Dear Rick II – Response to Rick Falkvinge on Legalizing Child Porn

Dear Rick:

Yesterday, I opened up on you without actually taking the time to refute your positions or points. Honestly, it’s tough to read that many words, disagree with every one of them, and know quite where to begin.  I know you said you would respond, but then GoDaddy sites were down for many hours.  In the interim, I took the time to write a more analytical response to your article, lest anyone think I’m merely reacting to the nature of child porn itself.  As I said in my open letter, I think many of the fallacies in the article speak for themselves, but let’s take look at its three main assertions:

1. The ban [on child porn] prevents catching/jailing child molesters.

Your support for this premise, which you write in the present tense, is to leap immediately to a very obscure hypothetical situation ten years in the future.  Never mind the fact that your scenario has a one-in-many-million chance of happening; but even in the event that an innocent citizen inadvertently records a child molestation while wearing his Google glass, you are merely speculating that this witness would be treated as a criminal. By this argument, if I found a tape in my neighbor’s trash that turned out to be child pornography and brought the tape to the police, you insist that they would charge me with possession.

Sure, this could happen if the police are corrupt or inept, but it is certainly not the intent of the law. Moreover, when technological or societal change really does demand amendment to the law, it happens. Writing a statute that exonerates your as yet imaginary, inadvertent witness/recorder of a crime involving a naked child seems like an afternoon’s work for a decent law clerk.

Far more serious than your purely hypothetical (and frankly paranoid) example is the very real tragedy that people languish in prison right now who have been wrongfully convicted of homicide.  As terrible as that is, I’m confident we will never legalize murder in order to right these miscarriages of justice.

 2.  The laws brand a whole generation as sex offenders

You state:   “Our current laws treat the video of a seven-year-old being brutally raped, on one hand, and two seventeen-year-olds who have eyes for nothing in the world but each other making consensual passionate love, on the other hand, as the exact same thing. This is mind-bogglingly odd.”

That would indeed be mind-bogglingly odd if it were true — or had subject/verb agreement seeing as a video itself cannot be charged with a crime.  Suppose a priest rapes a seven year-old altar boy and the act is caught on surveillance video.  The priest has committed a crime for sure, but is the owner of the building guilty of possession of child pornography, even when he marches that tape straight into the authorities as he should? All smoke, mirrors, and Google glass aside, this is basically what you’re saying, and it doesn’t make a lick of sense.

As for your 17 year-old lovers, the age of consent in Sweden I believe is 15, and the age of consent in the U.S. ranges from state to state between 15 and 17. So these kids are free to make “consensual passionate love,” as you put it; although at that age, there’s a decent chance it’s awkward, brief, and bit bumbly to be honest.  Still, you’re really painting this picture as a provocative intro to get us to focus on criminalizing the teenager who photographs him/herself naked and presumably shares those photos via telecom.  You state that criminalizing this behavior both equates the act with serious molestation against young children and makes teens feel bad about their bodies.  Again, nothing you’re saying makes sense to me as either an experienced parent or as a citizen with a working knowledge of the law.

In the first instance, the teen in possession of photos of him/herself can be charged in various states in the U.S. with misdemeanors, ordered to engage in counseling, etc. They will not face penalties equal to those of an adult convicted of physical child abuse. You’re guilty of the same associative argument you criticize with your “jaywalking-and-murder” example.  You’re lumping it all together for dramatic effect, but what you’re saying just ain’t so.

Regardless of legality, the act is very dangerous and very stupid; and it is not proscribing the self-photography that makes teens feel bad about their bodies.  When teens feel bad about their bodies, it’s because they’re teens, who have been feeling self-conscious long before technology gave them new toys to play with. A teen who chooses to exhibit him or herself naked via digital communication might be due for a serious discussion with an adult about self-worth and self-preservation.  It’s not about criminalizing the kids to appease some prudish authority — I’m a parent and couldn’t be further from the religious nuts you refer to in your article —  it’s about helping them take care of themselves, which includes protecting them from their own ignorance about the world, about child predators, about putting something out into the digital universe that they can never get back.

