Last year, Bitcoin had a bit of scare. It’s possible to include comments in the cryptocurrency’s indelible ledger, and someone had anonymously included links to child porn — an apparent attempt to legally poison the blockchain. In theory, it meant everyone with a bit of Bitcoin could have been accused of sexually exploiting children.
What this really tells us is that the laws around this sensitive and terrible issue are incoherent, and don’t help children.
A teen girl going through puberty snaps four pictures of herself in four different underwire bras to share with her doctor. She’s recently become a D-cup and is struggling with back pain. She’s trying to figure out what kind of bra and what kind of posture will help. She uses her father’s photo management software on his computer to save the photos so she can take them in later to her doctor.
Her father is a geophysicist working with large sets of data and images. He has taken a portion of his work put it in a shared folder on the internet, so that other scientists can get access to the data. Without realizing it, his teen daughter has put her photos into a subfolder of his shared folder.
Another geologist reads a post on a small mailing list giving a link to the shared folder, and uses software that grabs everything and the subdirectories, storing them on his laptop for later use, on his way out the door. He leaves the country, attends a conference, does some field work, and quite sometime later returns. At this point he has not only not looked at the data, he has forgotten he has it on his laptop. As he re-enters the country, he’s pulled aside by CBP and asked to turn on and enter his password on his laptop. He does so. They copy the contents, and finding the pictures, turn the case over to a local prosecutor.
The geologist is charged with having child porn, his defense financially destroys him, he is painted to his community as a child molester, and eventually convicted and sentenced to 10 years.
This may sound crazy, but every part of it has already happened — just not together. Cases similar certainly have. Children have been accused of child porn for taking selfies in bras, people gathering datasets have ended up with illegal files they had no idea existed, and police have charged people based on unrelated searches, and put them in jail for material they didn’t know they had.
Child porn cases where someone provably has pictures of children are nearly impossible to fight. If I hated you, and I made a throw away mail account and sent you a file called “Very Important.pdf” but it was actually a .zip file of child porn, I could call the police and claim you had child porn in a disguised file — and that might well be enough to ruin your life, even if everyone involved was pretty sure you never even saw the pictures. Possessing child porn in digital form is against a law that isn’t realistic in the digital world.
It is upsetting to think that prosecutors are so inhuman and irresponsible as to charge people with crimes they know aren’t in the spirit of the law, but it happens every day. The career incentives are that investigations must lead to charges, and charges must lead to convictions. Prestige and pay are based on this, so once something is investigated prosecutors are motivated to make sure someone goes to jail. To let people ‘off the hook’ endangers one’s job, even if the reason to let them off is innocence. We can’t depend on prosecutorial judgment when we discuss the law.
Sexual exploitation of children is a horrible thing. But what the law describes as child porn and child porn related offences are often not sexual exploitation of children. Even when children are being sexually abused or exploited, the law and society usually respond terribly. Most laws around sex are in desperate need of reform, since they punish victims and dehumanize disadvantaged young people. But often the digital imagery of children which people have are just another set of digital sequences that wander around the net and get lodged where they don’t belong.
Right now, the law effectively treats every bit of crufty data, every teenage file system mistake or selfie indiscretion as if the possessor had abused the child themselves. This is insane, and it doesn’t help children — it distracts time and attention from the real ways children get hurt. The laws around digital possession are almost a lottery for ruining lives, which you enter by having an internet connected computer. Legal experts and legislators need to stop hiding from the risks of digital life and put their expertise towards fixing this.