Judge orders child porn suspect to decrypt hard drives | Hacker News Reader

Judge orders child porn suspect to decrypt hard drives

arstechnica.com

24 pointsnkhumphreys96 comments

> the Milwaukee-area man now must either ... or must provide an unencrypted copy of the data

How will they know if he provided an unencrypted copy of the data or some other data? Also, what if he forgot the password?

I have at least one pendrive with an encrypted partition that I wouldn't be able to decrypt. It's empty but that is supposedly unprovable. I should probably reformat it.

On the political side, the government is cleverly eroding the right to privacy. Virtually no one will stand up for a paedophile (whether the charge is true doesn't matter) so they get to set a precedence here and use it against whomever they want later.

I don't see an erosion here. Has the right to privacy ever allowed people to prevent access to something where there is probable cause to think there's evidence of a crime?

He isn't "preventing access". He is merely remaining silent on the matter, and has not admitted ownership of the drives or knowledge of the contents or decryption key. It is important to note that the judge never held that forced decryption of drives he owns violates the fifth amendment; he simply held that, at the time of the government's request, there was no evidence that he actually owned and controlled the drives and their contents. The recent discovery of the data on the other drives convinced the judge that the drives do in fact belong to him, and as a result he is now OK with ordering the forced decryption.

If you are doing bad things, you probably shouldn't use a decryption key that you could remember. Store that stuff elsewhere.

I think it's a wholly new situation. Previously, you couldn't be compelled to e.g. hand over the combination to a safe, but the police are free to just break into it, once they have a warrant. There's no "breaking into" cryptography, which sets it apart.

In any case, I don't see how the Fifth Amendment wouldn't apply here. Maybe we'd prefer that people not be able to take refuge in it for this stuff, but that means amending the Constitution, not ignoring inconvenient parts of it.

Based on previous rulings, the 5th Amendment doesn't apply because the State already has specific knowledge that this guy has child porn on an encrypted drive, through other means. That being the case, the act of decrypting the drive is no longer testimonial, as, by itself, it does not implicate him.

If they merely believed really, really strongly that he has CP on an encrypted drive, then compelling its decryption would be testimonial, because the State would have knowledge (namely, that he possesses child porn) after the act of decryption that they did not have before it. That makes the act of decryption, itself, testimonial, and subject to 5th Amendment protection.

EDIT: as has been noted else-thread, however, Wisconsin is in a different Federal Circuit than the aforementioned previous rulings, and so isn't bound by them.

My understanding is not that they have good evidence that there is CP on the encrypted drive, but rather that they have good evidence that the drive belongs to the guy and that he can decrypt it/has access to/knowledge of its contents.

The idea about not having to give up a combination/password is that by doing so you would essentially be admitting ownership/access/knowledge about the contents that were protected by that combination/password.

I don't really understand. If the contents of the drive don't implicate him in anything, why do they need him to decrypt it? If they implicate him in something, why doesn't the Fifth Amendment apply? Seems like these are the only two choices.

Also, what if he forgot the password?

IANAL but surely it would help to be able to prove that you've forgotten the password. If you use the same password (or small amount of password) for everything, and you can do it by muscle memory, then you probably haven't forgotten.

If you can show a blog post you wrote 2 years ago explaining how you change your passwords every month, then you might be safer.

How could you possibly prove that you have forgotten a password? Even being able to point to a rigorous password policy wouldn't really do it (and trivially few people would be able to do that much).

Proving that you forgot your password, like other forms of "proving your innocence", is an absurd expectation. The prosecution should have to prove that you did not forget it, and if they cannot do that then tough shit.

If you're technical enough to encrypt your drives, you are technical enough not to use the same passwords on everything.

I couldn't tell you any of my passwords off the top of my head. They're all stored in password managers.

Additionally, as someone else pointed out, it could be the case that the password he has expired and is no longer valid.

> On the political side, the government is cleverly eroding the right to privacy.

Which right is implicated here? After all, you have no 4th amendment protection against the government forcing you to unlock your cellar if they have probable cause and a warrant. That has been the status quo for oh about 250 years now.

