Supreme Court Says Telling People You Have Child Porn Is Illegal... Even If You Don't Have It

from the something-doesn't-seem-right-there dept

Thu, May 22nd 2008 4:04am — Mike Masnick

I certainly have absolutely no problem with the government going after folks involved in child pornography. However, they shouldn't stretch the laws so far as to make it ridiculous. Unfortunately, however, it looks like the Supreme Court is allowing them to do so. In a recent decision, the Supreme Court okayed a law that makes it illegal to simply try to convince someone else that child pornography is available -- even if it is not. That is, merely telling someone that there is child pornography at a certain link could be considered illegal. Two justices dissented, but seven said the law was fine. The lower court seemed to have it right, noting how problematic it was that this law would apply to "any promoter -- be they a braggart, exaggerator, or outright liar -- who claims to have illegal pornography." However, the justices, led by Justice Scalia, seem to say that the law would only be used in cases where it made sense. Of course, given how often we see laws twisted beyond their original purpose, this seems difficult to believe.

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Filed Under: child porn, supreme court

68 Comments

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some old guy, 22 May 2008 @ 4:43am

speaking of problematic
What happens if I claim to have kiddie porn, and ALSO claim to be Mike Masnick?
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Nate, 22 May 2008 @ 4:50am

I understand why people would think a law like this could be bad. But, at the same time, I don't think it will ever be a problem for anyone who has nothing to do with child porn. Basically, if you use child porn to promote your site, even if it doesn't have it, it is illegal. I am not sure I see what the problem is. It is a good law, though very "broad scope".

http://www.custompcmax.com
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Tatheg, 22 May 2008 @ 5:00am

What if?
So, what if I were an under-cover police officer working on an internet crimes unit and enticed someone to go to a link that had child porn (even though the link didn't go to the kiddie porn promised) would I be breaking this law? The police have been using bait and switch tactics to entrap all manner of internet criminals. So, would this law then prevent the police from using these methods, or would it simply not apply the the police?
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Alimas, 22 May 2008 @ 5:02am

Re:
I think assuming no ones going to use it for anything that doesn't involve someone actually having child porn is an extremely risky assumption to make.
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Haywood, 22 May 2008 @ 5:13am

The whole concept is flawed
What constitutes porn? Is nudity enough or is some sort of sex act in progress necessary? I'll bet a lot of people have looked at & even stored, mature looking naked 16 year olds without even knowing.
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Anonymous Coward, 22 May 2008 @ 5:19am

Surely this infringes on free speech. Obviously, pretending that you've got a large stash of child pornography is hardly in good taste, it still shouldn't be illegal, since it can be used for comedy value if nothing else (i.e. 4chan's pedobear).

Also, wouldn't a law like this remove some possible options of capturing pedophiles? And from another viewpoint, what possible *use* would this have? You could argue that implementing it may not have huge problems, but it has literally no use, other than possibly increasing the amount of time the authorities have to waste chasing down people who are now considered to be criminals, even though they're just having fun in poor taste.

Is there a huge problem of people pretending to be pedophiles wasting taxpayer money that I'm just not aware of?
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Charles, 22 May 2008 @ 5:35am

I used to think that Justice Scalia had a good head on his shoulders but this really takes the cake.
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Anonymous Coward, 22 May 2008 @ 5:36am

Does that mean that when you fill out the keywords on your youtube video, and you tag it with "child porn" that you could go to jail?

I don't do that, but that was the first thing I thought of. I've seen others do that, put a bunch of keywords that have nothing to do with the video, just to get better hits on the searches...
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ScytheNoire, 22 May 2008 @ 5:43am

What about the law?
What happens when "the law" (law enforcement) goes using honeypots to try to catch people? Wouldn't that now be illegal?

Child porn and pedophilia is f**ked up, but they always go about things the wrong way. Education, educating children, and harsh prosecution of actual criminals is the way to combat this. (Actual, as in teens screwing other teens and getting labeled pedophiles, and thousands of other false cases of pedophilia labeling)

Just the government doing it's job once again to do nothing to get the job done while screwing things up more.
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wasnt me, 22 May 2008 @ 5:47am

thinking of the article posted on techdirt yesterday (guy blames google for making child porn easy to find) is google going to be shut down and the man arrested?

after all google is pointing were it is.
and the man told us how to find it.
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Alimas, 22 May 2008 @ 5:53am

What if I Rat someone out?
So, I can now be arrested if I call the police up and tell them about someone I discovered has child porn on their computer.
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Overcast, 22 May 2008 @ 6:06am

Yep - think so #11
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Mork from Ork, 22 May 2008 @ 6:10am

Does this apply to the cops too?
Are the cops going to be charged when they set up a honey-pot to catch the pervs?

