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CHILD PORNOGRAPHY - DEFINITION - CONT'D

Class III

Finally, we have a class that can, in general terms, be classified as “true” Child Pornography (if such a thing actually exists). This class represents materials where clearly underage children are depicted participating in sexual acts (from very simple to abhorrent). In the West, this type of material is the one that is typically implied by “agents of the law” when persecution and prosecutions are made. Fine. Finally a clear-cut definition, right? Well, no. Even in the West the rules of the so-called “Marriageable age” vary (see Wikipedia if you don't believe us). There are places where children 14 years old (or younger) are permitted to be “married”, although this is uncommon. The youngest "marriageable" age on average seems to be 16 years.

In such circumstances, any visual depiction of sexual acts (whether in the form or photographs, videos or sound recordings) could not be thus classified as Child Pornography, but merely as “family records” because the sexual relationship is one sanctioned by the state.  As such, if a “family member” chooses to share “family records” with other people, this can’t either be classified as Child Pornography. But then again, although such considerations may be valid in one country, they don't typically survive a border crossing. And how about in Africa or Asia? The situation is much more relaxed and "marriages" are allowed at much, much younger age (oftentimes by way of use and costume or through a token permission from parents or through the judiciary) within a monogamic or polygamic relationship. Latin America? In some places the youngest allowed age is 14.

Now, we have to be clear in one point. The "Marriageable Age" above described is the minimum legal age. What happens in reality is vastly different. Many countries simply lack a law enforcement system which is broad enough and has sufficient resources to enforce those limits. In many other countries, law enforcement is vastly subjective because people at the top are locals who "understand" uses and customs and do not wish to upset them because they either agree with them or for their own benefit (political or otherwise). However, even in those circumstances it is very unclear what happens when the letter of the law is applied. In many countries (i.e. the vast majority of them) an underage marriage is not automatically nullified. This means that even in the event a spouse (of legal age) which is part of an underage marriage gets prosecuted, their marriage remains valid and thus the material is either legal or it falls in legal limbo.

Fine. But moving beyond the "marriage" exception, this kind of material is clearly rated as Child Pornography, correct? Well, not exactly. Not if you live in the Russia where downloading or possessing Child Pornography is not a crime. As a matter of fact and according to Wikipedia ("Legality of child pornography") and other sources, Child Pornography is not explicitly addressed in a few countries and when it comes to simple possession, the issue is even more obscure. So, is Class III material clearly defined as Child Pornography? In the majority of countries, yes… but not always if it comes to simple possession.

Class Summary

So, what can we say about the definition of Child Pornography for materials Classed and I, II and III? That Class I and II are ill-defined and utterly variable, subjective and subject to personal interpretations. And how about Class III? This class is much better defined, and in general terms it would seem more consistent, albeit not always.

POSSESSING OR VIEWING

Now that we understand the different classes of Child Pornography and how ill-defined they may be, it is worth asking the following question: which Classes are persecuted and prosecuted?

And here is where the whole thing becomes muddled. Different countries will do vastly different things in different scenarios. For example, people watching Class I materials are far less targeted by "agents of the law"… unless there is clear political or religious element that pushes them to do so. With Class II, people are seldom targeted… unless there is a specific law that so requires… and the "agents of the law" are not busy chasing "bigger fish". Class III "offenders" are persecuted and prosecuted but this decision is taken under a variety of different conditions in different countries. For example, a person downloading one file may get a pass because files in the internet are routinely mislabelled or, it may not, depending of the current political climate. On the other hand, assiduous downloaders may get targeted by lengthy investigations or may simply be ignored if they operate in "non-cooperative" countries of the East or Asia.

Furthermore, Class I and II materials can be used (and sometimes are used) to "bulk up" the file of a person downloading a minimum amount of Class III material to make the prosecution "viable". Because the very definition of Child Pornography is so variable, it presents fertile ground for subjectivity and variability.

CREATING

A similar question can be asked about how are the creators of such materials persecuted and prosecuted. For Class I materials, people are almost never persecuted because if that would be the case, pretty much every person on the planet would be indicted. However, there are exceptions. Over the years there have been cases where people have been denounced to the authorities for creating and possessing "Child Pornography". The denounced have been persecuted and prosecuted with the weight of the evidence being only of Class I. Yet, the prosecution went forward. Why? Because it became a political issue. Politicians would have looked "bad" in the eyes of the voters if they would have been perceived as being "soft on kiddy porn".

For Class II materials of Real type and in the West, people are persecuted and prosecuted but typically these actions fail because they are "barely legal"… but legal nevertheless. In other countries the producers of such materials are either ignored or vigorously persecuted and prosecuted. Yes, quite contradictorily.

For Class II materials of Simulated nature, people are typically neither persecuted nor prosecuted anywhere in the world. This is so because it is a very rare occurrence that this kind of material be produced outside of Japan.

For Class III materials, people are persecuted and prosecuted but the number of such events is quite small. This is probably due to the difficulty in actually finding the origin of such materials. This is so because the degree of persecution depends again of the political climate and the degree of cooperation of certain countries. For example, countries that used to belong to the USSR are known to be very little cooperative. On the other hand, countries members of the EU have a reputation for massive cooperation.

PROPAGANDA, THE ORGANIZED CRIME, MYTHS AND AMATEURS

To make matters even more complicated a cursory review of available law cases indicates that the vast majority of prosecutions are directed towards consumers (i.e downloaders and viewers) first, amateur producers second and criminal producer organizations last. In that order.