The 11th Circuit has ruled that forcing a suspect to decrypt a hard drive implicates the 5th amendment right to not furnish self-incriminating testimony. However, that decision rests on a delicate characterization: that giving up the decryption key to a hard drive is testimonial in nature. After all, there is no 5th amendment protection against being forced to give up non-testimonial self-incriminating evidence (e.g. hair sample, or a key to your cellar). The 11th Circuit's decision rested on the fact that giving up a decryption key involved use of the mind, which made it testimonial in nature and made it more like forcing the suspect to tell you where the body is buried versus forcing him to give up a physical key.

The Milwaukee court is of course not bound by the 11th Circuit decision, and in any case sitting on my armchair I can't say its decision is in any way inconsistent with precedent. Fact is, as a general rule you don't have the right to impede the collection of evidence pursuant to a valid warrant.

> After all, you have no 4th amendment protection against the government forcing you to unlock your cellar

Am I obligated to unlock it? I can't bar them entry since they have a valid search warrant, but am I under the obligation to facilitate it?

In the case of the cellar, they can simply force their way in, but with an encrypted hard drive? They have no way of decrypting it without my help.

Yes, the court can hold you in contempt for not giving them the key. See: http://scholar.google.com/scholar_case?case=1347018669319368... ("He may in some cases be forced to surrender a key to a strongbox containing incriminating documents, but I do not believe he can be compelled to reveal the combination to his wall safe — by word or deed.", Stevens dissenting).

Downvoters: please don't ding people for presenting factual information with which you happen to disagree.

I didn't downvote anyone?

No, you were downvoted. Sorry for the ambiguity. Clarified.

You're presenting this as if it's settled law, but it's not. This is an area of active litigation. Here's an article I wrote about a federal judge in Vermont, for instance, saying that compelled disclosure of passphrases protecting encrypted volumes violates the Fifth Amendment: http://news.cnet.com/8301-13578_3-9834495-38.html

But a federal judge in Colorado reached the opposite conclusion: http://news.cnet.com/8301-31921_3-57364330-281/

The U.S. Supreme Court has not ruled on the constitutionality of compelled disclosure of passphrases. Which is why it's a mistake to make definitive claims in this area.

Also, has no one in this case heard of a hidden volume? (http://www.truecrypt.org/docs/?s=hidden-volume)

Would they then claim he hadn't decrypted it properly if they didn't find what they were looking for?

My attitude is simple.

If they have enough information to incriminate him, then they don't need the password. If they don't, then the 5th applies.

After he's been duly convicted by a jury (and NOT by the judge!) and being incriminated is no longer an issue, then they can compel him to decrypt the rest.

Or, alternately, they can compel him to decrypt it, but then all of that data is inadmissible in court.

"...after devoting “substantial resources” in the case, FBI agents apparently have been able to decrypt one of the drives. The government argued that because it had found “numerous files which constitute child pornography..."

So if they've found the evidence they're looking for, why keep pressing? Because they don't want to spend the extra effort to decrypt the rest and are looking for a plea bargain?

To see if they can identify the victim and take protective action.

>The government argued that because it had found “numerous files which constitute child pornography,” “detailed personal financial records and documents belonging to Feldman,” and “dozens of personal photographs of Feldman," Feldman therefore has “access to and control over” the set of drives.

So if the FBI puts my bank statements (PDF) and my photos in a drive along with "some files that constitute child pornography", am I guilty as well? "We found three safes. We opened one of them and found some illegal things in it. We swear we didn't put them there. We also found some financial records and photos belonging to this guy. We didn't put those there either. Pinky swear!"

I'm assuming they would have taken forensic images of the drives, rather than the drives themselves.

Tampering with evidence would be stupid. They'd go to jail, they'd risk all previous cases they've been involved in, etc. I guess it happens, but you need a lot more than "I bet they did it".

Yeah, so I'm convinced that the FBI would not have done the tampering. Now show that no other person has had access to the drives' contents prior to their collection as evidence.

