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.



I think the real question i... (Below threshold)

July 17, 2008 12:54 PM | Posted by Anonymous: | Reply

I think the real question is not who are we trying to protect, rather who is [not] being hurt?

I dont think it should be illegal for someone to possess CGI images of children under 18. Why? Simply because no one is being hurt by it. No real child, family, dog, cat, etc etc is being exploited, molested, etc Where, then, has any harm been done?

And if it means that the person sitting behind the computer looking at these CGI images is LESS likely to act out on them and therefore less likely to hurt REAL children, the govt should be giving away CGI images to these individuals.

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LOL, it's like giving metha... (Below threshold)

July 17, 2008 1:59 PM | Posted, in reply to Anonymous's comment, by Cash McCallister: | Reply

LOL, it's like giving methadone to heroine addicts.

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There is a lot of contradic... (Below threshold)

July 17, 2008 11:26 PM | Posted by Alex H.: | Reply

There is a lot of contradictory evidence regarding the effect of pornography. Particularly violent pornography (and I think it could be argued that sexual abuse of children--whether real or "virtual"--is inherently violent) does seem to encourage what you are calling the "meh" effect. You might call it callousness, rather than being jaded. Once you've seen your hundredth child tortured by an octopus, either in cartoon form or photorealistic CGI, you will probably continue to argue that you are not affected, but I don't think that's possible. The effect is probably that you are not shocked when you see a child tortured by an octopus, and that lack of shock at such depravity is something powerful, I think.

In particular, there's a strain of research that suggests that men exposed to violent pornography tend to become more likely to adhere to "rape myths" ("no" means "yes," etc.) So, I think a reasonable person might believe that there is at least a possibility that the "meh" effect is pernicious.

The question that then must be asked is whether the danger that poses to society outweighs our dedication to freedom of expression and communication. And there needs to be much clearer evidence that such material actually predisposes people to action, rather than (or in addition to!) providing an alternative to such action.

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society.i'll protect your r... (Below threshold)

July 19, 2008 11:16 AM | Posted by Diane Abus: | Reply

society.i'll protect your rights.
society whish censors art which may include pornography(the job ,the society has is to keep a balanc eof rights betwwen the kept(all children?)! and the kept.the artist here who engages does objectify and qualifies as a "keeper".

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Distributors are for... (Below threshold)

July 19, 2008 3:26 PM | Posted by HappyClown: | Reply

Distributors are forced to prove their performers are not under aged: http://www4.law.cornell.edu/uscode/18/usc_sec_18_00002257----000-.html

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In regards to Alex H.'s que... (Below threshold)

August 12, 2008 3:57 PM | Posted by Jim: | Reply

In regards to Alex H.'s question:

"The question that then must be asked is whether the danger [desensitization to sexual violence] poses to society outweighs our dedication to freedom of expression and communication. And there needs to be much clearer evidence that such material actually predisposes people to action, rather than (or in addition to!) providing an alternative to such action."

Unless society decides to outlaw all pornography, I don't think that there will even be a clear enough bright line between porn that's too violent and porn that is not. We as a society simply have to accept the fact that technology will continue to enable higher quality porn and sex simulations. Once we do that, we can figure out how best to protect children.

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I have what many of you wou... (Below threshold)

December 28, 2011 11:54 AM | Posted by dudeitsthecops: | Reply

I have what many of you would consider a weird view on this; I work as a Parole Officer for sex offenders and to be honest this would lower the number of victims, they really don't know why they are pedophiles and most of them really don't want to be this way, most of the offenders i deal with only look at the child porn for what they believe "keeps their urges in check" when they see children in real life. In fact some who have no previous criminal record (except child porn possession) actually commit their first physical offense while on probation because they know we might come knocking and ask for a full search. So if you were to have it computer generated and therefore no victim this may be a last hope for some of those sick F*@%s; but the fact that they do it still should be publicly accessible to know. This subject is controversial and the offense is so disgusting we don't see the fact they are disabled in terms of being criminally insane and the offender knows that about themselves, also most of them have another mental disability so they do not actively seek help. I'm not trying to say they are any less guilty but for minor offenses that don't involve an actual child being in contact with them. They are not malicious just simply diseased.

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"I was pretty sure all that... (Below threshold)

April 14, 2013 6:07 PM | Posted by OB: | Reply

"I was pretty sure all that porn would turn a generation of twenty somethings into sluts, but, unfortunately, no such luck."

Sexual promiscuity is not at an all time high? Have you visited American universities?

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The problem is, I think, no... (Below threshold)

December 16, 2013 2:43 PM | Posted, in reply to Alex H.'s comment, by Atarii: | Reply

The problem is, I think, not that people are "meh" about BEING ROBBED, but about the abstract IDEA that someone else was robbed.
You would probably still be horrified and emotionally overwhelmed if you saw a REAL kid having her vagina being ravaged by an octopus tentacle; but if you HEARD ABOUT it happening, it might affect you less.

The twin towers fell, I was nowhere near, and I was indifferent.
If I had been there and seen two enormous buildings, potentially holding thousands of people, I would have undoubtedly been shocked numb.

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