How about MSNBC and it's "creep of the week" show, where they lure in the degenerates with false chat room conversations?

Now THAT would be entertaining!
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Anonymous Coward, 22 May 2008 @ 6:12am

If you plan to rob a bank but never actually carry it out you can still be charged for conspiracy. This is the same thing.
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Alimas, 22 May 2008 @ 6:16am

Re:
Thats if you PLAN.
If I joke with my friends I'm going to rob a bank to pay off my bills, thats not illegal. I spend a day putting together tools and plans to rob said bank, not its illegal.
In this articles situation, if I were to conjecture the statement: "there is child porn on this internet", I'd be breaking the law.
Kind of skirted real close to it right there.
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Killer_Tofu (profile), 22 May 2008 @ 6:21am

Re #14 AC
No, it is not the same thing.

My first thoughts went to "great, now cops will have a harder time catching criminals".
Seriously, as others have mentioned, police use the honeypot tactics .. which are now illegal.
Great move justices, you idiots.
Horrible stretch of the law that, as much as I hate to say it, appears to be erroding our free speech rights.
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You never know, 22 May 2008 @ 6:21am

Modern day witch hunt? Sounds like the Salam Witch Trials, You know the one where some kids cryed “Witch “ and people started being tortured and executed.
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Liam, 22 May 2008 @ 6:23am

Re:
you've never been to 4chan...
child porn is kind of a running joke there...
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jonnyq, 22 May 2008 @ 6:43am

The Court's job isn't to make laws or to just overturn laws it doesn't like. It can only resolve conflicts between laws and conflicts between a law and the constitution.

While the law may be incredibly stupid, it may not be unconstitutional, in which case the Court can't do much about it.
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Nick Burns (profile), 22 May 2008 @ 6:49am

So the FBI Honeypots are totally illegal: http://techdirt.com/articles/20080320/102209599.shtml
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Lisa Westveld, 22 May 2008 @ 6:51am

But what if...
What if I claim that I own pictures of myself at age 13. And that I'm completely nude in those pictures? What if I'm a teen who likes to make pictures of myself while touching myself at some intimate place in a very indecent way and tell others just about the existance of those pictures?
This could mean that a 13 year old girl could end up in jail and become a registered sex offender just for doing this in private and just mentioning it once to someone online. It's already ridiculous that children can get arrested for publishing themselves nude on the Internet but this would even be worse.
Of course, children who publish themselves nude on the Internet are a danger to themselves but they should not be treated as criminals. They just need some psychiatric support or whatever.
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Pat, 22 May 2008 @ 6:51am

Why is this bad?
I don't understand how this is a bad thing.
Using child porn as an advertising technique is pretty low for any company, even if they don't actually have it.

There have been numerous cases in which websites have been gone after for accosting convicted child predators with ads and trials and in the end actually causing the people to revert to their sick tendencies.

Is it really horrible if this possibility is stopped?
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BillGod, 22 May 2008 @ 6:54am

hmmm
what if you said click HERE.. there is NO child porn here..
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J, 22 May 2008 @ 7:10am

No Crime --> Crime
If you post sexual pictures of two young-looking 18 year-old models and claim that they are under 18, this is now a crime.

Even if you can prove they are over 18, by suggesting that they are under 18 you have committed a crime under this law.

No minors were exploited or harmed, but you no longer have a right to free speech. And the Supreme Court has no problem with this.
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Anonymous Coward, 22 May 2008 @ 7:12am

#1 has a point. Anyone could say they are someone else and cause a lot of misery for someone.

This law is way to easy to be manipulated.

M
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claire rand, 22 May 2008 @ 7:16am

effects?
the problem is this *won't* be used for child porn.. it will be used to say that telling someone about anything illigal could be a crime.

and the riaa will love it.. oh you meantioned how to rip a dvd, or told someone where to get the info... clink
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PaulT (profile), 22 May 2008 @ 7:19am

Re: But what if...
I don't have a link at the moment, but I'm pretty sure that there's already been a case where a 15/16 year old was convicted of having child porn - even though the pictures were of herself.