He would certainly strengthen the case for that (his ownership and control of the data) if he was able to decrypt the drives himself.

They don't need to do that. The drives went from the defendant's house straight to the FBI evidence bag when they were picked up by the FBI evidence tech while searching his home.

If the defendant wants to argue that someone hacked his computers and put the CP on his drive before the FBI took them, that is for him to argue. If he can't provide any proof of such (note that he is not required to provide proof), it is unlikely that the jury will believe such a defense.

Yeah, you're right. I would like to know how they decrypted the drive though. "Substantial resources" does not say much. It could mean a lot of computing power, or just a lot of brute-force sleuthing to find the backdoor. What exactly should a third-party frame-up look like?

In my mind, at least, how they came to be able to decrypt the drive could possibly lend some credibility to their claim that he owned it and was in control of it, and the remaining drives as well.

Totally guessing, but the password is probably the weak point.

I would have guessed otherwise, if this guy is an IT pro, he probably knows to use a long and secure passphrase. I'll be surprised if someone who knows can say the password was the weak point. Maybe you're right, but...

I'd think the most likely way to get in would be to find the passphrase had been cached somewhere, or the unencrypted key was accidentally copied somewhere onto a swap file from some shoddily built backup process that used up most of the RAM compressing files, resulting in that or some similar leak.

Same as you though, I don't really have the slightest idea.

Because one hard drive still gives him a considerable degree of deniability. The court is essentially arguing that there is a threshold of suspicion beyond which it is OK to punish someone into admitting guilt.

Well, no. The number of hard drives is irrelevant. They already have enough to prosecute him and put him away (effectively, for life, using a civil commitment regime).

The purpose of attempting to compel the decrypting of the other drives is so that they can attempt to (1) identify new victims, (2) identify new predators, and (3) to identify new sources/trading sites for CP.

From a legal standpoint the 5th Amendment is not an issue if decrypting the drives would simply reveal more evidence of the crimes already charged (because guilt is not a matter of the quantity of evidence but rather its persuasiveness). However, if decrypting those drives would yield evidence of uncharged crimes, it would be a 5th Amendment issue which would bar the use of any such decrypted evidence against this defendant...but not against other defendants. They already have him dead to rights, so they would be perfectly happy to acquire evidence they can't use against this guy if it means they can go after others CP collectors/distributors/predators.

>The court is essentially arguing that there is a threshold of suspicion beyond which it is OK to punish someone into admitting guilt.

Assuming actual guilt, of course, as decrypting the harddrives is not a confession if he does not have child porn there.

They've found some evidence. If they can find more, it makes their case stronger.

It also could potentially allow them to either (a) identify and rescue a victim, or (b) identify and prosecute producers.

The (now) encrypted drives might have evidence that can be used to prosecute other people?

It's part of the complicated dance that prosecution has to do to not overstep the bounds of the 5th Amendment's ban on compelled testimony. 5th Amendment protections means that if you compel someone to give you information, then that information and its immediate consequences are no longer court-admissible evidence. If there is any information that you don't want to "poison" with self-incrimination, you want to make sure that you can establish that information separately.

So, if the court compelled the defendant to decrypt his hard drive, then the fact that that type of content was on his drives is a direct consequence, and therefore not court-admissible. However, now the existence of that category of content on drives under his control has been established independently. Therefore, the "cost" (in terms of information rendered inadmissible) of compelling decryption has been reduced considerably.

(IANAL)

My guess would be that they want to see if they can find information which will lead them to other pedophiles. But as long as his personal liability hangs in the balance, the protection from the 5th should apply.

There's that, and another thing that CP hunters like about having large filesets at their disposal is that it allows them to compute new hashes/fingerprints of files to test against in future hauls. The bigger the net the bigger the catch with these guys, typically. Microsoft and a local forensic unit in NL (the NFI) did a license deal on photodna to do just that.