Propaganda and Myths

When the "agents of the law" present their "achievements" they often publicize the following kind of information regarding arrests:

  • People with an extremely high amount of materials
  • The use of "sophisticated" means of achieving electronic anonymity
  • The notion that this was a "group" of people
  • And that this group of people was "organized" (think the keyword "ring")

All these characterizations although technically true are disingenuous. Let's analyze:

People with an extremely high amount of materials are rare indeed. If this would not be the case, this fact would have been widely publicised precisely because it is news. Alas, it is not, publicized, that is. We always come across statements such as "one subject had in his possession 50000 photographs depicting children is several sexual acts".  And the other participants? No idea. The most likely scenario is that they only had a few… which is not noteworthy for the daily news.

The use of sophisticated electronic means to remain anonymous. Again, if we review the case law and the statements of people who were prosecuted and the ones that still remain un-identified, we will realize that they did not use anything that a 10 year old child couldn't implement by itself. What were these "sophisticated" means? The use of the Tor browser (download, install and surf), the use of a Virtual Private Network (subscribe to a service and set-up through a Windows Configuration Wizard in 5 minutes flat) the use of Tor-based services such as Tor-mail (i.e. anonymous e-mail - subscribe and use), anonymous (i.e. non-logging and encrypted) Usenet forums, the I2P network and so on. Nothing of this advanced technology is actually complicated to use. The whole point of such technology is that although complicated, the complexity is actually hidden from the user. The bottom line is that the vast majority of people that get prosecuted use advanced technology but they don't even know what are they using. However, this is not the entire picture. Sometimes there are one or two people with above-average tech skills capable of setting up hubs to exchange such materials, for example a Webserver as a Tor-hidden service. However, these people are far and in between, and this technical achievement is mediocre at best with the current deluge of how-to instructions available in the Internet now days. Again, read the police statements and the case law. The majority of the cases deal with users of technology not technological leaders.

The "organized" "ring" of people. This is yet another strange way of presenting the evidence. Most users of such materials do not form a "community" in the normal sense (i.e. they don't have meetings, they don't have massive chat places, they don't elect presidents and so on). If this would be the case, the Internet would be flooded by such chat if we are to believe government statistics about the very large number of downloaders. Alas, this is not happening. Thus, most of the time the "groups" of people that are being prosecuted are simply people who happen to use the same technology. There is no "ring" or "group" in the classical sense which implies some sort of well-defined hierarchical organization. Most of the time, they are just people uploading and downloading material in a hub. Think social network and you will get the idea. Nobody in their right mind would call Facebook participants a "ring".

The Organized Crime

Fair enough, but the title also made reference to organized crime… or did we missed something?

No. Well spotted.

When the "agents of the law" release public statements, such statements are designed to mold people's views. As such they typically imply far more than what will actually be presented in court. For example, they oftentimes refer to a "criminal organization", the implication being the mafia of something of the sort being behind it. This could not be farther from the truth. Again, a cursory review of case law indicates that actual prosecutions dealing with Child Pornography which can be unquestionably attributed to real, actual organized crime is almost negligible.  Why is this so? We don't actually know but we can produce an educated guess. Most organized crime is not stupid. Profits matter. Risk-adjusted profits matter even more. Why would a criminal organization create true Class III material for sale in the West (where the vast majority of disposable income exists) if they also know that the West is the most active in prosecuting such activities? Furthermore, such endeavours would have unique characteristics which place them at further risk. They need to advertise and remain online at all times otherwise they will lose customers. Not a great criminal tactic where the hit-and-run is far safer. Then, they also need a way to process electronic payments, but such payments always leave electronic traces. Which means that they must now operate in a few countries where the "agents of the law" can be bribed… which increases costs. They also need to bribe politicians to keep them off their turf, but politicians don't want to be associated with Child Pornography as it is a definitive career-ender. And so on. Basically, the risk is very high and the rewards not so great. For whatever reason may be, true organized crime producers of Child Pornography are fairly uncommon within the ecosystem of Child Pornography in the Internet.

For example, some estimates indicate that about 50% of all websites catering to users of Child Pornography are pay-per-view. Fine. But how many of them belong to actual organized crime? We don't know but from the data outlined in previous arrests, very few if any. They are, in contrast, created by individual entrepreneurs. Furthermore, the fact that such sites exist do not necessarily imply that their owners actually create Child Pornography. As a matter of fact, there is very little information to this regard and all indications point towards the direction of such sites being purely member exchange-type endeavours, which mirror to large degree similar sites dealing with legal pornography. Furthermore, there seems to be a large tendency to switch to de-centralized peer-to-peer systems because economic matters (free) and perceived or real anonymity. Lastly, from the information at hand (which is not much) we have the distinct impression that the amount of Class III materials located in paid websites is dwarfed by the amount of materials located in peer-to-peer networks.

Amateurs

As such, if you take the time to analyze available information from "law enforcement evidence" and painstakingly read their lines and between lines, you almost always invariably notice that the material in question is of amateur nature. Again, this actually makes sense. If true organized crime is not the main generator of material, then there is only one source left: regular, average people. However, this reality does not match the image that the "agents of the law" attempt to portrait. Individual people creating such material independently from each other does not portray an image of a massive risk; it is only "average Joe" with a camera. On the other hand, a central, evil mastermind and its evil empire of Child Pornography users do embody a clear and present target. However, the reality is that by its very nature the Internet is distributed. Sure, you have hubs here and there, but for the most part people come and people go. Information comes and information disappears and Child Pornography material is not the exception. If this would not be the case, why is that one of the most interesting traits that was observed in consumers of such material is the tendency to accumulate and classify it? If such material would be readily available on demand (such as regular porn) there would be no need for archiving. Alas, this is not the case.

Note: please see the Glossary if you are unfamiliar with certain words.

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