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Comment by dleslie | Hacker News Reader

> There’s no excuse for a company like Microsoft that earned $8.8 billion in profit last quarter to be underfunding safety measures.

Perhaps the problem is that there is an excuse: it is likely that they believe that they are neither responsible for the images they index, nor are they beholden to proactively engage with law enforcement.

This is where treading the line between conduit and publisher can bite the corporation who is attempting to do so. While Microsoft does not host the images, it does index them and serve links to them. What's more, they also host thumbnails and metadata that allow the images to be browsed and discovered.

Because they host the thumbnails and metadata, are they not a publisher? They're hardly acting as a disinterested router of opaque data when the data served is stored on their servers and indexed by their algorithms.

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I don't see how torrent linking is a crime and Bing indexing and offering this kind of content is not. Especially when the anti-piracy lobbying crowd insisted on "what about the children ?".

I don't think Microsoft will be using that argument anytime in the near future, the public backlash would be huge and if they were knowingly indexing it they would still be subject to legal liability - heck even if they were unknowingly indexing it they could be liable for negligence if due care wasn't taken to prevent these kinds of images from being circulated.

I think Microsoft would argue that there is no real way to prevent these images from being indexed considering that most indexing is automated and it's hard to train their systems to recognize offending images and their human employees can't possibly look through all the images to prevent child porn from being posted.

Except they claim to be experts in the field of identifying Child Pornography.

https://www.microsoft.com/en-us/photodna

That's a managed database of KNOWN material though.

Very different from categorizing random web content.

That's why Google hires people to curate their image database and flag illegal images, so that they can detect them automatically in the future.

It looks like Microsoft wasn't doing anything at all to stop new child porn. The fact that their recommendation engine pushes you further in the direction of pedophilia is proof enough that they weren't actively trying to avoid this kind of thing.

Pretty sure Microsoft does the same.

https://www.theguardian.com/technology/2017/jan/11/microsoft...

Having child pornography in your pocession is a crime. If MSFT has indexed without showing any good faith effort to avoid indexing then the DOJ can and should prosecute them for the felony that it is.

No. That's not how it works. Corporations are not people, regardless of the Citizens United ruling. The laws don't apply the same way.

They can be charged civilly for the equivalent (child endangerment or something).

Yeah, that's not the part that I'm disagreeing with.

Specifically:

> If MSFT has indexed without showing any good faith effort to avoid indexing then the DOJ can and should prosecute

That's not how it works. At all. That part right there.

For statutory crimes, this is how it works for people.

"We don't care the reason or mitigating circumstances you have, or even if you did it. You have the $thing , so you're at fault."

(The -1's, this is how statutory crimes work. I'm stating a fact, not making ethical determinations about it. I personally think that mens rea absolutely needs to be incorporated at a minimum.)

The phrase you are looking for is "strict liability offence".

As I've mentioned above, child porn is NOT a strict liability crime. The prosecutor will definitely need to prove you knew or should have known it was child porn.

In many states, the possession of child pornography is absolutely a strict liability offence.

For instance: https://kellerlawoffices.com/child-pornography-accidental-po...

Corporations can be criminally charged: "Corporations are 'legal persons,' capable of suing and being sued, and capable of committing crimes."

https://blogs.findlaw.com/blotter/2014/04/what-happens-when-...

I don't know what Microsoft might be guilty of here, if anything. But corporations can be indicted.

Yes but the company can’t be put in jail. At the most they will punish someone if they did something knowingly. That’s the issue with this law, it acts like companies are people, but in the end the punishments are not the same.

The root goes back to the fact that child porn laws do not contain a mens rea. It's a statutory crime: you possessed the image, you're guilty.

Almost every other crime take in account the mind of the accused. Someone who forgot their dog food was on the bottom of the cart and leaves isn't committing theft, as long as they go back and make it right. And on the other end, we execute people who conduct premeditated murder. And also we take in account an accidental homicide due to negligence (manslaughter) as a limited punishment.

And worst yet, how do you tell a 17year364days old's image on pornhub and 18year old's picture? You get arrested for CP on the 17.364 image if you're caught and they know it's bad. Did it matter if the minor perjured themselves? Nope. Did they use a fake ID? Who cares. You're at fault.

Most child porn statutes, even if they dont include a mens rea requirement in the plain language, often have it read in. Child porn is NOT a strict liability crime. Rather, it's treated more like a drug crime.

Stop peddling disinformation.

Strict liability is absolutely in place in many states.

https://kellerlawoffices.com/child-pornography-accidental-po...

Corporations aren't people, but that doesn't mean that they and the people that run it are immune from prosecution. As an example, the Deputy AG in California is considering murder or manslaughter charges against PGE[1].

1. https://www.mercurynews.com/2018/12/28/state-ag-if-pge-cause...

> Having child pornography in your pocession is a crime.

That really depends on the legal domain one is operating in and even between those where it is a crime, the definitions as to what constitutes as "child pornography" and what not, isn't as easily drawn as some people like to think [0].

[0] https://www.gazettelive.co.uk/news/teesside-news/anime-fan-c...

Around 1500 people a year according to government stats of the UK (VAWG report) are convicted of having animated "child porn". Robin Hoque was unfortunately not an isolated case.

Once FmRI and brain reading tech is ready, merely thinking or wondering about it or the insanity of CP will be illegal.

Microsoft has a technology that protects against child porn, in which they license. There is no doubt they've made an effort.

https://www.microsoft.com/en-us/photodna

https://www.theguardian.com/society/2013/jul/27/social-worke...

https://www.huffingtonpost.com/2013/07/30/bing-child-abuse_n...

Making $8.8B in profit doesn't mean you're able to solve any technical challenges.

Do you really think Microsoft is showing them on purpose? What's the gain? I can see the loss and not just in PR.

IMO, they failed but others failed to properly screen cp, until they fixed it.

I do not believe there is any purposeful or malicious intent from Microsoft. But that doesn't mean they cannot or should not be held responsible for the data that they host and serve.

Doesn't reddit serve thumbnails?

Wave after wave of recent subreddit bannings due to reddit now believing they will be directly responsible for data they are helping to serve should make one stop to reflect about how exactly such a law would be enforced.

Fine, but responsible in what way? Not like they did it on purpose. Their bots found the images, Bing just forgot to exclude them. Now they're work a lot more to exclude them.

If there wasn't a gain, why would they process or index them in the first place? If you don't want to be responsible for the data you process, don't process it.

Because classifying huge amounts of content is highly non-trivial. It's not like there are a million employees sifting through every spidered resource and manually deciding whether it should be indexed.

I think Microsoft is being purposefuly laxer than other engines. Their main intend must be to have more ‘regular’ porn, but child porn will also fall in the basket.

What’s the gain? relevance among porn users.

Perhaps we can compare this to fishing. Nobody catches dolphins on purpose, but a lot of fishers will use wide nets well knowing that some dolphins will be trapped in.

They may not have intent, but they are clearly acting negligently.

By a legal definition of negligence?

I dont think its that. I think they just did a shitty job filtering this content.

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