The difference here seems to be that they successfully decrypted one of his drives and were able to prove that there was child pornography and that the drive belonged to him. At that point, as I understand it legally, he can be compelled to decrypt the drives because they already know he was possessing child pornography on at least one of his drives. It would be different if they did not actually know he had child pornography on his stuff.

So they can only force you to violate your 5th amendment rights if they "really really know" that you're guilty anyways?

You are begging the question of whether decrypting a hard drive is a violation of your Fifth Amendment rights.

Your 5th Amendment rights are completely and utterly irrelevant to their decrypting your drive.

Unless you are the one who is being compelled to decrypt the drive. Producing the key is an act of testimony. You could not state for the record, the passphrase for the key, if you did not know it.

Breaking his crypto in some way, to access his files without cooperation, on the other hand... that is no fifth-amendment violation, to be sure. It also doesn't prove that he's been in control or owns the data.

My reference is the case in which an agent saw that there was child pornography on a laptop before the lid was closed and the computer went into suspend; the agent then KNEW the machine contained the offending material, and so they could induce the person to decrypt the machine because the existence of the material was an already established fact and therefore not a violation of self-incrimination.

I don't like it. We had this long discussion on Slashdot when the first decision in favor of Defendant was delivered, where it should be considered wrong under any circumstances to compel a person to testify against himself.

The drive they decrypted has child porn and his personal files on it. How does that prove he was the one who encrypted it / put the CP on it? How does that prove anything about the remaining drives that they've not been able to decrypt?

http://slashdot.org/comments.pl?sid=3681715&cid=43537739

It seems like the only effect of this order would be to guarantee he's going to have either a guilty verdict or a contempt charge, even if it's a total frame-up and he never had the keys to begin with. If the FBI could really get into some of "his" encrypted files without any cooperation, who's to say that Frame-up Guy didn't also get into his (real) encrypted files, re-crypt the drive, and put incriminating evidence on it, next to some personal information to seal the deal?

Who wrote the requirement such that he is required to access the drives only 'while the authorities turn their backs' -- what can be the actual value of that? He's being compelled to testify against himself.

By either providing the keys or decrypting the drives, he would be proving that he was in (at least shared, not necessarily exclusive) control of their content. The FBI successfully decrypting the drives and finding CP does not prove anything additionally regarding the ownership.

I understand it would be very hard to prove that much with the very high bar I'm setting, but I think it's justified.

I wrote a long post exploring it but then realized your frame-up statement was more interesting. If I wanted to extralegally grind somebody into the dirt, maybe what I would do is deposit an encrypted drive with a shitty password, some personal files of the defendant, and some illegal files. Then I would submit this as court's evidence and use it to compel him to decrypt a drive that was actually under his control that never in a million years could we crack without his help. If he doesn't cooperate, we can hold him for eternity under contempt of court. If this decision stands, it could be used by unscrupulous law enforcement to socially engineer the legal system into routing around self-incrimination prohibition. Obviously this requires fabricating and planting evidence against a defendant, but history has shown this happens. So, I'd say it's a serious risk if this ruling stands.

Yes, but on the other hand, what is an appropriate standard to prove stewardship or ownership of information on a drive?

If you live alone, are a security professional, and maintain encrypted storage, it would seem to be completely impossible to prove that any information in your possession actually belonged to you as long as you were able to keep your keys private and secure throughout the investigation. If you ever slip up (it seems he did) and let some information leak (like leaving download/share logs with suspicious filenames on an un-encrypted drive), they can start to build a case against you. But if you don't confess, if they never obtain the keys from you, if they don't catch you in the act of accessing those files, it would seem to be an impossible standard of proof to meet.

Then again we're talking about the law that bans possession of a piece of information, with no respect for mens rea or any sort of allowances for cases of accidental acquisition. People who find Child Porn on their own computers are best advised to delete it, since reporting it to the police will be a straight-up confession to illegal possession.

It's right out of Fahrenheit 451. Have any artwork, we'll burn your house down. It could really be that it's just a bad law. I'm more torn, the more I have to think about it.