 3. The free speech war is won/lost at the battle of child porn.

At last, we get to something approximating your real goal, I believe.  This statement reminds me of another one from the protectmarriage.com website, active during the Prop8 fight to ban same-sex marriage.  I may be paraphrasing slightly as the site is currently down.  They stated:

 “While abortion is a foundational issue, we see marriage as a survival issue.” 

Interesting language, if you think about it.  Like you, these Protectors of Marriage also imagine an ideological war to be won or lost on the basis of a single law that taps into people’s emotions.  And just as they claim to be fighting for the religious soul of America, you claim to be fighting for the soul of free speech itself.  Both of you, of course, are guilty of ignorance in your premises and gross exaggeration in your purposes.  They believe American law is fundamentally more religious than it is; and you believe free speech is truly in jeopardy.

I happen to believe very strongly that the secular laws we write in a free and democratic society are, at their best, a unified declaration of our humanity without requiring religious doctrine. That which we protect and that which we abhor, as expressed through the rule of law, actually does matter a great deal.  But in a very similar way to our Christian zealots, Rick, you fabricate wedge issues in order to draw oblique lines toward dangerous conclusions about the very notion of law itself. To be blunt, I believe you are a technocrat who envisions a world in which technology either obviates the need for law or demands that the law bend beyond reason to accommodate technology’s endless vicissitudes.

In truth, you may be less like the American Christian zealot in your use of child porn here than you are like Ronald Reagan using flag burning as a distraction from your real agenda.  You knew you would draw fire for appearing to be pro-child pornography, and I am reasonably confident that you do not in reality advocate harming children, so perhaps your real mission has more to do with this statement:

“There is a reason the copyright industry loves child pornography.  This reason. It opens the door to censorship.”

This is your party platform, Rick, isn’t it? If so, I think you should be more transparent about it, champion of transparency that you are. Certainly, more straight talk would afford you more opportunity for concision in your writing, and what you’re saying is really pretty simple:  “Copyright is censorship.”  And, of course, if that’s what you truly believe, it’s no wonder you see censorship everywhere you look.

I happen to find your position naive, fallacious, and destructive for some of the reasons I mention above about law and humanity. You believe those of us who would defend copyright don’t understand the Internet, but the truth is you don’t understand copyright. What you want to call censorship is in fact one of the strongest statements my country makes about the importance and the value of a single voice.  Go ahead and blast media oligopolies and their lobbyists all you like.  It’s not my role to defend everything they produce, say, or do.  But as an artist, a big mouth, an atheist, and a liberal; I’m willing to bet I care a hell of a lot more about our First Amendment than you do, and I truly resent when amateurs misuse it.

© 2012 – 2013, David Newhoff. All rights reserved.

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17 comments

  • Well written argument, David. One that I happen to agree with you on. How anyone can advocate for the freedom to publish child pornography as a means of protecting our First Amendment rights is beyond me.

  • I think Rick will agree with you that it is ridiculous to have laws work this way, but that’s how they’ve been written! I don’t know what was going through the mind of the lawmaker at that time, but it’s indeed the case that possession of child pornography, no matter how good your intentions may be, is illegal, and punishable by harsher penalties than those for the person molesting the child.

    See also: http://falkvinge.net/2012/09/11/child-porn-laws-arent-as-bad-as-you-think-theyre-much-much-worse/

    Now it’s quite possible that Rick has more than one agenda with regards to this topic (copyright, as you claim), but that doesn’t invalidate his arguments.

    • I maintain, as stated in the post, that his premises are built on falsehoods and misdirections; and I maintain that his purpose is an unreasonable assault on copyright. As you will see throughout my comments, I am very critical of Westerners fighting for rights they already have. Where there is an illusion of revolution, there is usually an ulterior motive. Thank you for posting.

      • Your statements in this post however simply do not match the law as written. What you wrote may have been the intent of the law, and it certainly would have been a logical way to write a law, but it’s not what the law actually says.

        For that matter: if you agreed that the law should be rewritten to match what you wrote in your post, I think Rick and you would very much be in agreement.