Welcome to the witch-hunt: "You're a terrorist!" and "You're a pedophile!" are the 2 most effective phrases at attacking someone you don't like in today's society, just as "communist" was in the 50s.
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Chronno S. Trigger, 22 May 2008 @ 7:20am

Re: Why is this bad?
Let's look at something that has already been taken up. How about when Imus said "Nappy headed ho"? Why can't we ban that phrase? I don't see how it could be used without being derogatory (technically I didn't know it was until everyone shit bricks). There are a few other choice words that would fall under this category.
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Mr. Vage, 22 May 2008 @ 7:30am

Re: Re:
Pedo bear is watching your children masturbate.
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Anonymous Coward, 22 May 2008 @ 7:38am

Re:
I understand why people would think a law like this could be bad. But, at the same time, I don't think it will ever be a problem for anyone who has nothing to do with child porn. Basically, if you use child porn to promote your site, even if it doesn't have it, it is illegal. I am not sure I see what the problem is. It is a good law, though very "broad scope".

There are already laws that prevent that, mostly dealing with false advertising, misrepresentation, etc. The problem is that we are getting so wrapped up in the fact it's child related, that we are losing the point that it's an illegal product. Period. If someone actually HAS an illegal product, then they should be arrested. If someone says they have an illegal product, either as a joke, or as a ploy, they should be investigated, but not charged with "saying you committed a crime". That's absurd.
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DCX2, 22 May 2008 @ 7:39am

Re: Why is this bad?
The law needs to simultaneously punish people who take advantage of child exploitation, while minimizing the potential collateral damage involved. If the scope of a law is too broad, even if there were originally good intentions, it will eventually be applied to problems outside the scope of its original intent.

It is a shame that we have a collection of Supreme Court Justices who want a particular outcome (= penalties for people with anything to do with child porn) and simply assume that prosecutors will not misuse a poorly written law as a justification for reversing the lower Court's decision. True irony will be if the law is eventually abused and SCOTUS needs to revisit their decision...
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Tobeus, 22 May 2008 @ 7:44am

The beginning of the end.
I disagree Nate. When the government has the ability to regulate what people can say, the very freedoms that so many have died for are in jeapardy. If we continue to allow the erosions of our freedoms this way, by becoming complacent with these subtle attacks, then we will end up in a police-state. That is unacceptable on American soil.

I agree that child pornography is distasteful and inherently wrong, but to imply that one could not even joke about it is un-American. Unfortunately, with the public so one-sided about this topic, it is forcing politicians to make bad decisions. In my own neigborhood, people are getting arrested because they are downloading regular porn, and some of them were questionable. We are talking about porn stars that are borderline of age. The person viewing the material has no way of knowing they are underage.

In addition, there are many folks that are labeled every day from this type of problem, and they are not given a chance to re-integrate into society after they have done their time because of the sexual offender registries that are now pretty much standard in all states. These people that may, or may not, have learned their lessons are being forced to move into practicaly penile colonies because they cannot be within a certain distance of "places where children congregate." If anyone were to bring up a map, one would find out that this leaves almost no room in any city or town. Then we have to figure out what to do with them. Many turn to the shadows and completely dissappear (probably taking on an alternate identity). Now we have NO track of them whatsoever.

This problem has become far to much like the salem witch trials of the past. If some sick person decides to become a sexual "predator," actually seeking children out, then they should burn. If he decides to take dirty pictures of kids, then make him pay. If some guy gets off by downloading lewd pics of a 17-year-old (which most of these come from countries where the legal age is 14+), then leave the guy alone. He doesn't have a victim.

Man, it just burns me when I see the supreme court messing with peoples rights... Sorry to go off there.
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Wolfy, 22 May 2008 @ 7:54am

Honey pots and entrapment
Hey, people! The law enforcement in the US has never had a problem with entrapment! They are outside of most of the laws. They can posses illegal drugs to entrap you. This kiddie pron thing is not different.
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Wolfy, 22 May 2008 @ 7:59am

This is what the US gets for letting the Bushs' take the presidency... a packed supreme court. Look for more blantanly poor rulings to come, for as long as these criminals in black robes live.
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JohnnyHeavens, 22 May 2008 @ 8:02am

But honeypots are OK
...if you're a cop.
Just guessing this is how it will work anyhow. If they are saying they will only apply the law when child porn is involved then a friendly honeypot from our boys in blue would never fall into that gray area and so I'm sure it will never be enforced there.