I can tell you though, when I was in college and I discovered that my server had been hacked, was running out of disk as it was being filled with German Scheiße porn, I didn't look to see how long it had been there. I deleted it. Wiped all of the drives immediately. Could have easily been 0wned for months. With having 9 drives and 7 of them encrypted separately, I would imagine it's actually going to be pretty easy to lose track of which items are really yours in there. Especially when you don't actually believe that anyone else has even been in for a visit.

I wonder what happens in a case like this if the person is simply unable to remember the password.

Just click the forgot password link :p

I wonder what the punishment will be for not providing the passwords or decrypting the drives.

Its contempt of court I believe- So indefinitely.

http://abcnews.go.com/2020/story?id=8101209&page=1

Reading between the lines, it seems to me like he was taking advantage of the free medical care in prison ("Meanwhile, the clock was ticking as Beatty Chadwick's health deteriorated. He has been treated for non-Hodgkins Lymphoma, which could recur at any time. "Here he is, 10 years, he knows he's not well," Bobbie told "Primetime.")

Contempt of court probably, but raynier can say in details.

Interesting thing will be what will happen if you are really unable to decrypt the stuff. If you store the keys away from the drives (lest say ram only server somewhere) that expires if it does not receive confirmation code every 24 hours. And the keys are lost forever this way.

Would that still be contempt of court? Or destruction of evidence, or whatever. Couldn't it be argued that it's a purposeful destruction of evidence if once they know they are going to court they stop putting in the code to keep the data from being destroyed?

From the article: He can't be compelled to provide a password if the court can't prove that he is the owner of the drive.

The work to decrypt one of the drives was done to prove that the drives were his property. If the court is convinced the drives are his property, they can compel him to release the contents of the property.

I imagine that:

1) If he doesn't know the password, he would have the first admit ownership of the drive -- this would allow the court to use evidence from the other drive against him.

2) If he doesn't own the drives, or maintains that he does not own them, the court has to rely on forensic evidence they can gather. Their case would be much stronger with more evidence and proof that the drives belong to him.

Can somebody (in the US) be ordered to aid their own prosecution? In the EU it would be against the European convention on human rights as far as I know. So I'm guessing the US constitution protects suspects in the same way?

You cannot be compelled to testify against yourself.

However, you can be compelled to turn over, say, your company's memos that describe how you were planning to build the orphanage out of plastic explosives.

Yes, it's called the Fifth Amendment to the Constitution here.

  No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or
  indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual
  service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in
  jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be
  deprived of life, liberty, or property, without due process of law; nor shall private property be taken for
  public use, without just compensation.

Ok, but not being a witness against oneself is not the same as not being forced to aid in prosecution? Because I think not to aid in your own prosecution is broader, allowing the suspect to refuse this court order. Or was this court order unconstitutional?

I'm not arguing anymore whether it's constitutional or not. I think the argument is that he's already proven to be in possession of Child Porn, so there's no harm to his case in providing the rest of the evidence on the remaining drives.

I think that's a despicable argument, as I thought "what would a frame-up look like" and if I was doing that to someone, I would have left the keys hidden conspicuously in an accessible place to one drive that I 0wned while in the process of setting this guy up. Now the remaining drives are automatically suspect.

The difference now is that they claim they are not asking for his testimony implicating him, since he's already implicated. I just don't see how things are much different now than they were before. You might be right, about the difference between aiding and being a witness. I'm not even sure, though, how to go about proving that a person is in control of a hard drive, encrypted or not.

Unless of course you found a thumb drive on their person with the keys, unprotected by a passphrase, and they can immediately be used to decrypt the drives.

In the UK several people have been successfully prosecuted for not handing over their decryption keys.

On what ground were people prosecuted for not handing over decryption keys? Because handing over keys to incriminating evidence is surely against article 6 of the ECHR?

Or was this corporate and/or tax-law? Because in a lot of countries these provisions are only part of criminal law.

