All men voted not guilty, all women voted guilty. Does that beg the question:  jury of your peers?)

Less than two days later, the 9th Circuit Court independently decides Child Pornography Prevention Act of 1996 is unconstitutionally broad.  He is released. 

The Child Pornography Prevention Act of 1996 (CPPA) 18 USC 2256, says, awesomely:

(8) "child pornography" means any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct, where--
    (A) the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct;
    (B) such visual depiction is a digital image, computer image, or computer-generated image that is, or is indistinguishable from, that of a minor engaging in sexually explicit conduct
...(D) such visual depiction is advertised, promoted, presented, described, or distributed in such a manner that conveys the impression that the material is or contains a visual depiction of a minor engaging in sexually explicit conduct

which, means not just CGI porn of kids, but any real girl over 18 who is pretending to be under 18 would be illegal. This is what lawyers would tongue-in-cheek call "overbroad"-- it applies to images that might be neither obscene nor actually involving real kids.  The law is unconstitutional, so says SCOTUS in 
Ashcroft v. Free Speech Coalition.


And so we're left wondering, what next?  When the CGI gets so good that it is actually indistinguishable from real porn, what then?  Should it be illegal, or not?

The new law, Child Obscenity and Pornography Prevention Act (COPPA), pertains to anything "virtually indistinguishable from that of a minor engaging in sexually explicit conduct."  I think the use of the word virtually is ironic.  Or stupid, your choice.

It seems to me that when the CGI gets that good, that easy to make, then people won't be choosing to find real or CGI porn, they will be making their own porn by themselves.  The question is what this will mean for the rest of us.


I go through all this so that you can see that the general spirit may be to protect children, but the intention of the law is to stop child pornography.  The two aren't the same, unfortunately.  The person who molests and photographs kids will not molest them less if the photography is illegal; the question is whether CGI child porn increases the molestation of non-CGI kids.

We can take a hint from regular online porn in the early 1990s, easily accessible by everyone.  I was pretty sure all that porn would turn a generation of twenty somethings into sluts, but, unfortunately, no such luck.  (It did make men start to shave their bodies, which is further proof of the Law of Unintended Consequences.)

Similarly, Grand Theft Auto I-XIV hasn't increased the rates of car thefts or prostitute murders.  What it has done, and what porn has done, is made their rare occurrence less shocking.   In other words, we're not less moral-- we're more jaded.  It's Seinfeld syndrome: "meh."

Child porn, real or CGI, should be considered on its merits (i.e. none) and not on the effect it has on actual molestation, because there appears to be very little connection between the two.  If you want to ban it, the reason can't be "it promotes pedophilia" because if it is shown not to do that, then the whole law disappers.