IMO it's much too broad, filled with room for deception and requires too high a level of trust of those that work in those gray areas to not abuse or mis-apply the law. If it's illegal then it should "always" apply. If it's only wrong when convenient then it seems to be infringing on free speech.
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JeffR, 22 May 2008 @ 8:02am

By how it can be abused
I was always taught that the method that should be used to evaluate a law is by how it can be abused.

I see all sorts of ways for this particular law to be severely abused.. which makes it, in my opinion, a bad law.
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Alimas, 22 May 2008 @ 8:24am

Re: But what if...
Yeah, its illegal.
The law defines the age of the folks in the images, not who they are or who owns them.
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some random guy, 22 May 2008 @ 8:41am

Re: Re: But what if...
If I am over 18 (even like, say, 40), and have naked pictures of myself in the bathtub when I was 10, is that a crime? What if I offer to post them on the internet?

Come to think of it, the video I took in the delivery room of my daughter's birth is probably illegal too (the little buggers come out butt-naked, wouldn't ya know it).
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Anonymous Coward, 22 May 2008 @ 8:48am

Applying this precedent elsewhere
This could be an unfortunate precedent. In RIAA threads, someone regularly suggests naming innocent files with names that look like metallica mp3's as a harmless joke on RIAA investigators. Those harmless jokes may be criminal now.
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bshock, 22 May 2008 @ 9:03am

Coming up next...
Just knowing the fact that child porn exists will soon be illegal.
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gryndyl, 22 May 2008 @ 9:26am

Re: What if?
then at that point you would first be guilty of entrapment, by as you say "enticing" pedophiles to click the link in the first place and then yes you could be found guilty of breaking this law as well
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Anomymous, 22 May 2008 @ 9:27am

I have kiddy porn!
Seriously? Wow, that must make this link illegal. Kiddy Porn Here: http://www.youtube.com/watch?v=9FJYSpEX_i8
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Baloney Joe, 22 May 2008 @ 9:32am

Cops
Law enforcement is allowed to break the law in the pursuit of criminals. Think of undercover drug buys and bribery sting operations. This law won't effect them.
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Anonymous Coward, 22 May 2008 @ 9:33am

Re:
I think you've got it here. It's scary to see this kind of precedent.
This can then be twisted to mean:

'X' is something, anything. eg: a gun, a type of plant, an exotic animal, maybe even a book.

If 'X' is illegal, It's illegal to claim that I have 'X'. If it's illegal to claim you own something illegal, is it then also illegal to claim that something illegal should be made legal?

While I do not disagree that it should be illegal in this case, people should still have the right to say it should be legalized. No matter how much we disagree with them.
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Ryan, 22 May 2008 @ 9:33am

first step
Child porn is the first step whenever a politician wants to make a change to other laws. NOBODY EVER votes against any law that might help child porn.

Once that law passes, they can use it to pass similiar laws. Next comes the illegal to link to or claim to have drugs, copyrighted music, etc.

If you want your law to pass, say it somehow stops child porn.

If you really want to stop child porn, do something about all the myspace kiddies posting 1/2 naked pictures of themselves and take webcams away from all the kids.
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Anonymous Coward, 22 May 2008 @ 10:29am

My kid and pictures
I often wondered...

When I was growing up, my mom would take pictures of me wearing costumes or just running around naked (I hated clothes). Nothing deviant, just me playing a video game naked or me wearing my grandfathers coat and nothing else, etc. She often, in gleeful delight, used to pull the pictures out to show girls I brought home to meet the family. All in good fun of course and while embarrassing, I didn't mind that much (epically since she already saw the grown up version before then).

I take pictures of my kid (who also hates clothes). I intend to also pull them out when his girlfriend (or boyfriend) is brought over to continue the cycle of embarrassment. I also think they are cute and not sexual in any way.