Alleged terrorism http://www.theregister.co.uk/2009/11/24/ripa_jfl/ and Alleged paedophilia http://www.theregister.co.uk/2010/10/06/jail_password_ripa/

Now, is this "possession" of child pronography crap images that ended up in a Content.IE5 directory, or in Mozilla's cache? Or perhaps, even deleted from those locations? Or are these images that were in C:/windows/fonts/child_porn hidden folder?

And that, why is child porn illegal? It is only a picture of a CRIME THAT HAD TAKEN PLACE. Yet, snuff films and other films and pictures that show active murder are completely legal. And considering there is no mens rea for this possession, I believe that it should not be a crime.

For the people whom nodded me down, please answer this: why is child porn illegal but videos/pictures of murder NOT illegal?

why is child porn illegal? It is only a picture of a CRIME THAT HAD TAKEN PLACE.

An important question is: Does criminalizing the possesion of child porn reduce the chance of those original crimes from happening? I think it does, and I think that's a good reason to ban it.

It's also a good way to discourage people who like child porn, to tell them that there is something wrong with them, and that they should not do it.

That's his point. Would criminalizing violent movies reduce chances of violence? Many think it would; so ban those movies? Video Games? Guns? Knives? Rice cookers?

You're totally missing it. A CP image is a record of a crime, a violent movie is just a depiction of something that would be a crime except that it isn't real. So criminalizing child porn is of a different degree than criminalizing violent movies, the one is somewhat reasonable the other is ridiculous.

In many countries, virtual CP is also illegal. US law specifically includes a clause regarding material that "is, or appears to be, of a minor engaging in sexually explicit conduct" -- http://www.law.cornell.edu/uscode/text/18/2252A section (a)(6) .

So, are there markets for non-criminal recordings of "child" pornography? Can you tell the difference? I'm betting it exists, and "pedophiles" don't even know it. Are the laws the same against both mediums?

And while we agree upon the differences between the child porn and violent movies, I really don't trust lawmakers on making rulings for the consuming side of the equation. I wouldn't give them an inch.

How about criminalizing viewers of a video depicting a kid in a bike helmet entering a closet to exchange the disk on his laptop hooked into MIT's network? A video on a PS3 running "unsigned" software? Racial violence? Religious violence? You might or might not know if performing these acts fall on either side of the law and probably less likely to know if you can legally enjoy the reproduction made available by video. How do you make yourself aware and keep track of what is consumable, distributable, or otherwise?

Not only that, but my first comment was giving benefit of doubt about said images. If someone sent you the images unwillingly (coded into a browser as ads), how do you know until you downloaded it? And then, downloading then itself is illegal. You have to be a psychic to know if an image is indeed illegal.

After all, what's the difference (in the US) between a 17 yr 364 day old and a 18 yr old? A felony.

All of those things have legitimate uses that must be weighed against the harm they can cause.

The slipperly slope derailing tactic is silly. You could say that about any law. "Why have legal minimum wage? Eventually it'll be €1,000,000 per hour?", "Why allow people to kill in self defence? Surely eventually everyone'll be able claim anyone will be able to kill in self-defence and murder will be legal!!"

Definitely. So why have the law on "_consuming_" child pornography? I believe that is the top-most comment's concern. The law is so easily abused, subverted, or otherwise. It sets precedence for bad law or interpretation therein. It muddies society, where you can already be detained for god knows what -- probably even watching certain violent movies. What are those laws btw? Do I get a copy to sign away my livelihood?

And if you want to talk about slopes, how about the one this Feldman is on? He has yet to be charged with a crime, and that's enough to hand over your privacy, livelihood, and future, completely. Even if he complies and found guilty of no crime, he is going to have a mark to carry through the rest of his life. Again, as the parent presents, we have this exact problem with images traded by 18 and 17.99 year olds.

AFAIK, there is no law regarding "consuming" CP. There are laws regarding distributing, possessing, acquiring, etc.

But it's been a while since I've read http://www.law.cornell.edu/uscode/text/18/2252A ; feel free to prove me wrong.

So why have the law on "_consuming_" child pornography?

Yes. And I'm OK with that.