      • I find it hard to see where Falkvinge is arguing the law at all. For starters, I’d have to know whose law, as he’s speaking as a European. Then, law itself is a very specific and complex thing (usually best argued by legal professionals), whereas I find Falkvinge’s comments vague, and loosely knit together. Moreover, I completely question the motives here. We’re not going to legalize the possession of child pornography. So, if there is a real problem, somebody needs to identify specifically what it is and propose a solution. I don’t hear that. I hear generalized futurism and hysteria over free speech.

      • As far as I recall the article, he was speaking of both US and Swedish law. It’s clear that these laws do differ between countries, so the problems may not exist in all countries.

        He also describes a number is issues with the law as is (not all points may apply to all countries):
        1. The law on possession carries higher penalties than the law on the actual molesting.
        2. The law does not take intent into account. Whether you possess it for evidence, journalistic purposes or perversion: possession is possession.
        3. The definition of CP is so broad that even a cartoon depicting a child that’s partly naked would qualify. It’s also broad enough to make pre-18 nude pictures of yourself qualify.

        As for generalized futurism: already people are being convicted and/or punished who had absolutely nothing to do with CP:

        http://falkvinge.net/2012/09/11/child-porn-laws-arent-as-bad-as-you-think-theyre-much-much-worse/

      • I don’t have time to look up the details on points 1 & 2 today, although it is certainly not true, as I stated in my post, that possession in the instance of point 3 will carry the same penalty as molestation. As for the illegality of Point 3, my personal opinion for the time being is tough nooggies, kids. Sharing nude photos of your teenage selves is really very stupid. So, for now, it will remain defined as child pornography. I suspect it will remain that way until someone can prove an urgent need to provide teens with the opportunity to do this. Rick’s question as to who is served works both ways. Making child pornography legal serves whom exactly?

  • No, it’s worse than that for 3. Possession, in the law _as written_, carries a _higher_ penalty than molestation. That’s not a matter of agreeing or not: it’s simple fact.

    I think it’s also well known that teenagers will do really stupid stuff. That’s no reason to hand them a conviction for CP, with a life long registration as a sex offender though.

    CP laws, as written today, make it _harder_ to catch child molesters, because gathering evidence is illegal. As such, changing the CP laws will actually benefit the fight against CP. The law _as written_ only serves CP offenders in stead of their victims. The law actually has the _opposite_ effect of what it’s trying to achieve; it needs to be changed.

    • On your first assertion regarding penal code, I shall not only look that up in more detail over the weekend but also seek the input of someone in law enforcement. Even more so, I would prefer to hear the assessment that current laws make it harder to catch molesters from someone in law enforcement, and not from Rick Falkvinge. I don’t believe for one second that Rick’s goal here is to catch more exploiters of children. I’m not saying he likes to see exploited children (at least I hope that’s not the case), but I truly don’t understand how anyone can think from his disjointed writing that catching more predators is his goal.

      If you, Pieter, want to cite law enforcement professionals stating that, in the present, the CP laws and penalties make it harder to catch exploiters, then I’m all ears. I suspect their answers will be to write new, possibly more complex laws that take advantage of technology but certainly not to legalize possession as a solution. The laws they would propose would, I’m guessing, be called “wire tapping” and other privacy infringements by Rick Falkvinge. Rick isn’t talking about better enforcement, or he’d talk about it, and he most especially would not bring up copyright in this context. He’s a shill for technologists and online pirates. Says so right in the name of his party.

      • It’s sad, but with regards to your second paragraph: as I was typing in the Google search terms I was struck by the thought: will this ever come back to haunt me? Will the fact that I’m typing in these CP search terms ever be used against me? Considering the horror stories of what child services has done to parents here in the Netherlands (truly, dozens upon dozens of cases) I simply do not wish to take the risk. Should I ever encounter the information I will be sure to add it here, but for now I’ll have to give up.

    • Pieter, this article about a 2010 case in Pennsylvania pretty well sums up my opinion on this matter in general and on Falkvinge’s hyperbole in particular. Even the DA in the case against these minors states that he would like to have charged the kids with something less than felonies; and then the article goes on to explain that several states have taken up the matter of making sexting charges less severe. This is two years ago, and it is an example of what I meant when I said that, if the law doesn’t fit the times, we change the law; but we don’t necessarily legalize a serious criminal act in order to make the whole thing easier.