Do I own child porn? What is the definition of Porn legally?
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J, 22 May 2008 @ 10:36am

Re: My kid and pictures
Yes, you and your son are porn stars.
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Chronno S. Trigger, 22 May 2008 @ 11:06am

Re: I have kiddy porn!
This post brings up a few good questions.
Is that post illegal?
Is it illegal for me to point out the post?
Is it illegal for me to respond to this post?
Would it be illegal for me to post a link to this article now?
How about not reporting it?
Will Mike have to delete it when he sees it?
Is it a rickroll?
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Alimas, 22 May 2008 @ 11:58am

Re: Re: Re: But what if...
Depends on if the images can be arguably sexually themed.
Sex acts are being committed, cameras focused on genitalia, etc..
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Anonymous Coward, 22 May 2008 @ 2:19pm

Re:
Surely this infringes on free speech.
Of course it does. Welcome to the conservative-packed Supreme Court.
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Anonymous Coward, 22 May 2008 @ 2:25pm

Re: What about the law?
What happens when "the law" (law enforcement) goes using honeypots to try to catch people? Wouldn't that now be illegal?

No, they're exempt. In fact, I once read many years ago (before the internet) that federal law enforcement, acting through various "sting" operations, was actually the biggest distributor of kiddy porn in the US.

I also remember reading the federal law against possession of child pornography and noting that Congress exempted themselves too.
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Anonymous Coward, 22 May 2008 @ 2:28pm

Re: Re #14 AC
"Seriously, as others have mentioned, police use the honeypot tactics .. which are now illegal.
Great move justices, you idiots."

No, it's not. As mentioned above, the police are exempt.
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Anonymous Coward, 22 May 2008 @ 2:33pm

Re: Re: Re: Re: But what if...
Depends on if the images can be arguably sexually themed.
Sex acts are being committed, cameras focused on genitalia, etc..

So, it's OK if the camera has poor quality focus (like most disposables and camera phones)? That seems strange.
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Anonymous Coward, 22 May 2008 @ 2:40pm

Re: My kid and pictures
You're sick. You should be given the death penalty.
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Rekrul, 22 May 2008 @ 8:19pm

So, I can now be arrested if I call the police up and tell them about someone I discovered has child porn on their computer.

Well, if you know they have child porn on their computer, you obviously viewed it, so the police would probably consider you guilty as well. I know, that seems pretty twisted, but people have been arrested for posession of CP for trying to turn it over to the authorities.

You have to understand that CP today is a full-blown witch-hunt, where even the slightest accusation is enough to ruin someone's life. All common sense goes out the window when the authorities think they're dealing with CP. American law may state that everyone is innocent until proven guilty, but with CP charges, it's pretty much the other way around.

My first thoughts went to "great, now cops will have a harder time catching criminals".
Seriously, as others have mentioned, police use the honeypot tactics .. which are now illegal.

Where did you get this ridiculous idea that the law (any law) applies to cops?

Of course, children who publish themselves nude on the Internet are a danger to themselves but they should not be treated as criminals. They just need some psychiatric support or whatever.

I'll grudgingly agree with the putting themselves in danger part, but why would they need psychiatric support?

I take pictures of my kid (who also hates clothes). I intend to also pull them out when his girlfriend (or boyfriend) is brought over to continue the cycle of embarrassment. I also think they are cute and not sexual in any way.

Do I own child porn? What is the definition of Porn legally?

It depends entirely on whether some uptight prosecutor and/or judge thinks that someone, somewhere, might get turned on by looking at the pictures of your son. Or if they think that you might get turned on by looking at them. Or that you took them for the purpose of selling them so that others could get turned on by looking at them.

In today's America, child porn is any image of a child, or that appears to be of a child, that someone in authority judges to be "inappropriate" according to their own personal standards. And when that happens, they will go after the person in question like a rabid pitbull regardless of the truth.

Several years ago, I read a news story about a female artist charged with creating child pornography for painting a portrait of her young daughter. The girl was wearing a formal dress and sitting on a stool with her hands in her lap. I'm sure you can see the problem, right? No? The girl was MASTURBATING!!! At least that's what one uptight viewer thought after looking at the painting. They were apparently able to convince the authorities enough that the artist was investigated for creating child porn, child endangerment, etc. I'm pretty sure that all the charges were dropped, but not before Child Protective Services temporarily took the girl away from her mother, "for her own safety".

I tried searching for a link to it, but stupid Google keeps giving me porn matches instead.
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BTR1701, 23 May 2008 @ 6:08am

Re: The whole concept is flawed
> What constitutes porn? Is nudity enough or is some sort of sex
> act in progress necessary?