And yes there are few cases where a very broad written law can be bad, like a teenager sending a naked picture of themselves. Laws should be written better to exclude that. There is a vast amount of "sexual pictures of children" however that is quite clear to define, and should be illegal.

You make a good point. If, in fact, illegalization of child porn does decrease the rape of children, then so be it....

But as I stated above, that path leads to ignoring mens rea. Instead of "did you mean to", it is "you possessed it, too bad". This is badness to the point that I could send people CP via picture message on their phones, and turn them in.

Or worst yet, a 15 yr old girl sent a naked picture to her boyfriend. And then, SHE was prosecuted for the production of child porn. And it's her own fucking body!

Lastly, I do not count on politicians (of any party) being reasonable about this issue. They make crap laws, with holes and failures, and the prosecutors apply said laws the way they see fit. So, I am forced to fight for legalization of the pictures (AND prison time for the rapists).

> "that path leads to ignoring mens rea"

No it doesn't.

"a defendant cannot knowingly acquire or possess that which he or she does not know exists" - page 14 of [0]

Also note that US law allows for an "affirmative defense" [1] if you discover you possess a small amount of CP but do not intend to -- you can either destroy it, or turn it in to law enforcement, without consequence.

Which means, quite simply, that the courts have not abandoned mens rea in CP law. There are some parts of the law that are stupid, but that's not one of them.

[0] http://www.nycourts.gov/ctapps/Decisions/2012/May12/70opn12....

[1] http://www.law.cornell.edu/uscode/text/18/2252A ; see also http://en.wikipedia.org/wiki/Affirmative_defense

Well can't we just make it a law that it's illegal to possess and intend to possess child porn? What's so hard about that. You can often tell based on the files in a computer whether they intended to posses it. Are there dozens/hundreds of images, or only one? Are the images organised, or in the temporary browser cache? Have the images been saved over many dates or were they all created at once? The solution is better written laws, not no laws.

Or worst yet, a 15 yr old girl sent a naked picture to her boyfriend. And then, SHE was prosecuted for the production of child porn. And it's her own fucking body!

Oh I agree that that should not be illegal. So it's just a matter of tweaking the law to exclude that.

And given the kneejerk replies about "Being Tough On Criminals" ™ leads to idiotic laws that fail in all sorts of bad ways.

We have too many laws on the books (via local, state, and national) that nobody can be sure they aren't breaking SOME law, sometime. Last thing I want are more laws, that weren't tested to check validity.

And frankly, I don't trust the Democrats, Republicans, Independants, Libertarians, or whomever is in Congress. The lot of them have proved, time and again, that they are incompetent.

I live in a country without this bizzar multi-level law system (and don't even know how it works). Switch to a simplier system.

There is evidence that the legalization and accessibility of pornography can lead to a marked decrease in sex crimes (1). Of course its doubtful if we can transfer these findings to the situation with child porn, but at the same it's probably nigh impossible to do research on the topic.

1: https://www.ncjrs.gov/App/Publications/abstract.aspx?ID=1795...

But is that looking at "sex that would legal if it were consentual" (e.g. an adult man having sex with an adult woman). We don't want any form of sex with children to be legal (and I hope no-one's really suggesting this), so would making porn of adult/children sex legal increase the amount of adult/children sex or decrease it? Looking at adult/adult porn vs adult/adult non-consentual sex is comparing apples to oranges.

Do you want to begin locking up high schoolers who have sex with their high schooler significant others?

Most states (30 as of 2010) have "age gap" or "Romeo and Juliet" provisions in their statutory rape laws specifically to deal with such circumstances. Generally speaking, teens who are within a few years of age of each other are not committing a crime.

See http://www.crimevictimsinstitute.org/documents/Adolescent_Be... , which has an extensive list of state-by-state laws.

I am aware. rmc said "We don't want any form of sex with children to be legal (and I hope no-one's really suggesting this)." He is apparently not aware that it is legal for some children to have sex with some other children, and for some children to have sex with some adults, and really hopes that I don't suggest legalizing these things. The natural question when someone says "I hope no one's really suggesting <the status quo>" is to ask if they really mean that we should change our policy in that area, I think.