      While one could point to this case and say, “Look these kids are charged with a felony while an adult can simultaneously be charged with misdemeanor child abuse,” this statement would be true, but it would also be a grotesque exaggeration of a technicality to which officials and citizens are paying attention. Falkvinge is using generalizations for the purpose of fear-mongering, which is what he does with regard to free speech and privacy, all in the service of reclassifying theft of intellectual property as freedom of speech.

      With U.S. criminal law, it’s pretty hard to generalize, especially when we’re not talking about thousands, or even hundreds, of cases. Criminal law is a matter handled state by state, and it is up to each state legislature to address these issues. Still, no one is going to take seriously Falkvinge’s apparent attitude that photographic sexting is not only harmless but even healthy. He has no more credibility as an amateur child psychologist than he does as an amateur criminologist.

      As I have made very clear, I don’t think Falkvinge gives a damn about child pornography laws in truth; and it absolutely sure that nobody who matters in the U.S. gives a damn about Falkvinge’s analysis on this issue. He’s using a high-profile, high-conflict subject to draw attention to himself and to create a PR campaign aimed at youth and in the name of his brand of “Internet freedom.” I’ve said this multiple times, I stand by it, and I frankly can’t understand any adult who cannot see this method in his madness.

      If you are truly interested in digging into hard facts about child pornography and the laws in several countries that either are or are not evolving in concert with technology, I bid you good hunting; but I am not that expert and do not pretend otherwise. But neither is Falkvinge.

      • The article you mention also pretty much sums up my PoV:
        “Should they be crimes at all?” Bailey asked. “This is an over-zealous and inappropriate application of the criminal law.”
        The DA still believes those teenagers did something illegal.

        Of course it’s stupid for a teenager to take a nude picture of him/herself, but that’s what teenagers do: stupid things, and they learn from them like we learned from our mistakes. That’s no reason to give them a criminal record for the rest of their lives. If we outlawed every stupid thing a teenager could do, we’d have our prisons filled with them. Are we now protecting teenagers by giving them a criminal record for the stupid things they did, which if anyone only harmed themselves?

      • I figured you would seize on that quote and also make more out of it than it means. Again, this is two years ago in the state of Pennsylvania, which skews fairly conservative, and still it reveals intent by officials to rethink the laws and their applications. As to your question about the criminal record, I think I’ve shown you that many lawmakers and at least one DA would say, “No, they don’t deserve that kind of record for just being dumb kids.” Bailey asks the question, but that’s all he does. The conclusions will be that it should still be illegal, there is potential harm, and we cannot write a law that says it’s okay to distribute child pornography, even when you’re the child in question. The solution is to create separate statutes for cases like sexting that are not charged as felonies. This seems pretty simple to me.

        As to your fears about searching Google, I cannot comment as I have no real knowledge regarding cases or your rights in the Netherlands. In fact, I’m willing to concede that many of your (and even Rick’s) concerns vis a vis Europe may be more serious than mine in the U.S., especially since I don’t have time to really do that kind of research into this particular issue. Still, I can tell you that many crimes in the U.S. have degrees of severity and penalty, even homicide. Child abuse can be a misdemeanor or a felony. Historically, this is not the case with child pornography because there really weren’t ways to be in possession of child porn that didn’t involve exploiting a child. Hence, as the article says, the laws must adapt to the new technological environment.

      • I think you and I will simply continue to disagree on the first part. 🙂 I believe that in situations where there is no victim (like e.g. cartoons), it shouldn’t be illegal either, and people should always be free to do stupid things to themselves. Neither criminal nor felony fits here as far as I’m concerned.

        Any plans to react to Rick’s follow up article I linked to?

      • Thanks for the discussion, and no I won’t write a response to that article. For a blog that’s less than a month old, I have three items assailing Falkvinge, which is plenty for the time being. I don’t want to wander down the road on one issue and feel that I’ve said what I have to say on child pornography for now. It’s something of an exercise anyway, as I predict you will never hear an American lawmaker take Falkvinge’s position; it would be the end of that person’s career. In fact, in the interest of allowing states to ease up on teen sexting as a crime, it would be best if the subject never really gain national attention.

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