Even nudity isn't required. The federal law makes it a crime to even take pictures of fully-clothed minors who are out in public if the intent is to sexually gratify.

So if one guy takes a picture of the cheerleading squad at a junior-high football game because his daughter is one of the members, that's okay, but the guy next to him who takes the exact same picture is committing a crime if he does it because he thinks the girls are hot.

It's all very Orwellian.

But hey, if it protects the children, then nothing is too extreme, right?
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BTR1701, 23 May 2008 @ 6:12am

Re:
> If you plan to rob a bank but never actually carry it out you can
> still be charged for conspiracy.

No, you can't be charged with conspiracy, unless you plan to rob the bank WITH someone else. Conspiracy requires two or more persons. You can't legally conspire with yourself.

Also, the crime of conspiracy requires more than just planning. It requires an affirmative step be taken in furtherance of the conspiracy. So you can plan your robbery all you want but it doesn't become a crime until you, for example, you buy the tools or conduct surveillance on the target, etc.
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Anonymous Coward, 23 May 2008 @ 6:15am

Re:
> While the law may be incredibly stupid, it may not be
> unconstitutional, in which case the Court can't do much
> about it.

In this case, it clearly is unconstitutional and the Court could very well have done something about it but the Court tends to look the other way when constitutional violations support the members' political agendas.
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H. E. Larson, 23 May 2008 @ 7:19am

Supreme Court/ cild porn;
Well it is fraud though who would want to sue over that I do not know, but there is a sucker born every minute. I would like to know who voted which way, I can figure four on my own, that leaves three. It does seem to overstep the fifth and ninth amendments I am not a lawyer so I am just guessing. It might be that the justices were passing a copy of a Philip K. Dick book around, otherwise watch out. This is the kind of law used to make Germans safe from the evils of the lesser races, in the years before W.W.II.
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H. E. Larson, 23 May 2008 @ 7:33am

Re: wasting taxpayer money;
What has rarely been spoken about is the fact that ultraconservatives do not believe in government, and the country can do with out it. This is one of the little steps that are being taken, to cause people to break idiotic laws. When enough assine laws cause enough people to break the law chaos ensues. The government collapses and the corporations step up to the plate and run the country as it should be, for profit.
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Nasch, 23 May 2008 @ 8:40am

Re: The beginning of the end.
These people that may, or may not, have learned their lessons are being forced to move into practicaly penile colonies because they cannot be within a certain distance of "places where children congregate."

Some of them would be happy to live in a penile colony.
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Anonymous Coward, 23 May 2008 @ 9:34am

Re: What if?
Police officers are never subject to the law, you should know that. They're above the concerns of mere mortals like you or I. They're better than us.
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Anonymous Coward, 23 May 2008 @ 10:58am

This would also make child porn blacklists illegal, disempowering people from being able to avoid child porn sites. People won't be able to warn others to stay away.
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Bob Peters 61, 26 May 2008 @ 9:43am

Re: potential for abuse.
The problem with this law isn't in what it purports to do, but in the (deliberate) room for abuse thereof.

It's as if the right-wing extremists of this country plan to abuse every law they advocate because they pig-headedly insist that every law must be written so vaguely and broadly as to produce room for abuse.
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true man, 3 Jan 2009 @ 11:25pm

to stop child porn
We need to be more tightnet with our children if a man or woman fornicates with a child they should be brought to justice and that should be death,why? we already know why they doit they are sick we do not need to evaluate them anymore,we don't need them to live in trailer parks where they are free and we must talk to our kids.This is not a threat this should be a fact. Child molesters should rot in our worst prison system not given thirtyyears and eligible fo perole in fifteen.
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Anonymous Coward, 3 Jan 2009 @ 11:41pm

Re: My kid and pictures
The definition of porn is when two ore more people are recorded or pictured in a explicet act of sexualentercourse.If you are not selling them or giving them to people and makeing your child do sexuallymischeivious acts with you your wife or your friend down the road then i do not think it is pornographic material at all.But on the other hand if you are having sex or your freind is having sex or your wife is having sex or if you have pictures of your child forcible having sex with another child or adult,then may your God have mercy on your soul
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Anonymous Coward, 29 Oct 2012 @ 12:23am

Damn!
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Anonymous Coward, 29 Oct 2012 @ 12:24am

Damn!
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