> "He is apparently not aware"

More likely, he's aware but chose not to address it (he confirms this in a sibling comment.) His point was about the effect of legalizing CP on "adult/children sex"; including disclaimers about age gaps involving borderline-adults and borderline-children would have made his comment less readable for little benefit.

The natural response to someone missing a disclaimer is to either let it slide or to note it in a non-adversarial way ("it is legal for those close enough in age" or something like that.)

Nope. I'm fully in support of it being legal based on age gap, and neither having position of power etc.

But there is an large age range where it almost certainly should be illegal. Is there any situtation where a 40 year old can have sex with a 10 year old? I think not. This is and should be illegal. We should stamp that out.

> We don't want any form of sex with children to be legal (and I hope no-one's really suggesting this)

Children should be able to have sex with other children legally. Though I don't know how you could transfer that legality to porn.

Look at sexting. Kids can be charged with child pornography simply for having naked pictures of themselves, or their girlfriend/boyfriend, on their phone.

I figure if I'm underage, I should still be able to take pictures and possess pornography featuring myself. And if I so desire, why shouldn't I be able to sell that picture and make money?

I'm not necessarily advocating all this, it's just food for thought.

I took an easy-A class on computer crime at school. I discovered that applying the fundamental principals of law unilaterally, even when it applies to child porn, is a quick way to get people to label you a pedophile.. but here goes anyway:

> Does criminalizing the possesion of child porn reduce the chance of those original crimes from happening? I think it does, and I think that's a good reason to ban it.

"I think it does" is not a sufficient motivation for a federal law. Generally, evidence should be required to drive policy, but I'd settle for successful deployment to a small number of jurisdictions before scaled deployments.

> It's also a good way to discourage people who like child porn, to tell them that there is something wrong with them, and that they should not do it.

Oh yeah, because a good scolding works so well for addicts.

Oh yeah, because a good scolding works so well for addicts.

Here's an example: Gay men. For decades they were shunned and told they were horrible. The act was illegal, and if a gay man flirted with someone, no-one'd look the other way if the fliter was assaulted, possibly killed. You could be fired for being gay, or kicked out of your home. As a result there were very few acts of gay sex and many gay men did not live as gay men, instead staying in the closet and living as if they were straight; wife, kids the lot. So yes, shunning and scolding people can work to reduce the rate of which the sex act is done. (How else can you explain how many gay men lived as straight men for so long?)

Just being in the closet is not evidence that a person wasn't actively gay. What is your evidence that gay sex happened less frequently when homosexuality was forbidden?

The US court system has consistently ruled that you cannot "possess" something you do not know exists [0]. Thus, if you are ignorant of your computer having stored an image (or ignorant of its contents), you cannot be convicted of possessing that image.

One of the major reasons CP is illegal is that demand is thought to drive production.

[0] see page 12 of http://www.nycourts.gov/ctapps/Decisions/2012/May12/70opn12....

You would be right, but you would have to show that there are murders taking place for the direct production of snuff films, that there are (significantly) as many murderers feeding snuff film addicts as there are child pornographers feeding child porn addicts.

Put simply, snuff films don't encourage further murder (not through the audience, and not indirectly from demand).

Snuff films are illegal.

CP is illegal because it represents an ongoing harm to the child in the CP, and because the CP itself is considered criminally obscene. (The First Amendment is not absolute, and content like CP is not protected by it.)

There are other scientific/medical reasons for banning CP, but the primary reason is that possessing CP is a gateway sex crime that leads to greater offenses over time.

It's illegal to watch snuff films? Does this include things like news reports about elevators in China and rice cookers in Boston?

It's illegal to make and possess snuff films. It's not illegal to watch them. It's a legally vast distinction.

AFAIK it is physically possible to construct drives that cannot be backed up and that self destruct if you decrypt with the wrong key (using quantum magic).

Reply on news.ycombinator.com